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

142 COLUMBIA HUMAN RIGHTS LAW REVIEW [43:65
instead proceed with the use of human dignity under whichever
approach appears best suited for the particular circumstance at hand.
The problem with such a methodology is that it would perpetuate the
present situation—an ad hoc, erratic, “muddled and inconsistent”
approach filled with minefields and pitfalls that cannot be identified
in advance. 341 Christopher McCrudden counsels that “we should not
underestimate” the importance of the right to dignity. 342 This
importance suggests that there are both pragmatic and normative
reasons for the United States to welcome the right to dignity into the
jurisprudential family. From the pragmatic side, as demonstrated in
Part II above, courts in the United States have already employed the
right to dignity in many guises, but they are doing so randomly and
unpredictably. One of the most important tasks when dealing with
the right to dignity is to work out “its practical implications, in
different concrete contexts.” 343 The adoption of a sound normative
theory to guide the use of dignitary interests will lead to more
consistent and practical rules of law that are more likely to appear
principled, and thus have an increased probability of being respected
and followed. 344 From the normative side, adoption of a consistent
theory for the utilization of the right to human dignity is an
acknowledgment that such a right “is the affirmation of the moral
principle of democracy; the principle that the human being and his
dignity constitute the reason for existence and justification of political
organization.” 345 A plausible theoretical grounding for dignity rights
also recognizes that dignitary interests, being referenced over and
over again by courts and theorists alike, must mean something in
American law. Therefore, “even where there is not a . . . consensus on
some aspect of the minimum requirements of human dignity, there
may be good reason to affirm its validity.” 346 The paramount reason to
affirm this is also the simplest: that the right to dignity best reflects,
more than any other right, the essence of being human.
341. Fyfe, supra note 4, at 2.
342. McCrudden, supra note 29, at 679.
343. Paolo Carozza, “My Friend is a Stranger”: Death Penalty and the
Global Ius Commune of Human Rights, 81 Texas L. Rev. 1031, 1082 (2003).
344. See Deborah Hellman, The Importance of Appearing Principled, 37
Ariz. L. Rev. 1107, 1151 (1995); Richard Posner, The Meaning of Judicial Self
Restraint, 59 Ind. L.J. 1, 9 (1983).
345. Arroyo v. Rattan Specialities, 117 P.R. Dec. 35, 59 (1986) (citations
omitted).
346. Carozza, supra note 79, at 937.