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

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72 COLUMBIA HUMAN RIGHTS LAW REVIEW [43:65 lest the use of dignity rights fall prey to the criticism that dignity can mean many things at best, and at worst means nothing. 31 II. USES OF DIGNITY It has been said that “[d]ignity does not exist in the world, nor does it describe the world.” 32 Nevertheless, human dignity is “perhaps the premier value underlying the last two centuries of moral and political thought.” 33 Indeed, dignity has “carried an enormous amount of content, but different content for different people,” so that it has been subjected to the vagaries of time and opinion. 34 As a starting point, dignity has been considered to be an elemental part of human personhood that “defines man’s essence as a unique and self determining being.” 35 This means that, at a minimum, dignity means 31. Such accusation might take the form of characterizing dignity as “an empty . . . vessel into which any variety of normative ingredients can be placed.” Fyfe, supra note 4, at 9. 32. Id. at 16. 33. Hugo Adam Bedau, The Eighth Amendment, Human Dignity, and the Death Penalty, in The Constitution of Rights: Human Dignity and American Values 145, 145 (Michael J. Meyer & William A. Parent eds., Cornell Univ. Press 1992); see also Lorraine E. Weinrib, Human Dignity as a RightsProtecting Principle, 17 Nat’l J. Const. L. 325, 325–26, 330 (2005) (describing dignity as being a central concept of human rights in the latter part of the twentieth century and noting that the “concept of human dignity reconfigured the relationship between the individual and the state.”); Carl Friedrich, The Political Theory of the New Democratic Constitutions, 12 Rev. of Pol. 215, 217 (1950) (noting that the “stress laid upon the dignity of man” was of central importance to the postWWII constitutions). 34. McCrudden, supra note 29, at 678, 698 (also noting that human dignity is “culturally relative, deeply contingent on local politics and values, resulting in significantly diverging, even conflicting, conceptions”). 35. Bloustein, supra note 6, at 971. This notion has been expressed by other scholars in slightly different ways. See, e.g., Yehoshua Arieli, On the Necessary and Sufficient Conditions for the Emergence of the Doctrine of Dignity of Man and His Rights, in D. Kretzmer & E. Klein, The Conept of Human Dignity in Human Rights Discourse 1, 12 (2002) (indicating that dignity is a central claim of modern man’s autonomy and involves man’s “capacity to be lord of his fate and the shaper of his future.”); Charles Taylor, The Politics of Recognition, in Multiculturalism and “The Politics of Recognition” 25, 25 (Amy Gutmann ed., Princeton Univ. Press 1992) (expressing the notion that dignity inures in every human being as a result of selfawareness); Margalit, supra note 12, at 51–68 (claiming dignity as the ability of humans to make decisions about their own lives); Alan Gewirth, Human Dignity as the Basis of Rights, in The Constitution of Rights: Human Dignity and American Values 10, 10–11 (Michael J. Meyer & William A. Parent eds., Cornell Univ. Press 1992) (grounding in dignity that worth, value, esteem, and deference are owed to all humans).
2011] The Right to Dignity 73 the “[r]espect for the intrinsic worth of every person,” which entails that “individuals are not to be perceived or treated merely as . . . objects of the will of others.” 36 Notwithstanding these characterizations of the meaning of human dignity, there is no accord as to what the import of these definitions might be, that is, what the content of dignity might involve. In fact, because “there has been no systematic reelaboration on the concept of human dignity which has been able to command . . . at least widespread acceptance,” this concept “has been used to express underlying philosophical beliefs of quite different kinds for the purpose of reinforcing them with its powerful appeal.” 37 These different philosophies constitute contrasting material, upon which it is very difficult to base a coherent legal theory that pertains to incorporating human dignity into legal doctrines and rules. Thus, agreement on this notion is a desirable goal, so that this concept can be referenced with substance and precision. A. The Idea of Dignity The notion that the concept of human dignity has a role to play in the formulation and interpretation of legal rules is receiving renewed attention. Several works have focused on the primacy of human dignity within legal discourse, and books and compilations of essays have been published on this topic. Thus, for example, Myres McDougal focused on human dignity as a basis for ordering human rights around the world under the aegis of international law. 38 Michael Meyer and W.A. Parent edited a compilation of essays, written by scholars including Martha Minow, Owen Fiss, and Louis Henkin, that devoted its attention to the place of dignity within the constitutional structuring of fundamental rights. 39 Additionally, David Luban has constructed a theoretical approach to legal ethics 36. Schachter, supra note 14, at 849; see also C. Edwin Baker, The Scope of the First Amendment Freedom of Speech, 25 UCLA L. Rev. 964, 992 (1978) (noting that dignity also entails that “people’s . . . definition . . . of themselves, must be respected,” so that people are not treated as instrumentalities). 37. Giovanni Bognetti, The Concept of Human Dignity in European and US Constitutionalism, in European and US Constitutionalism 75, 90 (Georg Nolte ed., 2005). 38. See Myres S. McDougal et al., Human Rights and World Public Order (1980). 39. See The Constitution of Rights, Human Dignity and American Values (Michael J. Meyer & William A. Parent eds., Cornell Univ. Press 1992).
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