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

2011] The Right to Dignity 115
States, but in a changing society, where the years of dependency at
the end of one’s life are increasing, it is something that ought to be
considered. After all, it certainly is in the state’s interest not to have
a huge underclass of destitute or quasidestitute children, mothers,
elderly people, or sick people. 230
However, the positive reading of the right to dignity does not
merely play out as a matter of public law. Private rights of action
against other private parties are also a staple of a robust right to
dignity. In accordance with this principle, “every individual . . .
should be recognized as having the capacity to assert claims to
protect [his] essential dignity.” 231 These claims are not, strictly
speaking, new to the American system. However, they would have to
be slightly retooled so that specific and definite injuries to a person’s
dignity would give rise to legally cognizable claims. The causes of
action relating to a violation of one’s dignity are defamation,
publication of private facts, intrusion into seclusion, misappropriation
of the right to publicity, and, quite possibly, copyright and trademark
infringement. 232 Broadly speaking, what links all of these rights of
action is the nature of the injury that they cause: reputation, image,
privacy, and name, can all be tied to a theory of human dignity.
The key difference in the affirmative mandate explored above,
which is one facet of a positive version of the right to dignity, is that
here the dignity norm places upon private parties the duty not to
violate such interest in others. In other words, the affirmative
mandate is translated into a specific code of conduct applicable to the
private individual that then can be acted upon by another private
230. Even people not generally prone to accepting that the state should
provide a supporting role in these circumstances do concede that there is some
element of state responsibility in this area. See, e.g. Mary Anne Case, How High
the Apple Pie? A Few Troubling Questions about Where, Why, and How the Burden
of Care for Children Should be Shifted, 76 Chi.Kent L. Rev. 1753, 1785 (2001)
(acknowledging some collective responsibility for child care issues).
231. See Schachter, supra note 14, at 851; see also Hendriks, supra note
229, at 472 (“Dignity . . . is also sometimes interpreted as imposing duties on
individuals towards other members of the community, to ensure that everyone
can lead a dignified life.”).
232. For example, in the copyright context, the fair use doctrine is used to
determine when someone is entitled to use copyrighted material without seeking
permission of the copyright owner. While the fair use doctrine essentially focuses
on the economic harms suffered by the copyright owner, it is not difficult to see
how dignitary interests can be affected by an improper use of a copyrighted work
and thus, under a positive view of dignity rights, these ought to be taken account
of in a fair use analysis.