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

2011] The Right to Dignity 139
encountered because particular rhetorical choices have a profound
impact and, over the course of time (that sometimes could be rather
short), they might change perception and thus perpetrate unintended
consequences. This means that dignity as an expressive tool risks
functioning as a fifty ton weight placed on a scale designed to
calibrate ounces: it destroys the machinery. 334 Arthur Schopenhauer’s
critique of Kantian dignity resembles, in many ways, this sort of
critique of the expressive approach to dignity rights. Schopenhauer
lamented the weightless nature of the expression “human dignity”
that, once uttered, “became the shibboleth of all perplexed and empty
headed moralists” because “behind that imposing formula they
concealed their lack . . . of any basis at all which was possessed of an
intelligible meaning.” 335 From this perspective “[d]ignity is indeed a
feeling . . . but . . . law is a discipline of reason [and] [t]he problem
with feelings is that no one can argue against them.” 336
A lot of what has been identified as criticism of the expressive
approach to the right to dignity can also be termed as a strength.
Thus, the very use of the right to dignity in a judicial opinion will
highlight the importance the court is giving to what is being
discussed and therefore will have all the more normative power,
rather than being viewed as empty words. In fact, many of the past
uses of the right to dignity as an interpretative standard cannot be
dismissed as mere “throwaway” lines, 337 but rather should be seen as
a deliberately calculated deployment of the vocabulary designed to
bring attention to the concept being discussed. Indeed, the expressive
approach captures an “added dimension” of the problem being
discussed, in terms of human dignity, that might not exist in other
cases and that possibly could be underappreciated should the
334. See Alfred Gibbins, How in the World Can You Contest Equal Human
Dignity?, 12 Nat’l J. Const. L. 25, 28–29 (2000) (criticizing the use of the concept
of human dignity within equality jurisprudence).
335. Arthur Schopenhauer, The Basis of Morality 101 (Arthur Brodrick
Bullock trans., 2d ed. 1915).
336. Donna Greschner, Does Law Advance the Cause of Equality, 27
Queen’s L.J. 299, 313 (2001); see also Helga Kuhse, Is There a Tension Between
Autonomy and Dignity?, in 2 Bioethics and Biolaw: Four Ethical Principles 61, 74
(Peter Kemp et al. eds., 2000) (“[T]he notion of human dignity plays a very
dubious role in contemporary bioethical discourse [because] . . . it has a tendency
to stifle argument and debate and encourages the drawing of moral boundaries in
the wrong places.”).
337. See Hasson, supra note 176, at 84 (arguing that the rhetorical use of
the right to dignity served important purposes).