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

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132 COLUMBIA HUMAN RIGHTS LAW REVIEW [43:65 have been less reticent to point out the connection. The Inter American Court of Human Rights has stated that the “notion of equality springs directly from the oneness of the human family and is linked to the essential dignity of the individual,” and that therefore not all acts of unequal treatment will perforce rise to a viable antidiscrimination claim because “not all differences in treatment are in themselves offensive to human dignity.” 307 Thus, to the Inter American Court of Human Rights, the violation of the right to dignity is the test for equal treatment under law. Similarly, the right to dignity informs the equality jurisprudence of the Constitutional Court of South Africa. 308 In Canada, the Supreme Court has referred to the right to dignity as prohibiting stereotyping and prejudice when interpreting its own equal protection clause. 309 What appears evident is that the dignity heuristic is extremely active in equality jurisprudence all over the world, proving that the coexistence between these concepts is a happy and productive one. One can, of course, direct legitimate criticism at approaching the right to dignity as merely a subservient right, fully ensconced within other rights. The first line of criticism is that the specific injuries protected by enshrining an independent right to dignity might not always overlap with those already protected under other rights and that therefore there might be violations of human dignity that could inflict considerable harm, which would be unprotected. Put in the context of certain rights—for example, the right to privacy— “there are ways to offend dignity and personality that have nothing to do with privacy.” 310 Similarly, it can be argued both from a semantic and a logical vantage point that dignity is not equality, 311 and equality is not dignity. 307. Proposed Amendment to the Naturalization Provision of the Constitution of Costa Rica, Advisory Opinion OC4/84, InterAm. Ct. H.R. (ser. A), 5–6 (Jan. 19, 1984). 308. See Ryan F. Haigh, South Africa’s Criminalization of “Hurtful Comments”: When the Protection of Human Dignity and Equality Transforms into the Destruction of Freedom of Expression, 5 Wash. U. Global Stud. L. Rev. 187, 194 (2006). 309. See, e.g., McKinney v. University of Guelph, [1995] 3 S.C.R. 229 (Can.) (finding that the purpose of the equality guarantee is to promote human dignity and protect against stereotype and prejudice as tools of discrimination). 310. Ruth Gavison, Privacy and the Limits of Law, 89 Yale L.J. 421, 438 (1980). 311. See Jeremy Rabkin, What We Can Learn about Human Dignity from International Law, 27 Harv. J.L. & Pub. Pol’y 145, 146–154 (2003).
2011] The Right to Dignity 133 While both of those sentiments have an attractive simplicity, a little inquiry under the surface reveals them to be somewhat lacking. As to the separate injury argument, while there are actions that can offend dignity that do not offend privacy, because privacy in many respects is itself subsumed within the concept of liberty, those actions that might not offend privacy but do offend dignity, now might be brought within the purview of an injury to liberty. Additionally, if these same actions do not offend liberty either, they arguably should not constitute imputable actions in the first place. The reply to the second argument is that, while it is clearly true that dignity and equality are not coterminous as a matter of vocabulary, they do overlap significantly, and it is that overlap that constitutes the basis for the proxy approach—not a search for perfect congruence. Another line of attack posits that if the right to dignity is simply viewed as another way of expressing another right, then its invocation adds very little, if anything, to the analysis, and does not help to interpret the underlying act for which it is being invoked as a proxy. 312 Some critics bolster this theoretical attack with examples drawn from actual jurisprudence. For example, in the case of the German Constitutional Court’s references to dignitary interests, it has been noted that when a violation of human dignity was alleged, it always “went along with the alleged violation of other individual rights so that access to the Court never depended on the qualification of human dignity as an individual right.” 313 In the same vein, Robert Post has a foundational critique of the proxy approach to the use of dignity, at least visàvis the linkage between human dignity and equality. He argues that antidiscrimination law should not be envisaged as concerned with the protection of human dignity, but rather as a legal enterprise, akin to a normative agent designed to change a harmful social order that has oppressed traditionally disadvantaged categories of people. 314 Ronald Dworkin takes a similar view, but expands this notion to caution against the conflation of 312. See Joel Feinberg, The Nature and Value of Rights, 4 J. Value Inquiry 243, 252 (1970) (“[W]hat is called ‘human dignity’ may simply be the recognizable capacity to assert claims.”) 313. Walter, supra note 210, at 27. 314. See, e.g., Robert Post, Prejudicial Appearances: The Logic of American Antidiscrimination Law, 88 Cal. L. Rev. 1, 17 (2000) (arguing that American antidiscrimination law should be understood not as an attempt to transcend racial and sexual classifications in order to seize upon each person’s “individual worth,” but rather as sociological tool regulating controversial, and prejudicial, social practices).
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The Right to Dignity Rex D. Glensy - Columbia Law School

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