Dignitizing" Constitutions Worldwide: On the Proliferation of Human Dignity in National Constitutions (original) (raw)
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Human Dignity in National Constitutions: Functions, Promises and Dangers
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.
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.
Human Dignity, Human Rights, and Political Regimes
The American Political Science Review, 1986
It is often argued that internationally recognized human rights are common to all cultural traditions and adaptable to a great variety of social structures and political regimes. Such arguments confuse human rights with human dignity. All societies possess conceptions of human dignity, but the conception of human dignity underlying international human rights standards requires a particular type of "liberal" regime. This conclusion is reached through a comparison of the social structures of ideal type liberal, minimal, traditional, communist, corporatist and developmental regimes and their impact on autonomy, equality, privacy, social conflict, and the definition of societal membership.
Dignity as a Traditional Value: International Legal Analysis
Background/Objectives: The term "dignity" is widely used in the texts of the international legal instruments, but international law has not developed its agreed definition. This concept of dignity is reflected in the first international human rights instruments. Methods/Statistical analysis: Analysis of international instruments on human rights shows that in the 20th century, the concept of dignity became the basis of human rights law. This is confirmed by the fact that, firstly, dignity is inherent to all members of the human family. Secondly, all human beings are free and equal in dignity and rights. And thirdly, these rights derive from the inherent dignity of the human person. That is why the better understanding of human dignity as a traditional value can boost promotion and fulfillment of human rights. Findings: The article deals with the concept of dignity from the standpoint of philosophy, Western Christianity and Russian Orthodoxy that contributed to the formulation of the concept of dignity, its definition and elements, and international law. Applications/Improvements: The centrality of human dignity in universal human rights texts can be explained by its core nature. It is fundamental and at the same time it seems uncontroversial enough to attract the entirety of the world community notwithstanding the diversity of morals, cultures, ethnicities, and religions that exist within the broad range of nations.
Human dignity has been the foundational principle of choice of both international human rights law and domestic constitutional rights provisions since the end of the Second World War. However, in spite of widespread international agreement on the importance of the principle, there is a significant degree of confusion regarding what it demands of law makers and adjudicators, and considerable inconsistency in its formulation and application in domestic constitutional law. This paper will argue that much of this confusion stems from loose usage of the term by judges and commentators. The discussion will focus on two characterizations of human dignity frequently seen in domestic constitutional law which cannot be logically reconciled with its role in international human rights law: the idea of a right to dignity, and the related confusion between the concept of dignity and the right to personal autonomy. It will be argued that a move away from these characterizations of dignity would render the principle a more workable and useful tool as a foundational principle of constitutional rights.
Human dignity according to international instruments on human rights
Revista electrónica de estudios …, 2011
According to international instruments on human rights, the dignity of the human person is the foundation of human rights, and both human dignity and human rights are inherent to the human being, universal and inviolable. This understanding of human dignity is not a fruitless truism, but the solid foundation on which to build a world community under the rule of the new ius gentium: the International Law for Humankind. Moreover, it is the clue to answer many questions raised by the new world of globalization and of the exponential growth of international rules.Consequently, there is a need to a common doctrine on a notion of human dignity which will allow the implementation and adjudication of the aforementioned instruments, at the service of the human person and in conformity with the juridical conscience which they reflect. Philosophy of Law concepts which can be traced back to Aristotle provide that notion. According to these concepts, the demanding nature of "human dignity" sustains the notion of "legal personhood", and both notions pertain to the realm of Law and Right, not of Morale and Values. Thus, human dignity and human rights are and must be, respectively, a basic principle and a necessary part of any Law system, including international law. RESUMEN: Según los instrumentos internacionales sobre derechos humanos, la dignidad de la persona humana es el fundamento de los derechos humanos, y tanto la dignidad humana como los derechos humanos son inherentes al ser humano, universales e inviolables. Este entendimiento de la dignidad humana no es una perogrullada estéril sino el sólido cimiento sobre el que edificar una comunidad mundial sometida al nuevo ius gentium: el Derecho Internacional para la Humanidad. Además, es la clave para responder a muchas cuestiones planteadas por el nuevo mundo de la globalización y del aumento exponencial de las normas internacionales. En consecuencia, se necesita una doctrina común sobre la noción de dignidad humana que haga posible el cumplimiento y aplicación judicial de los mencionados instrumentos, al servicio de la persona humana y conforme a la conciencia jurídica que Fecha de recepción del original: 1 de agosto de 2011. Fecha de aceptación de la versión final: 26 de octubre de 2011 *Doctor en Derecho y Diplomático. Ha sido encargado de curso de Filosofía del Derecho en la Universidad de Navarra. El artículo original fue una contribución al seminario "Democratic States' Response to Terrorism under the Rule of Law", que tuvo lugar en el Instituto Internacional de Sociología Jurídica de Oñate, el 14 y 15 de julio de 2011. [22] REVISTA ELECTRÓNICA DE ESTUDIOS INTERNACIONALES (2011)-2-reflejan. Conceptos de Filosofía del Derecho que se remontan hasta Aristóteles proporcionan esa noción. Según esos conceptos, la naturaleza exigente de la "dignidad humana" sostiene la noción de "personalidad jurídica", y ambas nociones pertenecen al campo del Derecho y no de la Moral y de los Valores. Por tanto, la dignidad humana y los derechos humanos son y deben ser, respectivamente, un principio básico y parte necesaria de cualquier sistema jurídico, incluido el derecho internacional.
Oxímora. Revista Internacional de Ética y Política, 2016
This paper will evaluate the convenience of using the legal concept of human dignity in the human rights discourse and its effectiveness to address injustice in a twenty-first century democratic society. This article will argue that the difficulty of defining human dignity does not diminish its merits and allows it to be both solid and adaptable to new challenges. Then, this paper will argue that human dignity is a powerful concept due to its capacity to bring change and modernise society and will conclude that there is a strong relationship between time, human dignity, human rights and democracy.
The Legal Significance 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.