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

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).