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

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110 COLUMBIA HUMAN RIGHTS LAW REVIEW [43:65 underlying other rights. What seems to be a unifying theme, however, is that any definition of dignity rights must, at a minimum, acknowledge that every individual has protected specific inner attributes, such as thoughts and feelings, and possessed the independence to choose his own course in life, unfettered by interference from the state or other people. In other words, dignity embodies the principle of an individual’s entitlement to exercise his free will. Because of the variety of ways in which rules about human dignity can manifest themselves, a coherent jurisprudence of human dignity will reflect a consistent value judgment that will be based on certain normative choices. One of these choices will be to determine whether dignity rights will be protected negatively (through proscriptions on government activity) or positively (through government mandates). The same rights can have both positive and negative dimensions—for example, even though free speech in America is treated as a negative right, other democracies that protect this right see it as more positive. 213 This distinction has implications for other rights, such as the right to have an abortion, that, when viewed through a positivistic dignity lens, might be construed in a more limited way than it is currently in the United States. 214 Another value choice would be whether the right to dignity is to be referred to at a high level of abstraction, in order to avoid conflicts about its possible meaning that could occur if it is discussed at lower or more specific levels. The key to these sets of choices is that, in most circumstances, they are normatively neutral—in other words, there is no overriding reason to prefer one to the other so long as all alternative solutions are equally workable. Further, while it might be of interest to the academy to explore what philosophical impulses one 213. See Guy E. Carmi, Comparative Notions of Fairness: Comparative Perspectives on the Fairness Doctrine with Special Emphasis on Israel and the United States, 4 Va. Sports & Ent. L.J. 275, 300–05 (2005) (comparing broadcasting regulations in the United States, where freedom of speech is protective and applied without regard to content, and in European countries where the fairness doctrine envisions some restrictions on expression with the goal of ensuring impartiality). 214. See Donald P. Kommers, The Constitutional Law of Abortion in Germany: Should Americans Pay Attention?, 10 J. Contemp. Health L. & Pol’y 1, 3032 (1994) (discussing the differences in constitutional abortion decisions in the U.S. and in Germany, where the German court balances a state duty to protect a fetus among many other state duties, including the duty to protect pregnant women’s rights, while the U.S. jurisprudence focuses on privacy as a negative right protecting an individual against state intrusion).
2011] The Right to Dignity 111 wishes to gratify through dignity jurisprudence, the reality is that different philosophical underpinnings of the right to dignity can nevertheless give rise to coherent legal doctrines. Therefore, the important principle to keep in mind when constructing a jurisprudence of dignity is that, whatever rules are constructed must have sufficient viability without being too narrow or too broad. McCrudden summarizes the task by asking whether dignity “can . . . be a basis for … rights, a right in itself, or . . . simply a synonym for . . . rights?” 215 The answer is that it can be all, but for the sake of clarity, coherence, cogency, and predictability, a choice should be made in favor of one of these options. A. Substantive Legal Right – The Positive Rights Approach The most sweeping impact that one could give to the right to dignity would be to view it as a separate independent right, upon which individuals could assert a private action against both the government and other private parties, and which would require the government to provide a minimum set of standards to ensure that each person’s human dignity is protected. The premise for this view of human dignity would come from an understanding that in a democracy, state authority is actually derived from individuals freely expressing their personal preferences without interference from the state—the ultimate consequence of respect for human dignity. This concept implies that respect for human dignity is not merely a vague goal, but a normative abstraction given substance through both general principles of law and more specific legal rules. In giving the right to dignity a positive nature, the first consideration is that the resulting private right of action would target injuries that could be independent of any other injury to another right. 216 This is a consequence of the positive thrust of human dignity that is meant to instill a culture of respect through social norms and law. In other words, a positive jurisprudence based on a fundamental 215. McCrudden, supra note 29, at 656. 216. This notion is reflected, for example, in the substantive meaning given to Article 3 of the European Convention on Human Rights that prohibits torture, as well as other inhumane or degrading treatment. In interpreting this provision, the House of Lords has noted that actionable conduct results when “treatment humiliates or debases an individual showing a lack of respect for, or diminishing his or her human dignity or arouses feelings of fear [or] anguish.” Regina v. Secretary of State for the Home Dept., ex parte Limbuela [2005] UKHL 66, [53– 54] (appeal taken from EWCA) (H.L.) (quoting Pretty v. United Kingdom [2002] 35 EHRR 1, 33 [52]).
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The Right to Dignity Rex D. Glensy - Columbia Law School

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