Systemic Heroes

[HARDCORE]

6-21-2018

(Personal Opinions)

“First of all, it was my understanding that due process was still the law of the land?” And as if the flagrant violation of this tenet was not enough, when some of those protected heroes within the system takes to attacking an over 95- year old woman who does not top 98 lbs soaking wet, who then does any American Citizen have left to turn to for justice - apparently, not even “Our Own Elected Government?”

These moral cretins are really some kind of heroes, especially when they can slither in and remove an octogenarian from her own home of many years, literally steal her few sticks of meager furniture, robbing her of her few remaining dollars, and then literally imprisoning that frail (and honorable) old lady without even going through the motion of notifying her next of kin? And “”These Warriors Against The Elderly” have the blatant audacity to even refer to themselves as representatives of the people’s will?

As a matter of fact, even our own government has been redundantly notified of this domestic atrocity, but they have opted instead, to bury their courageous little (elected) heads under a growing mountain of self-generated and ever-stinking manure, and this instead of realizing that even the likes of them once had a mother!

Are “We the People” so bereft of decent representation these days that we have to settle for the likes of those who prey upon our elderly by stealing them blind, and then incarcerating what is left of them within a few of these so-called rest homes, and this with no excuse, other than growing old?

“Some of those heartless fools genuinely disgust me!” But then, I still contend that: “Where there is no truth, there is no honor!” And those who would oppose any person’s right to human dignity, (Even Within Their Old Age, or under The Color of Authority), may eventually also seek to enslave that person’s entire nation, and maybe even their immortal soul as well, in my opinion!” (hrt-6/2/2018)

Hardcore

[Boats]

There is no such thing as a right to dignity
By: Conor O'Mahony 3-30-2012
RE: https://academic.oup.com/icon/article/10/2/551/666082


International Journal of Constitutional Law, Volume 10, Issue 2, 30 March 2012, Pages 551–574, https://doi.org/10.1093/icon/mos010
Published: 30 March 2012

Abstract

Human dignity has been the foundational principle of choice of both international human rights law and domestic constitutional rights provisions since the end of the Second World War. However, in spite of widespread international agreement on the importance of the principle, there is a significant degree of confusion regarding what it demands of law makers and adjudicators, and considerable inconsistency in its formulation and application in domestic constitutional law. This paper will argue that much of this confusion stems from loose usage of the term by judges and commentators. The discussion will focus on two characterizations of human dignity frequently seen in domestic constitutional law which cannot be logically reconciled with its role in international human rights law: the idea of a right to dignity, and the related confusion between the concept of dignity and the right to personal autonomy. It will be argued that a move away from these characterizations of dignity would render the principle a more workable and useful tool as a foundational principle of constitutional rights.

1. Introduction

In recent years, the pages of the law reviews have become increasingly populated with literature on the concept of human dignity and the central role that it has come to play in the period since the Second World War as the chosen underlying principle and source of rights in international human rights law and many domestic constitutions. Yet in spite of this voluminous and often erudite body of literature, there is little or no consensus as to what the concept of human dignity demands of law makers and adjudicators. Indeed, for all the importance and emphasis placed on human dignity in the text of international conventions, domestic constitutions, and court decisions, the elusive nature of the concept has led many commentators to argue that it is, at best, meaningless or unhelpful, and at worst, potentially damaging to the protection of fundamental human rights.

The purpose of this article is to argue that a large part of this difficulty is attributable to the relative looseness with which the term has been used by drafters, judges and academics, as a consequence of which domestic constitutional law frequently defines “dignity” in a manner that cannot be reconciled with international human rights law. In national constitutional courts, the term “dignity” is frequently used as a rhetorical flourish where in fact it should be used more as a term of art; it will be argued that a more careful approach to the legal meaning and function of the term “dignity” could help to reinforce its status as a defining component of human rights protection. In particular, two points of confusion will be highlighted: first, the decidedly unhelpful and contradictory concept of a “right to dignity,” and second, the related confusion between the terms “dignity” and “autonomy.” Both of these characterizations of dignity enjoy a strong (but not universal) level of acceptance in dignity discourse; but notwithstanding this, it will be argued that if the legal approach to respecting human dignity declines to recognize or protect a right to dignity, and separates dignity from autonomy, an appreciably greater level of consistency and common ground could be achieved. This in turn would give greater strength to the concept of human dignity as a constitutional principle by clarifying what it requires of the law and achieving greater harmony with international human rights law, as well as providing greater scope for comparative constitutional analysis.

2. The trouble with dignity

It is by now clear that human dignity is the central value underpinning the entirety of international human rights law. This can be seen in its invocation in the Preambles to the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the UN Convention on the Rights of the Child (UNCRC), all of which refer to “… the inherent dignity … of all members of the human family [as] the foundation of freedom, justice and peace in the world… .” The UDHR goes further by stating in article 1 that “[a]ll human beings are born free and equal in dignity and rights.”1 The preambles to the ICCPR and ICESCR state that the “equal and inalienable rights of all members of the human family … derive from the inherent dignity of the human person.” Similarly, the UN Convention against Torture states in its preamble that “recognition of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,” and goes on to expressly state that “those rights derive from the inherent dignity of the human person.”

The concept of human dignity is also invoked in the preambles to the UN Convention on the Elimination of All Forms of Racial Discrimination and the UN Convention on the Elimination of All Forms of Discrimination against Women, both of which are devoted to the elimination of discrimination based on an external characteristic—race and sex. Similarly, the Vienna Declaration made at the World Conference on Human Rights in 1993 stated in its preamble that “all human rights derive from the dignity and worth inherent in the human person.”2 While human dignity is not expressly mentioned in the European Convention on Human Rights (ECHR) or the treaties of the European Union, the concept has reared its head in the case law of both the European Court of Human Rights and the European Court of Justice. It has been stated to be “the very essence” of the ECHR3 and to constitute the value underlying European Union equality legislation.4

In addition to provisions of international law, the concept of dignity plays a key role in the constitutional documents of a wide array of Western states. Human dignity has been expressly invoked as a foundational principle in the constitutional documents of a significant number of countries around the world, with at least fifteen European countries, as well as others such as Canada, Israel, and South Africa, explicitly invoking the principle in their constitutions.5 Dignity is the founding principle on which the German Basic Law of 1949 is based,6 and the 1996 Constitution of South Africa expressly founds the State of the Republic of South Africa on “[h]uman dignity, the achievement of equality and the advancement of human rights and freedoms.”7 It goes on to further provide that “[e]veryone has inherent dignity and the right to have their dignity respected and protected,”8 and moreover, that when interpreting the Bill of Rights, courts and tribunals “must promote the values that underlie an open and democratic society based on human dignity, equality and freedom.”9 The Preamble to the Irish Constitution of 1937 sets the scene for the document that follows by stating that “We, the people of Éire … 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 … [d]o hereby adopt, enact and give to ourselves this Constitution.”

While the US Constitution does not actually mention the term “dignity,” Justice William Brennan of the US Supreme Court has described the text as “a sparkling vision of the supremacy of the human dignity of every individual.”10 In recent years, the Supreme Court has used the term with an increasing degree of frequency when interpreting provisions of the Bill of Rights;11 moreover, the constitutions of a number of individual states within the US expressly invoke the concept, while also elaborating on what it entails.12 The similarities between these could perhaps be viewed as hinting at the substantive content of the American conception of dignity as a constitutional principle. The Montana Constitution of 1972 provides in article 2, section 4, that the dignity of the human being is “inviolable,” and outlaws discrimination “on account of race, color, sex, culture, social origin or condition, or political or religious ideas.” In similar terms, section 3 of the Louisiana Constitution of 1974 provides that “[n]o law shall discriminate against a person because of race or religious ideas, beliefs or affiliations … birth, age, sex, culture, physical condition or political ideas or affiliations.” Finally, article 1, section 20 of the Illinois Constitution of 1970 states: “To promote individual dignity, communications that portray criminality, depravity or lack of virtue in, or that incite violence, hatred, abuse or hostility toward, a person or group of persons by reason of or by reference to religious, racial, ethnic, national or regional affiliation are condemned.”

While the dignity clauses of the constitutions of Germany and South Africa are less specific than the above examples, further elaboration is instead provided in separate provisions relating to equality. Article 3.3 of the German Constitution provides that “[n]o one may be prejudiced or favored because of his sex, his parentage, his race, his language, his homeland and origin, his faith or his religious or political opinions,” while article 9.3 of the South African Constitution provides: “The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.” The South African Constitutional Court has reinforced this relationship by stating: “Dignity is a difficult concept to capture in precise terms. At its least, it is clear that the constitutional protection of dignity requires us to acknowledge the value and worth of all individuals as members of our society.”13

In Ireland, the use of the equality clause as a means of shedding light on (and giving teeth to) an underlying principle of human dignity can also be seen whereby article 40.1 of the Constitution states that “[a]ll citizens shall, as human persons, be held equal before the law,” and the Supreme Court has stated that this guarantee:

is a guarantee of equality as human persons and (as the Irish text of the Constitution makes quite clear) is a guarantee related to their dignity as human beings and a guarantee against any inequalities grounded upon an assumption, or indeed a belief, that some individual or individuals or classes of individuals, by reason of their human attributes or their ethnic or racial, social or religious background, are to be treated as the inferior or superior of other individuals in the community. This list does not pretend to be complete; but it is merely intended to illustrate the view that this guarantee refers to human persons for what they are in themselves rather than to any lawful activities, trades or pursuits which they may engage in or follow.14

Even in the United Kingdom, where there is no written Constitution, the courts have made reference to human dignity in dealing with equality cases. In Ghaidan v. Godin-Mendoza, Baroness Hale of Richmond stated: “Democracy is founded on the principle that each individual has equal value. Treating some as automatically having less value than others not only causes pain and distress to that person but also violates his or her dignity as a human being… .”15 A similar importance has been attached to the term in constitutional adjudication in France, notwithstanding the absence of an express reference to the term in the French Constitution.16

Thus, in a legal sense, these constitutional provisions and the surrounding case law and literature would seem to establish the following points in relation to human dignity as a constitutional concept in Western states:

Every human being has an inherent dignity by virtue of his or her humanity, irrespective of external characteristics including (but not limited to) sex, age, race or ethnicity, religious or political belief, nationality, status, sexual orientation, or mental or physical condition.

This inherent dignity demands that certain human rights should be protected.

Because dignity inheres in human beings, irrespective of external characteristics, every human being should be entitled to enjoy his or her human rights without suffering any discrimination or distinction based on such external characteristics.

For the remainder of the article, I will characterize the above as the “equal treatment and respect aspect” of dignity. A full examination of the substantive content of the concept of human dignity—in the sense of what exactly it demands in terms of human rights protection—is outside the scope of this article, and in any event there is a substantial body of literature devoted to the question.17 For present purposes, I will focus on how this minimum irreducible content is (and should be) employed as a constitutional principle.

Equal treatment and respect is not the only aspect of dignity which is commonly recognized. The following passage from Chaïm Perelman is a good representation of what broad international consensus can be established in relation to what dignity means:

The notion of human rights implies that there exist rights that may be attributed to every member of the species, and that these rights are related to the very quality of being human, without distinction between members of the species and not extending beyond them. Whether the religious origin for the special place reserved for human beings in the doctrine is recognized or not, that doctrine proclaims that every person possesses a dignity proper to itself and merits respect insofar as that person is a free moral agent who is simultaneously autonomous and responsible.18

Here, Perelman identifies the equal treatment and respect of dignity, but also states that this equal treatment and respect should be particularly afforded to a person’s autonomy. This passage introduces the link between dignity and autonomy, which is a core feature of dignity discourse, but which is more problematic than the equal treatment and respect aspect; this will be examined in detail in the second half of this article. As regards substantive content, however, Perelman’s statement tells us comparatively little, and indeed Perelman himself goes on to comment that “[o]n account of the divergent interpretations of the very idea of the human person and of the obligations imposed by respect for a person’s dignity it is not only utopian but downright dangerous to believe that there is only one truth on this matter.”19 David Feldman has commented that “the meaning of the word is by no means straightforward, and its relationship with fundamental rights is unclear,”20 while William Binchy goes even further by commenting that “[i]ts meaning depends greatly on the philosophical premises of those who invoke it; the range of such premises is so broad that ‘dignity’ can have completely opposing connotations.”21

How is it, if most people can agree that human dignity is very important, that there is so little agreement on what the concept actually entails? The answer to this lies in part in the fact that the project of drafting universal human rights standards is one which naturally has to face up to almost insurmountable problems associated with cultural difference. Christopher McCrudden has observed that when the UDHR and the UN Charter were being drafted, “the significance of human dignity … was that it supplied a theoretical basis for the human rights movement in the absence of any other basis for consensus.”22 In the face of little agreement on points of detail, “it was necessary to persuade states of vastly different ideological hue that the Declaration was consistent with their conceptions of human rights.”23 McCrudden argues that human dignity facilitated this as “[i]ts utility was to enable those participating in the debate to insert their own theory [of human rights]. Everyone could agree that human dignity was central, but not why or how.”24

What we are left with is a concept which inevitably, in Feldman’s words, “is culturally dependent and eminently malleable.”25 This, it seems, is part of the point: each country can apply the concept in a manner which reflects its own understanding of what human dignity demands of the law. Ronald Dworkin argues that the way to approach the issue is to divide violations of human dignity into “baseline” violations and “bad faith” violations.26 “Baseline” violations are those violations which can be considered to be so reprehensible as to be universally unacceptable, regardless of cultural context. “Bad faith” violations are violations which occur in a specific cultural context, where a particular understanding exists of the conception of human dignity and the rights which flow from it, and the state breaches rights in a manner which violates its own culture’s conception of human dignity. Dworkin states that this concept “forbids government to act in ways that cannot be justified under the conception of dignity that the nation has embraced.”27 As to how “baseline” violations are to be identified, an interesting point has been made by Paolo Carozza:

Given the agreement on dignity as the most significant pillar of the Universal Declaration’s edifice, should we not regard the rest of the Universal Declaration as itself specifying to another degree the content of the more general recognition of the status and basic principle of human dignity? Its 30 Articles by themselves still do not give us the specificity necessary to make hard choices about how to balance, say, the right to education or freedom of association against other aspects of the common good (including the rights of others), so the greater detailing of the content of human dignity does not obviate the need for judicial interpretation which reaches beyond the minimum core of the concepts. But it does suggest that the minimum core may be a little thicker than McCrudden acknowledges, and accordingly more useful to judicial interpretation and protection of human rights.28

Carozza’s point is that the level of generality of the UDHR is such as to allow ample room for cultural divergence, while simultaneously laying down minimum standards which, while vague, are still considerably more detailed and prescriptive than the vague notion of every human person being worthy of equal treatment and respect. Taken together with Dworkin’s notion of “baseline” and “bad faith” violations of human dignity, this points to a way in which domestic constitutional orders can develop their usage of the principle. Moreover, Carozza argues that dignity has much potential value as a means of facilitating comparative constitutional adjudication by giving constitutional courts “the basic ground of commonality and comparability…despite whatever other differences may exist in their positive law or political and historical context.”29 Of course, cultural differences will always persist, and Carozza points out that where this is the case, courts are likely to take extra care to explain why the particular conception of human dignity in their jurisdiction requires a departure from precedent elsewhere.30 If experience bears out Carozza’s arguments, then the value of the type of comparative analysis of dignity he envisages could be that, over time, consensus develops on a wider range of issues, and the category of “baseline” violations begins to grow, while simultaneously domestic courts become more self-conscious of what exactly the particular conception of human dignity is in their own jurisdiction.

It can be seen, therefore, that dignity as a constitutional principle provides rich potential for developing a body of comparative constitutional rights jurisprudence and contributing to the development of consensus on rights issues, but that cultural differences will persist in specific cases. However, culture is not the only factor contributing to disagreement; there are other more avoidable factors also at play relating to the formulation of the texts that invoke human dignity and the characterization of the principle by judges interpreting it. Human dignity was introduced into international human rights law as a theoretical foundation—an underlying principle from which all rights are said to derive and which ultimately justifies imposing limitations on government power. However, in its transition into the text of both regional international instruments and domestic constitutions, and in its application in adjudication, human dignity has frequently been taken beyond this role. Specifically, there is a large body of opinion and legal material which makes reference to a “right to dignity,” as well as a significant level of confusion between the underlying principle of human dignity and the specific right of personal autonomy and self-determination. These characterizations and applications of the principle of human dignity have created a level of confusion and inconsistency that has led many commentators to question whether the concept has any real value at all, or indeed even whether it is potentially damaging.31 Moreover, the opportunities for comparative constitutional analysis between jurisdictions become greatly limited if dignity is not only applied differently but also performs different functions—as observed by McCrudden:

different jurisdictions incorporate the idea of human dignity into their legal texts in different ways, using different legal instruments. It may be unsurprising, therefore, if judges in different jurisdictions say different things about, for example, the weight or status of dignity if they are dealing with differently constituted texts which say different things about weight and status. Judicial differences may be attributable, in other words, to the texts, rather than to judicial interpretation.32

Against this backdrop, it is pertinent to explore whether there might be a way of resolving some of this confusion.

3. Is dignity a principle or a right?

A survey of the approach to the concept of human dignity in the constitutional law of various jurisdictions reveals that there are two ways of characterizing human dignity. The first is as a foundational principle which is a source of, and justification for, human rights norms (which, as seen above, is the approach taken in global international law instruments). The alternative is as a human right in itself—i.e. a right to dignity, or to be treated with dignity, or to lead a dignified life. The approach to these characterizations varies from one jurisdiction to another. Dignity definitely is a right in South Africa, as well as being the principle on which the state is founded,33 and the position in Germany is extremely similar.34 It definitely is not a right in Portugal, but it is still recognized as the foundation of the fundamental rights provisions of the Constitution,35 which is the same approach as that taken in Poland.36 It is unclear whether it is a right, a principle or both in Hungary,37 and similar confusion pertains in Ireland.38 If the confusion surrounding the role to played by human dignity in law making and adjudication is to be at least partly reduced, it is desirable that some level of clarity be established regarding whether it is a right, a principle, or both; and in each case, what the implications of that characterization are. In particular, David Kretzmer has argued that dignity characterized as a right is more susceptible to limitation than when characterized as a general constitutional value underpinning all fundamental rights,39 while Gay Moon & Robin Allen argue:

the use to which [dignity] is put will alter the nature and effect of the concept. The appeal to respect for human dignity can be made to assert a value that ought to be shared by all; to invoke a principle to stand alongside other fundamental principles (including in particular the principle of equal treatment) to help determine how that other principle should be applied; and to claim a remedy for the violation of a self-standing right. This chaemeleon-like quality of dignity has meant that reference to it has often been made without any express consideration of which role is in play and which is the most apt, and importantly, how therefore the concept works.40

To begin, the minimum core of human dignity which was discussed above will be considered, i.e. the principle that every human being is worthy of equal treatment and respect. In this regard, the question arises as to whether human dignity is really no more than a principle of equality (as protected in equality clauses) or non-discrimination (similar to, e.g., article 14 of the ECHR or article 2 of the UDHR, ICCPR, ICESCR. and UNCRC)? Does dignity simply mean that we should all be able to enjoy the same rights without distinction—or does it mean that we have rights because of our inherent human dignity?

On the one hand, perhaps the most universally recognized aspect of human dignity is its equal treatment and respect aspect, which might lend itself towards the conclusion that dignity is really no more than (or is incapable of being workable as a legal principle as any more than) a general principle of equality and non-discrimination in the enjoyment of human rights. As against this, the particularly central role ascribed to the concept of human dignity in both international law and the domestic law of a large number of jurisdictions suggests that there is something more at play than simply a principle of non-discrimination. Dignity is variously described as the foundation of freedom, justice and peace in the world; as the principle from which all human rights derive; and at times as the principle on which a particular state is founded. Clearly, such a conception goes far beyond a mere principle of non-discrimination, even if a principle of non-discrimination is one of the principles which follows very closely from the equal treatment and respect aspect of dignity. Having said that, the close connection between inherent human dignity and equality means that the area of equality law is one of the areas where the principle has most potential to inform and enliven the law.41

While the concept of human dignity as a fundamental and foundational value which acts as a source of and justification for human rights receives broad support internationally, the concept of dignity as a human right in itself is less enthusiastically embraced in domestic constitutional laws and the surrounding literature. For example, Feldman has argued:

The notion that dignity can itself be a fundamental right is superficially appealing but ultimately unconvincing. We are conceived and born, and most of us live and die, in circumstances of significant indignity. It seems … that human dignity is a desirable state, an aspiration, which some people manage to achieve some of the time, rather than a right. Nevertheless, human rights, when adequately protected, can improve the chances of realising the aspiration.42

In a similar vein, some of the case law that has arisen in various jurisdictions has discussed the notion of an undignified life (or death), and the idea that the absence of the enjoyment of certain rights or the denial of the ability to exercise an autonomous choice has the effect of depriving an individual of his or her dignity. In the South African case of S v. Makwanyane, O’Regan J. stated in the Constitutional Court that “without dignity, human life is substantially diminished.”43 In Ireland, O’Flaherty J. in Re a Ward of Court (No. 2) referred to the life of the Ward, who was in a near persistent vegetative state for over twenty years, as “what technically is life but life without purpose, meaning or dignity.”44 Writing extra-judicially, Justice William Brennan of the US Supreme Court has stated that “[t]here is no worse injustice than wrongly to strip a man of his dignity.”45

It could be argued that what is seen here is a confusion between the concept of human dignity as something which is inherent in all human beings, irrespective of external characteristics, and the more common and every-day usage of the terms “dignity” and “dignified” which carry connotations of poise, stateliness, status and self-respect.46 This could be argued equally in respect of a right to dignity or, to use a slightly different formulation, a right to lead a dignified life. In either case, the idea seems to be that dignity is a state to be achieved through the enjoyment of human rights. However, if dignity is inherent in all human beings, then strictly speaking there can be no such thing as life without dignity, at least not in the sense that the term is being used.47 That inherent dignity may call for certain human rights to be afforded to every person, but the denial of those rights cannot result in the denial of a person’s inherent dignity. Essentially, the concept of a right to lead a dignified life through the enjoyment of human rights reverses the more commonly accepted order of things by suggesting that dignity is founded on the enjoyment of human rights rather than that human rights are founded on the inherent dignity of every human being.

It would seem, therefore, that the idea of the enjoyment of human rights being essential to a dignified life is entirely inconsistent with the concept of inherent human dignity, and if it is accepted that all human beings have an inherent dignity, then the notion of a right to lead a dignified life through the enjoyment of human rights must be abandoned. The two concepts cannot coexist. Many people are denied their rights because of disability, sexual orientation, religion, ethnicity or other external characteristics—but the reason that this is considered to be a denial of rights is that those rights inhere in those individuals by virtue of their inherent human dignity. The fact that rights are being denied to a person does not mean that that person does not have those rights to begin with. However, to say that the denial of human rights has the effect of a person living a life devoid of dignity is to remove the basis for those rights in the first place, in which case the denial ceases to be a violation of rights by virtue of the fact that the person no longer has any dignity and thus no claim to have those rights protected. Clearly, this argument is circular nonsense which, if accepted, would mean that there could never be a violation of human rights at all—the violation would cancel out the basis of the rights and thus the rights themselves.48 Therefore, if the notion of inherent human dignity as the source of human rights is to be embraced, the better view would be to confine the use of human dignity as a legal concept to that role and not to additionally recognize a right to dignity or to lead a dignified life.

What can be seen here is related to the question of whether dignity is characterized as a descriptive or normative concept, each of which has been put forward by various commentators, but neither of which offers an entirely satisfactory account.49 If dignity is thought of as being purely descriptive, then it tells us nothing about what the law should do; but if it is purely normative—an “ought” and not an “is”—it begins to lose sight of its inherent nature as a hallmark of humanity that cannot be lost or taken away. On this point, I would argue that the concept of human dignity as employed in international human rights law and domestic constitutions involves both descriptive and normative elements. It is a descriptive statement (i.e. every human being has an inherent human dignity by virtue of his or her humanity, irrespective of external characteristics) which entails a normative corollary (i.e. that every human being, because of his or her inherent human dignity, should be afforded human rights on the basis of equal treatment and respect). In the same way that vegetables are good for us and we should therefore eat them regularly, the fact that the normative aspect may not be complied with in every case does not render the descriptive statement untrue in any way. Even when a person is not afforded equal treatment and respect, that person remains worthy of being so treated.50

If the concept of human dignity is to be employed as a guiding principle in constitutional drafting and adjudication, it would be easier to achieve consistency of interpretation if the concept were viewed in this way and judges avoided alluding to life without dignity or individuals being stripped of their dignity or living an undignified life. This consistency is also more likely to be achieved if constitutional texts characterize human dignity as a foundational principle rather than as a separate right in itself: a person can be deprived of a right, but cannot be deprived of his or her inherent human dignity. A person’s inherent dignity demands the protection of human rights on the basis of equal treatment and respect, and while the unjustified deprivation of a human right may constitute an attack on human dignity, it can never be deemed to deprive a person of his or her inherent dignity.

Although two of the most prominently cited constitutions in dignity literature—those of Germany and South Africa—do recognize a right to dignity, on balance it is more common in European constitutions that dignity is not recognized as a right in itself. In Omega Spielhallen- und Automatenaufstellung GmbH v. Oberbürgermeisterin der Bundesstadt Bonn, Advocate General Stix-Hackl commented that “… human dignity seems to appear in the national legal systems of the Member States primarily as a general article of faith or—often in the case-law—as a fundamental, evaluation or constitutional principle, rather than as an independent justiciable rule of law,” and that legal systems which additionally recognize a right to dignity constitute, at least within the European Union, the exception rather than the rule.51 Illustrations of the veracity of this statement, and of the role that human dignity is best suited to fulfilling in domestic constitutional law protecting human rights, can be found in the commentary emanating from a number of jurisdictions. In the context of Portugal, Jose Manuel Cardoso da Costa has stated:

Strictly speaking … it would seem that the Portuguese Constitution does not establish “human dignity” with the force of a “fundamental right” (or human right). However, if, as a result, it is tempting to suggest that the principle of human dignity is somewhat less than a fundamental right, at the same time it can actually be said to be more than that, as it is the “value principle” that constitutes the very foundation (and “criterion”) on which the fundamental rights listed in the Constitution are based, giving a “unity of meaning” to the catalogue as a whole… . In short, in recognising the principle of “human dignity” as the State’s foundation, the Constitution reveals the fundamental anthropological concept or presupposition on which “fundamental” or “human rights” are based and which gave birth to such rights.52

This foundational role of dignity can also be seen at work in both Germany and Poland. Christian Walter observes that the German Constitutional Court has described the human dignity clause of the German Basic Law “as the ‘highest value of the Basic Law, informing the substance and spirit of the entire document,’ as the ‘centre of the scheme of constitutional values’ and as a ‘fundamental constitutional principle dominating all parts of the constitution.’”53 Biruta Lewaszkiewicz-Petrykowska describes the dignity clause of article 30 of the Polish Constitution as “a general axiological principle … an essential value which is of paramount importance in the framing of constitutional law,”54 and continues:

The principle of human dignity as the source of all human and civic rights and freedoms entails a requirement to interpret law in a manner that complies with the system of values underpinning the Constitution … it is the provisions of Article 30 of the Constitution that form the basis for interpreting and applying all the other provisions regarding the rights, freedoms and obligations of the individual.55

In this light, I would argue that there is no such thing as a right to dignity: such a notion is essentially inconsistent with the invocation of human dignity as the foundational principle underlying and justifying the legal protection of human rights. It paradoxically suggests that an inherent characteristic can be taken away and that the enjoyment of rights leads to people attaining dignity rather than that people’s inherent dignity is the reason that they should be afforded rights. Loose usage of the term in constitutional drafting and adjudication serves only to create confusion and uncertainty surrounding the core meaning of the term dignity; this limits the scope of potential for comparative constitutional analysis, and causes a lack of harmony between domestic and international human rights discourse. The resulting debates have led to many attacks on dignity as a legal concept which undermine its significance and centrality in human rights law in a way that is ultimately damaging. Much could be achieved in terms of fostering consistency by abandoning the concept of the right to dignity and restricting human dignity to its original role as a foundational principle.

4. Dignity and autonomy

The second aspect of dignity which is commonly recognized by the law and hinted at in the passage quoted above from Perelman relates to individual autonomy and self-determination. The connection between dignity and autonomy is rooted in the concept of rationality, and the view of classical philosophers that what separates humans from other animals is the power of reason.56 Through exercising this power, human beings are capable of shaping their future and deciding their own destiny. The legal principle of human dignity is intended to be an expression of what makes man “special,” in the sense of being worthy of bearing rights; and since what makes man “special” compared to other animals is the power of reason and the ability to shape his own destiny, human dignity has become intrinsically bound up with the idea of personal autonomy and self-determination. At first glance, this appears straightforward; but closer examination reveals that this is a more problematic aspect of dignity than the notion that every human being is worthy of equal treatment and respect. In this light, this section will consider whether individual autonomy, as a constitutional principle or right, is really an aspect or facet of the concept of human dignity—what I will term “autonomy-as-dignity”57—or whether it is simply just another right (i.e. the right to self-determination or personal autonomy) which, like other human rights, flows from the inherent human dignity of every individual and which should consequently be afforded to every human being without discrimination.

The first difficulty is that when autonomy-as-dignity is compared to the notion of every human being having an inherent dignity by virtue of his or her humanity which calls for him or her to be afforded equal treatment and respect, it is more difficult to sustain the position that the ability to make decisions and choices regarding one’s future is inherent in every human being. Catherine Dupré has observed that while autonomy and self-determination “are fundamental in the theoretical construction of human rights and, beyond this, of liberal democracy, they exclude a significant minority of those among us who, for various reasons, are not autonomous and therefore are unable to make decisions for themselves, when decisions have to be made.”58 This includes young children and people who are mentally incapacitated by reason of severe disability, mental illness, or otherwise. Age and mental capacity are, therefore, factors which materially qualify and restrict individual autonomy—and yet these are external characteristics which, as outlined above, are deemed not to qualify an individual’s inherent human dignity in any way.

The second difficulty is that personal autonomy is subject to restriction and limitation in ways that the inherent dignity of every individual that makes him or her worthy of equal treatment and respect is not—the law imposes many legitimate restrictions on the type of conduct which people may make the autonomous choice to engage in, with the criminal law being the most obvious example. In fact, it seems rather obvious that a person’s autonomy and freedom to choose to pursue particular courses of action is more susceptible to justifiable legal limitation on a day-to-day basis than an individual’s claim to be treated and respected equally, and indeed the principle of equal treatment and respect would itself call for certain limitations to be imposed on the right to self-determination.59 On this view, autonomy would seem to be no more than a right to self-determination flowing from the inherent human dignity of every individual, but a right which is, like any other right, subject to legitimate interference and restriction by the state.60

As against this, if autonomy is to be considered an aspect of dignity itself, then this suggests that dignity as a concept is susceptible to frequent limitation by reference to other values and goals, in which case its centrality in human rights law and discourse could be called into question. Moreover, in difficult cases where autonomy is restricted precisely to protect the dignity of others, characterizing autonomy as an aspect of dignity means that the dignity of one person is overridden by the dignity of another, which is difficult to reconcile with the concept of equal treatment and respect. Indeed, in a number of now infamous dignity cases, an individual’s autonomy has been restricted so as to protect his or her own dignity, which certainly suggests a difference between the two concepts. Each of these points will now be explored further.

4.1. Autonomy-as-dignity (1): Competing dignities

A brief comparison of some cases from the US and from Ireland which turned on the autonomy aspect of dignity provides a graphic illustration of the scope for problems arising from recognizing autonomy and self-determination as an aspect of a constitutionally protected concept of human dignity. In the US, autonomy-as-dignity was invoked in order to invalidate a statute prohibiting abortion at state level in Armstrong v. State,61 and the right to decide to have an abortion was expressly stated to be “central to personal dignity and autonomy” and “an element of basic human dignity” by the Supreme Court in Planned Parenthood of Southeastern Pennsylvania v. Casey.62 Both decisions were based on an interpretation of human dignity as involving the autonomy to make fundamental choices regarding one’s life. Similar reasoning was relied on by the Irish Supreme Court in Re a Ward of Court (No. 2) when it recognized a right to be treated with dignity which implied the autonomy to die a natural death rather than be kept alive artificially.63 Denham J. found that the Ward had a “right to dignity” and “to be treated with dignity,”64 as well as the right to “autonomy and dignity in life and death.”65 She upheld the decision of the High Court, where Lynch J. had held that “despite the fact that the right to life ranks first in the hierarchy of personal rights, it may nevertheless be subjected to the citizen’s right of autonomy or self-determination or privacy or dignity, call it what you will.”66

On one level, a similar understanding of a concept of human dignity which entails a right to autonomy over fundamental life choices can be seen in the reasoning employed by the courts of each jurisdiction. However, the outcome arrived at in the US, which clearly excluded the possibility of the unborn child being considered to have a human dignity of its own, would never be replicated in Ireland due to the terms of article 40.3.3 of the Irish Constitution, which expressly protects the right to life of the unborn. Indeed, even in the absence of such a provision, the cultural factors at play in Ireland would make it highly likely that the Irish courts would have found that human dignity inheres in an unborn child and that its life should be protected.67 Thus it can be seen how the interpretation of autonomy as an aspect of human dignity by courts in one jurisdiction has the potential to give rise to results which may offend against many people’s notion of human dignity in another jurisdiction. Of course, as discussed above, this is not necessarily a difficulty in itself; cultural divergences will exist, and dignity as a foundational concept is supposed to facilitate this to a point. It seems reasonably clear that abortion is the subject of such a level of disagreement that it comes nowhere close to Dworkin’s notion of “baseline” violations of human dignity.

However, when it comes to viewing autonomy as an aspect of dignity itself, it is not necessary to contrast different jurisdictions and cultural contexts in order to see how different conceptions of dignity can militate towards directly opposing outcomes regarding the scope of personal autonomy. Even within a single jurisdiction, there are issues relating to autonomy over which people from identical cultural backgrounds will strongly disagree, of which abortion is just one example. It was notably commented by Henchy J. in the decision of the Irish Supreme Court in Norris v. Attorney General, which concerned the constitutionality of legislation criminalizing homosexual acts between consenting male adults, that “[w]hat is deemed necessary to his dignity and freedom by one man may be abhorred by another as an exercise in immorality.”68

If autonomy is classified as an aspect of dignity itself rather than a mere right to self-determination, cases involving a clash between the autonomy of one individual and the equal treatment and respect of another become almost impossible to resolve, as core elements of dignity are invoked on both sides of the argument. To take the abortion cases as an example, once it is accepted that the dignity of the unborn child demands that its life must be protected by the law, characterizing the autonomy of the mother as a question of her “dignity” leads to a conflict between the competing dignities of the mother and her unborn child. Such a scenario raises issues which the concept of autonomy-as-dignity not only fails to resolve, but arguably complicates even further. Irish abortion cases such as the 1991 “X” case69 and the 2007 “Miss D.” case70 graphically illustrate this point.

X was a fourteen-year-old girl who was raped and became pregnant; she became suicidal, and psychological evidence indicated that she would commit suicide if she was not allowed to travel to the UK for an abortion. Miss D. was a seventeen-year-old girl whose fetus was diagnosed with anencephaly, a brain defect which results in every case in the death of the child within hours or at most three days of birth. While not suicidal, Miss D.’s clear wish was to undergo an abortion rather than carry the child full term knowing she would have to face the trauma of childbirth followed by the almost immediate death of her child at the end of that pregnancy. If autonomy and self-determination constitute an essential facet of human dignity, then clearly there is a strong argument that to force either girl, against her wishes, to carry the child full term and give birth constitutes a violation of her dignity. Indeed, the Human Rights Committee, in its report on Ireland in subsequent to the X case, observed that compelling a woman to continue with a pregnancy, particularly where that pregnancy resulted from a rape, may violate the prohibition on cruel, inhuman, or degrading treatment set down in article 7 of the ICCPR.71 This is particularly noteworthy since cruel, inhuman, or degrading treatment is one of the most widely recognized ways of infringing on a person’s human dignity.

However, in each case, it is also clear that to allow the abortion constitutes an attack on the dignity of the unborn child (as expressly protected by the Irish Constitution) as the child is clearly not receiving equal treatment and respect. Given that dignity inheres in human beings by virtue of their human personality, irrespective of external characteristics, it is entirely irrelevant that the child was begotten by rape or is disabled to the point of being unable to survive outside the womb. If it is accepted—as it is in Irish law—that dignity inheres in unborn as well as born human life, then the unborn child has an inherent dignity as long as it lives, and any set of constitutional laws which recognize human dignity would have to treat the unborn accordingly. This approach would create an irreconcilable conflict between the dignity of the unborn child and the autonomy-as-dignity of the mother. The very concept of inherent human dignity demanding equal treatment and respect is such that it is impossible to resolve disputes by deciding that one person’s human dignity should be afforded priority over another; such an approach would destroy the very essence of the concept. The only logically satisfactory way to resolve the cases just mentioned would be either to decide that the unborn does not have an inherent human dignity (which, as already discussed, was the solution reached in the US, but would clearly not be available in the Irish context); or, alternatively, to cease classifying autonomy as an aspect of human dignity itself, and to view it instead as a right which flows from human dignity but which may not be exercised in a manner which infringes on the dignity of another (which is the general principle underpinning the criminal law).

4.2. Autonomy-as-dignity (2): Perceived dignity

Certain cases in which autonomy and dignity have come into conflict have also suggested the possibility of a direct conflict between autonomy-as-dignity and the equal treatment and respect aspect of dignity even in respect of a single individual. While the abortion cases highlight a conflict between the competing dignities of two human lives, other cases have given rise to a conflict between a single person’s autonomy and his or her perceived dignity—i.e. the equal respect which it is perceived that society should afford to that person, irrespective of his or her own wishes. In Germany, the Constitutional Court decided that peep shows violate the dignity of women who voluntarily expose themselves.72 In France, the Conseil d’Etat upheld a ban on dwarf-throwing competitions on the ground that it was an affront to human dignity to put on a spectacle devoted to allowing spectators to throw a person selected by reason of his suffering a physical handicap, notwithstanding that the dwarf who was employed for the purpose saw the position as a means of financial stability and fame, and appropriate safety equipment was provided.73 Cases such as these are further complicated by the impact of the impugned conduct on another aspect of dignity that is occasionally recognized—the dignity of society or indeed the human race as a whole.74

However, it could be argued that these cases have nothing to do with dignity in the proper sense—what is really at play is simply a case of limitations being imposed on the right to personal autonomy and self-determination, but that these are being dressed up as protection for human dignity. McCrudden discusses the idea of dignity being “waived,”75 but in some ways this makes little sense: even if autonomy is characterized as an essential facet of dignity, then it is contradictory to speak of dignity being waived, since the initial decision to do so is an exercise of autonomy. More significantly, if dignity is inherent in every person by virtue of his or her humanity, then it cannot be waived any more than it can be taken away. An alternative view is that the peep-show and dwarf-throwing cases have nothing to do with dignity properly so-called; all that is happening is that the right to personal autonomy and self-determination is being restricted, and this restriction is being dressed up as a protection for human dignity so as to justify what in reality is a decision reached on moral or paternalistic grounds.

The question then arises as to what constitutes a valid justification for an interference with personal autonomy? On one view, if autonomy is viewed an aspect of dignity itself, and not simply a secondary right flowing from dignity, then any limitation on personal autonomy and the right to self-determination could only be justified by reference to human dignity itself—most obviously, the dignity of others (sometimes characterized as societal dignity) or the perceived dignity of the individual concerned. This would suggest that the equal treatment and respect aspect of dignity takes precedence over all other considerations—including the autonomy of a willing party who is perceived as not being afforded equal treatment and respect—in which case autonomy-as-dignity is subservient to the equal treatment and respect aspect and the dignity of others (potentially including the dignity of society as a whole).76 Feldman has observed that these cases show that justifying limitations on personal autonomy and the right to self-determination by reference not to some objective external aim, but rather by reference to perceived individual dignity or societal dignity, may possibly make it too easy to justify a restriction on autonomy:

This paternalistic approach is allied to (although not the same as) a form of legal moralism which treats autonomy as an aspect of human dignity but one which can be overridden by reference to the need to maintain respect for the dignity of whole human societies and the human race…human dignity becomes a ground for interfering with human autonomy, achieving results which are more compatible with a collectivist view of liberalism than with an individualist one. 77

However, on another view, it is questionable whether every limitation on personal autonomy and the right to self-determination must be justified by reference to the dignity of others, or whether other justifications may suffice. Criminalizing violent conduct or restricting free speech in order to prevent incitement to hatred are clearly cases where the autonomy of some individuals is restricted in order to protect the dignity of others, and similar connections may be drawn in the case of interferences justified by reference to public health order or public health. Joseph Raz has submitted that, under an autonomy-based doctrine of freedom, “one may not pursue any goal by means which infringe people’s autonomy unless such action is justified by the need to protect or promote the autonomy of those people or of others.”78 However, it would seem that matters are not quite so simple: it is far less straightforward to construct a watertight connection to the dignity or autonomy of others in respect of concerns relating to public morals or national security—and yet, these are widely recognized as legitimate grounds for limitations on rights. Part of the driving force behind the elevation of the concept of human dignity to its central role in international and domestic law following the Second World War was a desire to enshrine legal recognition of the fact that the state exists for the benefit of the human being, and not the human being for the benefit of the state.79 Can extreme measures purportedly taken in the interests of national security, such as conscription to fight in an overseas war, ever be justified as being in the interests of human dignity itself?

The other classic example of where autonomy-as-dignity raises difficulties for the equal treatment and respect and societal aspects of dignity is the extent to which a person is free to choose the time and method of the end of his or her own life.80 This question arises in a variety of difficult circumstances, including cessation of life-prolonging treatment; euthanasia where death is already inevitable from illness or injury; and suicide either with or without the presence of terminal illness. Again, it is possible to argue with some force that it violates the dignity of the individual to artificially prolong life in, for example, a persistent vegetative state rather than to discontinue such treatment; or, further, to argue that it violates dignity to allow the individual to die slowly from a lack of artificial nutrition and hydration rather than to administer a swift lethal injection. Conversely, it can be argued that a person in a vegetative state is incapable of making autonomous decisions, and that to allow for euthanasia fails to afford the patient equal treatment and respect, or in some way diminishes or violates the dignity of the administering doctor or the human race as a whole.

Assisted suicide raises more complex questions, as a person with full mental capacity who requires physical assistance in order to end his or her own life may make the autonomous decision to pursue this course of action. In cases involving the euthanasia of a person in a persistent vegetative state, the autonomy of the patient is not an issue due to the complete lack of mental capacity, and the perceived dignity of the patient, the administering doctor or society is easily prioritized. Cases of assisted suicide differ fundamentally in that the question of the autonomy of the patient is the central issue. Moreover, there exists the additional possibility that a relative or other caregiver makes the autonomous decision to assist a terminally ill person to carry out his or her wish to end his or her own life.

If autonomy is to be considered a facet of dignity itself, and both the patient and the person assisting make the autonomous decision to carry out the assisted suicide, then a broad reading of autonomy-as-dignity strongly suggests that the law should not interfere. On the other hand, imposing a legal restriction on such a course of action could potentially be justified, albeit in a rather paternalistic manner, by reference to perceived individual dignity or societal dignity (as has already been seen in the peep-show and dwarf-throwing cases discussed above—but it was argued that these cases did not actually involve dignity properly so-called). A restriction might also be justified on grounds of public order in light of the dangers involved with the slippery slope in such an area. Unassisted suicide, of course, is an impossible situation for the law, since there is no meaningful legal sanction that could be attached to it and no way for the law to be used to prevent it in the vast majority of cases. If a person makes the autonomous decision to end his or her own life without the involvement of any other person, can this really be said to violate any aspect of human dignity?81

4.3. Autonomy-as-dignity (3): Autonomy not as dignity

All of the above scenarios are hard cases which the concept of human dignity cannot adequately resolve if autonomy is characterized as a facet of the concept of dignity itself rather than as an ordinary right flowing from dignity. However, it can be seen that the main tensions arise from conflicts between the dignity of two human lives, born or unborn, and the conflict between the autonomy of an individual and either the perceived dignity of that individual or of society as a whole. Whatever about the latter, the former problem is an age-old and intractable difficulty of any human rights discourse, whether expressed in the language of human dignity, natural law, or anything else for that matter. It is inevitable that the human rights of different individuals come into conflict with each other from time to time, and any human rights system which recognizes people as equals will struggle to provide a satisfactory theoretical framework which provides a uniform way of resolving such conflicts. Instead, such cases have to be dealt with on their own facts and a pragmatic attempt made at finding a satisfactory solution.82

However, the latter problem is one which could more easily be overcome, if it were accepted that the concept of human dignity as a foundational principle of constitutional rights should be characterized solely as a principle of equal treatment and respect, with autonomy and self-determination being viewed as secondary right flowing from human dignity rather than as a facet of the concept itself. Autonomy cannot be the same thing as human dignity, for many of the same reasons that there cannot be any such thing as a right to dignity. It does not inhere in every human being; it is capable of being restricted or taken away; and it is ultimately afforded a lesser value than the concept of equal treatment and respect in most cases where the two come into conflict. By characterizing autonomy as an aspect of dignity and placing it on the same level as the principle of equal treatment and respect, constitutional drafters and judges create confusion and inconsistency through adopting what is ultimately a logically unsatisfactory position. Moreover, since there is clearly a right to personal autonomy, this confusion between autonomy and dignity contributes to the misguided notion of a right to dignity. This logical difficulty and confusion could be overcome by consistently characterizing personal autonomy and self-determination as a right which flows from human dignity—a particularly important right, but still just a right, capable (like any other right) of restriction in the interests of dignity itself. The level of paternalism that this leaves open depends on whether the notion of the perceived dignity of an individual or of society is accepted as grounds for interfering with autonomy, or whether these grounds are restricted to measures necessary to protect the dignity of other individuals.

5. Conclusion

Many people feel that autonomy is so fundamental to the human condition that it is, essentially, a facet of our human dignity. Many people also feel that the idea of human dignity is so fundamental that we should have a right to dignity. While superficially appealing, both of these viewpoints are essentially inconsistent with the concept of inherent human dignity as an underlying foundation and basis of international human rights law. Consequently, when they feature in domestic constitutional provisions and adjudication, they create confusion and uncertainty and lead to logically unsatisfactory statements of what human dignity as a constitutional principle entails. This creates disharmony between international and domestic rights protection; limits the scope for comparative constitutional analysis; and ultimately, serves to discredit human dignity as a constitutional principle and undermine its importance and centrality in human rights law. The logical conclusion to draw, therefore, is that domestic constitutional provisions and adjudication should distinguish between the right to personal autonomy and self-determination and the underlying principle of human dignity from which it derives. Moreover, it should be accepted that if dignity is an inherent characteristic of every human being which calls for that human being to be afforded equal treatment and respect, then there can be no such thing as a right to dignity.

1 On the use of the concept of human dignity in the UDHR see Klaus Dicke, The Founding Function of Human Dignity in the Universal Declaration of Human Rights, in THE CONCEPTOF HUMAN DIGNITYIN HUMAN RIGHTS DISCOURSE 111–120 (David Kretzmer & Eckart Klein eds., 2002) [hereinafter THE CONCEPTOF HUMAN DIGNITY].

2 Vienna Declaration, World Conference on Human Rights, A/CONF 157/23, June 25, 1993. On the role of the ideal of human dignity in international human rights law, see Michael Perry, The Morality of Human Rights: A Non-Religious Ground?, 27 DUBLIN U.L.J. 28 (2005).

3 Pretty v. United Kingdom, 35 E.H.R.R. 1 ¶ 65 (2002).

4 See, e.g., Case C-303/06, Coleman v. Attridge Law and Steve Law, January 31, 2008, confirmed by the Grand Chamber, July 17, 2008 (Opinion of Advocate General Poiares Maduro).

5 These jurisdictions include Canada, Portugal, Hungary, Belgium, Poland, Israel, Sweden, Spain, Greece, Hungary, Slovenia, Estonia, Lithuania, the Slovak Republic, the Czech Republic, and Finland. See Catherine Dupré, Human Dignity and the Withdrawal of Medical Treatment: A Missed Opportunity, EUR. HUM. RTS. L. REV. 678, 687–693 (2006).

6 Art. I, s. 1. See Christian Walter, Human Dignity in German Constitutional Law, in

THE PRINCIPLEOF RESPECTFOR HUMAN DIGNITY 25 (1999).
7 Art. 1(a).
8 Art. 10.

9 Art. 39(1)(a). See Irma Kroeze, Human Dignity in Constitutional Law in South Africa, in THE PRINCIPLEOF RESPECTFOR HUMAN DIGNITY, supra note 6, 87, at 88:
The constitution recognises human dignity as not only a human right, but as a value that is foundational to the legal and social order. Academics argue that the constitution contains a hierarchy of values on which all the rights are based. According to some, human dignity is at the top of this hierarchy. This means that human dignity is the source from which all other rights are derived. Consequently human dignity is regarded as both foundational and as a specific right.

10 William Brennan, The Constitution of the United States: Contemporary Ratification, 27 S. TEX. L. REV. 433, 439 (1985–6).

11 See further Maxine Goodman, Human Dignity in Supreme Court Constitutional Jurisprudence, 84 NEB. L. REV. 740 (2005–6), and Judith Resnik & Julie Chi-hye Suk, Adding Insult to Injury: Questioning the Role of Dignity in Conceptions of Sovereignty, 55 STAN. L. REV. 1921 (2002–3).

12 For a discussion of the genesis of these provisions, see Vicki Jackson, Constitutional Dialogue and Human Dignity: States and Transnational Constitutional Discourse, 65 MONT. L. REV. 15 (2004).

13 National Coalition for Gay and Lesbian Equality v. Minister for Justice, 1 S.A. 6, [28] (1999).

14 Quinn’s Supermarkets Ltd. v. Attorney General, I.R. 1, 13–14 (1972). See, to similar effect, the following statement made by Herbert J. in Redmond v. Minister for the Environment, 4 I.R. 61, 80 (2001):
In my judgment a law which has the effect, even if totally unintended, of discriminating between human persons on the basis of money is an attack upon the dignity of those persons as human beings who do not have money… . In my judgment this is exactly the type of discrimination for which the framers of the first sentence of Article 40.1 of the Constitution were providing.

15 Ghaidan v Godin-Mendoza, 2 A.C. 557, 605 (2004).
16 See Jacques Robert, The Principle of Human Dignity, in THE PRINCIPLEOF

RESPECTFOR HUMAN DIGNITY, supra note 6, at 43.

17 Among the most useful sources are THE CONCEPTOF HUMAN DIGNITY, supra note 1; THE PRINCIPLEOF RESPECTFOR HUMAN DIGNITY, supra note 6; Christopher McCrudden, Human Dignity and Judicial Interpretation of Human Rights, 19 EUR. J. INT’L L. 655 (2008); and David Feldman, Human Dignity as a Legal Value: Part 1, PUB. L. 682 (1999).

18 Chaïm Perelman, The Safeguarding and Foundation of Human Rights, 1 LAW & PHIL. 119, 119 (1982).
19 Id., at 122.
20 Feldman, supra note 17, at 682.

21 William Binchy, Dignity as a Constitutional Concept, in THE IRISH CONSTITUTION: GOVERNANCEAND VALUES 308 (Eoin Carolan & Oran Doyle eds., 2008). See also Neomi Rao, On the Use and Abuse of Dignity in Constitutional Law, 14 COLUM. J. EUR. L. 201, 208 (2008):

As a baseline for recognizing our shared humanity, equal human dignity has a ringing appeal. But in concrete cases, human dignity will often fail to provide any specific guidance precisely because there are many different and conflicting conceptions of what dignity may require.

As against this, McCrudden, supra note 17, at 711, argues:
Divergent results in hard cases may not necessarily mean that a universal conception of dignity does not exist, but suggest only that a universal understanding of dignity does not exist at the margins (emphasis in original).

22 McCrudden, supra note 17, at 677.
23 Id.
24 Id., at 678.
25 Feldman, supra note 17, at 698. See also Kroeze, supra note 9, at 89:

The principle of human dignity is a universal concept. However, its content and application is widely divergent as a simple comparison regarding the death penalty shows. While the concept may be universal, its content and application depend on very specific cultural, political and patriarchal circumstances.

Rao, supra note 21, at 211, states:

The indeterminacy of human dignity in the abstract may require that difficult questions of competing dignities be resolved by cultural understandings of what dignities should count. These judgments may have less to do with human dignity as such and more to do with particular conventional or cultural understandings of the meaning of dignity and the priority to be given to this value in different contexts. The principle of human dignity has little meaning in constitutional adjudication apart from external moral judgments about the varying weights to be given to competing dignities. The application of human dignity to determine the allocation of rights will depend on social, historical, and cultural factors that shape national values. Like all abstract values, human dignity will draw meaning from the ground in which it is planted.

26 RONALD DWORKIN, IS DEMOCRACY POSSIBLE HERE? PRINCIPLESFORA NEW POLITICAL DEBATE 36–45 (2006).

27 Id., at 43.
28 Paolo Carozza, Human Dignity and Judicial Interpretation of Human Rights: A Reply, 19 EUR. J. INT’L L. 931, 937 (2008).
29 Id., at 933.
30 Id.

31 See, e.g., Stephen Pinker, The Stupidity of Dignity, NEW REPUBLIC, May 28, 2008; Feldman, supra note 17, at 682; David Feldman, Human Dignity as a Legal Value: Part 2, PUB. L. 61 (2000); and Rao, supra note 21.

32 See McCrudden, supra note 17, at 711.
33 Kroeze, supra note 9, at 87–90.

34 Eckart Klein, Human Dignity in German Law, in THE CONCEPTOF HUMAN DIGNITY, supra note 1, 147.

35 Jose Manuel Cardoso da Costa, The Principle of Human Dignity in European Case-Law, in THE PRINCIPLEOF RESPECTFOR HUMAN DIGNITY, supra note 6, 50.
36 See Biruta Lewaszkiewicz-Petrykowska, The Principle of Respect for Human Dignity, in THE PRINCIPLEOF RESPECTFOR HUMAN DIGNITY, supra note 6, 15, at 18.

37 Catherine Dupré, The Right to Human Dignity in Hungarian Constitutional Case-Law, in THE PRINCIPLEOF RESPECTFOR HUMAN DIGNITY, supra note 6, 68; see particularly id. at 72, where she states that the Hungarian case law interpreting human dignity shows “numerous contradictions and confusions [which] make it impossible to come up with a consistent (and predictable) view of human dignity, either purely in terms of a fundamental right, or purely in terms of a constitutional principle.”

38 The Preamble to the Irish Constitution of 1937 states that the People, “seeking to promote the common good…so that the dignity and freedom of the individual may be assured … [d]o hereby adopt, enact and give to ourselves this Constitution.’ In re a Ward of Court (No. 2), supra note 44, ¶ 163, Denham J. stated that “[a]n unspecified right under the Constitution to all persons as human persons is dignity—to be treated with dignity… . As long as a person is alive they have this right. Thus, the ward in this case has a right to dignity.”

39 David Kretzmer, Human Dignity in Israeli Jurisprudence, in THE CONCEPTOF HUMAN DIGNITY, supra note 1, at 169.

40 Gay Moon & Robin Allen, Dignity Discourse in Discrimination Law: A Better Route to Equality?, EUR. HUM. RTS. L. REV. 610, 615 (2006).
41 On this point see generally id.

42 Feldman, supra note 17, at 682. Feldman continues at 687:
Dignity is thus not an end in itself, or even a means to an end. It is rather an expression of an attitude to life which we as humans should value when we see it in others as an expression of something which gives particular point and poignancy to the human condition. By its nature, dignity can be neither pursued nor used, but only lived, fostered, enhanced and admired. It follows that it can generally make little or no sense to talk of a right to dignity. The law can at best provide a circumscribing circle of rights which, in some of their effects, help to preserve the field for a dignified life.

43 6 B.C.L.R. 665 (1995).
44 2 I.R. 79, 134 (1996).
45 Brennan, supra note 10, at 442.

46 On the connection between the legal usage of “dignity” and its usage in common language, see Stephen Riley, Human dignity: comparative and conceptual debates, 6 INT’L J. L. IN CONTEXT 117, 131 (2010).

47 The contradiction arising in this regard in the Irish Supreme Court decision in Re a Ward of Court (No. 2), supra note 44, is discussed by William Binchy, Dignity as a Constitutional Concept, in THE IRISH CONSTITUTION: GOVERNANCEAND VALUES, supra note 21, 316.

48 One exceptional case in which a violation of rights does deprive a person of his or her inherent dignity would appear to be a violation of the right to life: see Brennan, supra note 10, at 444, in arguing that the death penalty is an unconstitutional violation of human dignity, points out that “an executed person has lost the very right to have rights, now or ever.”

49 See Daniel Statman, Humiliation, Dignity and Self-Respect, in THE CONCEPTOF HUMAN DIGNITY, supra note 1, 209, at 209–212.

50 Carozza, supra note 28, at 937, makes a similar point when he argues that even where there is not international consensus on some aspect of the minimum requirements of human dignity, this does not render that aspect invalid if indeed it does inhere in people by virtue of their humanity. Carozza gives the example that the fact that sixteenth century Spanish opinion did not ascribe rationality to the indigenous people of the New World did not change the fact that those people did have inherent human dignity and a consequent claim to equal treatment and respect, even if the Spanish did not agree.

51 Case C–36/02, March 18, 2004, [2004] ECR I–09609, ¶ 84. She continues at ¶ 85 by stating:

One principle reason for this must be that it is not until human dignity is shaped and formulated in each individual fundamental right that it acquires more concrete substantive form and functions as a criterion of evaluation and interpretation in relation thereto. The concept of human dignity … is in fact a generic concept for which there is not, as such, any traditional legal definition or interpretation in the true sense; it is rather the case that its substance has to be set out in more concrete form in each individual case, especially by way of judicial findings.

52 Cardoso da Costa, supra note 35, at 51 (emphasis in original).
53 Walter, supra note 6, at 26.
54 Lewaszkiewicz-Petrykowska, supra note 36, at 18.
55 Id., at 19.
56 See McCrudden, supra note 17, at 656–663.

57 In Airedale N.H.S. Trust v. Bland, 1 A.C. 789, 826 (1993), Hoffman LJ characterized the principles of human dignity and autonomy as separate principles, although he conceded that they are “closely connected.”

58 Dupré, Human Dignity and the Withdrawal of Medical Treatment, supra note 5, at

687. JOSEPH RAZ: THE MORALITYOF FREEDOM 372–373 (1986), is quite clear that some persons, including those of unsound mind, are not autonomous:
There is no doubt that one needs certain abilities to lead an autonomous life… . The conditions of autonomy are complex and consist of three distinct components: appropriate mental abilities, an adequate range of options, and independence. If a person is to be maker or author or his own life then he must have the mental abilities to form intentions of a sufficiently complex kind, and plan their execution. These include minimum rationality, the ability to comprehend the means required to realize his goals, the mental faculties necessary to plan actions etc. For a person to enjoy an autonomous life he must actually use these faculties to choose what life to have. There must in other words be adequate options available for him to choose from. Finally, his choice must be free from coercion and manipulation by others, he must be independent. All three conditions, mental abilities, adequacy of options, and independence admit of degree. Autonomy in both its primary and secondary senses is a matter of degree. One’s life may be more or less autonomous.

59 Christian Starck, The Religious and Philosophical Background of Human Dignity and its Place in Modern Constitutions, in THE CONCEPTOF HUMAN DIGNITY, supra note 1, at

181, states:
Human dignity does not mean unlimited self-determination, but self-determination which is exercised on the basis that everyone – not simply the person claiming the right to self-determination—is of value in his or her own right.

60 Jochen Frowein, Human Dignity in International Law, in THE CONCEPTOF HUMAN DIGNITY, supra note 1, at 123–124, distinguishes between secondary rights which flow from the concept of human dignity but which are subject to limitations, and the fundamental and inviolable concept of human dignity itself. As against this, RAZ, supra note 58, at 190, while accepting that not every person is autonomous, nonetheless stipulates that the concept of equal treatment and respect requires respect for individual autonomy:

The capacity to be free, to decide freely the course of their own lives, is what makes a person. Respecting people as people consists in giving due weight to their interest in having and exercising that capacity. On this view respect for people consists in respecting their interest to enjoy personal autonomy.

61 296 Mont 361 (1999).
62 505 US 833, 851, 916 (1992).
63 See supra note 44.
64 Id. at 163.
65 Id. at 169.
66 Id. at 94.

67 See, e.g., Walsh J. in G. v. An Bord Uchtála, I.R. 32, 69 (1980), where he stated (three years before the Constitution was amended so as to expressly recognize the right to life of the unborn):
… a child … has the right to life itself and the right to be guarded against all threats directed to its existence whether before or after birth. The child’s natural rights spring primarily from the natural right of every individual to life, to be reared and educated, to liberty, to work, to rest and recreation, to the practice of religion, and to follow his or her conscience. The right to life necessarily implies the right to be born, the right to preserve and defend (and to have preserved and defended) that life, and the right to maintain that life at a proper human standard in matters of food, clothing and habitation.

68 I.R. 36, 78 (1984).

69 1 I.R. 1 (1992).

70 Mary Carolan, High Court rules that girl can travel for abortion, IRISH TIMES, May 10, 2007.

71 Concluding Observations of the Human Rights Committee: Ireland, July 21, 2000, U.N. Doc. CCPR/CO/69/IRL (2000).

72 See Walter, supra note 6, at 38.

73 Feldman, supra note 17, at 701–702. Robert, supra note 16, at 9, comments that “even the ‘victim’s’ consent does not cancel out an infringement of human dignity since the consent may, for example, have been dictated by desperate need or stem from lack of willpower caused by long hardship.” The difficulty is how to approach cases where desperate need or hardship do not exist. The dwarf may be afraid of being unable to obtain alternative employment, and the woman in the peep-show may possibly be afflicted by drug addiction or other disadvantage, but what about, e.g., a person lured purely by the financial reward? Some people may argue that lap-dancing exploits women and violates human dignity by failing to afford equal treatment and respect to those women; but a lapdancer may argue that she is exercising autonomous choice and earning enormous sums of money for comparatively little work in the process, with no hang-ups about how her job impacts on her dignity or self-worth. Should this be her autonomous choice, and therefore—if the notion of autonomy-as-dignity is accepted—an aspect of her human dignity? Should she be entitled to make the autonomous decision to go further and provide an escort service?

74 This aspect of dignity is discussed by Feldman, supra note 17, at 684–687.

75 McCrudden, supra note 17, at 705–706.

76 Note, however, that in line with the culturally dependent nature of the concept of human dignity which was outlined earlier, this hierarchy may be reversed in a cultural context that places a particularly high emphasis on liberty and individual autonomy. For example, many European countries, and indeed others such as Canada, place restrictions on personal autonomy in the context of free speech by criminalizing hate speech, and this is deemed to be legitimate in order to protect the human dignity (in the context of equal respect) of those who might otherwise be targeted by such speech. In the US, however, the more liberty-based view holds that free speech should not be impaired in such a fashion and that personal autonomy includes the right to freely express views which may seek to call into question the equal worth of other human beings.

Feldman, supra note 17, at 702.

78 RAZ, supra note 58, at 425.
79 Klein, supra note 34, at 146.

80 See Walter, supra note 6, at 36–37; and Feldman, supra note 17, at 688.

81 In Airedale NHS Trust v. Bland, supra note 57, Hoffman LJ stated: “Suicide is no longer a crime, but its decriminalisation was a recognition that the principle of self-determination should in that case prevail over the sanctity of life.” In Ireland, suicide was decriminalized by section 2(1) of the Criminal Law (Suicide) Act 1993. However, section 2(2) of the same Act made it an offense carrying up to fourteen years of imprisonment to aid, abet, counsel, or procure the suicide of another. Thus, the view would seem to be that a person’s own autonomy can prevail over the sanctity of his or her own life, but any other person’s autonomy cannot.

82 Jacques Robert, supra note 16, at 45, comments that “complete standardisation of individual cases is neither achievable nor even desirable, and the [French] Constitutional Council has always worked on the premise that, in legally different circumstances, different principles may be applied.”

© The Author 2012. Oxford University Press and New York University School of Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com.

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Nebraska Law Review
Volume 84 | Issue 3 Article 3
2006
Human Dignity in Supreme Court Constitutional
Jurisprudence
Maxine Goodman
South Texas College of Law, mgoodman@stcl.edu

RE: https://digitalcommons.unl.edu/cgi/v...41&context=nlr

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THE BILL OF RIGHTS OF THE U. S. CONSTITUTION

The Declaration of Independence established the core principles of our Nation, the United States of America. Our Constitution with the Amendments provide a rule of law for an actual government to accomplish those principles. The Bill of Rights protects the individual rights of American citizens.

The Bill of Rights reflects the Christian heritage of our nation. The idea of human dignity, that we are created in the image of God, forms the theological basis for human equality and our core principle of liberty (Genesis 1:27, Leviticus 25:10, Matthew 25:40, Mark 12:31). The fundamental basis of religious freedom in human nature secures our rights and limits government. There is a higher authority than civil authority, the laws of God (Acts 5:29). The Declaration of Independence recognizes God, the Creator, that there is a Supreme Judge - Divine Providence, from whom we receive certain inalienable rights, that of Life, Liberty, and the Pursuit of Happiness. The moral teachings of the Bible establish the common standards of right and wrong required in ourselves and in government to guide private and public life. The rights and responsibilities of citizenship are learned in the primary institutions of civil society - the family, church, and the community - to teach virtue, shape character, and form productive and upright individuals.

Our founding fathers were also greatly influenced by the philosophers John Locke and Baron de Montesquieu. John Locke (1632–1704) of England wrote in his Two Treatises on Government of 1690: "God, as King David says (Psalm 115:16), has given the earth to the children of men, given it to mankind in common" (II, 5). Locke argued that people were born with certain natural rights to life, liberty, and property, and that governments are formed to protect the rights of the people. When governments fail to protect these rights, tyranny results, and the people have the right to rebel. The political philosopher Baron de Montesquieu (1689-1755) of France in The Spirit of the Laws in 1748 proposed the best form of government would incorporate a separation of powers into executive, legislative, and judicial branches and would be based on the natural law. Both of their ideas were evident in all three of our Founding Documents - the Declaration of Independence, the Constitution, and the Bill of Rights.

In its struggle for Liberty, the Second Continental Congress saw the need for a Confederacy of the States and established a central authority known as the Articles of Confederation, which was drafted on November 15, 1777, and was not ratified by all the States until March 1, 1781. The Continental Congress was careful to preserve the independence, rights, and privileges of the States, but proved ineffective. The Congress of the Confederation operated the U. S. government from March 1, 1781 until March 4, 1789.

The U. S. Constitution was adopted by the Constitutional Convention in Philadelphia, Pennsylvania on September 17, 1787. Ratification was completed by June 21, 1788, and the Constitution went into effect March 4, 1789.

The first 10 Amendments to the United States Constitution are called the "Bill of Rights."

The Bill of Rights was ratified as part of a gentlemen's agreement among our Founding Fathers. There was resistance to the approval of the United States Constitution by Thomas Jefferson and the AntiFederalists because too much power was given to the Federal Government, and American citizens were unprotected. To protect the rights of individual citizens, George Mason had composed the Declaration of Rights, which was passed by the Virginia assembly on June 12, 1776. James Madison of Virginia submitted amendments to the Constitution on June 8, 1789. The Federalists kept their word and on September 25, 1789, the First Federal Congress of the United States approved twelve amendments to the Constitution to be submitted to the states for ratification. The Preamble of the Bill clearly states the Bill of Rights is to prevent abuse of the powers of the Government. By December 15, 1791, all the states ratified ten amendments which became known as the U. S. Bill of Rights to protect the individual rights of American citizens.

It would take the 1861-1865 Civil War and the religious civil rights movement of the 1960s to fully effect our Christian culture. Abraham Lincoln held to the literal reading of the Declaration of Independence, that all men are created equal. As expressed in his 1863 Gettysburg Address during the Civil War, this Nation under God brought forth a new birth of freedom, as evidenced by the passage of Amendments 13-15 following the War. The Fourteenth Amendment of the Constitution is considered the most significant since the Bill of Rights. Originally the Bill of Rights was a set of restrictions on the powers of the Federal Government, but not the States. Over time, the Supreme Court has interpreted the Fourteenth Amendment to apply most of the guarantees of the Bill of Rights to the States as well as the Federal Government. The Bill of Rights gradually has become available to all American citizens, for it provided equal protection to everyone, and limited the power of the States to deny life, liberty, or property without due process of the law. This is reflected in our Pledge of Allegiance to the Flag of the United States of America, "one Nation under God, indivisible, with Liberty and Justice for all."

"Congress shall make no law respecting an establishment of Religion, nor prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assembly, and to petition the Government for a redress of grievances."


Note: THE FOURTH AMENDMENT
BY: http://biblescripture.net/Bill.html

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

A man's home is his castle. This principle of law was first stated by Cicero in Roman times. Throughout history, champions of human rights saw the right of individuals to acquire and hold property because it secured life and liberty as well. The prohibition against illegal searches of home and property goes back to the 1215 Magna Carta of England, the first Charter of Liberty in the Western world. In general, police, before they search anyone's property, must go to the courts to obtain a warrant, which is granted on probable cause of finding evidence of a crime. The Fourth Amendment also protects against arbitrary arrest. In Wilkes v Wood, 1763, the illegal search of an individual's home without due cause or by a nameless warrant was likened to the Spanish Inquisition!

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California Law Review
Volume 54 | Issue 2 Article 7
May 1966
Subject(s): Privacy, Poverty, and the Constitution
Albert M. Bendich

Site: https://scholarship.law.berkeley.edu...ornialawreview

I did not print it - its 37 pages long I gave you the site so that you may review it in its entirety and print it out for those who need to know.

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