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

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140 COLUMBIA HUMAN RIGHTS LAW REVIEW [43:65 hortatory language be omitted. 338 In this way, the reference to the right to dignity helps judges provide context in cases that might present significant interpretative or semantic difficulties. It is absolutely true that any expressive model requires an added attention to detail in the language being used, because terminology choices can easily influence the outcome, and in the case of the right to dignity, this idea is enhanced even further because of the power that the term creates. In fact, even general claims that are couched within the right to dignity can gain adherents following a persuasive use of the concept. Therefore, the right to dignity’s “[c]entrality and attractiveness . . . may be . . . its malleability rather than the tightness of its logic” that reinforces “the rhetorical value or even the constitutional attractiveness of the claims or projections” to which it pertains. 339 This shapelessness, while a possible disadvantage under the first two approaches explained above, and possibly even for the third approach, can be transformed into an asset, if one seeks merely an effective rhetorical deployment. History has repeatedly handed down the lesson that the power of the word is almost supreme, both positively and negatively, and this is especially true within the law. What all commentators on the appropriate use of the right to dignity have similarly taught is that, whether one agrees or disagrees with the notion that dignity rights should play an important role in modern jurisprudence, invoking the right to dignity in a case or other legal instrument makes a powerful statement. Law relies on language to communicate its dictates and decisions. Indeed, the AngloAmerican tradition of law does not merely rely on cold soulless pronouncements of decisions that could easily be spat out by a computer, but rather is very much dependent on textual constructions that have a distinct literary, if not elegant, quality. If one believes that there is a point to text, language, and phraseology in law, then the expressive approach fits squarely within this view. 338. See Resnik & Suk, supra note 68, at 1938 (exploring the historical use of the word “dignity” to “decry the harms inflicted by Nazi Germany and Stalinism.”). 339. David N. Weisstub, Honor, Dignity, and the Framing of Multiculturalist Values, in D. Kretzmer & E. Klein, The Concept of Human Dignity in Human Rights Discourse 263, 265–266 (2002).
2011] The Right to Dignity 141 IV. CONCLUSION All four approaches presented in Part III above contain attractive characteristics, and all four have certain shortfalls that can be addressed (as done above), albeit imperfectly. The key to the answer should be the ease in which each proposed approach could be integrated within already existing American jurisprudence. This guideline is premised not only on the goal of giving the right to dignity its maximum realistic effect upon U.S. law, but also on the practical reality that law rarely proceeds with major jolts, but rather is more adept to cautious incremental change. While a detailed research agenda—the scope of which exceeds that of this Article— should be structured to answer the question posed, preliminarily, my choice would rest on the proxy approach. The positive rights approach, while probably the most robust and effective use of the right to dignity, is relatively uncommon in the United States. Its implementation would necessitate the most radical rethinking not only of dignity rights, but also of constitutional rights and causes of action in general. The negative rights approach is rather tempting, if one believes in the propriety of protecting dignitary interests; however, the ubiquity of dignity would render its impact almost meaningless. 340 The expressive approach, in many ways, is subsumed within each of the other three approaches, because one cannot detach the hortatory value from the use of the term without actually using the term, so it will always play a role regardless of which approach is chosen. Nevertheless, the weakness with having an approach that is solely expressive is just that—in a strictly legal sense it has little impact, and in the nonlegal sense it would be difficult to predict what its influence eventually would be. The proxy approach is that with which the use of dignity best fits within presently framed constitutional, statutory, and common law standards. It requires the least amount of adjustment with current doctrine and gives the right to dignity its appropriate role within the constellation of rights that are already protected in the United States. One might question choosing one approach at all, and 340. This is the main problem with the thesis presented by Maxine Goodman. She lists a litany of doctrines that would be affected by having dignity as an underlying norm, and by the end of that list, one is left wondering if there is anything left. See Goodman, supra note 23, at 753 (“[H]uman dignity . . . underlies our constitutional rights to privacy, liberty, protection against unreasonable search and seizure, protection against cruel and unusual punishment, and other express rights and guarantees.”).
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