The Constitutional Significance of Human Dignity: What Exactly?

This Chapter explores four prominent objections to the overarching role that human dignity plays in constitutional and human rights law. In the eyes of its critics, human dignity is objectionable because it (1) is too variable to be captured by a coherent constitutional theory; (2) stands in opposition to a liberal vision of constitutional governance; (3) fails to offer guidance for resolving constitutional disputes; and (4) is incapable of justifying anything until it is itself justified. My aim is to unearth the presuppositions that generate these objections, explain why these presuppositions are controversial, and to formulate a set of plausible alternatives that do not give rise to these objections. Since the leading objections stem from presuppositions that need not be accepted, these objections do not preclude the formulation of a comparative constitutional theory of human dignity.

In this thesis, I traced the history of human dignity through the history of ideas from its inception in Stoic anthropology, religion and the Enlightenment, to dignity's legalization in Modernity. In discussing the history of dignity in the legal systems of Germany, South Africa and the US, I worked on the premise that dignity comprises of three universal elements, as identified by prominent academics. These elements are the equal inherent dignity paradigm, the claim that everybody's dignity must be protected and respected and the injunction that states must progressively realize dignity by way of socio-economic rights, within their respective means. These elements are part and parcel of the constitutional architecture of dignity, whether applied as a value or a right, or both, in constitutional systems that protect dignity. I theorized that there is a correlation between the three elements and the conceptualization of dignity by Kant, the renowned Enlightenment philosopher, who claimed that inherent dignity is priceless, a sort of an uber right that operates as a categorical imperative - in constitutional terms not subject to limitation. Consequently; everybody has a reciprocal duty to protect and respect each other's dignity. In applying Kant's claim of dignity as manifested in the three elements to the adjudication of constitutional dignity in the aforementioned legal systems, I based my interpretation on the distinction of constitutional norms as rules and principles as advocated by Dworkin and mainly Alexy. I came to the conclusion that the German application truly corresponds with Kant's categorical imperative as Alexy's distinction of rules and principles is correctly applied. South African adjudication of dignity is underdeveloped in the perspective of Alexy's distinction in instances where there is a conflict between adjudication of dignity as a value and dignity as a right, when the principle of proportionality is applied to competing rights. To correct this, I proposed a model of interpretation of the dignity-clause in the Constitution along the lines of Alexy's theory of constitutional rights, to ensure legal consistency and to determine the legal significance of human dignity. The US system differs from that of Germany and South Africa, as dignity is solely employed as a value to strengthen rights claims and the three elements of dignity are not applied as a first-order rule.

Jurisprudence, 2020

I am deeply grateful to Nicole Roughan for overseeing this symposium and to Alon Harel, Stephen Riley, Julian Sempill, Alec Stone Sweet, and Ionna Tourkochoriti for their insightful engagements with Dimensions of Dignity and the unified theory of public law that it expounds. In this brief reply, I will not be able to respond to all of the important comments and concerns that they raise. Instead, I will focus on the most fundamental challenge (or set of challenges) raised by each contributor.

This volume explores how national and international human rights courts interpret and apply human dignity. The book tracks the increasing deployment of the concept of human dignity within courts in recent decades. It identifies how human-dignity-based arguments have expanded to cover larger sets of cases: from the right to life or the right to integrity or anti-discrimination, the concept has surfaced in disputes about political and social rights and rule of law requirements, such as equality or legal certainty. The core message of the book is that judges understand, interpret, and apply human dignity differently. An inflation in the judicial recourse to human dignity can saturate the legal environment, depriving the concepts as well as human-rights-based narratives of salience, and threaten the predictability of court decisions. The book will appeal to philosophers of law, constitutional theorists and lawyers, legal comparativists, and international law specialists. While being dedicated specifically to human dignity jurisprudence, the book touches on many aspects of judiciary and as such will also be of interest to researchers studying legal reasoning, interpretation and application of the law and courts, as well as social philosophers, political scientists, and sociologists of law, politics, and religion.

The American Journal of Comparative Law

Human dignity has become widely utilized in national constitutions since WWII. This Article explores the scope of this increased appearance in constitutions worldwide, and the increased frequency of appearance within individual constitutions, as well as the different functions that the term serves at present. Our research demonstrates that human dignity is rapidly gaining recognition and functions in national constitutions. This Article analyzes three functions of human dignity: symbolic-declaratory uses; guidelines for the implementation of rights, and; guidelines as a limitation on fundamental rights. This analysis also demonstrates the influence of certain national constitutions over others in the formulations of human dignity. We call attention to potential promises as well as dangers in the excessive use of the concept and its potential abuses.

Max Planck Encyclopedia of Comparative Constitutional Law

Human dignity is the most abstract principle that regulates the relationship between rulers and ruled. Its subject matter is the basic duty that a public authority owes to all who are governed by it. This duty is basic because it is not the product of a contingent fact about a particular legal system, whether a historical episode, a provision in a constitutional text, a commitment of a public culture, or a tradition of governance. Rather, human dignity is the subject of a public duty that attends the governance of human beings as such. Human dignity is a revolutionary constitutional idea because it rejects earlier ways of conceptualizing the relationship between rulers and ruled, in which the rulers either owed no duty to the ruled or owed only those duties that were voluntarily undertaken through some affirmative act. This article explores the concept of human dignity from two standpoints. On the one hand, it expounds the functions that the concept of human dignity plays in constitutional practice in jurisdictions around the world. On the other, it formulates difficulties that the leading theories of human dignity encounter in articulating the meaning of human dignity as a constitutional concept. These difficulties are instructive because they indicate the parameters in which a more adequate constitutional theory of human dignity would operate.

2013

Human Dignity of the Vulnerable in the Age of Rights: Interdisciplinary Perspectives (Aniceto Masferrer & Emilio García-Sánchez, eds.), Dordrecht-Heidelberg-LondonNew York, Springer (Collection ‘Ius Gentium: Comparative Perspectives on Law and Justice’), 2016

The chapter argues that Kantian autonomy has sometimes been misunderstood, as if Kant would have viewed any choice as lawful, whatever its content might be. It should be noted that Kant followed earlier thinkers who had already found human rights (or natural rights) in the ‘dignity of human nature’. Thus Kant was not the fi rst thinker to connect human rights with dignity, and the latter with human nature. The link between human rights, human nature and the expression ‘dignity’ appeared in the eighteenth century, but earlier than Kant.