Human Rights Law

LFH 422E
Human Dignity

Lecture 8
 Study
• van Coller, A Human Dignity Handout
• Rao, N Three Concepts of Dignity in
Constitutional Law Notre Dame Law Review,
(SSRN) 2011, Vol. 86 No 1 pp 183-271
• Roux, T The Dignity of Comparative
Constitutional Law Acta Juridica 185 -203
 Journal Articles
• Botha states that dignity is “notoriously difficult to define” and it
seems that the meaning of the term is seldom explained and it is
assumed that everyone instinctively knows what is meant by the
term.
• This equates to a real concern in the application of this abstract
philosophical idea in concrete legal settings.
• This obviously influences the capacity of the term to guide and
constrain constitutional argument. Botha finds that “human
dignity” demands an unlimited responsibility to respect and protect
everyone’s inherent dignity, regardless of national boundaries and
countervailing rights and interests but at the same time requiring
meticulous attention to particular, local contexts.
• This author concludes that, due to this very nature of “human
dignity”, “the capacity of dignity to guide and structure
constitutional discourse lies in the way in which it suspends legal
decision making between the universal and the particular, between
the transcendental and the contingent”. Botha, H Human Dignity in
Comparative Perspective Stell LR (2009) 2 207-208.
 Journal Articles
• Goolam notes that only human dignity is presented as an
unqualified constitutional value. It is the most fundamental
value and human dignity thus lies at the root of the
meaning of the Constitution, also resonates well with all
the other values.
• Each of the other values emerging from the constitutional
text can therefore be seen as deriving from human dignity.”
Goolam, NMI. ‘The cartoons controversy: a note on
freedom of expression, hate speech and blasphemy’ (2006)
CILSA 333.
• Wood concludes that “human dignity” represents the
highest possible social status or worth and it belongs to all
human beings simply because of their humanity. “Human
dignity” equates to the irreplaceable non-fungible worth of
each human being as an end in itself and as the principle
that every person has self-determination.
 Journal Articles
• “Human dignity” is incomparable and absolute and
cannot be measured against other values and it cannot
be rationally sacrificed or traded away for anything or
substituted for the value of another human being. It is a
complex concept which is closely connected to the ideals
of human worth, autonomy, agency, equality, solidarity
and difference. The understanding of “human dignity” is
shaped by the history of numerous and systematic
violations of the inherent dignity of the human person
and by the intellectual history of the idea. Cowen asserts
that recognizing the injustices of the past and its impact
on people’s sense of self-worth provides a lucid picture
of what dignity does not mean. Wood, A in Bernard-
Naude (ed) 2008 Dignity, Freedom and the Post-
Apartheid Legal Order Cape Town: Juta.
 Nature of Human Dignity
• The best way of categorizing human dignity is as a
legal principle that has constitutional status, and
not as an autonomous right?
• The right to dignity protects a person from
treatment that is humiliating, degrading or
abusive, and which has the effect of diminishing a
person’s self-worth.
• It also protects a person from treatment which
does not acknowledge the equal worth of that
person to others.
 Nature of Human Dignity
• The reasonable conclusion, from the
indeterminate meaning of human dignity, is
that there is no distinct concept of human
dignity but a number of diverse conceptions
based on how the concept balances individual
rights with the demands of social policy and
community values.
• In general, dignity presents an important
question as to the type and form of respect
that a person may demand from others and
from the state.
 Nature of Human Dignity
• From this at least three theories regarding the
meaning of dignity may be recognized and each
may in turn present a distinctive solution to what
produces dignity in humans or in groups of
humans - Rao, N Three Concepts of Dignity in
Constitutional Law Notre Dame Law Review, 2011
Vol 86 No 1 pp 183-271:
 Inherent Worth
 Substantive Conceptions of Dignity
 Dignity of Recognition and Coercion / The
social Dimension of Dignity
 Inherent Worth
• Human dignity in its universal sense is connected to the
inherent worth of each individual.
• This form of dignity exists by virtue of a person’s humanity
and is linked to the bare minimum dignity which every human
possesses because of the valuable aspects of being human.
• It presupposes that each person is born with the same
quantum of dignity. Intrinsic human dignity does not
determine an external measure of what is dignified or worthy
of respect.
• This dignity resides in all humans without appraisal by any
other standard; it concentrates on human potential and not
the exercise of such potential. It therefore does not evaluate
whether a person’s reasoning, choices or criteria for self-
worth are dignified.
 Inherent Worth
• Dignity, as an intrinsic feature of every human therefore pre-
exists all juridical-political acts.
• Juridical-political actions can therefore only recognize that
dignity exists. Dignity a thus biological fact of the birth of
every human being.
• It does not depend on intelligence, reason, sentience,
emotion, consciousness, morality, or social status, conduct,
language, integrity, material goods, societal standing, race,
belief or any other quality.
• It is, however, complex and multifaceted and a complex
combination of the above virtues that makes human’s unique.
 Inherent Worth
• The SA Constitutional Courts has indicated that dignity
requires the right to a certain degree of individual
autonomy from interference by the state. These
judgments imply that autonomy and minimum state
intervention of property, bodily integrity, and privacy
increase intrinsic dignity. These judgments do not
consider the dignity of a specific person but rather they
link dignity with freedom from interference by the state.
Life
• The right to life is a pre-condition for the enjoyment of
other fundamental rights. The intrinsic value of humans
dictate the content of the right to life with only a few
exceptions such as abortion, assisted suicide and the
death penalty. The Second Optional Protocol to the
ICCPR affirms that the abolition of the death penalty
“contributes to the enhancement of human dignity”.
 Inherent Worth
The Right to Personality and Physical and Mental Integrity
• Intrinsic value also provides the basis for the right to physical
and mental integrity which includes the prohibition of torture,
slave labour and degrading treatment or punishment.
• The right to dignity is linked to other rights as “human beings
are entitled to be treated as worthy of respect and concern.”
• The right to dignity was considered in determining whether
punishment is cruel, inhuman or degrading - S v
Makwanyane: it was suggested that the right to life read with
the right to dignity may impose a positive duty on the state to
create conditions which enable people to enjoy the right to
life as something more than a guarantee of mere physical
existence. O’Regan J stated that [t]he right to life is more than
existence, it is a right to be treated as a human being with
dignity: without dignity, human life is substantially diminished.
Without life, there cannot be dignity.
 Inherent Worth
Privacy
• The dignity of privacy pertains to each human equally.
Sexual Autonomy
• Freedom of choices regarding sexual life and reproduction is regularly
protected in terms of dignity. This links dignity, autonomy, and choice.
Dignity also relates to a woman’s right to make decisions regarding
abortion due to its implications on her dignity and independence.
Sodomy
• Dignity dictates that humans should be allowed to make choices about
their sexuality without intervention by the state. This extends to choices
regarding particular sexual conduct and legislation that prohibits such
practices was declared invalid.
Free Speech
• Free speech also associates autonomy with dignity and develops self-
expression and a vigorous public dialogue. The right to personal self-
expression is derived from the inherent dignity of humans and their
capacity for such expression. Restrictions on free speech amount to a
deprivation of dignity. Freedom of expression gives effect to the ability of
humans to freely and rationally engage with ideas and other modes of
expression.
 Inherent Worth
Race and Gender Equality
• Dignity has also been associated the prohibition against
discrimination.
• Humans must be treated equally and discrimination on the
basis of race or gender violates a person’s dignity - President
of the Republic of South Africa and Another v Hugo
• The prohibition of unfair discrimination recognizes that all
humans are entitled to equal dignity and respect and their
connection to a particular group is irrelevant.
• The use of race classification is generally incompatible with
human dignity.
• Inherent dignity will accentuate formal equality by declining
to classify humans based on race and gender.
• Humans should be treated as individuals and not as members
of a specific racial, religious or sexual group.
 Substantive Conceptions of Dignity
• Dignity may also articulate and function as a motivation for
enforcing a variety of substantive values.
• This substantive form of dignity necessitates a particular
manner of living and is valuable for individuals and society.
• It depends on identifiable standards of appropriateness and
considers a person worthy to the degree that he conforms
to such ideals.
• This raises the question as to what makes a person
dignified? This may require the observance of certain social
norms that further morality and public good and is thus
socially constructed and politically enforced.
• A person may thus loose dignity by not demonstrating
particular virtues.
• Dignity is accordingly associated with positive social and
economic goods and demands a specified minimum
standard of living.
 Substantive Conceptions of Dignity
• Substantive dignity is additionally linked to social-welfare
rights.
• The basic conditions of welfare to ensure an adequate
standard of living must accordingly be made available by
the state to sustain the dignity of the individual.
• Dignity can be acquired or lost depending on the socially
defined standard of dignity of the person.
• This notion of dignity is not a universal quality inherent in
each person.
• It requires that a person measure up to an external
standard and depends on conformity to the social norms
of the communities.
• The standards of the community regarding dignity will
take precedence over inherent dignity.
 Substantive Conceptions of Dignity
Prostitution and Pornography
• Prostitution is degrading to the individual dignity
of the prostitute and leaves the person exploited
and in a disadvantaged position in society.
• Pornography is categorized as degrading and
dehumanizing and the consent of the participants
does not save the material.
• The law thus prohibits immoral behaviour to the
advantage of the individual and society.
• It represents a particular moral view of what
dignity requires and accordingly regulates how
individuals must act to preserve dignity.
 Substantive Conceptions of Dignity
Bioethics
• Intrinsic human dignity has been linked with the
independence over decisions on the manner in which the
person dies, including access to assisted suicide.
• Human dignity has, however, also been coupled with the
sanctity of life.
• This reflects a specific belief of living in a specific manner
and dying in a certain way. Here opposing notions of dignity
are commonly appeal to during deliberations on euthanasia
or assisted suicide, abortion, and biomedical research
involving human subjects and stem-cell research.
• One may argue that dignity requires the choice to
terminate one’s own life to avoid a life devoid of dignity.
These arguments reflect contradictory positive societal
comprehensions of what human dignity demands of
humans subjected to poor health and death.
 Substantive Conceptions of Dignity
Dignity and Social-Welfare
• Substantive dignity also underlines the material prerequisites
necessary for living with dignity. Some modern constitutions
explicitly protect dignity and further correlate this value with social
and economic rights.
• The Constitutional court in SA has accordingly invoked dignity as a
reason for compelling the state to provide such goods.
• This notion of dignity requires access to welfare and a certain
standard of living as essential to sustaining dignity.
• This dignity is thus not inherent in the individual but depends on
external factors. There can only be dignity in a life where there is
access to housing, healthcare, food, water and appropriate
assistance.
• The government in making policy decisions should consider the
right of the individual to live with dignity but also the general
decisions of the community concerning the application of
resources.
 Substantive Conceptions of Dignity
• The right to food is inextricably linked to human dignity
and is essential to the enjoyment of other rights.
• People should therefore be able to enjoy their basic
needs under conditions of dignity in adequate
standards of living which not only includes the right to
food but also the rights to water, housing and health.
• Education however is the key to the enjoyment of
other human rights and contributes, together with the
right to work, to the promotion of the essence of
human rights namely living in human dignity.
• The South African Constitution provides that “Everyone
has the right to have access to adequate housing,” and
“[t]he state must take reasonable legislative and other
measures, within its available resources, to achieve the
progressive realisation of this right.”
Dignity of Recognition and Coercion /
The social Dimension of Dignity
• Dignity may also be associated with recognition and respect
based on a model of the self as determined by the broader
population.
• This dictates that a person’s worth is dependent on their
relationship to society and requires esteem, acceptance and
respect for the particularity of each individual.
• It requires protection of the sense of self and of the reputation
and subjective feelings of self-worth possessed by each person
and group in society.
• It demands that others value the choices of others and state
policies must show proper regard for individual differences.
• Humans are accordingly defined as autonomous but community-
centred persons who are dependent on the community with a
need to develop freely within that community.
Dignity of Recognition and Coercion /
The social Dimension of Dignity
• The protection for dignity may frequently expose
societal norms. Here dignity is called upon to hold the
individual and society to collective values or to
preserve certain notions of public order.
• The meaning of dignity will accordingly depend on a
specific interpretation of what is valuable or moral.
• This includes a prohibition of pornography, prostitution
and corporal punishment to reflect community norms
about proper conduct and morality according to social
policies that protect dignity.
• It reveals public opinion on the meaning of dignity.
Dignity of Recognition and Coercion /
The social Dimension of Dignity
• There are different external forces that act on the
individual being the “shared beliefs, interests and
commitments” of the social group and state-imposed
norms.
• The role of the state and community in establishing
collective goals and restrictions on individual freedom
and rights, on behalf of a certain idea of the good life.
• Community value represents a constraint on personal
autonomy which pursues the protection of the rights and
dignity of others; the rights and dignity of oneself; and of
shared social values.
• Human dignity as constraint is centered on the ideas of
duties and responsibilities, as opposed to “human dignity
as empowerment,” which is essentially concerned with
rights.
Dignity of Recognition and Coercion /
The social Dimension of Dignity
Hate Speech
• The regulation of speech or publications that
denigrate or significantly disrespect groups based
on race, ethnicity, religion, or gender takes place
at the junction between equality, dignity, and the
right of recognition.
• It is prohibited because it denigrates equality and
intends to marginalization or alienation certain
groups from the social community.
• Such speech or publications may even result in
discrimination against members of targeted
groups.
Dignity of Recognition and Coercion /
The social Dimension of Dignity
Dignity and Reputation
• The prohibition of defamation protects the dignity of a person’s good reputation.
• A violation of a person’s reputation undermines a person’s dignity within society and
influences that person’s self-conception.
• The right to free speech must accordingly be balanced against a person’s reputation.
• Persons have a right to claim protection by the state from violation of their dignity by
others.
• The courts must develop the common law action of the action injuriarum so as to offer
protection against and a remedy for such infractions.
• Khumalo (law of defamation), the court noted that “[T]he value of human dignity in our
Constitution is not only concerned with an individual’s sense of self-worth, but
constitutes an affirmation of the worth of human beings in our society.
• It includes the intrinsic worth of human beings shared by all people as well as the
individual reputation of each person built upon his or her own individual achievements.
• The value of human dignity in our Constitution therefore values both the personal
sense of self-worth as well as the public’s estimation of the worth or value of an
individual.
Dignity of Recognition and Coercion /
The social Dimension of Dignity
Dignity and Social Inclusion
• State policies should express the appropriate
position based on dignity and respect for
diverse groups.
• These policies must recognise the rights of gay
and lesbian individuals in order to achieve
wider social tolerance and respect.