Dignity Rights: Courts, Constitutions, and the Worth of the Human Person

1: "Of all Members of the Human Family"

1 ”Of All Members of the Human Family” The term “dignity” is not new. It is referred to throughout the Corpus Juris Civilis as a synonym for rank or high office and is often qualified by “patrician ,” “prætorian,” “consular,” and so on, and so usually pertains to an office and to those who hold or are worthy of such office.1 Even this ancient text, however, refers to the “dignity of mankind,”2 although in the context of trying to reconcile the human with the property status of slaves. The English Bill of Rights of 1689 recognizes only “royal dignity.”3 By the time of the Enlightenment, dignity was extended, but only to the noble class: Enlightenment-era constitutional references to dignity include the 1789 French Declaration of the Rights of Man and of the Citizen, which referred to dignity as pertaining to offices, as well as the Polish-Lithuanian Constitution of 1791, which acknowledged “the dignity of the noble estate.”4 In 1879, the Constitution of the Kingdom of Bulgaria referred to dignity only to confirm the hereditary nature of the royal line.5 These invocations reflect the concept of dignitas, which confirmed social stratification, reserving the benefits of dignity to a privileged few. They describe dignity as a status, a way of being; they conjure the value of high office by suggesting the privileges that pertain to it. These privileges have always involved some obligations to which commoners were not subject, such that one could be prosecuted for violating the dignity of one’s own office. But they also often involved immunities or exemptions , such that dignity meant being outside, or above, the law. Rarely was dignity used offensively against another, except in cases of defamation where someone would be sued for denigrating a noble’s dignity (whether truthfully or not). But it was never used as a claim of rights against the state. The modern concept of dignity departs from this model in profoundly important ways. First, it applies to all persons and not just an elite few. 12 Chapter 1 Second, it functions as an equalizer: if everyone has dignity, then everyone is subject to the same obligations and is entitled to the same benefits under the law. Third, as rendered in constitutions and enforced by constitutional courts, it is a right that can be and often is asserted against the state or others and enforced by a court. The first hints of a change came in several unrelated constitutions in the early twentieth century that acknowledged dignity either as a right or as a value. Mexico’s 1917 constitution established that “[Education in each state] shall contribute to better human relationships, not only with the elements which it contributes toward strengthening and at the same time inculcating, together with respect for the dignity of the person and the integrity of the family, the conviction of the general interest of society, but also by the care which it devotes to the ideals of brotherhood and equality of rights of all men, avoiding privileges of race, creed, class, sex, or persons.”6 In 1922, Latvia’s constitution affirmed that “The State shall protect human honour and dignity ,” further explaining in the same provision that “Torture or other cruel or degrading treatment of human beings is prohibited. No one shall be subjected to inhuman or degrading punishment.”7 Ecuador’s 1929 constitution more emphatically presaged the modern understanding of dignity by confirming that “The State will protect, especially for the worker and the farmer, and will legislate so that the principles of justice will be realized in the sphere of economic life, assuring for all a minimum standard of well being, compatible with human dignity.”8 This reflects the aspect of dignity recognized in the Weimar Constitution of 1919, which also associated dignity with the right to a “decent” standard of living.9 Ireland’s constitution from 1937 likewise associated dignity not with the nobility but with the average person: “And seeking to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations.”10 Already we can see the range of understandings of dignity that will mark the contemporary paradigm. In Ireland , its importance is as an inherent attribute of the individual; in Latvia, it is a bulwark against degrading treatment. In Mexico, by contrast, its significance...