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

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108 COLUMBIA HUMAN RIGHTS LAW REVIEW [43:65 not that the right to dignity has to be shapeless by its very nature, and thus is subject to inconsistent use, but rather, that so far there has been no coalescence (particularly in the United States) around the rational possibilities that exist for a coherent legal theory of human dignity. That is why, in a variety of contexts, commentators advocate for explicit references to the right, so that first regularity, and then consistency, can become achievable goals. 206 Detailed studies of the import of dignity in legal discourse have been undertaken in other countries, 207 but much less so in the United States. What comes across is that dignity rights seem to be grounded in a paternalistic or communitarian concept of society, 208 rather than in the libertarian tradition that is thought to be the undercurrent of most rights and liberties in the United States. 209 Yet America has absorbed concepts of rights from the English common law, recognizing torts such as defamation and intentional infliction of emotional distress, which, in part, seem to be motivated by the desire to preserve human dignity in the form of one’s reputation or emotional wellbeing. Moreover, from a constitutional standpoint, some Americans have “endorsed the idea that dignity is the D.C.: American Studies Center 1990). Judge Easterbrook sets up a false dichotomy, as if the right to dignity cannot exist within a framework of legal rules. The reality is that neither of these concepts is mutually exclusive. 206. See e.g., Kwall, supra note 94, 1345–1346; see e.g., Castiglione, supra note 3, at 661–662. 207. See e.g., Orit Kamir, Honor and Dignity Cultures: the Case of Kavod (Honor) and Kvod haAdam (Dignity) in Israeli Society and Law, in D. Kretzmer & E. Klein, The concept of Human Dignity in Human Rights 231 (2002) (analyzing the Israeli system); Catherine Dupré, Importing the Law in Post Communist Traditions: The Hungarian Constitutional Court and the Right to Human Dignity 108 (2003) (analyzing the Hungarian system). 208. See generally Winfried Brugger, Communitarianism as the Social and Legal Theory Behind the German Constitution, 2 Int’l J. Const. L. 431 (2004) (describing the system of communitarianism as one which regulates the relationships between the individual and the centralized authority of the state and emphasizes the importance of private communities and associations); see also Robert Post, Constitutional Domains 23–116 (1995) (describing three different types of laws in a heterogonous society—assimilationist, pluralist, and individualist—and how each one promotes either a communitarian set of values or a more libertarian set of values). 209. See, e.g., Marc Chase McAllister, Human Dignity and Individual Liberty in Germany and the United States as Examined Through Each Country’s Leading Abortion Case, 11 Tulsa J. Comp. & Int’l L. 491, 491 (2004) (arguing that securing civil liberties, not protecting human dignity, is the formative principle of the American Constitution).
2011] The Right to Dignity 109 fundamental value underlying the U.S. Constitution.” 210 It is therefore quite inaccurate, both historically and analytically, to state that the right to dignity, or at least, the concept of dignity rights, is foreign to American legal thinking. 211 The task is then to delineate the parameters of what a workable right to dignity might look like in America. Some have observed that the possible pervasiveness of dignity could affect so many different legal rules that it would be hard to count them all. 212 In fact, the most hallowed of those rights enumerated in the Constitution could be easily thought of as having their germinating root in the idea of the right to dignity. It is undeniable that the adaptability of democracies to different systems of governance that nonetheless can and do accommodate a role for human dignity within their structure counsels in favor of the use of dignity rights in some fashion. Given the examples illustrated in Part II.B.2 above, it is clear that there are several options for the use of human dignity within the full corpus of a legal system: one can treat dignity as a right in and of itself, or as a general principle, or as a value 210. Parent, supra note 131, at 47 (referring to both Ronald Dworkin and Justice Brennan); see also Resnik & Suk, supra note 68, at 1941 (arguing that the Supreme Court has “changed the content of United States constitutional law to name dignity as a distinct and core value”). Although this proposition might be controversial as applied to the U.S., it certainly is not when it comes to the German Basic Law or the new South African Constitution. See e.g., Christian Walter, Human Dignity in German Constitutional Law, in Proceedings of the UniDem Seminar, Montpellier, July 2–6, 1998, The Principle of Respect for Human Dignity, European Comm. for Democracy Through Law, at 24, 26 available at http://www.venice.coe.int/docs/1998/CDLSTD(1998)026e.asp (Ger.) (citing Germany’s Constitutional Court as considering the human dignity clause to be the highest value of the Basic Law); Dawood v. Minister of Home Affairs 2000 (3) SA 936 (CC) at 961–962 35 (“dignity is not only a value fundamental to our Constitution, it is a justiciable and enforceable right that must be respected and protected”). 211. Andrew Clapham has identified four aspects of what could constitute a jurisprudence of human dignity: (1) proscriptions on degrading treatment of individuals; (2) guarantees pertaining to personal autonomy; (3) protections on group identity; and (4) creation of conditions to meet an individual’s basic needs. See Andrew Clapham, Human Rights Obligations of NonState Actors 545–46 (2006). Each of these aspects could have a corollary legal rule associated with it within the purview of U.S. law. 212. See, e.g., Hyman, supra note 1, at 5 (listing blue laws, capital punishment, cloning, decriminalization of drug possession, gay marriage, geneticallymodified food, gun control, legalized prostitution, partialbirth abortion, physicianassisted suicide, prohibition of hate speech, school prayer, school vouchers, state lotteries, and threestrikes laws as all having the potential of affecting, either positively or negatively, human dignity).
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