Dignity

Global Constitutionalism
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DISCUSSION LEADERS: LECH GARLICKI AND REVA SIEGEL A. DIGNITY: A GENEALOGY Universal Declaration of Human Rights (United Nations) ....................................... IV-5 Christopher McCrudden, Human Dignity and Judicial Interpretation of Human Rights ................................................................................................ IV-8 Jochen Abr. Frowein, Human Dignity in International Law .................................. IV-11 Samuel Moyn, Personalism, Community, and the Origins of Human Rights ......... IV-12 B. DIGNITYS PROLIFERATION IN THE TWENTIETH CENTURY DIGNITY IN INTERNATIONAL HUMAN RIGHTS DOCUMENTS International Convention on the Elimination of All Forms of Racial Discrimination (United Nations) ....................................................................... IV-13 Convention on the Elimination of All Forms of Discrimination Against Women (United Nations) .................................................................................. IV-14 Charter of Fundamental Rights of the European Union (European Union) ............ IV-14 American Convention on Human Rights (Organization of American States) ........ IV-15 Arab Charter on Human Rights (League of Arab States) ....................................... IV-16 DIGNITY IN NATIONAL CONSTITUTIONS Constitution of Ireland............................................................................................. IV-17 Basic Law for the Federal Republic of Germany .................................................... IV-17 Constitution of the Republic of Portugal ................................................................. IV-18 Constitution (Fundamental Law) of the Union of Soviet Socialist Republics ........ IV-18 Socialist Constitution of the Democratic Peoples Republic of Korea ................... IV-18 Constitution of the Peoples Republic of China ...................................................... IV-19 IV-1
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Basic Law of Israel: Human Dignity and Liberty ................................................... IV-19 Constitution of the Kingdom of Belgium ................................................................ IV-20 Constitution of the Republic of Poland ................................................................... IV-20 INVOKING DIGNITY TO REINTERPRET TEXT Gerald L. Neuman, Human Dignity in United States Constitutional Law .............. IV-21 Judith Resnik & Julie C. Suk, Adding Insult to Injury: Questioning the Role of Dignity in Conceptions of Sovereignty............................................ IV-22 Naomi Rao, On the Use and Abuse of Dignity in Constitutional Law .................... IV-23 Manuela Baptista Lopes, The Fundamental Social Right as a Minimum for a Befitting Existence Within Portuguese Constitutional Case-Law... IV-24 C. DIGNITYS MANY MEANINGS WHO DEFINES DIGNITY? Omega Spielhallen- und Automatenaufstellungs-GmbH v. Oberbrgermeisterin der Bundesstadt Bonn (European Court of Justice) ........ IV-26 INDIVIDUALISTIC VERSUS COMMUNITARIAN CONCEPTIONS OF DIGNITY Christopher McCrudden, Human Dignity and Judicial Interpretation of Human Rights .................................................................................................... IV-27 Lawrence v. Texas (United States).......................................................................... IV-29 R v. Brown (U.K. House of Lords) ......................................................................... IV-31 The Peep Show Decision (Germany) ...................................................................... IV-32 Wackenheim v. France (United Nations) ................................................................ IV-34 Government of the Republic of South Africa v. Grootboom (South Africa) .......... IV-36 Francis Coralie Mullin v. Union Territory of Delhi and Ors (India) ...................... IV-39 D. DIGNITY IN PRACTICE: A CASE STUDY OF TORTURE Convention (III) Relative to the Treatment of Prisoners of War ............................ IV-40 Jeremy Waldron, Cruel, Inhuman, and Degrading Treatment: The Words IV-2
Themselves......................................................................................................... IV-40 Tyrer v. the United Kingdom (European Court of Human Rights)......................... IV-41 Dan Kahan, Whats Really Wrong with Shaming Sanctions ................................... IV-42 Public Committee Against Torture in Israel v. The State of Israel & The General Security Service ............................................................................ IV-43 E. DIGNITY AS AUTONOMY VERSUS DIGNITY AS LIFE: A CASE STUDY OF ASSISTED SUICIDE Rodriguez v. British Columbia (Canada) ................................................................ IV-47 F. REFLECTIONS: CHANNELING SOCIAL CONFLICT THROUGH DIGNITY Steven Pinker, The Stupidity of Dignity .................................................................. IV-50 Jean Bethke Elshtain, The Dignity of the Human Person and The Idea of Human Rights: Four Inquiries .......................................................................... IV-51 Christopher McCrudden, Human Dignity and Judicial Interpretation of Human Rights .................................................................................................... IV-53 John Rawls, The Idea of an Overlapping Consensus .............................................. IV-55 Chantal Mouffe, On the Political ............................................................................ IV-56 Jacques Rancire, On the Shores of Politics ........................................................... IV-57 Jacques Rancire, Disagreement: Politics and Philosophy .................................... IV-58 G. DIGNITY AS LIFE, LIBERTY, PRIVACY AND EQUALITY: A CASE STUDY OF ABORTION UNITED STATES Reva Siegel, Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart ........................................................................................ IV-60 HUNGARY On the Regulation of Abortion II (Hungary)........................................................... IV-69 GERMANY First Abortion Decision (Germany) ........................................................................ IV-73 Second Abortion Decision (Germany) .................................................................... IV-76 IV-3
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POLAND Polish Abortion Decision (Poland).......................................................................... IV-78 COLOMBIA Colombian Abortion Decision (Colombia) ............................................................. IV-86 Interpress News Service, Magistrates Excommunicated for Partially Lifting Abortion Ban.......................................................................................... IV-90 H. THE INVIOLABILITY OF DIGNITY Isabel C. Jaramillo Sierra, The Catholic Church, Sex and Sexuality in Latin America: Beyond the Public/Private Distinction ..................................... IV-90 Reva Siegel, Dignitys Future in Debates over Sexual and Reproductive Rights .. IV-91 Jeremy Waldron, How Law Protects Dignity .......................................................... IV-93
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A. IV. DIGNITY In 1948, the Universal Declaration of Human Rights declared recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family to be the foundation of freedom, justice and peace in the world. Although the concept of dignity long pre-existed the Declaration, its regular use in politics was largely a twentieth-century innovation. Beginning with the Declaration, dignity quickly spread, appearing in international treaties, human rights documents, and national constitutions. Dignity is invoked in a wide variety of contexts. It structures disputes about abortion, euthanasia, and social welfare, not only in those jurisdictions whose fundamental law expressly invokes dignity as a core principle, but also in countrieslike the United Statesthat have no textual commitment to dignity. This wide-ranging appeal to dignity provides, perhaps for the first time, a framework for the development of a human rights law with global authority. But an increasing number of scholars argue that the apparent universality of dignity is illusory. Although the invocation of dignity is widespread, there is little agreement about the actual values dignity entails or the concrete practices it implicates. Views about dignitys meaning and application vary widely. The Catholic Church opposes abortion in the language of dignity, arguing that the dignity of the fetus requires protection. Yet those who defend a womans right to choose abortion also appeal to dignity, reasoning that laws forcing women to bear children fail to respect their autonomy and thereby violate their dignity. The Church rejects this view of dignity because of its view of the sexual and family roles of women. For some, this multiplicity of meanings and applications reveals that dignity is little more than a platitude. On this view, reliance on dignity will, at best, lead to sloppiness, imprecision, and confusion in legal argument. At worst, it poses a threat to the rule of law, for a law founded upon dignity is a law with indeterminate meaning and unpredictable implications. Other commentators, however, suggest that these apparent limitations might be hidden strengths. It is precisely dignitys range of reference that sustains national and international human rights law. Dignitys semantic range allows agreement on common principles while simultaneously permitting space for disagreement and difference. Dignitys capacity to express conflicting claims in terms of a common value creates the possibility of community in the face of social conflict. It supplies a language in which the IV-5
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global community can debate what differences human rights law should accommodate or contest. In this chapter, we analyze the recentand seemingly pervasiveturn to dignity. The materials explore heterogeneous claims on dignity; through several examples, the chapter examines dignitys role in structuring social conflict. We develop a set of questions about dignity's capacities and limits, which are probed in the case study of abortion in which the chapter culminates. The chapter begins with a brief genealogy of dignity, and surveys some of the foundational texts through which dignity spread in the twentieth century. It then turns to a closer examination of the manyand sometimes conflictingvalues and practices dignity is understood to comprehend. Claims on dignity in torture and euthanasia illustrate these dynamics. The core questions of the chapter are presented in the readings and case study of abortion that follow. The readings we have selected reflect on the dilemmas of articulating law in the face of cultural difference and disagreement, and so ask whether dignitys indeterminacy should be regarded as a weakness or a strength. The case study on abortion with which the chapter concludes illustrates how dignity can be invoked to vindicate distinct and at times conflicting values and how even when dignity appears to be vindicating a single value it can be realized through very different practices. The law of abortion now appeals to dignity in an increasing number of jurisdictions. Will beliefs about abortion lawin national debates or across borders change in virtue of the widespread appeal to dignity? Does an appeal to common values enable community under conditions of deep disagreement, even if convictions about proper roles and practices do not otherwise change? Or, in the last analysis, is the promise of dignity chimerical? B. Dignity: A Genealogy There is widespread agreement that the use of dignity as a foundational idea in human rights law grew exponentially after World War II, but there is little consensus as to the causes of this growth. Perhaps the turn to dignity reflected revulsion at the inhumanity of Nazism. Or perhaps it had its roots in the appeal of Catholic theology in the years after World War II. Or perhaps the appeal to religious traditions itself had a secular logic, reflecting a search for values and authority powerful enough to counter the claims of neo-liberal capitalism or socialism. Gerald Neuman argues that the vagueness with which international human rights law treats dignitys genealogy is intentional: International human rights law, with its global aspirations, has sought to bridge over
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disagreements concerning whether human dignity has its source in God, in nature, in moral reasoning, in culture, or in positive law. i This section explores the genealogy of dignity as a framework for human rights, focusing on competing understandings of the history of the Universal Declaration of Human Rights. Universal Declaration of Human Rights United Nations (1948) Preamble Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people, . . . Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom, . . . Now, therefore the General Assembly proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations. . . . Article 1 All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. ...
Gerald L. Neuman, Human Dignity in United States Constitutional Law, in ZUR AUTONOMIE DES INDIVIDUUMS: LIBER AMICORUM SPIROS SIMITIS 249, 250 (Dieter Simon & Manfred Weiss eds., 2000).
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Article 22 Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality. . . . Article 23 (3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. Christopher McCrudden Human Dignity and Judicial Interpretation of Human Rights * The incorporation of the concept of human dignity in the Universal Declaration was the culmination of a significant historical evolution of the concept. Although the story is complex, for present purposes we can identify, since Roman times, several main (overlapping) developments of dignity as a Western philosophical-cum-political concept. The concept of dignitas hominis in classical Roman thought largely meant status. Honour and respect should be accorded to someone who was worthy of that honour and respect because of a particular status that he or she had. So, appointment to particular public offices brought with it dignitas. As Cancik writes, the term denotes worthiness, the outer aspect of a persons social role which evokes respect, and embodies the charisma and the esteem presiding in office, rank or personality. Indeed, dignitas was not confined to humans and applied to institutions and the state itself. This concept of dignity has long been incorporated in some legal systems in the private law context as the basis for providing protection for dignity in the sense of status, reputation, and privileges. The English Bill of Rights of 1689, for instance, referred to the Crown and royal dignity. In legal systems based on Roman law, dignity was seen as a right of personality and status, and criminal and civil remedies were frequently provided if dignity in this sense was infringed. In South Africa, for example, it was recognized in the privatelaw sphere, deriving from Roman-Dutch law, that [i]nfringement of a persons dignitas constituted a delict and compensation could be claimed with the action iniuriarum. In the international sphere, this concept of dignity was frequently used to refer to the status of sovereign states and, by extension, to the status of ambassadorial and consular staff serving their countries abroad. . . . During the Middle Ages, with the ferment of debate in intellectual circles about the relationship between God and Man, the idea of dignitas came to be used as the way of
*
Excerpted from 19 EUR. J. INTL L. 655 (2008).
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distinguishing between Man and other creatures, as it had in Cicero. The humanists attempted to reconcile classical thought and dogmatic theology by emphasizing the idea of mankind as having dignity because Man is made in the image of God, distinguishing Man from other species. The subsequent development of dignity drew substantially on the importance of Man as having the capacity of reason, whilst dropping the religious elements of humanist writings such as those of Pico. We now move more squarely to the central existential claim of modernitymans autonomy, his capacity to be lord of his fate and the shaper of his future. In the Enlightenment, the dignity of Man in this sense came to be developed philosophically, and used as the basis, most famously, of Immanuel Kants use of the concept. Political philosophy from a somewhat different tradition, however, contributed to the popularization of dignity, as it became closely connected with the growth of republicanism. In the French Revolution of the 18th century, dignities (in the sense of aristocratic privileges) were extended to every citizen by the Declaration of the Rights of Man and of the Citizen. Thomas Paine, writing in 1791 in reply to Burkes attack on the French Revolution, partly bases his political theory on the natural dignity of man. The connection between Republicanism, particularly of the French variety, and the concept of human dignity is even more prominent in the writings of [British intellectual and feminist] Mary Wollstonecraft. The concept of dignity came to be used as a rallying cry for a variety of other social and political movements advocating specific types of social reform during the 19th century. In Europe and in Latin America, dignity came to be particularly associated with the abolition of slavery. One of the decrees of the French Republic established as a result of the revolution of 1848 abolished slavery as an affront to human dignity. The idea of the dignity of labour was used to encapsulate some of the egalitarian ambitions of these social movements, as well as providing a rallying cry by the growing Labour Movement to mobilize the working classes and argue for the state to provide social welfare. . . . [I]t is noteworthy that the Catholic Church adopted human dignity as the rallying cry for the social teaching it developed at the end of the 19th century. The threat that socialism was seen as posing, particularly with the development of Communism by Marx and the fear of radical redistribution, class war, and totalitarianism, contributed to the adoption of dignity as central to an all-encompassing Catholic social doctrine, beginning with Pope Leo XIIIs Encyclical Rerum Novarum at the end of the 19th century. . . . The approach to dignity developed in this context emphasized the limits of rights in being able to capture the full range of what was necessary to human well-being, the dangers of a conflictual politics, and the need for solidarity between the different interests in society, resulting in a more communitarian conception of human dignity. But dignity was not simply a conception of Man as a political and social animal, and the IV-9
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creation of Man in the image of God remained a key element in its formulation and understanding. Since then, human dignity has played an important role in several social and political movements of the 20th century. It has been shaped most by the reaction against Nazi ideology and practice before and during the Second World War, culminating in the horrors of the Holocaust. It was a central organizing concept in the civil rights movement in the United States, and in the articulation of feminist demands concerning the role of women. . . . Despite its relative prominence in the history of ideas, it was not until the first half of the 20th century, however, that dignity began to enter legal, and particularly constitutional and international legal, discourse in any particularly sustained way. The use of dignity in legal texts, in the sense of referring to human dignity as inherent in Man, comes in the first three decades of the 20th century. Several countries in Europe and the Americas incorporated the concept of dignity in their constitutions: in 1917 Mexico; in 1919 Weimar Germany and Finland; in 1933 Portugal; in 1937 Ireland; and in 1940 Cuba. It seems clear that the combination of the Enlightenment, republican, socialist/social democratic, and Catholic uses of dignity together contributed significantly to these developments, with each being more or less influential in different countries. So, for example, in Finland the socialist influence was clear. In the Irish context the Catholic influence was dominant, as it was in Portugal and Spainin 1945 the Basic Law of Spain included a reference to dignity. In the Central and South American context, the social democratic/socialist and Catholic influences were both significantly present. Though growing, this constitutional use of dignity remained pretty marginal, however, until the end of the Second World War. It was not surprising, perhaps, that of the new national constitutions which incorporated dignity between 1945 and 1950, three of the most prominent (Japan, Italy, and Germany) were of defeated nations of the Second World War responsible for a substantial part of the horrors that the human rights movement was aiming to eradicate. Since the relatively dramatic increase in the use of dignity in the international human rights law context during the 1940s, dignity has become commonplace in new international human rights and humanitarian law instruments. Increasingly, the role of dignity has expanded beyond the preambles to international human rights documents and into the texts of their substantive articles. References to dignity have expanded to include not only rights relating to conditions of (and treatment during) detention and the right to education, but also other rights: rights in the criminal justice process, rights to be provided minimum conditions of welfare, the right to health, the right of disabled persons to be treated as autonomous individuals, the right of children to be treated with dignity following abuse, rights to reputation, rights of indigenous cultures, rights to control access and use of personal data, and the conduct of biomedical experimentation. However, as might be expected from the variety of differing approaches that are apparent in the historical development of the idea of dignity, there are some significant IV-10
differences in the use of dignity in human rights texts. A more pluralistic, more culturally relative approach to the meaning of human dignity can be identified by looking briefly at some of the differences in the use of dignity language between the regional texts, and between the regional texts and the international texts. There are significant differences relating to the extent to which dignity should be regarded as related to national liberation and self-determination, as an appropriate limit on freedom of speech, as grounding a basis for protecting honour and reputation, as grounding individual duties to the community as well as rights, as requiring the provision of socio-economic rights in general (or particular socio-economic rights such as workplace rights, or the right to property), as related to the role of dignity in the context of rights of women, as particularly associated with protection from discrimination, and as relevant to freedom of religion. In an important intervention, Andrew Clapham has usefully suggested that concern for human dignity has at least four aspects: (1) the prohibition of all types of inhuman treatment, humiliation, or degradation by one person over another; (2) the assurance of the possibility for individual choice and the conditions for each individuals self-fulfillment autonomy, or selfrealization; (3) the recognition that the protection of group identity and culture may be essential for the protection of personal dignity; (4) the creation of the necessary conditions for each individual to have their essential needs satisfied. There is an additional feature of the use of dignity in several jurisdictions that is noticeable. In applying dignity, judges in several jurisdictions draw on the judicial interpretation of dignity in other jurisdictions as well as their own, sometimes explicitly, sometimes without attribution. . . . One of the attractions of dignity in the human rights context is the idea that different jurisdictions share a sense of what dignity requires, and this enables a dialogue to take place between judges on the interpretation of human rights norms, based on a supposedly shared assumption. Jochen Abr. Frowein Human Dignity in International Law * Not only the Universal Declaration of Human Rights, but also the United Nations Covenants, the Torture Convention, and the specific treaties concerning women and children expressly refer to human dignity as a value to be protected under public international law. . . . One can easily see that these developments were the clear consequence of the complete negation of human dignity during the Nazi period as shown by the German measures, particularly in central and Eastern Europe, against the Jewish population and other parts of the population. . . .
Excerpted from THE CONCEPT OF HUMAN DIGNITY IN HUMAN RIGHTS 121 (David Kretzmer & Eckart Klein, eds. 2002).
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We should also recognize that the notion of human dignity was seen as a response to the notion of the dignity of the state, which is very much present in recent German history, particularly the battle against the so-called Weimar System, the first democratic constitution in force in Germany during the 1919-1933 period. National-Socialist propaganda discredited the democratic constitution with the claim that the dignity of the state should be re-established. Samuel Moyn Personalism, Community, and the Origins of Human Rights * Man, as a person, [Pope] Pius [XI] declared, possesses rights that he holds from God and which must remain, with regard to the collectivity, beyond the reach of anything that would tend to deny them, to abolish them, or to neglect them. This phraseology, from the anti-Nazi encyclical of March 1937, Mit brennender Sorge, was matched by the anti-communist encyclical of the same month, Divini redemptoris, the latter with greater emphasis on the right of property in the context of a more general picture of the rights of the person against the totalitarian collective. It was thus in a moment of discovering two extreme political ideologies that, in its view, left no room for Christianity that the Church discovered its sovereignty over the human, over which in turn no merely temporal politics can claim full authority. . . . By 1944 the rights of the human person, as galvanized by [Catholic philosopher Jacques] Maritains enthusiastic promotion and as the ground of his reappropriation of democracy, were understood by activist Catholics to be the main bulwark against Hitlerian racism. And such Catholics also claimed that the concept provided the key slogan for the postwar settlement, which would have to be based on principle not power. The answer would be a vision of human rights that split the difference, or rather found the proper reconciliation, between self and collective. Appealing to Pius XIIs Christmas message of 1942, Richard Pattee explained on the radio in 1945, The genius of Catholicism is perhaps no better illustrated than in the subtle and profound harmony that is established between the dignity of the human being as a singular person, and the obligations and duties of that person as a member of society. [T]hanks to its late interwar promotion, ongoing papal pronouncement, Maritains strenuous advocacy, and the generally religious ambiance of the drafting process, the person became a prominent feature of the [D]eclaration [of Human Rights], beginning in the preambular affirmation of the dignity and worth of the human person.
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Excerpted from A HISTORY OF HUMAN RIGHTS IN THE TWENTIETH CENTURY (Stefan-Ludwig Hoffmann, ed., forthcoming).
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C. Dignitys Proliferation in the Twentieth Century The twentieth century saw the spread of dignity as a foundational concept not only for international human rights law, but also for law within nations. But while the use of dignity is now widely shared, its meaning is not. Some countries have a secular notion of dignity; some understand it as essentially religious, originating from and in service to God. Dignity is often attributed to the individual, but occasionally to the state or even to the constitution itself; it can be communitarian or statist or individualistic. It can be understood as a negative rightan aspect of humanity upon which the state is forbidden from encroachingor as a positive one, requiring protection from the government. In some jurisdictions, dignity is understood to entitle every person to the basic minima of food, shelter, and care needed for subsistence and to require that the state ensure that these are provided. The following excerpts demonstrate the wide variety of meanings dignity embodies. The first part examines the evolution of dignity in international human rights texts, and the second part explores the meaning of dignity in national constitutions. But dignity plays a role that extends beyond its expression in national and international documents. Judges invoke dignity even when it is not expressly a part of the text they are interpreting. The third part of this section turns to judicial elaborations of the meaning of dignity. Dignity in International Human Rights Documents International Convention on the Elimination of All Forms of Racial Discrimination United Nations (1965) Preamble The States Parties to this Convention, Considering that the Charter of the United Nations is based on the principles of the dignity and equality inherent in all human beings. . . . Considering that the Universal Declaration of Human Rights proclaims that all human beings are born free and equal in dignity and rights and that everyone is entitled to
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all the rights and freedoms set out therein, without distinction of any kind, in particular as to race, colour or national origin. . . . Considering that the United Nations Declaration on the Elimination of All Forms of Racial Discrimination of 20 November 1963 solemnly affirms the necessity of speedily eliminating racial discrimination throughout the world in all its forms and manifestations and of securing understanding of and respect for the dignity of the human person. . . . Convention on the Elimination of All Forms of Discrimination Against Women United Nations (1979) Preamble Noting that the Charter of the United Nations reaffirms faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women, Noting that the Universal Declaration of Human Rights affirms the principle of the inadmissibility of discrimination and proclaims that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, including distinction based on sex, Noting that the States Parties to the International Covenants on Human Rights have the obligation to ensure the equal rights of men and women to enjoy all economic, social, cultural, civil and political rights. . . . Recalling that discrimination against women violates the principles of equality of rights and respect for human dignity, is an obstacle to the participation of women, on equal terms with men, in the political, social, economic and cultural life of their countries, hampers the growth of the prosperity of society and the family and makes more difficult the full development of the potentialities of women in the service of their countries and of humanity. . . .
Charter of Fundamental Rights of the European Union European Union (2000) Preamble [C]onscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is IV-14
based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice. Chapter 1: Dignity Article 1: Human Dignity Human dignity is inviolable. It must be respected and protected. Article 2: Right to life 1. Everyone has the right to life. 2. No one shall be condemned to the death penalty, or executed. Article 3: Right to the integrity of the person 1. Everyone has the right to respect for his or her physical and mental integrity. 2. In the fields of medicine and biology, the following must be respected in particular: -- the free and informed consent of the person concerned, according to the procedures laid down by law, -- the prohibition of eugenic practices, in particular those aiming at the selection of persons, -- the prohibition on making the human body and its parts as such as source of financial gain, -- the prohibition of the reproductive cloning of human beings Article 4: Prohibition of torture and inhuman or degrading treatment or punishment No one shall be subjected to torture or to inhuman or degrading treatment or punishment. Article 5: Prohibition of slavery and forced labor 1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour. 3. Trafficking in human beings is prohibited. American Convention on Human Rights Organization of American States (1978) IV-15
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Article 11. Right to Privacy 1. Everyone has the right to have his honor respected and his dignity recognized. Arab Charter on Human Rights League of Arab States (2004) Based on the faith of the Arab nation in the dignity of the human person whom God has exalted ever since the beginning of creation and in the fact that the Arab homeland is the cradle of religions and civilizations whose lofty human values affirm the human right to a decent life based on freedom, justice and equality . . . . Article 2 1. All peoples have the right of self-determination and to control over their natural wealth and resources, and the right to freely choose their political system and to freely pursue their economic, social and cultural development. 2. All peoples have the right to national sovereignty and territorial integrity. 3. All forms of racism, Zionism and foreign occupation and domination constitute an impediment to human dignity and a major barrier to the exercise of the fundamental rights of peoples; all such practices must be condemned and efforts must be deployed for their elimination. Article 3 3. [M]en and women are equal in respect of human dignity, rights and obligations within the framework of the positive discrimination established in favour of women by the Islamic Shariah, other divine laws and by applicable laws and legal instruments. Accordingly, each State party pledges to take all the requisite measures to guarantee equal opportunities and effective equality between men and women in the enjoyment of all the rights set out in this Charter. . . . Article 20 All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the person.
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Dignity in National Constitutions Constitution of Ireland (1937) Preamble In the name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred, We, the people of ire, humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial, Gratefully remembering their heroic and unremitting struggle to regain the rightful independence of our Nation, And seeking to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations, Do hereby adopt, enact, and give to ourselves this Constitution. Basic Law for the Federal Republic of Germany (1949) Article 1 [Human dignity-Human rights-Legally binding force of basic rights] (1) Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority. (2) The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world. (3) The following basic rights shall bind the legislature, the executive, and the judiciary as directly applicable law.
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Constitution of the Republic of Portugal (1976) Article 1 Portuguese Republic Portugal is a sovereign Republic, based on the dignity of the human person and the will of the people, and committed to building a free and fair society that unites in solidarity. Article 13 Principle of Equality (1) All citizens have the same social dignity and are equal before the law. (2) No one is privileged, favored, injured, deprived of any right, or exempt from any duty because of his ancestry, sex, race, language, territory of origin, religion, political or ideological convictions, education, economic situation, or social condition. Constitution (Fundamental Law) of the Union of Soviet Socialist Republics (1977) Article 59. Citizens exercise of their rights and freedoms is inseparable from the performance of their duties and obligations. Citizens of the USSR are obliged to observe the Constitution of the USSR and Soviet laws, comply with the standards of socialist conduct, and uphold the honour and dignity of Soviet citizenship. Article 64. It is the duty of every citizen of the USSR to respect the national dignity of other citizens, and to strengthen friendship of the nations and nationalities of the multinational Soviet state. Socialist Constitution of the Democratic Peoples Republic of Korea (1998) Article 82 Citizens shall strictly observe the laws of the State and the socialist standards of life and defend their honor and dignity as citizens of the DPRK.
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Constitution of the Peoples Republic of China (1982) Preamble [T]he people of all nationalities, all state organs, the armed forces, all political parties and public organizations and all enterprises and undertakings in the country must take the Constitution as the basic norm of conduct, and they have the duty to uphold the dignity of the Constitution and ensure its implementation. Article 5. The state upholds the uniformity and dignity of the socialist legal system. No law or administrative or local rules and regulations shall contravene the constitution. All state organs, the armed forces, all political parties and public organizations and all enterprises and undertakings must abide by the Constitution and the law. All acts in violation of the Constitution and the law must be investigated. No organization or individual may enjoy the privilege of being above the Constitution and the law. Article 38. The personal dignity of citizens of the Peoples Republic of China is inviolable. Insult, libel, false charge or frame-up directed against citizens by any means is prohibited. Basic Law of Israel: Human Dignity and Liberty (as amended, 1994) 1. Fundamental human rights in Israel are founded upon recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free; these rights shall be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel. 1a. The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state. 2. There shall be no violation of the life, body or dignity of any person as such. . . . 4. All dignity. . . . persons are entitled to protection of their life, body and
8. There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no IV-19
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greater than is required or by regulation enacted by virtue of express authorization in such law. Constitution of the Kingdom of Belgium (1994) Article 23 Everyone has the right to lead a life in conformity with human dignity. To this end, the laws, decrees, and rulings . . . guarantee, taking into account corresponding obligations, economic, social, and cultural rights, and determine the conditions for exercising them. These rights include among others: 1. the right to employment and to the free choice of a professional activity in the framework of a general employment policy, aimed among others at ensuring a level of employment that is as stable and high as possible, the right to fair terms of employment and to fair remuneration, as well as the right to information, consultation and collective negotiation; 2. the right to social security, to health care and to social, medical, and legal aid; 3. the right to have decent accommodation; 4. the right to enjoy the protection of a healthy environment; 5. the right to enjoy cultural and social fulfillment. Constitution of the Republic of Poland (1997) Preamble We, the Polish Nation . . . [h]ereby establish this Constitution of the Republic of Poland as the basic law for the State, based on respect for freedom and justice, cooperation between the public powers, social dialogue as well as on the principle of aiding in the strengthening the powers of citizens and their communities. We call upon all those who will apply this Constitution for the good of the Third Republic to do so paying respect to the inherent dignity of the person, his or her right to freedom, the obligation of solidarity with others, and respect for these principles as the unshakeable foundation of the Republic of Poland.
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Article 30 The inherent and inalienable dignity of the person shall constitute a source of freedoms and rights of persons and citizens. It shall be inviolable. The respect and protection thereof shall be the obligation of public authorities. Invoking Dignity to Reinterpret Text Gerald L. Neuman Human Dignity in United States Constitutional Law * [T]he principle of human dignity is recognized in U.S. law, but it is underdeveloped. The Constitution makes no explicit mention of it, and there is no constitutional doctrine of a right to human dignity. One might conclude that Americans have no dignity, only rights. Nonetheless, human dignity may be glimpsed as a background norm in U.S. constitutional history; it does receive attention in constitutional theory; and in recent decades it has been expressly invoked by Supreme Court Justices to aid in the interpretation of particular constitutional rights. . . . Beginning in the 1950s, as the Supreme Court embarked on a new course of judicial activism on behalf of individual rights, human dignity offered a value that could justify expansion of rights beyond their received contours. . . . Thus, the concept of human dignity has played a significant role in the interpretation of U.S. constitutional rights in the latter half of the twentieth century. Most important, perhaps, is the reaffirmation of universality: all human beings are equally entitled to the core content of human dignity, which cannot be forfeited. More specific consequences of human dignity have been articulated in particular contexts or by particular Justices. Human dignity implies respect for individuality and individual moral autonomy. For some Justices, this individual autonomy may justify the state in executing a person who has gravely violated the humanity of others; for other Justices, the deliberate extinction of human life is a punishment inconsistent with the intrinsic worth of the offender. Respect for human dignity prohibits denying the moral character of an individual and reducing him to a body, and, conversely, disrespect for the body by mutilation, exposure, or appropriation. To a disputed degree, it may also prohibit appropriation of the will in criminal cases. Respect for human dignity forbids the gratuitous infliction of suffering, in the form of physical or psychic pain. It forbids the deliberate humiliation of an individual, or unjustifiably depriving the individual of selfExcerpted from ZUR AUTONOMIE DES INDIVIDUUMS: LIBER AMICORUM SPIROS SIMITIS 249 (Dieter Simon & Manfred Weiss eds., 2000).
*
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esteem, including assaults on reputation (although such assaults do not violate a constitutional right). There is no constitutional right to human dignity as such, no objective constitutional norm prohibiting all state action inconsistent with human dignity, and no mandate upon the state to ensure the realization of human dignity. Human dignity informs the interpretation of particular constitutional rights, including the general rights to equality and liberty. It does not overcome the predominantly negative character of U.S. constitutional rights. Nor does it establish a constitutional mandate for provision of the social and economic rights that many regard as implied by human dignity. Judith Resnik & Julie C. Suk Adding Insult to Injury: Questioning the Role of Dignity in Conceptions of Sovereignty * In recent years, the current majority of the United States Supreme Court has revived the language of state sovereigntyproffering it as the basis for invalidating federal legislation altogether or for concluding that federal legislation cannot endow claimants with certain rights against states. The Courts internal sovereignty argument is supported, in part, by characterizing states as bearers of dignitary interests. For example, in 2002, a majority of the Supreme Court proclaimed that the preeminent purpose of state sovereign immunity is to accord States the dignity that is consistent with their status as sovereign entities. This turn to dignity as a justification for or as an explanation of state power within the United States is actually a return to an older conception of the sovereign. Monarchs were the sovereigns to whom dignity belonged in eras when ordinary persons were not due such respect and deference. The personal authority and dignity of royalty prompted an elaborate code of interpersonal behavior, replete with rules dictating forms of address and limiting permissible interactions between monarchs and their subjects. As Justice Stevens has explained, in a society where noble birth can justify preferential treatment, it might have been unseemly to allow a commoner to hale the monarch into court. [G]iven the nesting of dignity in personhood, the Supreme Courts insistence on attributing dignity to states is seen by some as either obnoxious or disingenuous. Objections arise from the anthropomorphism in general, and more specifically, from the association of this particular attribute with the state. One argument runs that, even if certain aspects of personality can properly be associated with governmental entities, dignity is not the kind of attribute states oughtas a philosophical, a political, or a legal matterto claim. Another is that the use of the term dignity in such contexts has no real analytic purchase and deserves no attention in its own right. . . .
Excerpted from 55 STAN. L. REV. 1921 (2003).
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We believe that as a legal matter, dignity ought not to be reserved exclusively to individuals. Through an analysis of the caselaw of dignity, we have found many examples of the utility of institutional dignity, enabling a fledgling organizationbe it a court or a nationto function. This form of dignity . . . entails the idea of an individual or an entity having the capacity to function, to be able (as an instrumental matter) to accomplish something in the world. For clarity, we speak of the dignity accorded to nonhumans as role-dignity, by which we mean that respect is accorded to an entity in order to enable that entity to produce something of value to persons or groups. In contrast, the dignity of people can have instrumental utility but is not justified solely in reference to what other goods it produces but rather as something that inheres in personhood. Naomi Rao On the Use and Abuse of Dignity in Constitutional Law * In France, human dignity has been judicially recognized as a fundamental value, even though there is no explicit constitutional protection for dignity. For example, a 1995 decision upheld a ban on dwarf-throwing as a violation of human dignity, despite the opposition of the dwarf who lost his livelihood. A French court also held that constitutional norms of dignity were violated by private actors when a retail store required its employees to display a receipt proving they had paid for goods they wanted to take home. Once French courts recognized the value of dignity as a constitutional value, they have not hesitated to apply it in a variety of contexts. The Canadian Charter of Rights and Freedoms does not specifically mention human dignity; however, this concept has been considered part of the protection of a free and democratic society protected in Section 1 of the Charter. Accordingly, courts must consider the value of human dignity when evaluating whether legislation that infringes on individual liberties is justified. The lengthy Indian Constitution mentions dignity only in its Preamble. The Indian Supreme Court, however, has held that the Preamble encompasses the fundamental aspects of the Indian Republic and may be invoked to determine the scope of fundamental rights. Moreover, dignity has been used in Indian jurisprudence to give meaning to the right to life, which has been interpreted to encompass a right to life with dignity. Similarly sweeping statements of the role of dignity can be found in many postwar constitutions in Europe, as well as other countries, such as Israel. Although the content varies, constitutional courts around the world have acknowledged and applied human dignity as a fundamental value when adjudicating constitutional rights and deciding how those rights relate to other democratic interests.
*
Excerpted from 14 COLUM. J. EUR. L. 201 (2008).
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Manuela Baptista Lopes The Fundamental Social Right as a Minimum for a Befitting Existence Within Portuguese Constitutional Case-Law * I. Introduction 4. [I]t is important to clarify which social rights the Portuguese Constitution lists: Social security and solidarity; Health; Housing and Urban Planning; Environment and Quality of Life; Family; Fatherhood and Motherhood; Childhood; Youth; Citizens with Disabilities; Senior Citizens. . . . [A] social right that, in spite of not being autonomously consecrated in the Portuguese Constitution, arises from the principles and rights that are expressly embedded therethe right to a minimum for a befitting existence. 5. In fact, the right to a minimum for a befitting existence is, in some way, the essential, structuring right as pertains to social rights. What in fact seems to unify the social rights is that they, similarly to all other fundamental rights, are based on the principle of human dignity which shall be understood as the respect for people and their right to autonomy and they all represent aspects of a complex and multifaceted right to a dignified existence in the perspective of the individual and in the perspective of the society. The evolution of fundamental rights is no more than the increasing course of how to render concrete the idea that the human being, due to its intrinsic and inalienable dignity, has constituting, founding rights which society and public authorities are to acknowledge. To acknowledge these rights for each one, leads us to the imperative need of acknowledging them for everyone in respect for equality and intrinsic indivisibility of human dignity. . . . 6. Necessitous men are not free men. In order for a human being to be free basic needs have to be assured and said needs are undoubtedly social ones because the individual human being cannot, without a society which will integrate him and support him, satisfy them. . . . V. Conclusions
1. The Portuguese constitutional system features as its mainstay the principle of human dignity and comprises a vast range of fundamental protection rights and fundamental social rights.
Excerpted from paper presented at Mini-conference on Social Rights, Tirana, Albania. (June, 2008), available at http://www.venice.coe.int/docs/2008/CDL-JU%282008%29021-e.asp.
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2. The Constitutional Court is primarily responsible for respecting and imposing the respect for the constitutional principles and values within the fundamental rights and is primarily responsible for contributing towards the enforcement of said rights. 3. The Constitutional Court has endeavoured to recognise and enforce the social fundamental right to a minimum for a befitting life drawn from the principle of respect for human dignity and the right to social security and solidarity (sections 1 and 63 of the Constitution). 4. Even though the right to a minimum for a befitting life is consistently recognised by the Portuguese Constitutional Court, there have been some diverging and changing [of] positions as to what shall be considered its essential core. D. Dignitys Many Meanings As the previous Section demonstrates, communities around the world invoke dignity as a core principle of human rights law, but differ in their understanding of the values dignity represents. In some countries, dignity is closely linked to sovereignty; it is an attribute of citizenship or statehood. In others, it is an individual attribute, intrinsic to personhood. It can refer to the equality of persons or to autonomy or to basic social welfare. In what follows, we look more closely at how dignity is used in different legal orders. Given the numerous competing understandings of dignity, which meaning ought to prevail when different understandings come into conflict? We examine this question by looking first at the Omega case from the European Court of Justice. In Omega, the Court explains that, although human dignity is a general principle of law, its meaning may nonetheless vary across jurisdictions. Whereas Omega is primarily concerned with the relationship between national and international conceptions of dignity, the materials in the section following Omega examine dignitys implications for the relationship between the state and the individual. These materials demonstrate a tension between individualistic and communitarian conceptions of dignity. We concentrate on two arenas in which this tension manifests: (1) the conflict between an understanding of dignity as autonomythe right to be let alone and dignity as an inalienable attribute of personhood that deserves protection even as against an individuals own choices; and (2) the question of whether the state has only a negative duty to refrain from violating dignity or whether the state also has a positive duty to ensure that the basic needs of persons are met.
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Who Defines Dignity? Page: 26 Omega Spielhallen- und Automatenaufstellungs-GmbH v. Oberbrgermeisterin der Bundesstadt Bonn Court of Justice of the European Communities C-36/02 (2004) In Omega Speilhallen- und Automatenaufstellungs-GmbH, the European Court of Justice addressed whether member states of the European Union may maintainand regulate on the basis ofdivergent conceptions of what dignity requires. Omega, a German company, had purchased a laserdrome from an English company. The laserdrome was a simulator in which players fired laser guns at opposing players, with the objective of killing them by hitting targets affixed to their clothing. The installation of the facility had caused controversy among residents in Bonn, Germany. Shortly after it began operation, the police ordered Omega to cease and desist from permitting its use for all games involving simulated homicide. In issuing the order, the police relied on their statutory power to take measures necessary to avert a risk to public order or safety in an individual case. The police reasoned, in the ECJs paraphrase, that Omegas establishment constituted a danger to public order, since the acts of simulated homicide and the trivialization of violence thereby engendered were contrary to fundamental values prevailing in public opinion. Omega appealed to the administrative courts. The Federal Administrative Court held that, as a matter of domestic law, the appeal should be dismissed since the commercial exploitation of a killing game constituted an affront to human dignity. As paraphrased by the ECJ, the German court explained that human dignity is a constitutional principle which may be infringed . . . by the awakening of an attitude denying the fundamental right of each person to be acknowledged and respected, such as the representation . . . of fictitious acts of violence for the purposes of a game. Since human dignity is a constitutional value, the Court reasoned that it was incorporated within the notion of public order, which the police were empowered to protect. The Federal Administrative Court, however, referred the case to the ECJ for a preliminary ruling on whether the cease-and-desist order was consistent with the freedom to provide services and the free movement of goods guaranteed by the Treaty establishing the European Community. The laserdrome had, after all, been purchased from an English company, and the operation of laserdromes, including for games that involved simulated killings, was perfectly compatible with English law. In the first part of its judgment, the ECJ held that it was permissible for national authorities to limit the freedom to provide services and the free movement of goods in order to protect fundamental values, such as human dignity. The Court observed that the Community legal order undeniably strives to ensure respect for human dignity as a general principle of law and that the German
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authorities restriction of the Treaty rights was proportionate to the threat to dignity posed by the laserdrome. But even as the Court held that dignity was a value of the Community legal order, the Court also stressed that Member States need not share a uniform understanding of the scope of dignitys protections. In the Courts words, [i]t is not indispensable . . . for the restrictive measure issued by the authorities of a Member State to correspond to a conception shared by all Member States as regards the precise way in which the fundamental right or legitimate interest in question is to be protected. Thus, the ECJ affirmed a shared European commitment to human dignity, while allowing national courts significant leeway to work out the specific implications of that commitment.
Individualistic Versus Communitarian Conceptions of Dignity Christopher McCrudden Human Dignity and Judicial Interpretation of Human Rights * Individualistic Versus Communitarian Conceptions of Dignity [A]n important distinction [can] be identified between the use of dignity to express a communitarian ideal and one that [is] much more focused on the role of dignity in furthering individual autonomy, in the sense of advancing individual liberty based upon the choice of the individual. This difference in approach is . . . reflected in the different approaches which courts adopt. In brief, the German Constitutional Court adopts a more communitarian approach, whilst the predominant approach to dignity in the US Supreme Court, the Canadian Supreme Court, and the Hungarian Constitutional Court is more individualistic. The South African Constitutional Court appears to be significantly split on the issue. The reasoning of the German Constitutional Courts judgment in the Lifetime Imprisonment Case (1977) illustrates well a more communitarian approach: The constitutional principles of the Basic Law embrace the respect and protection of human dignity. The free person and his dignity are the highest values of the constitutional order. The state in all of its forms is obliged to respect and defend it. This is based on the conception of man as a spiritual-moral being endowed with the freedom to determine and develop himself. This freedom within the meaning of the Basic Law is not that of an isolated and self-regarding individual but rather of a person
*
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Dignity
related to and bound by the community. In the light of this communityboundedness it cannot be in principle unlimited. The individual must allow those limits on his freedom of action that the legislature deems necessary in the interest of the communitys social life; yet the autonomy of the individual has to be protected. Despite the fact that Hungary has borrowed so extensively from Germany, Dupr has argued that the importation of dignity has resulted in the development of a very different picture of the human person in Hungarian case law, one where the person is envisaged as someone considered in isolation and fighting against the state to protect her rights. In Hungary, human dignity is focused on individuality and autonomy. The Courts approach, at least up to 1998, was one in which human dignity is limited to the individual considered in his singularity. It empowers the individual to take control over his life without any interference, or indeed any help, from others or from the state. Human dignity . . . does not essentially facilitate interaction and relationships between people. Instead, human dignity surrounds the individual in a sort of protective sphere, and thus isolates individuals from each other. The Casey (1992) and Lawrence (2003) cases . . . illustrate a similar individualistic approach adopted in the US Supreme Court. Another example, in a different context, is to be found in Rice v Cayetano (2000), where Kennedy J. held that an affirmative action measure, using classifications based on race, was unconstitutional because it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities. These differences in approach are particularly important in the context of socioeconomic rights, where the crucial question is how far, if at all, the state is under a positive duty to safeguard human dignity. . . . [I]n South Africa, socioeconomic rights are regarded judicially as rooted in respect for human dignity. In Poland, in the context of unemployment, human dignity requires that the state ensure that individuals out of work are able to exercise their rights to existence and to freedom and the Constitutional Tribunal has held, therefore, that social security benefits guaranteed to the unemployed by the state should at least guarantee them a basic level of social welfare. In Germany, the Constitutional Court initially refused to derive [from human dignity] an individual right to public welfare, [and then] left the question explicitly open. More recently, that Court has held that human dignity, in combination with other constitutional principles, imposes an obligation on the state to provide at least minimal subsistence to every individual. In Italy, the Constitutional Court has discovered that human dignity requires that decent housing be secured for all citizens as a constitutional social right. In Hungary, on the other hand, human dignity does not serve as a basis for recognizing social rights. Rather, it served as the basis for questioning and reinterpreting the scope of social rights enacted under the Communist regime, allowing a switch to be made to a more economically liberal, individualistic conception of rights. . . .
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Waiving Dignity? How far, if at all, can dignity be waived by an individual? Where a choice-based autonomy approach to dignity is adopted, then it would seem strange to think that it cannot be waived by the person whose dignity is supposedly in issue. To do otherwise smacks of paternalism. On the other hand, a more communitarian approach to dignity seems potentially compatible with not being permitted to waive dignity. We are used in some contexts to viewing certain rights as not at the disposal of the individual, for example the right not to be enslaved cannot be waived. In Germany, the Constitutional Court has held that human dignity means not only the individual dignity of the person but the dignity of man as a species. Dignity is therefore not at the disposal of the individual. The obligation on the state to protect human dignity may justify limiting the rights of the person whom the state seeks to protect, irrespective of the preferences of the individual. Lawrence v. Texas Supreme Court of the United States 539 U.S. 558 (2003) Justice KENNEDY delivered the opinion of the Court. The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct. . . . We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution. . . . The laws involved . . . here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more farreaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal
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bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice. . . . In Planned Parenthood of Southeastern Pennsylvania. v. Casey (1992) the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. . . . In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows: These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. . . . Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. [The criminalization of sodomy] demeans the lives of homosexual persons. The stigma this criminal statute imposes, moreover, is not trivial. The offense, to be sure, is but a class C misdemeanor, a minor offense in the Texas legal system. Still, it remains a criminal offense with all that imports for the dignity of the persons charged. The petitioners will bear on their record the history of their criminal convictions. . . . This underscores the consequential nature of the punishment and the state-sponsored condemnation attendant to the criminal prohibition. Furthermore, the Texas criminal conviction carries with it the other collateral consequences always following a conviction, such as notations on job application forms, to mention but one example. . . . In his dissenting opinion in Bowers v. Hardwick (1986) Justice Stevens came to these conclusions: IV-30
Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of liberty protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons. Justice Stevens analysis, in our view, should have been controlling in Bowers and should control here. Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled. The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual. R v. Brown House of Lords (United Kingdom) [1993] 2 All ER 75 * [In the English case] R v. Brown . . . the question was whether the consent of the participants provided a defence to what would otherwise be criminal acts of assault and wounding (inflicted during sado-masochistic encounters). In a split three to two decision, the majority of the House of Lords held that the consent of the participants (who were all adults) was no defence. . . . Lord Templemans [majority] view . . . is that the criminal
*
Provided here is a summary of R. v. Brown excerpted from DERYCK BEYLEVELD & ROGER BROWNSWORD, HUMAN DIGNITY IN BIOETHICS AND BIOLAW 35 (2001).
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law is for the protection of society, including societys basic values. So regarded, sadomasochism, even fully consensual sado-masochism, might be an appropriate case for regulation. As Lord Templeman evocatively put it: Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilized. For Lord Mustill [in the minority], however, a key consideration is [T]hat the state should interfere with the rights of an individual to live his or her life as he or she may choose no more than is necessary to ensure a proper balance between the special interests of the individual and the general interests of the individuals who together comprise the populace at large. [The decision was subsequently upheld by the European Court of Human Rights. In that decision, Judge Pettiti explained that:] Not every aspect of private life automatically qualifies for protection under the Convention. The fact that the behavior concerned takes place on private premises does not suffice to ensure complete immunity and impunity. . . . The protection of private life means the protection of a persons intimacy and dignity, not the protection of his baseness or the promotion of criminal immoralism. The Peep Show Decision Federal Administrative Court (Federal Republic of Germany) BVerwGE 64, 274 (1981) * [Introductory Note: [I]n the Peep Show Decision handed down by the Federal Administrative Tribunal[,] the plaintiff had applied for a licence to conduct a peep show. He intended to have a woman expose her naked body to spectators sitting in one-person cabins placed around the stage. The stage would only become visible from the cabin window after the payment of money. The relevant public authority denied the licence on the grounds that, according to S.33(a)(2) No.1 Trading Regulations, a licence must be refused if the display of human persons violates good morals. The Federal Administrative Tribunal held that:] Behaviour that contradicts one of the values rooted in the Basic Law violates good morals. The respect for and protection of human dignity are constituent principles of the Basic Law. . . . The performances the plaintiff intended to hold would have violated the
*
Introductory note and translation in part from SABINE MICHALOWSKI & LORNA WOODS, GERMAN CONSTITUTIONAL LAW: THE PROTECTION OF CIVIL LIBERTIES 104 (1999). Translation also in part from 44 AM. J. COMP. L. 353 (1996).
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human dignity of the women displayed and could therefore not be made possible by the granting of a licence. . . . Art. 1, Para. 1 of the Basic Law protects the intrinsic worth of humans. Human dignity is injured if the individual is degraded to the level of an object. Therefore private persons may alsoas herebe the source of harm to human dignity. Because of its constitutional duty to protect human dignity, the state is obliged to exploit the opportunities it has through the application of law to prevent such injury. The mere display of the naked female body does not violate human dignity, so that, at least as regards a violation of human dignity, no objections exist in principle against the usual striptease performances. . . . [But p]eep shows are fundamentally different from striptease performances. The actions of a woman performing a striptease in front of an audience she can see are in line with the traditional stage and dance show and leave the personal individuality of the performer intact. Conversely, in the peep-show, the woman appearing is assigned to a degraded, objectified role, to which end several circumstances of the event cooperate: those owing to the kind of payment which establishes an atmosphere of a mechanical and automatized [business] event, by which the spectacle of the naked woman is bought and sold like a commodity through the slot of a machine; those owing to the window-flap mechanism and the one-sided line of sight emphasize the womans isolation as a thing for hireshe is shown as an object of desire in the show, lent out permanently to the voyeur; owing to the [temporal] expiration of the event an especially crass, prominent impression of a depersonalized marketing of the woman [is created]; the isolation also of the spectators, being alone in the booth and with it [an] allied defect [in] social supervision; the possibilitydeliberately created by the system of solitary boothsof gratification and the commercial exploitation thereof. Taken together, these conditions assure that the woman displayed in the show is presented . . . like an object in the service of sexual stimulation with a view towards remuneration, and each spectator, existing in [his own] isolation-booth, invisible to the woman, has her offered as a mere stimulation-object for the gratification of sexual interest. This justifies the decision that the woman displayed in the show is degraded through this manner of performance . . . and thereby received a dignitarian injury. . . . This violation of human dignity is not excluded or justified by the fact that the woman performing in a peep show acts voluntarily. Human dignity is an objective, indisposable value, the respect of which the individual cannot waive validly. . . . It is insignificant for the violation of human dignity that the trader has found women who are prepared to perform, for remuneration, in a peep show under the circumstances mentioned above. The consent of the women concerned can only exclude a violation of human dignity if such a violation is based only on the lack of consent to the relevant actions or omissions of the women concerned. However, this is not the situation here because in the case at issueas was already explainedthe human dignity of the women concerned is violated by the exposition typical for these performances. Here, human IV-33
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dignity, because its significance reaches beyond the individual must be protected even against the wishes of the woman concerned whose own subjective ideas deviate from the objective value of human dignity. Wackenheim v. France Human Rights Committee (United Nations) CCPR/C/75/D/854/1999 (2002) The facts as submitted by [Mr. Wackenheim] 2.1 The author, [Mr. Wackenheim,] who suffers from dwarfism, began in July 1991 to appear in dwarf tossing events organized by a company called Socit FunProductions. Wearing suitable protective gear, he would allow himself to be thrown short distances onto an air bed by clients of the establishment staging the event (a discotheque). 2.2 On 27 November 1991, the French Ministry of the Interior issued a circular on the policing of public events, in particular dwarf tossing, which instructed prefects to use their policing powers to instruct mayors to keep a close eye on spectacles staged in their communes. The circular said that dwarf tossing should be banned on the basis of, among other things, article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. i The complaint 3. [Mr. Wackenheim argues] that banning him from working has had an adverse effect on his life and represents an affront to his dignity. He claims to be the victim of a violation by France of his right to freedom, employment, respect for private life and an adequate standard of living, and of an act of discrimination. He further states that there is no work for dwarves in France and that his job does not constitute an affront to human dignity since dignity consists in having a job. . . . Observations by the State party 4.1 [T]he bans do, the State party considers, acknowledge the authors right to respect for his dignity as a human being, and ensure that that right is indeed respected. . . . 4.2 [The State party argues that] the right invoked by [Mr. Wackenheim] to allow himself to be tossed in public for a living does not appear to belong within the orbit of private and family life. . . . The State party argues that dwarf tossing is a public practice and, as far as the author is concerned, a genuine professional activity. In that case it can
i
Editors note: Article 3 of the European Convention provides that No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
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hardly be protected, the State party concludes, on the strength of arguments deriving from the respect due to private life. It is more a matter . . . of freedom of employment or freedom of trade and industry. Next, the State party goes on, even assuming that under a particularly wide-ranging interpretation of the notion the possibility of being tossed for a living does stem from the authors right to respect for his private life, the limit that has been imposed on that right is . . . justified by higher considerations deriving from the respect due to the dignity of the human person. Hence it is rooted in a fundamental principle and thus constitutes neither an illegal nor an arbitrary encroachment upon individuals right to respect for their private and family lives. . . . 4.5 [T]he State party . . . adds that . . . the action taken by the authorities was not prompted by a desire to restrict freedom of employment, trade and industry unduly on the grounds of due respect for the individual; it is a classic instance in administrative police practice of reconciling the exercise of economic freedoms with the desire to uphold public order, one element of which is public morals. Such a construction is not excessive since on the one hand . . . public order has long incorporated notions of public morals and, on the other hand, it would be shocking were the basic principle of due respect for the individual to be abandoned for the sake of material considerations specific to the author (and otherwise scarcely commonplace), to the detriment of the overall community to which the author belongs. . . . Counsel [for Mr. Wackenheim]s comments on the State partys observations 5.2 Counsel says that the important decisions on points of principle taken in Mr. Wackenheims case are disappointing. To the tripartite structure of public order in France as normally portrayedorder (tranquillity), safety (security) and public healtha fourth componentpublic morals, embracing respect for human dignityhas been added. Case law of this kind at the dawn of the twenty-first century revives the notion of moral order, counsel argues, directed against an activity that is both marginal and inoffensive when compared with the many forms of truly violent, aggressive behaviour that are tolerated in modern French society. The effect, counsel goes on, is to enshrine a new policing authority that threatens to open the door to all kinds of abuse: are mayors to become censors of public morality and defenders of human dignity? Are the courts to rule on citizens happiness? Hitherto, counsel says, the courts have been able to take the protection of public morals into account insofar as it has repercussions on public tranquillity. In the case of dwarf tossing events, however, counsel affirms that that requirement has not been met. 5.3 Counsel . . . emphasizes that employment is an element of human dignity: depriving an individual of his employment is tantamount to diminishing his dignity. . . . The Committees deliberations on the merits IV-35
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7.4 [The] Committee considers that the State party has demonstrated, in the present case, that the ban on dwarf tossing as practiced by the author did not constitute an abusive measure but was necessary in order to protect public order, which brings into play considerations of human dignity that are compatible with the objectives of the Covenant. 7.5 [For] these reasons, the Committee considers that, in ordering the abovementioned ban, the State party has not, in the present case, violated the rights of the author . . . . Government of the Republic of South Africa v Grootboom Constitutional Court of South Africa 2000 (11) BCLR 1169 (CC) Yacoob, J: A. Introduction
[1] The Constitution declares the founding values of our society to be [h]uman dignity, the achievement of equality and the advancement of human rights and freedoms. i This case grapples with the realisation of these aspirations for it concerns the states constitutional obligations in relation to housing: a constitutional issue of fundamental importance to the development of South Africas new constitutional order. . . . ii [2] [T]he case brings home the harsh reality that the Constitutions promise of dignity and equality for all remains for many a distant dream. People should not be impelled by intolerable living conditions to resort to land invasions. Self-help of this kind cannot be tolerated, for the unavailability of land suitable for housing development is a key factor in the fight against the countrys housing shortage. [3] The group of people with whom we are concerned in these proceedings lived in appalling conditions, decided to move out and illegally occupied someone elses land. They were evicted and left homeless. The root cause of their problems is the intolerable conditions under which they were living while waiting in the queue for their turn to be
i
Editors note: The South African Constitution contains numerous provisions affirming the Republics commitment to human dignity. Section 39 of the South African Constitution provides in relevant part: (1) When interpreting the Bill of Rights, a court, tribunal or forum (a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom . . . . ii Editors note: Section 26 of the South African Constitution provides in relevant part: (1) Everyone has the right to have access to adequate housing. (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. . . .
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allocated low-cost housing. They are the people whose constitutional rights have to be determined in this case. [4] Mrs Irene Grootboom and the other respondents were rendered homeless as a result of their eviction from their informal homes situated on private land earmarked for formal low-cost housing. They applied to the Cape of Good Hope High Court (the High Court) for an order requiring government to provide them with adequate basic shelter or housing until they obtained permanent accommodation and were granted certain relief. The appellants were ordered to provide the respondents who were children and their parents with shelter. The judgment provisionally concluded that tents, portable latrines and a regular supply of water (albeit transported) would constitute the bare minimum. The appellants who represent all spheres of government responsible for housing challenge the correctness of that order. [6] The cause of the acute housing shortage lies in apartheid. A central feature of that policy was a system of influx control that sought to limit African occupation of urban areas. . . . E. Obligations imposed upon the state by section 26 [23] Our Constitution entrenches both civil and political rights and social and economic rights. All the rights in our Bill of Rights are inter-related and mutually supporting. There can be no doubt that human dignity, freedom and equality, the foundational values of our society, are denied those who have no food, clothing or shelter. Affording socio-economic rights to all people therefore enables them to enjoy the other rights enshrined [in the Constitution]. The realisation of these rights is also key to the advancement of race and gender equality and the evolution of a society in which men and women are equally able to achieve their full potential. [25] [T]he context in which the Bill of Rights is to be interpreted was described by Chaskalson P. in Soobramoney (1997): We live in a society in which there are great disparities in wealth. Millions of people are living in deplorable conditions and in great poverty. There is a high level of unemployment, inadequate social security, and many do not have access to clean water or to adequate health services. These conditions already existed when the Constitution was adopted and a commitment to address them, and to transform our society into one in which there will be human dignity, freedom and equality, lies at the heart of our new constitutional order. For as long as these conditions continue to exist that aspiration will have a hollow ring.
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[83] [T]he proposition that rights are interrelated and are all equally important is not merely a theoretical postulate. The concept has immense human and practical significance in a society founded on human dignity, equality and freedom. It is fundamental to an evaluation of the reasonableness of state action that account be taken of the inherent dignity of human beings. The Constitution will be worth infinitely less than its paper if the reasonableness of state action concerned with housing is determined without regard to the fundamental constitutional value of human dignity. Section 26, read in the context of the Bill of Rights as a whole, must mean that the respondents have a right to reasonable action by the state in all circumstances and with particular regard to human dignity. In short, I emphasise that human beings are required to be treated as human beings. This is the backdrop against which the conduct of the respondents towards the appellants must be seen. I. Summary and conclusion [93] This case shows the desperation of hundreds of thousands of people living in deplorable conditions throughout the country. The Constitution obliges the state to act positively to ameliorate these conditions. . . . [96] In the light of the conclusions I have reached, it is necessary and appropriate to make a declaratory order. The order requires the state to act to meet the obligation imposed upon it by section 26(2) of the Constitution. This includes the obligation to devise, fund, implement and supervise measures to provide relief to those in desperate need. Francis Coralie Mullin v. Union Territory of Delhi and Ors. Supreme Court of India [1981] 2 S.C.R. 516 Bhagwati, J. [1] This petition . . . raises a question in regard of the right of a detenu . . . to have interview with a lawyer and the members of his family. . . . [7] Now obviously, the right to life enshrined in Article 21 can not be restricted to mere animal existence. i
Editors note: Article 21 of the Indian Constitution provides: No person shall be deprived of his life or personal liberty except according to procedure established by law.
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[8] [W]e think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing one-self in diverse forms, freely moving about and mixing and commingling with fellow human beings. Of course, the magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must, in any view of the matter, include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human-self. Every act which offends against or impairs human dignity would constitute deprivation pro tanto of this right to live and it would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights. E. Dignity in Practice: A Case Study of Torture The European Convention on Human Rights requires that: No one shall be subjected to torture or to inhuman or degrading treatment or punishment. Torture is often understood as the infliction of physical pain or, if not pain, then suffering. Severe beatings; the deprivation of food, water, or sleep; hot ironsthese are what we think of when we think of torture. But as we see in the following cases, this prohibition extends to a much broader range of conduct than that which may cause physical harm. What role, if any, does dignity play in determining which forms of punishment are permissible and which are inhuman or degrading? Convention (III) Relative to the Treatment of Prisoners of War Geneva (1949) Article 3 (1) Persons taking no active part in the hostilities . . . shall in all circumstances be treated humanely . . . . To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (c) [o]utrages upon personal dignity, in particular humiliating and degrading treatment[.]
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Jeremy Waldron Cruel, Inhuman, and Degrading Treatment: The Words Themselves * What are we to say about the meaning of predicates like cruel, inhuman, and degrading in human rights law and phrases like outrages on personal dignity? They deploy highly charged value-termsterms that the authors of one treatise say, tend to be over-used in ordinary speech. And many officials (including the President of the United States) have professed themselves alarmed and bewildered by their indeterminacy. . . . The language of cruel, inhuman, and degrading treatment is challenging. Even with the best will in the world, it is not easy to figure out what these provisions forbid. Inasmuch as they use evaluative predicates rather than descriptive ones, they present themselves as standards rather than rules. . . . One response is to throw up ones hands and refuse to deal with the provisions on the ground that they are too indeterminate to be justiciable. . . . Still, some courts . . . have no choice but to entertain arguments and make decisions about the application of cruel, inhuman or degrading. Or even if their interpretation is remitted to agencies or to the army and police forces rather than to courts, there is still the question of how they are to approach their task. What is a responsible approach for anyone to take to the meaning of these terms? . . . Can the problem be solved by converting these provisionsthese standardsinto rules or by supplanting them with rules defined by the decisions of courts? It might seem so. If the courts decide that solitary confinement is inhuman, then we can take the provision prohibiting inhuman treatment to be a provision prohibiting (inter alia) solitary confinement. . . . As the precedents build up, we replace vague evaluative terms with lists of practices that are prohibited, practices that can then be identified descriptively rather than by evaluative reasoning. In time, the list usurps the standard; the list becomes the effective norm in our application of the provision; the list is what is referred to when an agency is trying to ensure that it is in compliance. . . . There is a danger, however, that an exclusive focus on the subsidiary rules might detract from the sort of thoughtfulness that the standard initially seemed to invite. The standard invites us to reflect upon and argue about whether a given practice is degrading or inhuman. But now we simply consult a list of rules. . . . Also, it is not clear how this approach helps when a court is confronted with an unprecedented practice alleged to be inhuman or degrading. . . .
*
Excerpted from N.Y. Univ. Pub. Law & Legal Theory Working Papers, Paper 98, available at http://lsr.nellco.org/nyu/plltwp/papers/98.
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Tyrer v. the United Kingdom European Court of Human Rights Application No. 5856/72 (1978) I. Facts 9. Mr. Anthony M. Tyrer, a citizen of the United Kingdom . . . being then aged 15 and of previous good character . . . pleaded guilty before the local juvenile court to unlawful assault occasioning actual bodily harm to a senior pupil at his school. . . . The applicant was sentenced on the same day to three strokes of the birch in accordance with the relevant legislation . . . . 10. Mr. Tyrer was birched . . . . His father and a doctor were present. The applicant was made to take down his trousers and underpants and bend over a table; he was held by two policemen whilst a third administered the punishment, pieces of the birch breaking at the first stroke. The applicants father lost his self-control and after the third stroke went for one of the policemen and had to be restrained. The birching raised, but did not cut, the applicants skin and he was sore for about a week and a half afterwards. . . . II. On Article 3 28. The applicant claimed . . . that the facts of his case constituted a breach of Article 3 of the [European Convention on Human Rights] which provides: No one shall be subjected to torture or to inhuman or degrading treatment or punishment. He alleged that there had been torture or inhuman or degrading treatment or punishment, or any combination thereof. 30. The Court notes first of all that a person may be humiliated by the mere fact of being criminally convicted. It would be absurd to hold that judicial punishment generally, by reason of its usual and perhaps almost inevitable element of humiliation, is degrading within the meaning of Article 3. Some further criterion must be read into the text. Indeed, Article 3, by expressly prohibiting inhuman and degrading punishment, implies that there is a distinction between such punishment and punishment in general. In the Courts view, in order for a punishment to be degrading and in breach of Article 3, the humiliation or debasement involved must attain a particular level and must in any event be other than that usual element of humiliation [generally present in punishment]. The assessment is, in the nature of things, relative: it depends on all the IV-41
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circumstances of the case and, in particular, on the nature and context of the punishment itself and the manner and method of its execution. . . . 33. [T]he very nature of judicial corporal punishment is that it involves one human being inflicting physical violence on another human being. Furthermore, it is institutionalised violence that is in the present case violence permitted by the law, ordered by the judicial authorities of the State and carried out by the police authorities of the State . . . . Thus, although the applicant did not suffer any severe or long-lasting physical effects, his punishmentwhereby he was treated as an object in the power of the authoritiesconstituted an assault on precisely that which it is one of the main purposes of Article 3 to protect, namely a persons dignity and physical integrity. Neither can it be excluded that the punishment may have had adverse psychological effects. . . . 35. Accordingly, viewing these circumstances as a whole, the Court finds that the applicant was subjected to a punishment in which the element of humiliation attained the level inherent in the notion of degrading punishment as explained at paragraph 30 above. The indignity of having the punishment administered over the bare posterior aggravated to some extent the degrading character of the applicants punishment but it was not the only or determining factor. The Court therefore concludes that the judicial corporal punishment inflicted on the applicant amounted to degrading punishment within the meaning of Article 3 of the Convention. Dan Kahan Whats Really Wrong with Shaming Sanctions * I dont think shaming penalties should be rejected either because offenders are shameless, and thus unlikely to be deterred by the threat of humiliation, or because shaming penalties are horrifically stigmatizing, and thus inconsistent with individual dignity. Im not persuaded by the claim that the spectacle of shaming will excite either an uncontrollable appetite to degrade or a spiralling attitude of indifference toward offenses revealed to be more common than previously thought. . . . [P]unishments, to be politically acceptable, must express authoritative moral condemnation. Thats true, but incomplete. Members of society also expect punishmentsand essentially all laws for that matterto affirm the core values that animate their preferred ways of life. Modes of punishments that are equivalent in their power to convey moral disapproval might still convey radically conflicting messages about the nature of the ideal society. Whats really wrong with shaming penalties, I believe, is that they are deeply partisan: when society picks them, it picks sides, aligning
*
Excerpted from 84 TEX. L. REV. 2075 (2006).
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itself with those who subscribe to norms that give pride of place to community and social differentiation rather than to individuality and equality. Ironically, whats right about imprisonment, at least from an expressive political economy point of view, is that it is robustly pluralistic. Imprisonment is endowed with a sufficiently rich and diverse array of meanings that persons of diverse worldviews solidaristic and individualistic, hierarchic and egalitariancan all find affirmation of their values in it simultaneously. Institutions, laws, and policies that exhibit this form of expressive overdetermination are uniquely suited to negotiate the obstacles to political agreement posed by persistent cultural status competition within our society. Wholly apart from their impact on the material well-being of the public, expressively overdetermined institutions and policies are thus likely to prevail over alternatives that convey more univocal meanings . . . . Public Committee Against Torture in Israel v. The State of Israel & The General Security Service The Supreme Court of Israel Sitting as the High Court of Justice HCJ 5100/94 [1999] * President A. Barak Background 1. [E]ver since it was established, the State of Israel has been engaged in an unceasing struggle for its securityindeed, its very existence. Terrorist organizations have established as their goal Israels annihilation. Terrorist acts and the general disruption of order are their means of choice. In employing such methods, these groups do not distinguish between civilian and military targets. They carry out terrorist attacks in which scores are murdered in public areas, public transportation, city squares and centers, theaters and coffee shops. They do not distinguish between men, women and children. They act out of cruelty and without mercy. . . . The main body responsible for fighting terrorism is the General Security Service (GSS). In order to fulfil this function, the GSS also investigates those suspected of hostile terrorist activities. The purpose of these interrogations is, among others, to gather information regarding terrorists and their organizing methods for the purpose of thwarting and preventing them from carrying out these terrorist attacks. In the context of
Translation excerpted from http://elyon1.court.gov.il/files_eng/94/000/051/a09/ 94051000.a09.pdf.
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these interrogations, GSS investigators also make use of physical means. The legality of these practices is being examined before this Court in these applications. . . . The Means Employed for Interrogation Purposes 22. An interrogation, by its very nature, places the suspect in a difficult position. The criminal's interrogation, wrote Justice Vitkon over twenty years ago, is not a negotiation process between two open and fair vendors, conducting their business on the basis of maximum mutual trust. An interrogation is a competition of minds, in which the investigator attempts to penetrate the suspects thoughts and elicit from him the information the investigator seeks to obtain. Quite accurately, it was noted that: Any interrogation, be it the fairest and most reasonable of all, inevitably places the suspect in embarrassing situations, burdens him, intrudes his conscience, penetrates the deepest crevices of his soul, while creating serious emotional pressure. . . . In crystallizing the interrogation rules, two values or interests clash. On the one hand, lies the desire to uncover the truth, thereby fulfilling the public interest in exposing crime and preventing it. On the other hand, is the wish to protect the dignity and liberty of the individual being interrogated. This having been said, these interests and values are not absolute. A democratic, freedom-loving society does not accept that investigators use any means for the purpose of uncovering the truth. The interrogation practices of the police in a given regime, noted Justice Landau, are indicative of a regimes very character. At times, the price of truth is so high that a democratic society is not prepared to pay it. To the same extent however, a democratic society, desirous of liberty seeks to fight crime and to that end is prepared to accept that an interrogation may infringe upon the human dignity and liberty of a suspect provided it is done for a proper purpose and that the harm does not exceed that which is necessary. Concerning the collision of values, with respect to the use of evidence obtained in a violent police interrogation, Justice H. Cohen opined as follows: On the one hand, it is our duty to ensure that human dignity be protected; that it not be harmed at the hands of those who abuse it, and to do all that we can to restrain police investigators from fulfilling the object of their interrogation through prohibited and criminal means; on the other hand, it is (also) our duty to fight the increasingly growing crime rate which destroys the positive aspects of our country, and to prevent the disruption of public peace to the caprices of violent criminals that were beaten by police investigators.
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Our concern, therefore, lies in the clash of values and the balancing of conflicting values. The balancing process results in the rules for a reasonable interrogation. These rules are based, on the one hand, on preserving the human image of the suspect and on preserving the purity of arms used during the interrogation. On the other hand, these rules take into consideration the need to fight the phenomenon of criminality in an effective manner generally, and terrorist attacks specifically. These rules reflect a degree of reasonableness, straight thinking (right mindedness) and fairness. The rules pertaining to investigations are important to a democratic state. They reflect its character. An illegal investigation harms the suspects human dignity. It equally harms societys fabric. 23. [The] law of interrogation by its very nature, is intrinsically linked to the circumstances of each case. This having been said, a number of general principles are nonetheless worth noting: First, a reasonable investigation is necessarily one free of torture, free of cruel, inhuman treatment of the subject and free of any degrading handling whatsoever. There is a prohibition on the use of brutal or inhuman means in the course of an investigation. Human dignity also includes the dignity of the suspect being interrogated. This conclusion is in perfect accord with (various) International Law treatiesto which Israel is a signatorywhich prohibit the use of torture, cruel, inhuman treatment and degrading treatment. These prohibitions are absolute. There are no exceptions to them and there is no room for balancing. Indeed, violence directed at a suspects body or spirit does not constitute a reasonable investigation practice. The use of violence during investigations can potentially lead to the investigator being held criminally liable. Second, a reasonable investigation is likely to cause discomfort; it may result in insufficient sleep; the conditions under which it is conducted risk being unpleasant. . . . In the end result, the legality of an investigation is deduced from the propriety of its purpose and from its methods. Thus, for instance, sleep deprivation for a prolonged period, or sleep deprivation at night when this is not necessary to the investigation time wise may be deemed a use of an investigation method which surpasses the least restrictive means. . . . 33. The States position is that by virtue of [the necessity] defence to criminal liability, GSS investigators are also authorized to apply physical means, such as shaking, in the appropriate circumstances, in order to prevent serious harm to human life or body, in the absence of other alternatives. The State maintains that an act committed under conditions of necessity does not constitute a crime. Instead, it is deemed an act worth committing in such circumstances in order to prevent serious harm to a human life or body. 34. We are prepared to assume thatalthough this matter is open to debate . . . the necessity defence is open to all, particularly an investigator, acting in an organizational capacity of the State in interrogations of that nature. Likewise, we are prepared to acceptalthough this matter is equally contentious . . . that the necessity exception is likely to arise in instances of ticking time bombs, and that the immediate IV-45
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need [element of the necessity defence] refers to the imminent nature of the act rather than that of the danger. Hence, the imminence criteria is satisfied even if the bomb is set to explode in a few days, or perhaps even after a few weeks, provided the danger is certain to materialize and there is no alternative means of preventing its materialization. In other words, there exists a concrete level of imminent danger of the explosions occurrence . . . . Consequently we are prepared to presume . . . that if a GSS investigatorwho applied physical interrogation methods for the purpose of saving human lifeis criminally indicted, the necessity defence is likely to be open to him in the appropriate circumstances . . . . A long list of arguments, from both the fields of Ethics and Political Science, may be raised for and against the use of the necessity defence . . . . This matter, however, has already been decided under Israeli law. Israels Penal Law recognizes the necessity defence. 38. Our conclusion is therefore the following: . . . . [T]he individual GSS investigatorlike any police officerdoes not possess the authority to employ physical means which infringe upon a suspects liberty during the interrogation, unless these means are inherently accessory to the very essence of an interrogation and are both fair and reasonable. An investigator who insists on employing these methods, or does so routinely, is exceeding his authority. His responsibility shall be fixed according to law. His potential criminal liability shall be examined in the context of the necessity defence, and according to our assumptions . . . the investigator may find refuge under the necessity defences wings (so to speak), provided this defences conditions are met by the circumstances of the case. Just as the existence of the necessity defence does not bestow authority, so too the lack of authority does not negate the applicability of the necessity defence or that of other defences from criminal liability.
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F. Dignity as Autonomy versus Dignity as Life: A Case Study of Assisted Suicide Rodriguez v. British Columbia (Attorney General) Supreme Court of Canada [1993] 3 S.C.R. 519 LAMER C.J. (dissenting): Sue Rodriguez is a 42-year-old woman living in British Columbia. She is married and the mother of an 8 1/2-year-old son. Ms. Rodriguez suffers from amyotrophic lateral sclerosis, which is widely known as Lou Gehrigs disease; her life expectancy is between 2 and 14 months but her condition is rapidly deteriorating. Very soon she will lose the ability to swallow, speak, walk and move her body without assistance. Thereafter she will lose the capacity to breathe without a respirator, to eat without a gastrotomy and will eventually become confined to a bed. Ms. Rodriguez knows of her condition, the trajectory of her illness and the inevitability of how her life will end; her wish is to control the circumstances, timing and manner of her death. She does not wish to die so long as she still has the capacity to enjoy life. However, by the time she no longer is able to enjoy life, she will be physically unable to terminate her life without assistance. Ms. Rodriguez seeks an order which will allow a qualified medical practitioner to set up technological means by which she might, by her own hand, at the time of her choosing, end her life. Ms. Rodriguez applied to the Supreme Court of British Columbia for an order that s. 241(b) of the Criminal Code be declared invalid . . . on the ground that it violates her rights under s.[] 7. . . of the Charter.i . . . [A]n individuals right to control his or her own body does not cease to obtain merely because that individual has become dependent on others for the physical maintenance of that body; indeed, in such circumstances, this type of autonomy is often most critical to an individuals feeling of self-worth and dignity. As R. Dworkin concisely stated in his recent study, Lifes Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom (1993): Making someone die in a way that others approve, but he believes a horrifying contradiction of his life, is a devastating, odious form of tyranny.
Editors note: Section 7 of the Canadian Charter provides: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
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[T]he principal fear is that the decriminalization of assisted suicide will increase the risk of persons with physical disabilities being manipulated by others. . . . The truth is that we simply do not and cannot know the range of implications that allowing some form of assisted suicide will have for persons with physical disabilities. What we do know and cannot ignore is the anguish of those in the position of Ms. Rodriguez. Respecting the consent of those in her position may necessarily imply running the risk that the consent will have been obtained improperly. The proper role of the legal system in these circumstances is to provide safeguards to ensure that the consent in question is as independent and informed as is reasonably possible. The fear of a slippery slope cannot, in my view, justify the over-inclusive reach of the Criminal Code to encompass not only people who may be vulnerable to the pressure of others but also persons with no evidence of vulnerability, and, in the case of the appellant, persons where there is positive evidence of freely determined consent. . . . I agree with the importance of distinguishing between the situation where a person who is aided in his or her decision to commit suicide and the situation where the decision itself is a product of someone elses influence. However, I fail to see how preventing against abuse in one context must result in denying self-determination in another. I remain unpersuaded by the governments apparent contention that it is not possible to design legislation that is somewhere in between complete decriminalization and absolute prohibition. The judgment of La Forest, Sopinka, Gonthier, Iacobucci and Major JJ. was delivered by: SOPINKA J.I have read the reasons of the Chief Justice and those of McLachlin J. herein. I have concluded that the conclusion of my colleagues cannot be supported under the provisions of the Charter. The appellant argues that, by prohibiting anyone from assisting her to end her life when her illness has rendered her incapable of terminating her life without such assistance, by threat of criminal sanction, s. 241(b) deprives her of both her liberty and her security of the person. The appellant asserts that her application is based upon (a) the right to live her remaining life with the inherent dignity of a human person, (b) the right to control what happens to her body while she is living, and (c) the right to be free from governmental interference in making fundamental personal decisions concerning the terminal stages of her life. . . . While she supports her claim on the ground that her liberty and security of the person interests are engaged, a consideration of these interests cannot be divorced from the sanctity of life, which is one of the three Charter values protected by s. 7.
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Sanctity of life . . . has been understood historically as excluding freedom of choice in the self-infliction of death and certainly in the involvement of others in carrying out that choice. . . . The appellant asserts that it is a principle of fundamental justice that the human dignity and autonomy of individuals be respected, and that to subject her to needless suffering in this manner is to rob her of her dignity. . . . Canada and other Western democracies recognize and apply the principle of the sanctity of life as a general principle which is subject to limited and narrow exceptions in situations in which notions of personal autonomy and dignity must prevail. However, these same societies continue to draw distinctions between passive and active forms of intervention in the dying process. . . . In upholding the respect for life, [the prohibition against assisted suicide] may discourage those who consider that life is unbearable at a particular moment, or who perceive themselves to be a burden upon others, from committing suicide. To permit a physician to lawfully participate in taking life would send a signal that there are circumstances in which the state approves of suicide. . . . Given the concerns about abuse . . . and the great difficulty in creating appropriate safeguards to prevent these, it can not be said that the blanket prohibition on assisted suicide is arbitrary or unfair, or that it is not reflective of fundamental values at play in our society. . .. In the result, the appeal is dismissed, but without costs. McLACHLIN J. (dissenting)[I] see this . . . as a case about the manner in which the state may limit the right of a person to make decisions about her body . . . . Certain of the interveners raise the concern that the striking down of s. 241(b) might demean the value of life. But what value is there in life without the choice to do what one wants with ones life, one might counter. Ones life includes ones death. Different people hold different views on life and on what devalues it. For some, the choice to end ones life with dignity is infinitely preferable to the inevitable pain and diminishment of a long, slow decline. Section 7 protects that choice against arbitrary state action which would remove it.
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CORY J. (dissenting)[A]t the outset I would observe that all parties to this debate take the same basic position, namely that human life is fundamentally important to our democratic society. Those opposed to the relief sought by Sue Rodriguez seek to uphold the impugned provisions of the Criminal Code on the grounds that it assists society to preserve human life. Those supporting her position recognize the importance of preserving the essential dignity of human life, which includes the right of Sue Rodriguez to die with dignity. Section 7 of the Canadian Charter of Rights and Freedoms has granted the constitutional right to Canadians to life, liberty and the security of the person. It is a provision which emphasizes the innate dignity of human existence. . . . The life of an individual must include dying. Dying is the final act in the drama of life. If, as I believe, dying is an integral part of living, then as a part of life it is entitled to the constitutional protection provided by s. 7. It follows that the right to die with dignity should be as well protected as is any other aspect of the right to life. State prohibitions that would force a dreadful, painful death on a rational but incapacitated terminally ill patient are an affront to human dignity. G. Reflections: Channeling Social Conflict Through Dignity Steven Pinker The Stupidity of Dignity* The problem is that dignity is a squishy, subjective notion, hardly up to the heavyweight moral demands assigned to it. The bioethicist Ruth Macklin, who had been fed up with loose talk about dignity intended to squelch research and therapy, threw down the gauntlet in a 2003 editorial, Dignity is a Useless Concept. Macklin argued that bioethics has done just fine with the principle of personal autonomythe idea that, because all humans have the same minimum capacity to suffer, prosper, reason, and choose, no human has the right to impinge on the life, body, or freedom of another. This is why informed consent serves as the bedrock of ethical research and practice, and it clearly rules out the kinds of abuses that led to the birth of bioethics in the first place, such as Mengeles sadistic pseudoexperiments in Nazi Germany and the withholding of treatment to indigent black patients in the infamous Tuskegee syphilis study. Once you recognize the principle of autonomy, Macklin argued, dignity adds nothing. . . . [T]he concept of dignity remains a mess. The reason, I think, is that dignity has three features that undermine any possibility of using it as a foundation . . . .
*
Excerpted from THE NEW REPUBLIC, May 28, 2008.
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First, dignity is relative. One doesnt have to be a scientific or moral relativist to notice that ascriptions of dignity vary radically with the time, place, and beholder. In olden days, a glimpse of stocking was looked on as something shocking. Second, dignity is fungible. The . . . Vatican treat[s] dignity as a sacred value, never to be compromised. In fact, every one of us voluntarily and repeatedly relinquishes dignity for other goods in life. Getting out of a small car is undignified. Having sex is undignified. . . . We repeatedly vote with our feet (and other body parts) that dignity is a trivial value, well worth trading off for life, health, and safety. Third, dignity can be harmful. . . . Every sashed and bemedaled despot reviewing his troops from a lofty platform seeks to command respect through ostentatious displays of dignity. Political and religious repressions are often rationalized as a defense of the dignity of a state, leader or creed. . . . Indeed, totalitarianism is often the imposition of a leaders conception of dignity on a population, such as the identical uniforms in Maoist China . . . . A free society disempowers the state from enforcing a conception of dignity on its citizens. Democratic governments allow satirists to poke fun at their leaders, institutions, and social mores. And they abjure any mandate to define some vision of the good life or the dignity of using freedom well. The price of freedom is tolerating behaviour by others that may be undignified by our own lights. Jean Bethke Elshtain The Dignity of the Human Person and The Idea of Human Rights: Four Inquiries * [F]or Christians . . . human persons are intrinsically, not contingently, social. We are born to communion, to relationality. It follows that there is no claim to personal goods which are prior to social relationships and obligations. Rights, then, are lodged in an ontology of human dignity. This dignity of the self cannot be dehistoricized and disembodied as separate from the experiences of human beings as creatures essentially, not contingently, related to others. The modern social encyclicals of Popes Leo XIII, Pius XI, John XXIII, Paul VI, and John Paul II affirm much more strongly the importance of the individual and . . . of his or her rights. And these rights are not spoken of primarily as individual claims against other individuals or society. They are woven into a concept of community that envisions the person as a sacred part of the whole. Rights exist within and are relative to a historical and social context and are intelligible only in terms of the obligations of individuals to other persons.
*
Excerpted from 14 J.L. & RELIGION 53 (2000).
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This understanding steers clear of excessive individualism without, at the same time, submerging persons into an indiscriminate social blob such that they cannot be distinguished as the distinctive beings they in fact are. In this way, a concept of what one might call distinctiveness or individuality is preserved sans a slide into individualism, whether as anthropology or ideology or both. Within this vision, commonality is on some level assumed and solidarity is an achievement consonant with the dignity of persons. What wants explaining, within this framework, is not solidarity but isolation. By contrast, those oriented to the views imbedded in the presuppositions of individualism presuppositions characteristic of conventionalist-nominalist strains of rights talk strain mightily to figure out how such essentially, not contingently, selfish creatures as human beings might actually relate to one another in relatively decent ways. Now: there is an undeniable rights-based, individualist thrust within contemporary, late industrial cultures, nowhere more so than in the United States. This way of thinking sees us as whole and complete unto ourselves: the self is sovereign and has, so to speak, proprietary interest in itself. This self is the sum total of the choices it he or shehas made. There is, of course, a way in which this is correct, or there is an insight here worth preserving, namely, that we really do become, in some profound sense, what we have chosen. The problem with choice in much of contemporary liberalism is that it is impoverished by being reduced to wants and preferences without any necessary reference to goods, ends, and purposes and how one might distinguish the more from the less worthy. Closely linked to the individualist notion of rights is one version of freedom, namely, to constitute and to choose values for oneself in isolation from a community of belief and within a conceptual frame that has eliminated any notion of the normative ordering of goods. The view of the self as an autonomous and sovereign chooser is so deeply entrenched that in late twentieth century America, at least, it is simply part of the cultural air we breathe. Needless to say, this position casts a pall of suspicion over ties of reciprocal obligation and mutual interdependence. Presuppositions of self-sovereignty erode families, civil society, polities, even markets over time. The assumptions of selfsovereignty undergird a notion that human wants and needs are infinitely expandable and feed an ideology of progress which, in practice at present, means more and better consumerism and higher numbers on the New York Stock Exchange. Dignitatis [Humanae], i by contrast, speaks throughout of responsible freedom compelled by a sense of duty to the common good. Our dignity, that with which we begin, is God-given and cannot be repealed, negated, or watered-down by governments or any other institution. The rights of such dignified persons are inviolable. Remember that I argued above that the current individualist order disdains any normative ordering of rights and this, too, departs in significant ways from Catholic social teaching.
Editors note: Dignitatis Humanae is an encyclical promulgated by Pope Paul VI in 1965.
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Christopher McCrudden Human Dignity and Judicial Interpretation of Human Rights * Does Dignity Serve as the Basis for a Consensual Substantive Conception of Human Rights? The apparently common recognition of the worth of the human person as a fundamental principle to which the positive law should be accountable . . . seems to camouflage the use of dignity in human rights adjudication to incorporate significantly different theoretical conceptions of the meaning and implications of such worth, enabling the incorporation of just the type of ideological, religious, and cultural differences that a common theory of human rights would need to transcend. By its very openness and nonspecificity, by its manipulability, by its appearance of universality disguising the extent to which cultural context is determining its meaning, dignity has enabled East and West, capitalist and non-capitalist, religious and anti-religious to agree (at least superficially) on a common concept. But this success should not blind us to the fact that where dignity is used either as an interpretive principle or as the basis for specific norms, the appearance of commonality and universality dissolves on closer scrutiny, and significantly different conceptions of dignity emerge. . . . Although dignity has yet to assist in providing a shared substantive basis for judicial decision-making, dignity has, however, provided something else to human rights adjudicators. Weisstubs analysis provides a useful starting point: what is interesting about human dignity is how it colours differently, depending upon the social needs in question. Its centrality and attractiveness for global ethics may be, thereby, its malleability rather than the tightness of its logic. . . . To say this in no way throws into question the rhetorical value or even the constitutional attractiveness of the claims or projections about human dignity. Wherein lies this constitutional attractiveness? I will argue . . . that we can identify . . . a distinctively useful institutional function which dignity plays in judicial interpretation, one that fulfils a need occasioned by the institutional characteristics of judicial decision-making in human rights adjudication. In other words, dignity plays an important legal-institutional function. I am not arguing that all judicial decisionmaking should be seen from the functionalist perspective which this particular argument presents. My more limited argument . . . is that the judicial use of dignity in human rights adjudication should not be seen only from the perspective of universalistic naturalism or from the perspective of pluralistic cultural relativism. Rather, we should see the role that dignity plays in adjudication at least partly from an institutional perspective. If this analysis is correct, one implication would be that the use of dignity in human rights
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adjudication may, therefore, be rather different from its use in other contexts and social systems. Judicial Reviews Institutional Problems At least since the Second World War, courts have increasingly been given (or taken on) a role in interpreting and applying constitutional and human rights, sometimes in specially created constitutional courts, sometimes in courts of general jurisdiction, and sometimes in administrative courts. Such adjudication usually involves the judiciary being asked to adjudicate on disputes which involve an allegation of a breach of a claimed right by a public body such as a department of government, or by the legislature itself. This role of the courts is controversial not least because it runs the risk of creating tension with other constitutional principles, such as the separation of powers. Where judicial review involves judges striking down legislation on the ground that it breaches constitutional or human rights, it is particularly controversial because a body of unelected judges calls into question the decision of a democratically elected body, leading to the socalled counter-majoritarian difficulty. These tensions have led to a continuing debate about the legitimacy of judicial review, particularly of this strong type, and how far it is compatible with notions of democratic self-government. In all the jurisdictions which have adopted dignity in their judicial decision-making, judicial review in the human rights context is more or less controversial, constantly aiming to justify itself, its methods, and its reasoning. Conflicts of Values and the Problem of Incommensurability I begin with the problem of how to handle conflicts of rights and conflicts between rights and other values. A key feature of this problem is the issue whether these rights and other values can be balanced against each other. . . . One important institutional function for dignity is to provide a language in which courts can indicate the weighting given to particular rights and other values in this context. When a particular right or other value is described as engaging dignity, this indicates that the court considers that considerable (even in some cases overwhelming) weight should be attributed to it. Domesticating and Contextualizing Human Rights How far should human rights instantiate international or local standards? Carozza argues that there is an inherent tension in international human rights law between upholding a universal understanding of human rights and respecting the diversity and freedom of human cultures. [Dignity can serve as] a conceptual tool to mediate the polarity of pluralism and the common good in a globalized world. . . . The point is not simply that the concept of dignity is vague and open to interpretation and gives judges IV-54
discretion; in that it does not differ from all human rights obligations and rights. Rather, my argument is that, just as dignity played a significant role politically in smoothing over the transition to human rights in the post-Second World War period at the international level, so too dignity is playing a similar role judicially, enabling rights to be interpreted in a way that domesticates them. Its role, in practice, is to enable local context to be incorporated under the appearance of using a universal principle. Dignity, in the judicial context, not only permits the incorporation of local contingencies in the interpretation of human rights norms; it requires it. Dignity allows each jurisdiction to develop its own practice of human rights. Justifying the Creation of New, and the Extension of Existing, Rights Dignity has functioned, thirdly, as a source from which new rights may be derived, and existing rights extended. . . . Reacting to the Institutional Uses of Dignity How should we react to these institutional uses of dignity? Some may see the three uses of dignity as merely rhetorical. The courts use the concept of dignity merely to disguise, for example, the absence of a theory on how to resolve conflict between incommensurable values. Instead of making a choice between conflicting rights, they present the conflict as an issue internal to dignity. Some may well consider that this approach obscures the moral issues which give rise to conflicts of rights, pretending that the problem is the absence of a common metric, where the real disagreement is deeper. . . . If these arguments are accepted, then from a substantive point of view, dignity is a placeholder, but it has taken on a rhetorical function in these three distinct contexts to give judges something to say when they confront the really hard issues. This counts as finding the use of dignity, but not in a way that some readers will see as normatively attractive, since it seems merely to provide a smokescreen behind which substantive judgments are being made, but unarticulated as such, and therefore uncontestable. . . . John Rawls The Idea of an Overlapping Consensus * In a constitutional democracy one of [political philosophys] most important aims is presenting a political conception of justice that can not only provide a shared public basis for the justification of political and social institutions but also helps ensure stability from one generation to the next. Now a basis of justification that rests on self- or groupinterests alone cannot be stable; such a basis must be, I think, even when moderated by skilful constitutional design, a mere modus vivendi, dependent on a fortuitous conjunction of contingencies. What is needed is a regulative political conception of justice that can
*
Excerpted from 7 OXFORD J. LEGAL STUD. 1 (1987).
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articulate and order in a principled way the political ideals and values of a democratic regime, thereby specifying the aims the constitution is to achieve and the limits it must respect. In addition, this political conception needs to be such that there is some hope of its gaining the support of an overlapping consensus, that is, a consensus in which it is affirmed by the opposing religious, philosophical and moral doctrines likely to thrive over generations in a more or less just constitutional democracy, where the criterion of justice is that political conception itself. . . . The idea of an overlapping consensus enables us to understand how a constitutional regime characterized by the fact of pluralism might, despite its deep divisions, achieve stability and social unity by the public recognition of a reasonable political conception of justice. . . . [J]ustice . . . is not formulated in terms of a general and compre-hensive religious, philosophical or moral doctrine but rather in terms of certain fundamental intuitive ideas viewed as latent in the public political culture of a democratic society. These ideas are used to articulate and order in a principled way its basic political values. We assume that in any such society there exists a tradition of democratic thought, the content of which is at least intuitively familiar to citizens generally. Societys main institutions, together with the accepted forms of their interpretation, are seen as a fund of implicitly shared fundamental ideas and principles. We suppose that these ideas and principles can be elaborated into a political conception of justice, which we hope can gain the support of an overlapping consensus. Chantal Mouffe ON THE POLITICAL (2005) * [O]ne of the main tasks for democratic politics consists in defusing the potential antagonism that exists in social relations. If we accept that this cannot be done by transcending the we/they relation, but only by constructing it in a different way, then the following question arises: what could constitute a tamed relation of antagonism, what form of we/they would it imply? Conflict, in order to be accepted as legitimate, needs to take a form that does not destroy the political association. This means that some kind of common bond must exist between the parties in conflict, so that they will not treat their opponents as enemies to be eradicated, seeing their demands as illegitimate, which is precisely what happens with the antagonistic friend/enemy relation. However, the opponents cannot be seen simply as competitors whose interests can be dealt with through mere negotiation, or reconciled
*
Excerpted from ON THE POLITICAL 19 (2005).
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through deliberation, because in that case the antagonistic element would simply have been eliminated. If we want to acknowledge on one side the permanence of the antagonistic dimension of the conflict, while on the other side allowing for the possibility of its taming, we need to envisage a third type of relation. This is the type of relation which I have proposed to call agonism. While antagonism is a we/they relation in which the two sides are enemies who do not share any common ground, agonism is a we/they relation where the conflicting parties, although acknowledging that there is no rational solution to their conflict, nevertheless recognize the legitimacy of their opponents. They are adversaries not enemies. This means that, while in conflict, they see themselves as belonging to the same political association, as sharing a common symbolic space within which the conflict takes place. We could say that the task of democracy is to transform antagonism into agonism. This is why the adversary is a crucial category of democratic politics. The adversarial model has to be seen as constitutive of democracy because it allows democratic politics to transform antagonism into agonism. In other words, it help[s] us to envision how the dimension of antagonism can be tamed, thanks to the establishment of institutions and practices through which the potential antagonism can be played out in an agonistic way. [A]ntagonistic conflicts are less likely to emerge as long as agonistic legitimate political channels for dissenting voices exist. Otherwise dissent tends to take violent forms, and this is true in both domestic and international politics. Jacques Rancire ON THE SHORES OF POLITICS * [H]annah Arendt posits as the primary right the right to have rights. We might add that rights are held by those who can impose a rational obligation on the other to recognize them. That the other more often than not evades such obligations changes the problem in no essential way. Those who say on general grounds that the other cannot understand them, that there is no common language, lose any basis for rights of their own to be recognized. By contrast, those who act as though the other can always understand their arguments increase their own strengthand not merely at the level of argument. The existence of a subject in law implies that the legal words are verifiable within a sphere of shared meaning. This space is virtual, which is not to say illusory. Those who take the virtual for the illusory disarm themselves just like those who take the community of sharing for a community of consensus. The call for equality never makes itself heard without defining its own space. The narrow path of emancipation passes between an acceptance of separate worlds and the illusion of consensus. . . .
Excerpted from ON THE SHORES OF POLITICS 50 (Liz Heron trans., 1995).
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This also implies that there is no group strength independent of the strength with which individuals tear themselves out of the nether world of inarticulate sounds and assert themselves as sharers in a common world. . . . The democratic experience is thus one of a particular aesthetic of politics. The democratic man is a being who speaks, which is also to say a poetic being, a being capable of embracing a distance between words and things which is not deception, not trickery, but humanity; a being capable of embracing the unreality of representation. A poetic virtue, then, and a virtue grounded in trust. Jacques Rancire DISAGREEMENT: POLITICS AND PHILOSOPHY * We should take disagreement to mean a determined kind of speech situation: one in which one of the interlocutors at once understands and does not understand what the other is saying. Disagreement is not the conflict between one who says white and another who says black. It is the conflict between one who says white and another who also says white but does not understand the same thing by it or does not understand that the other is saying the same thing in the name of whiteness. The term is so broad it obviously calls for a certain amount of fine-tuning and obliges us to make certain distinctions. Disagreement is not misconstruction. The concept of misconstruction supposes that one or other or both of the interlocutors do or does not know what they are saying or what the other is saying, either through the effects of simple ignorance, studied dissimulation, or inherent delusion. Nor is disagreement some kind of misunderstanding stemming from the imprecise nature of words. Ancient received wisdom, very much in vogue again these days, deplores the way people fail to understand each other properly because of the ambiguity of the words exchanged, and requires us always, at times, or at least wherever truth, justice, and good are at stake, to try and give each word a well-defined meaning, one that distinguishes it from all other words, discarding words that do not designate any defined property or that inevitably lead to homonymic confusion. It sometimes happens that this wisdom goes by the name of philosophy and manages to pass off this rule of linguistic economy as philosophys privileged exercise. The reverse also happens, whereby philosophy is denounced as the very thing that promotes empty words and irreducible homonyms; every human activity, this wisdom goes, should get clear about itself, purging its vocabulary and conceptual underpinnings of all philosophys bilge. . . . The structures proper to disagreement are those in which discussion of an argument comes down to a dispute over the object of the discussion and over the capacity of those who are making an object of it.
Excerpted from DISAGREEMENT: POLITICS AND PHILOSOPHY, x (Julie Rose trans., 1998).
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H. Dignity as Life, Liberty, Privacy and Equality: A Case Study of Abortion This section explores the use of dignity in the abortion jurisprudence of several different jurisdictions: the United States, Hungary, Germany, Poland, and Colombia. Abortion has long been the site of deep social conflict. The debate over abortion is often understood as pitting the autonomy and equality of women against fetal life. The stakes of abortion, however, have increasingly come to be understood in terms of dignityand, indeed, in terms of the competing meanings of dignity. The Catholic Church, for example, invokes dignity to oppose abortion as the wrongful taking of life. Consider the Churchs 2008 statement in Dignitas Personae: The human embryo has, therefore, from the very beginning, the dignity proper to a person. . . . Respect for that dignity is owed to every human being because each one carries in an indelible way his own dignity and value. Here, the Church uses dignity to mean life itself. Those calling for protection of a womans decision whether to bear a child also invoke dignity. For example, Justice Stevens of the United States Supreme Court wrote: Part of the constitutional liberty to choose is the equal dignity to which each of us is entitled. A woman who decides to terminate her pregnancy is entitled to the same respect as a woman who decides to carry the fetus to term. Dignity here does not refer simply to the value of life itself, but instead encompasses both autonomy and equality. In the abortion cases, then, dignity has different meanings, sometimes referring to autonomy, to equality, and to life. Is the struggle over dignitys implications for abortion an indication that the concept is vague or indeterminate, or do the cases instead invoke dignity in the service of several competing, yet discrete and identifiable values? Even if dignity refers to several distinct values, does the continual shift in dignitys meaning impede analytical clarity in the abortion debate? What if anything is gained by use of one term to refer to several distinct complexes of value? Differently put, does the use of dignity in the abortion dispute supply an actual ground of commonality or merely the illusion of common values? Perhaps the values themselves are shared, but there is disagreement about their proper application. If so, what difference does it make to express disagreement through dignity? Will beliefs about abortion law change in virtue of appeal to dignity, or, in the last analysis, does dignity add little to national or transnational debate over abortion? What social, juridical, or institutional functions do claims on dignity serve?
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Global Constitutionalism

Excerpted from 19 EUR. J. INTL L. 655 (2008).

Excerpted from 55 STAN. L. REV. 1921 (2003).

Excerpted from 14 COLUM. J. EUR. L. 201 (2008).

Excerpted from 19 EUR. J. INTL L. 655 (2008).

Excerpted from 84 TEX. L. REV. 2075 (2006).

Translation excerpted from http://elyon1.court.gov.il/files_eng/94/000/051/a09/ 94051000.a09.pdf.

Excerpted from THE NEW REPUBLIC, May 28, 2008.

Excerpted from 14 J.L. & RELIGION 53 (2000).

Editors note: Dignitatis Humanae is an encyclical promulgated by Pope Paul VI in 1965.

Excerpted from 19 EUR. J. INTL L. 655 (2008).

Excerpted from 7 OXFORD J. LEGAL STUD. 1 (1987).

Excerpted from ON THE POLITICAL 19 (2005).

Excerpted from ON THE SHORES OF POLITICS 50 (Liz Heron trans., 1995).

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