- "Dignity in Living and in Dying":The Henry H. H. Remak Memorial Lecture*
On November 3, 2016, Aharon Barak, former President of the Supreme Court of Israel, was streamed from New York University to Indiana University and delivered thoughtful and perceptive comments on the topic of this seminar. Professor Barak's book, Human Dignity: The Constitutional Value and the Constitutional Right is an important voice in the international dialogue on Human Dignity.
Justice Barak's comments of November 3rd provide a rich background for today's lecture. The lack of a universal or constitutional value of Human Dignity has not prevented thirty-two of some forty-five European countries from recognizing it in some form or other.1 In Germany, for example, although Human Dignity is recognized in the Constitution as "inviolable," ongoing debate centers on whether Human Dignity is a constitutional value or should be regarded as a [End Page 413] constitutional right or seen as an absolute right together with the extent to which safeguards against humiliation should be provided.2
Justice Barak sees Human Dignity as an absolute right.3 Indeed, for the Justice, Human Dignity is a framework, core, or "mother right" in that it unites all values underlying express and implicit constitutional rights and guarantees.4 The right to liberty in the U.S. Constitution is an example of a framework right.5
The extent of this international debate over the significance and the "utility" of Human Dignity as a normative value or as an absolute right guaranteed constitutionally sets the theme of this lecture today.
Interestingly, as illustrated in American case law, since World War II, Human Dignity has been embraced as a constitutional value and has played an important role in the interpretation of a number of rights set forth in our own Bill of Rights.6
Dignity is seen commonly as an ethical obligation owed to human persons. The dimensions of this obligation in today's post secular society are, however, subject to wide discussion and debate; for the term, human dignity, and its preservation, defies universal agreement. Yet, its preservation, together with the prevention of indignity, is a guiding principle or at least a vector of force in a wide range of issues ranging from recognizing and protecting the civil rights of the citizen members of the LGBTQ community throughout the nation to the care of the disabled and to the dying.
In clinical medicine, safeguarding the dignity of the patient is a core responsibility of all physicians to respect patient autonomy and to act with beneficence in health care decisions. Similarly, in protecting the civil rights of free association for all Americans—without reference to gender or sexual lifestyle preferences—contemporary society must accord non-judgmental respect for the actions of its members so long as that conduct is neither harmful nor illegal.7
Foundational instruments such as The Universal Declaration of Human Rights; The International Covenant on Economic, Social and Cultural Rights; and The Covenant on Civil and Political Rights all codify a mandate to ensure human dignity within various contexts of [End Page 414] international conduct.8 The notion itself is stated normally in grandiloquent terminology without more, and always subject to progressive realization rather than absolute recognition. Ongoing international efforts must continue to be taken to guide the actions of states in seeking to set and to maintain levels of cultural and social conduct, which serve to safeguard human dignity throughout life and especially at its end-stage.
Within the United States, five states and the District of Columbia legislatively, and one, judicially, moved toward recognition of a right to die with dignity (when confronted with a diagnosis and a prognosis of medical futility is commendable)9; for, such actions validate the very essence of autonomy and self-determination, which are correctly viewed as the bulwark of the social order of American society.
I. Human Dignity: Definitional and Structural Challenges
Acknowledged as a notion that neither exists in today's society nor is a proper description of the world, human dignity is nonetheless accepted as possibly "the premier value underlying the last two centuries...