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

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134 COLUMBIA HUMAN RIGHTS LAW REVIEW [43:65 interests, rights, and values because of the inevitable confusion that would result. 315 These criticisms suffer slightly because of the artificial edifice they are attempting to construct. Even though it would be comfortable to think about each legal doctrine as nicely compartmentalized in a separate box, to be opened one by one as need arises, the reality is that the factual scenarios giving rise to dignity claims are rarely neat. Indeed, the proxy approach to the right to dignity tries to resolve one of the main criticisms regarding human dignity, i.e., that it is too difficult to define to make it of any use to a jurisprudential system. Because of the difficulties of narrowing down a precise meaning to the right to dignity outside of a factual setting, the proxy approach might seem to be the ideal method to integrate dignitary rights within a legal framework, because the link between dignity and something else will always be made within the context of a specific factual scenario. Indeed, using dignity as a heuristic gives effect to the Kantian notion of dignity, because, to the philosopher, the concept of human dignity was subsumed within his concept of autonomy, which is closely related to our modern concept of liberty. In sum, the proxy approach would allow American courts to express, through the invocation of the right to dignity, a certain moral viewpoint, 316 centered upon the fundamental notions of freedom and equality that have been and continue to be, the main focal points of individual rights discourse in the United States. D. Hortatory Language – The Expressive Approach As seen above, the concept of the role of human dignity within modern democratic governance has attracted a wide variety of adjectives, often ranging from the superlative to the grandiose. Indeed, it is not rare to have prominent commentators refer to the dignity of the individual as the core element, the basic building block, 315. See generally Dworkin, supra note 87 (arguing that rights exist outside legal recognition, and advocating for a coherent theory of what those rights are); see also Fyfe, supra note 4, at 11, 12, 15, 25 (lamenting the Canadian Supreme Court’s use of dignity as a marker without giving the term any “independent meaning from its surrounding words;” caustically declaiming that “[l]iberty needs neither Kant nor dignity;” decrying the conflation of dignity with liberty; and concluding that “dignity is misconceived and misplaced” when woven into the fabric of other rights). 316. See Doron Shultziner, Human Dignity—Function and Meanings, 3(3) Global Jurist Topics 1, 6 (2003) (describing that the use of the right to dignity reflects “a whole moral world view”).
2011] The Right to Dignity 135 on which all of society—legal and otherwise—rests. 317 Thus, human dignity is said to function as an allencompassing pervasive value that forms the fabric of modern democracy, 318 even though the practical meaning of this is not always explained. In this framework, the right to dignity is widely invoked as both a legal ground and a moral basis for redress of certain violations by the government or by private individuals. However, reliance on human dignity as one of our most basic human values is not merely confined to the legal texts and judicial pronouncements. In pitching or touting legislative initiatives, the political class often links policy goals to dignitary interests. 319 These statements, and others that pertain to the immutability of dignity or its presumed high value in the minds and hearts of all people, probably stem from the fact that they are comfortably general and they are also quite difficult either to disagree with and disprove. The effect of this is the impression that “[m]oralists of various sorts use the term[] ‘human dignity’ . . . often, but frequently these words have little more than rhetorical effect . . . .” 320 It is upon this “rhetorical effect” that the fourth possible approach to the right to dignity depends. Legal statements of all shapes and sizes are intended to have the effect of inducing compliance (if legislative) or of redressing past wrongdoing (if judicial); therefore, there is a clear practical consequence of what gets said within these legal structures. However, there is another level of communication that is served through observation of legal pronouncements—that such statements represent the societal representation of either the descriptive (what is) or the normative (what should be). In other words, statements of law have an inherent worth detachable from the instrumental purposes that they serve: They are expressive. Thus, all the representations of the right to dignity that have been detailed in this Article do not merely resolve a case, or set forth a legislative, constitutional, or international 317. See, e.g., Martti Koskenniemi, Constitutionalism as Mindset: Reflections on Kantian Themes about International Law and Globalization, 8 Theoretical Inquiries L. 9, 18 (2007) (referring to this as a “constitutional mindset”). 318. See Vlad F. Perju, The Puzzling Parameters of the Foreign Law Debate, 2007 Utah L. Rev. 167, 184. 319. See, e.g., William J. Clinton, President’s Radio Address (June 24, 2000), available at http://www.presidency.ucsb.edu/ws/index.php?pid =26#axzz1YzuMw6Ca (justifying additional Medicare benefits by arguing that “we have few responsibilities more important than helping our older Americans live out their lives with quality and in dignity.”). 320. Harris, supra note 3, at 1.
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The Right to Dignity Rex D. Glensy - Columbia Law School

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