The dignity of the human person is recognized across states and in transnational arrangements. It is expressed on several levels: as an overarching political principle underlying the constitutional framework, as a central key for the interpretation and application of other rights and values, and as a fully-fledged enforceable right. Unlike the classical libertarian civic rights, which draw their force from liberty, dignity also comprises the material preconditions of liberty and equality and becomes a source for social and economic rights. Yet, the concept is far from clear, and appears in a variety of forms. As a concept, it is also distinguished from other well-recognized human rights, it is sometimes absent, and is sometimes presented as drawing on a more state-centered rationale.
While dignity is a rather new phenomenon in a constitutional context, it is an old notion in philosophy, theology, and law. Roman times feature in many analyses, with Cicero often marking the beginning. Further roots in Judaism and Christianity are based on the imago dei concept, which links the value of the human being with God and divinity. The creature the most similar to God ranks higher than other creatures. The gradual move towards the positing of man at the center, from the Renaissance to Kant, led to the modern concept of dignity as an inherent value of every human being; thus concept stands at the center of this chapter. As a modern concept, it is usually linked with Enlightenment and Kantian philosophy (see e.g., McCrudden; Whitman; Englard).
In law, dignity was, from its Roman beginnings, mainly directed to the social role and esteem due to persons on the basis of their status, office, or rank in a hierarchically structured society. This understanding ended only with the great revolutions of the late eighteenth century, aimed at granting all members of society the rights and dignities previously offered only to high-ranking individuals. ‘Dignity’ was thus a mechanism for upward equalization and was simultaneously couched in the notions of liberty and equality. The absence of a collective memory of a feudal society in the United States serves to explain the absence of a distinct doctrine of dignity across the Atlantic (Whitman).
Yet, dignity played no role in early modern constitutionalism, and is absent in the foundational documents of constitutionalism. Likewise, one would seek it in vain in the many constitutions that were enacted in the nineteenth century. It first appears in a few constitutions after World War I (Germany, Ireland, Brazil), in reaction to the social problems that were the heritage of the nineteenth century.1 Here, dignity meant the possibility for everyone to lead a dignified life, the preconditions of which had to be secured by the state. Dignity as an inherent quality of every human being was later linked with the lessons drawn from Nazism and Fascism, and entered into almost every constitution of a society that had freed itself from dictatorship in the course of the second half of the twentieth century.
Many have noted the vagueness of the concept. Laments that no definition has been adopted in constitutions or elsewhere may be answered that such is the nature of constitutional texts. Some attempts at definition do exist, such as Gewirth’s emphasis on the ‘Kantian injunction to treat every human being as an end’2 rather than a mere object of the state, which is vague in itself. Distinctions among different conceptions of dignity abound. Most notably, the distinction between dignity as an intrinsic element of the human person and dignity as the source of both state duties and the setting of constraints on the human person is expressed in Brownsword’s distinction between ‘dignity as empowerment’ and ‘dignity as constraint’, further developed in the literature (Brownsword, 20–28; see also Fyfe; Rao 2011).
Gewirth’s distinction between ‘empirical’ and ‘inherent’ concepts of dignity offers another dimension to the distinction between a social grant of respect and one that is intrinsic to all human beings (Gewirth 1992, 11–13). This understanding clearly prevails over the idea that dignity is a merit-based quality that can be earned by leading a good life and forfeited by leading a bad life. Finally, the distinction between dignity as absolute and inalienable and dignity as balanceable and subject to limitations roughly corresponds to the continental/common law divide, an issue discussed further below.
A survey of current formal recognition of human dignity reflects a dominant pattern, with some constitutional documents offering only partial, context-based protection and a few that do not formally recognize the right. Human dignity was recognized in 1945 in the Preambles to the Charter of the United Nations and the Constitution of UNESCO. In addition to their Preambles, the Universal Declaration of Human Rights (1948) and the International Covenant on Civil and Political Rights recognize the dignity of man in the context of some specific rights, and many additional UN documents contain the term. Dignity is also central to international humanitarian law; common article 3 of the Geneva Conventions (1949) prohibits ‘outrages upon personal dignity, in particular humiliating and degrading treatment’.
Dignity is now a central element of European Union (EU) law. In addition to the Preamble of the EU Charter of Fundamental Rights, in which dignity is the first of ‘the indivisible, universal values’ on which the Union is founded, the Charter’s first chapter is entitled ‘Dignity’. Article 1, which, like the German Basic Law discussed below, recognizes the inviolability of human dignity, is followed by provisions that recognize and protect the right to life and the right to the integrity of the person, and prohibit torture and inhuman or degrading treatment as well as slavery and forced labor. The Treaty of the European Union, following the entry into force of the Treaty of Lisbon, likewise recognizes ‘respect for human dignity’ as the first of a list of basic values. Additional protection can be found in these treaties, in the context of other protected rights. Other conventions pertaining to specific areas, such as bioethics, also place dignity as a central element.3
Limited recognition is found in the International Covenant on Economic, Social and Cultural Rights (1966), in which dignity is protected only in the context of education. Further, dignity appears only in Protocol 13 of the European Convention on Human Rights, concerned with the death penalty, recognized there as ‘inherent’ to all human beings. Similar patterns can be found in national constitutions, but absence of direct protection is also found.
Several national constitutions dedicate a specific section or article to the recognition of human dignity and its protection. In the vanguard is Germany; others include Belgium, Sweden, Portugal, Spain, Brazil, Switzerland, the Czech Republic, Israel, South Africa, and Hungary, as well as Iran and Iraq. In some of these constitutions, the requirement to protect dignity is also an element of other specific protected rights, such as the protection of personal freedom, bodily integrity, working conditions, and private initiative (with variations); in a few of these constitutions, human dignity is also recognized in the preamble. More limited recognition of human dignity is found in other constitutions, such as the Italian, Greek, Argentinian, Turkish, and the provisional Egyptian constitutions, in which human dignity is mentioned only in the context of one or few specific defined rights, such as the ones mentioned above. Other constitutions address dignity only in their preamble, as is the case with the Irish Constitution. No formal recognition of human dignity can be found in the constitutions of the United States, Canada, and France. As we shall see below, the mode of adoption and the extent of application of human dignity do not derive solely from the constitutional text.
‘Human dignity’ is not defined in any of these constitutions. Some constitutions—for example the constitutions of Germany, the Czech Republic, and Puerto Rico—recognize human dignity as absolute, referring to it as ‘inviolable’ or ‘inalienable’.
In addition, the duty to protect human dignity can be found in a variety of statutes across the systems, concerned inter alia with prisoners’ rights, bioethics, and the grant of social rights.
Clapham mentions four types of behavior against which the right to dignity protects persons or to which the right to dignity entitles persons. (1) It prohibits inhuman treatment, humiliation, and degradation. (2) It guarantees individual self-fulfillment, autonomy, or self-realization. (3) It protects group-identity and culture as essential for personal development. (4) It guarantees everybody the satisfaction of their essential needs (Clapham, 545 ff; see also McCrudden, 686 ff).
These aspects are neither exhaustive nor mutually exclusive, nor do they rest on sharp boundaries. What is in the foreground may vary over time and from place to place. Introduced in Germany in reaction to the atrocities of the Nazi regime, the scope of the right to dignity was originally derived from the first aspect. Later on, autonomy and recognition as well as fulfillment of basic needs (including participation in cultural goods) became more salient. In a country like South Africa, whose past was determined by racism, the aspect of the intrinsic value of each person and the equality that flows from it is prominent. After a dictatorship, as in the post-Communist regimes, autonomy and self-realization may play a prominent role. Where large parts of the population live under conditions of extreme poverty, the right to obtain certain benefits may have particularly high importance.
But even within these aspects there is room for different emphases. In particular, dignity and the aspects covered by it can be interpreted in a more individualistic or a more communitarian way. Again, this is not a matter of either/or, but a matter of degree. Dignity is always concerned with the human being, the individual and his or her recognition as a value in itself, regardless of age, gender, class, capacities, merit, and the like. But the individual can be imagined more as an isolated being or more embedded in and dependent on society. Here, the differences between the European and the American approach become visible (Whitman; Brugger). Accordingly the scope of the right will vary.
The scope will also vary depending on the understanding of dignity as an absolute or a relative right. ‘Absolute’ means that the right can neither be restrained nor weighed against other rights. If this is so, it seems inevitable that protection can only be invoked against the most severe encroachments. All minor encroachments may be classified as protected by other rights such as the right to physical integrity or to privacy. If dignity is but a relative right, the scope can be drawn more widely, since limitation or balancing is allowed. Furthermore, the range of the bill of rights may play a role. If important rights, such as equality in Israel, are not contained in the catalog of rights, dignity may serve as a substitute, an aspect discussed below.
The relationship between dignity and rights depends largely on the answer to the question of whether dignity is only a principle or also a right and whether, as a right, it is absolute or relative.
‘Principle’ here is understood not, in the sense of Robert Alexy, as a difference between principles and rules, but in the sense of a binding norm for government, which, however, does not correspond with an individual entitlement. In this case, dignity will be a guideline for any governmental agent, but will serve as the basis of direct obligations only in exceptional cases. Compared with rights, it takes effect by way of interpretation. Every fundamental right can be said to have a dignity core. If rights collide, dignity is not on the side of one right only. The closer a state action that limits a fundamental right comes to the dignity core, the more weight this right will have in the balancing process.
Whether dignity, in itself, is regarded as a right can depend on its status in the constitutional framework as an absolute or relative principle. If the guarantee is absolute, a hierarchical order between dignity and other rights is established, with dignity at the top of the hierarchy. In such a case, no limitation is justifiable and no balancing takes place. As an absolute right, when found to be affected (a question of its scope), it will always trump other rights and interests. As a relative right, dignity may still enjoy a privileged position, as in the South African Constitution with its triad of dignity, equality, and freedom: under such a structure, dignity is likely to prevail in many cases, but not in all.
A special problem exists in the context of the relationship between dignity and the right to life. One could argue that life is the precondition of the enjoyment of all other rights, dignity included. Hence, life should enjoy a preferred position. Killing a person would also be an attack on his or her dignity. However, in most jurisdictions the right to life is subject to limitations. The legal order recognizes instances in which the state can lawfully take life. In these cases, taking someone’s life would not at the same time mean a violation of dignity. This is more the case when life is guaranteed in a relative way, while dignity enjoys absolute protection. Under these conditions, killing a person does not automatically violate dignity. But there may be ways or circumstances under which killing constitutes a violation of dignity.
From formal absence and limited judicial application, to full formal recognition supplemented by judicial dedication to the eradication of breaches of human dignity, the following models are explicated by examples from several systems.
The US Constitution contains no reference to human dignity. There is, however, a growing body of literature that addresses the question of whether dignity has in fact entered the legal sphere and is used by courts as a legal doctrine. Some continue to argue that human dignity, as a constitutional doctrine, is as foreign to the US system as it is to its sociological and historical ethos (Whitman). Yet several studies insist that the Supreme Court has used the concept since the mid-twentieth century, expanding its reliance by the turn of the century (e.g. Paust; Goodman; Rao 2008; Rao 2011). These empirical studies support a variety of normative arguments regarding the value of the adoption of the concept—for some, amounting to a ‘tradition’ (McCrudden, 684)—but it seems these studies grant insufficient attention to the distinction between the linguistic rhetorical uses of the phrase and its adoption as a fully-fledged legal doctrine. The decisions usually cited as prime examples4 have indeed mentioned ‘dignity’ in the judicial reasoning, but a declaration such as ‘[t]he basic concept underlying the Eighth Amendment is nothing less than the dignity of man’ found in Trop and cited in subsequent decisions, and Goldberg v Kelly’s statement that ‘[f]rom its founding, the Nation’s basic commitment has been to foster the dignity and well-being of all persons within its borders’,5 is arguably not the basis of a fully-fledged constitutional doctrine. Even in Lawrence v Texas,6 often presented as heavily influenced by human dignity, the phrase is only used three times, all of them in a discursive fashion, while the term ‘liberty’ appears no less than 52 times. At best, one can support the argument that the concept of dignity, clearly within the judicial knowledge of US Justices, has been used as an interpretive tool for fleshing out other established rights and doctrines. A recent Supreme Court decision, which upheld a lower court order to substantively improve the conditions offered to California inmates due to prison overcrowding and the severe deprivation of healthcare, refers to ‘the concept of human dignity’,7 a possible hint at future recognition of a legal doctrine, but further establishment of a fully-fledged principle is a matter for speculation.
A similar stance can be found in some analyses of Israeli and British jurisprudence that preceded the adoption of texts of constitutional content. It is argued that Israeli courts had recognized and protected human dignity before the enactment of the Basic Law: Human Dignity and Liberty in 1992 (Barak 1993), as have pre-HRA British courts (Feldman). Both systems indeed supported values encompassed in the context of human dignity well before their respective constitutional transformations, but the case-law is in our view better interpreted as pertaining to dignity, rather than relying on an established doctrine, as in the case of the United States.
Support for the argument that US courts do no more than use ‘dignity’ in a discursive fashion, as a term in the English language, can be found by comparing the use of the term in other systems that do not constitutionally recognize human dignity. Such is the case in Canada. Its Charter does not formally protect human dignity. The Canadian Supreme Court has held that human dignity is one of ‘the values and principles essential to a free and democratic society’, the latter phrase being one element of its limitation clause.8 An even stronger recognition of the centrality of dignity can be found in Morgentaler, in which the court declared that ‘[t]he idea of human dignity finds expression in almost every right and freedom guaranteed in the Charter’, and that the Charter was founded on the respect of human dignity.9 These dicta did not amount to the recognition of a distinct right or doctrine. Dignity has, however, been used extensively to shape the contours of other, formally protected rights, albeit inconsistently and without the formulation of a discernible doctrine (Weinrib; Fyfe).
The jurisprudence of the European Court of Human Rights (ECtHR) has developed in a similar fashion. In the absence of formal recognition, several early decisions sporadically used the phrase ‘human dignity’.10 The elevation of dignity to an underlying principle can be found in the 1990s, in declarations such as ‘the very essence of the Convention is respect for human dignity and human freedom’.11 In a recent decision, the Grand Chamber cited the European Treaty, further emphasizing the EU commitment to the protection of dignity and to human rights at large.12 However, since dignity as such is not independently protected, it has been considered in conjunction with other rights, most notably Article 3, but has also been extensively linked with other rights.13 As in Canada, then, usage of the term has not given rise to the introduction of a distinct doctrine, but has had a substantive impact.
The British tone is more muted. The term ‘human dignity’ is indeed found in decisions, but it is overwhelmingly linked with the application of the European Convention on Human Rights (ECHR) via the Human Rights Act; decisions that grant dignity further attention regularly cite ECtHR decisions.14 Some cases add references to relevant UN documents (such as the Refugee Convention) and to decisions of foreign courts, but the Supreme Court, and its forebear the House of Lords, have not elevated dignity to the status of a domestic principle.15
The absence of human dignity in the 1789 Declaration of the Rights of Man can be explained once dignity is recognized as a twentieth-century constitutional doctrine, but the lack of recognition in France’s two post-war Constitutions requires further attention. Drafts of the 1946 Constitution granted dignity a central place, although not to the degree found in the German Basic Law, but the term was removed, to be replaced by a vague reference in the Preamble. Likewise, the 1958 Fifth Republic Constitution contains no reference to human dignity. In 1993, the Vedel committee proposed the inclusion of a provision explicitly protecting human dignity, but the reform was not introduced.
Not long afterwards, however, both the Conseil Constitutionnel (CC) and Conseil d’État (CE) recognized human dignity as a principle embedded in the system, each of them within its competence. In Lois Bioéthique (1994), the CC, deciding upon the constitutionality of two statutes concerned with bioethics and reproduction, opened its decision with a reference to the Preamble of the 1946 Constitution. Referred to in the Preamble of the Constitution of the Fifth Republic as one of the texts through which the French people express their ‘attachment to the rights of man and principles of sovereignty’—clearly a declaratory provision, the 1946 Preamble, similarly declaratory, proclaimed that ‘each human being, without distinction of race, religion or creed, possesses sacred and inalienable rights’. Citing this part of the Preamble, the CC then established that ‘the protection of human dignity against all forms of enslavement or degradation is a principle of constitutional status’.16 This ruling has been repeated, extending to both civil/political and social rights. It has inter alia been the basis for CC recognition of the right for adequate housing.17
Further, the duty to consider human dignity is expressly included in a variety of statutes concerning inter alia the penal process, bioethics, and public health. Notably, the 1998 framework Act concerned with exclusion of French citizens, which enhanced several social and economic rights, opens with a section that declares its basis on ‘the respect of equal dignity of all human beings’.18
Yet dignity has not been at the center of a CC unconstitutionality decision. As in Bioéthique, arguments on this basis have usually been unsuccessful.19 In the very few cases in which the CC considered ‘dignity’ in the context of a successful challenge, other rights were involved and discussed to greater length, and the context was clearly one that was protected by other rights.20 In addition, for a few decisions concerned with statutes in which the term ‘dignity’ was one of the considerations to be taken by authorities, the CC repeated the requirement to respect the dignity of the persons concerned.21
The main contribution of the CE in this respect has been its recognition that the protection of human dignity is part of the administration’s duty to keep the peace. In two decisions rendered on the same day, the first being Commune de Morsang-sur-Orge (1995), the CE upheld local authorities’ interdiction of ‘dwarf-tossing’ events. Relying on statute-based police authority to keep the public order, security, and health, the CE found that respect for human dignity was an element of the public peace.22 In the ‘pork-soup’ case (2007), the CE upheld a police interdiction of an extreme right-wing organization’s plan to offer pork soup for homeless people in Paris. The Court ruled that the plan was discriminatory, and that its interdiction was a proper consideration of the potential hurt of the dignity of private persons, which could have endangered the public order.23 The CE has also addressed dignity in the context of statutes pertaining to the dignity of holders of office and other professionals,24 and in cases concerned with statute-based social and economic rights, as well as prisoners’ rights.25
However, on a par with the CC, a similar judicial reticence to accept arguments relying on the breach of human dignity has been noted.26 As is the case in other systems, successful challenges that have no link to other protected rights have been few and far between.
Most constitutions that recognize dignity as a distinct right subject the protection of human dignity to limits, typically embodied in a limitation clause. Such is the case in South Africa. In addition to the declaratory Section 1, which lists human dignity as the first of the Republic’s values, Section 10 grants ‘everyone … inherent dignity and the right to have their dignity respected and protected’, encompassing both main concepts of dignity; dignity is also an express element of Section 35, in the context of detention conditions. Section 36 then allows a limitation of rights that is ‘reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors’ (including factors listed in the Section). In Israel, the express general grant of ‘life, body and dignity’ to which all persons are entitled is then subject to Section 8, in which a violation of the protected rights must be ‘by law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required’. Both limitation clauses have been applied inter alia through the application of proportionality tests.27
Although limitation clauses obviously reject the notion of an absolute right, the protection of human dignity may be extensive. This can derive from wording of the formal recognition, especially in systems that accord dignity the status of a principal value in addition to a right; from a dignity-biased application of the limitation clause; and from a general societal agreement regarding the centrality of dignity.
A unique situation may arise when a constitutional document recognizes human dignity but fails to explicitly protect other human rights. In such cases, the system’s express recognition of the centrality of dignity, supplemented by the vagueness of the provision may lead to judicial protection of such non-enumerated rights. Israel’s Basic Law: Human Dignity and Liberty, enacted in 1992, formally recognizes the inherent dignity of the person and the duty of the state to protect it, but no such recognition is offered to the classic civil rights—equality, freedom of speech, and freedom of religion—historically the core human rights. The reason for this absence is political. This Basic Law, and its accompanying Basic Law: Freedom of Occupation, were passed following a compromise with ultra-religious political and parliamentary factions that were strongly opposed to the recognition of such rights in a written document, due to the likelihood of a clash between these rights and halakhic religious tenets. Human dignity was found acceptable, most likely also due to its religious underpinnings. Still, the Basic Law exempts all pre-1992 legislation from the requirements of the Basic Law. This body of pre-existing statutes, which includes the subjection of all Jews to Rabbinical law in matters of marriage and divorce, is thus safe from judicial review for unconstitutionality, a judicially recognized power deriving from the interpretation of the 1992 basic laws.28
In a series of decisions, the High Court of Justice (HCJ) has interpreted some of these non-enumerated rights into human dignity. In Alice Miller (1995),29 a policy of the military that excluded women from service as pilots was invalidated as discriminatory; being degrading, this discrimination also encroached on women’s dignity. Further decisions have elaborated upon the guiding principle under which non-enumerated rights were to be protected under the aegis of human dignity. Since then, discrimination arguments are regularly assessed against the Basic Law. The leading test, offered by President Barak, which seems to be ‘the autonomy of the private will’, covers more than degradation but does not extend to all types of discrimination.30
This judicial interpretive exercise, while standing at odds with parliament’s original intent, was firmly supported by President Barak in his academic writing as well (Barak 1994, 418–33), and was largely adopted socially and politically, despite some criticism. Freedom of expression and freedom of religion have similarly been declared protected, to a certain extent, by dignity.31 The court has also recognized the right to minimal living conditions, the right to education, and the right to health as potentially protected when human dignity is found substantially compromised, either through the direct impact on the dignity of the person or through discriminatory provision of these social services.32 However, the de facto protection of social rights has not been broad. Other rights, such as the right to protection of the environment, have not been recognized.33
The model for this alternative is the German system. Germany’s post-war Constitution, the Basic Law of 1949, contains a guarantee of human dignity. It starts with this guarantee, thereby showing the value that it attributes to dignity. Art. 1 (1) declares human dignity unantastbar. This word is usually translated as ‘inviolable’ (= unverletzlich). Unverletzlich, however, appears several times in connection with fundamental rights, whereas unantastbar is used only in connection with dignity. A literal translation would be ‘untouchable’. In any case, it is considered to be a stronger expression than ‘inviolable’.
The text continues in Art. 1 (2): ‘To respect and to protect it shall be the duty of all state authority.’ This formulation was unique at the time of enactment because it gives dignity not only a negative and ‘vertical’, but also a positive and ‘horizontal’ meaning. The word ‘respect’ is aimed at menaces that emanate from the state. The state has to refrain from action that affects a person’s dignity. The word ‘protect’, to the contrary, is aimed at menaces that emanate from third parties. In such cases, the Basic Law obligates the state to take action in the interest of dignity. Dignity thus becomes a basis for legislative duties. The text continues by saying that ‘therefore’ (namely due to the recognition of human dignity) the German people acknowledge inviolable and inalienable human rights.
Art. 1 BL plays a prominent role in the jurisprudence of the German Constitutional Court (Enders; Eberle). The guarantee of human dignity is considered a foundational principle, the basis of all that follows, the highest value within the system of constitutionally protected values. The use of the word unantastbar in connection with dignity is interpreted as declaring dignity an absolute right, the only one in the Basic Law. ‘Absolute’ means that it is neither subject to limitation nor to balancing. Any limitation of dignity is per se unconstitutional. In case of collision with other rights, dignity always trumps. This is not uncontested in the legal literature, but the Court has repeatedly affirmed its position (see Teifke).
The interpretation of dignity as an absolute right has, however, one obvious consequence: the scope of the right must be narrowly defined. Hence, there are not many cases that were decided solely on the basis of Art. 1 BL.34 Yet the number of cases decided on grounds of some other fundamental right in connection with Art. 1 is huge. Here, dignity serves as a guideline for the interpretation of other provisions of the Constitution, in a manner similar to other systems, as above. Usually, the combination of another right with Art. 1 enlarges the scope of that right or strengthens its weight when it comes to balancing it against other legally protected goods or interests.
As this survey shows, human dignity as a legal notion or legal concept is of growing importance. Most recent constitutions contain a guarantee of dignity. The notion has deep and various intellectual roots, and is not bound to a specific theory or creed. This facilitates its adoption in different legal cultures and its compatibility with different legal traditions. Its legal status, function, and scope are likewise open to different interpretations and application. However, born out of the atrocities committed by various political regimes in the twentieth century, dignity draws its core meaning largely from the historical experience of totalitarian systems. Against the practice of those systems, the concept of dignity asserts that every human being has an intrinsic value independent of capacity or merit. Certain ways of treating humans, such as slavery, are incompatible with this value. Beyond its core meaning, the doctrine may vary in range and intensity of protection, from rhetorical use to extensive application of a fully recognized right. When legally recognized, dignity is a foundational norm from which other more concrete legal provisions flow or derive their meaning. As a foundational norm, dignity is necessarily abstract, its practical importance depending on the existence of further norms. The more that dignity is translated into concrete legal positions and embedded in an institutional framework, the less it will be relied upon as such in ordinary legal matters. The gap between norms and facts inevitably remains. The absence from a nation’s constitution of a guarantee of dignity is no indicator of disregard of human dignity, just as its presence does not indicate compliance with the norm. But the existence of the guarantee offers a platform from which violations of dignity can be rightfully condemned and attempts to justify such violations rejected. To that extent, it matters whether a constitution is based on human dignity or not.
1 Art 151 of the Weimar Constitution of 1919 reads, ‘The economic order must correspond to the principles of justice with the aim to guarantee everybody an existence in human dignity …’Art 115 of the Brazilian Constitution of 1934 is nearly identical with the Weimar Constitution. Ireland refers to ‘dignity and freedom of the individual’ in the Preamble of the Constitution of 1937.
2 Gewirth 1983, 849 (preceded by the author’s attention to the absence of a definition and the usual application on the basis of ‘I know it when I see it even if I cannot tell you what it is’).
3 E.g., Convention on Human Rights and Biomedicine, CETS No. 164 (1997).
4 E.g. Trop v Dulles, 356 US 84 (1958); Planned Parenthood v Casey, 505 US 833 (1992); Atkins v Virginia,536 US 304 (2002); Hope v Peltzer, 536 US 730 (2002); Roper v Simmons, 543 US 551 (2005).
5 Goldberg v Kelly, 397 US 254, 264–65 (1970).
6 539 US 653 (2003).
7 Brown v Plata, No. 09-1233, May 23, 2011, 563 US ___, p. 13, Opinion of the Court (2011).
8 R v Oakes [1986] 1 SCR 779. Other named principles ranged from the commitment to social justice to ‘faith in social and political institutions’.
9 R v Morgentaler [1988] 1 SCR 30.
10 E.g. East African Asians v UK (1981) 3 EHRR 76 (1973); Ireland v United Kingdom (1979–80) 2 EHRR 25 (1978).
11 E.g. SW v UK (1996) 21 EHRR 363 (1995) (no intervention); Pretty v UK (2002) 35 EHRR 1 (2002).
12 MSS v Belgium and France (2011) 53 EHRR 2, § B.1.
13 The cases cited in notes 10–12 above were concerned with Articles 2, 3, 5, 6, 8, 9, 13, and 14.
14 E.g. R (Pretty) v DPP [2002] 1 AC 800; A v Secretary of State for the Home Department [2006] 2 AC 221; R (Purdy) v DPP [2010] 1 AC 345.
15 E.g. H.J. (Iran) v Secretary of State [2011] AC 596.
16 CC 27 juill 1994, Lois Bioéthique, 94-343/344 DC, Rec Cons Const 100.
17 CC 19 janv 1995, 94-359 DC, Diversité de l’habitat, Rec 176.
18 Loi n ° 98-657, 29 juill 1998.
19 See Conseil Constitutionnel, Jurisprudence de Conseil Constitutionnel: Tables d’analyses au 1 août 2011, esp pp 548–51 (http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/les-decisions/acces-par-themes-tables-/tables-analytiques.25838.html).
20 E.g. CC 98-403 DC (right to property); CC
21 févr 2008, 2008-562 DC, Rec. 89 (liberty). 21 E.g. 2010-14/22 DC, above; CC 2009-593 DC.
22 CE Ass, 27 Oct 1995, Commune de Morsang-sur-Orge, Ville d’Aix-en-Provence, Rec Lebon p 327.
23 CE (ord ref) 5 janv 2007, Ministre d’État, ministre de l’intérieur et de l’aménagement du territoire, n ° 300311, AJDA 2007, p 601.
24 E.g. CE 21 déc 2007, M Gabriel A, req 299993; CE 17 mai 2006, M A, req 27378. See also Canedo-Paris, at note 43.
25 E.g. CE 8 déc. 2000, M. Frérot, Lebon 589 (search of prisoners); CE 8 oct. 2004, Union Française pour la cohesion nationale, Lebon p 367 (religious insignia and clothes in schools).
26 Apart from the ‘dwarf-tossing’ cases, other appeals were unsuccessful. See Canedo-Paris and, as a recent example, CE 12 sept. 2011, n° 352512, M Ajanthan.
27 E.g. National Coalition for Gay and Lesbian Equality v Minister of Justice, 6 BHRC 127 (CC, 1998), 1998 (12) BCLR 1517 (CC); Dawood v Minister of Home Affairs, 2000(8) BCLR 837 (CC); CA 294/91 Chevra Kadisha Jerusalem v Kastenbaum, 46(2) PD 464, esp 510–13, 519–24; HCJ 5100/94 Public Committee Against Torture in Israel v the State of Israel (1999); HCJ 2605/05 Academic Center of Law and Business v Finance Minister (2009). English translations of decisions of the Israel Supreme Court are available at <www.court.gov.il>. When no such translation is available, the Hebrew publication is cited.
28 CA 6821/93, United Mizrachi Bank v Migdal Cooperative Village (1995).
29 HCJ 4541/94, Alice Miller v Minister of Defence (1995).
30 HCJ 6427/02, Movement for Quality in Government v The Knesset, 61(1) P.D. 619 (2006).
31 E.g. HCJ 4804/94, Station Film v Film Review Board (1997); HCJ 1514/01 Gur-Aryeh v Second Television and Radio Authority (2001).
32 E.g. HCJ 366/03, Commitment to Peace and Social Justice v Minister of Finance (2005)); HCJ 1067/08, Noar KeHalacha v Ministry of Education (2009).
33 E.g. HCJ 4128/02, Adam Teva Ve-Din v The Prime Minister of Israel, 58 PD 503 (2004).
34 The most important ones are BVerfGE 30, 173; 39, 1; 45, 187; 94, 49; 209, 133; 109, 279; 115, 118; 125, 175.
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