The Right to Dignity Rex D. Glensy - Columbia Law School

2011] The Right to Dignity 107
acceptance can be translated into tangible legal doctrine? 200 It is not
enough to give the canned answer that “dignity rights are in the eye
of the beholder” and therefore inherently not subject to any legal
coherence whatsoever. 201 A similar answer could conceivably be given
to the concepts of “liberty,” or “privacy,” or, indeed, “equality,” and we
nevertheless construct ample legal rules around these ideals. The
answer, therefore, must lie in the ability to build a plausible legal
theory that would translate the idea of the right to dignity into a
consistent jurisprudence.
III. POSSIBLE APPROACHES TO HUMAN DIGNITY
As illustrated above, the main criticism of the current use of
dignity rights is that it is awkward, clumsy, sloppy, instrumental,
inflationary and open to judicial vagary. 202 This stems from the
supposed amorphous, elusive, metaphysical, and intangible nature of
the very concept of human dignity, which leads some to speculate
that it would be nearly impossible to create a dignity jurisprudence
that is internally consistent and provides the citizenry with clear
rules to follow. 203 One commentator has indeed stated that because
“dignity cannot be quantified, it cannot be operationalized, no matter
how appealing as a policy standard it might otherwise appear to
academics.” 204 Similarly, Judge Easterbrook has dramatically
remarked that “[w]hen we observe that the Constitution . . . stands
for ‘human dignity’ but not rules, we have destroyed the basis for
judicial review.” 205 The reality, however, is somewhat different. It is
200. Or, to put it another way, “[c]an the dignityconscience logic lead
toward a theory of rights?” Hasson, supra note 176, at 84.
201. See Goodman, supra note 23, at 773 (characterizing the Supreme
Court’s use of dignity within Eighth Amendment jurisprudence as “weak and
meaningless”); see also Law v. Canada, [1999] 1 S.C.R. 497, para. 53 (Can.)
(“[t]here can be different conceptions of what human dignity means”); see also
Hyman, supra note 1, at 6 (“it is unlikely that we, as a nation, will be able to
settle on a single notion of human dignity”).
202. See e.g. Matthias Mahlmann, Elemente einer ethischen
Grundrechtstheorie 100 (2008); Christian Walter, Menschenwürde im nationalen
Recht, Europarecht und Völkerrecht, in Menschenwürde in der säkularen
Verfassungsordnung 127 (Bahr & Heinig eds., 2006).
203. Oscar Schachter lamented this “throwing up your hands” attitude
writing, “it is not . . . satisfying to accept the idea that human dignity cannot be
defined or analyzed in general terms.” Schachter, supra note 14, at 849.
204. Hyman, supra note 1, at 17.
205. Judge Frank Easterbrook, Approaches to Judicial Review, in Politics
and the Constitution: The Nature of and Extent of Interpretation 29 (Washington,