Here, There, and Everywhere: Human Dignity in Contemporary Law and in the Transnational Discourse
Barroso, Luís Roberto, Boston College International and Comparative Law Review
Abstract: Over the past several decades, human dignity has become an omnipresent idea in contemporary law. This Article surveys the use of human dignity by domestic and international courts and describes the concept's growing role in the transnational discourse, with special attention paid to the case law of the U.S. Supreme Court. The Article examines the legal nature of human dignity, finding it to be a constitutional principle rather than a freestanding fundamental right, and develops a unifying and universal identity for the concept. At its core, human dignity contains three elements-intrinsic value, autonomy, and community value-and each element has unique legal implications. The Article considers how this elemental approach to the analysis of human dignity can assist in structuring legal reasoning and justifying judicial choices in hard cases, such as abortion, same-sex marriage, and assisted suicide.
In France, Mr. Wackeneim wanted to participate in a show known as "dwarf tossing," in which nightclub patrons would try to heave a dwarf the furthest distance possible. In the United Kingdom, Mrs. Ev- ans, after losing her ovaries, wanted to insert into her uterus embryos fertilized with her eggs and semen from her ex-husband. In Italy, the family of Mrs. Englaro wanted to suspend medical treatment and let her die peacefully after seventeen years in a vegetative coma. In Brazil, Mr. Ellwanger wanted to publish books denying the existence of the Holocaust. In the United States, Mr. Lawrence wanted to have intimate relations with a same-sex partner without being considered a criminal. In Colombia, Mrs. Lais wanted official recognition of her right to work as a sex professional. In Germany, Mr. Gründgens wanted to prevent the republication of a book based on the life of his father because he considered it offensive to his father's honor. In South Africa, Mrs. Grootboom, living in extremely miserable conditions, wanted the state to provide shelter for her and her family. In France, the young Mr. Per- ruche wanted compensation for being born, or rather, for not being aborted, because a prenatal diagnostic error left unforeseen the severe risk of physical and mental lesions with which he was born.1
Each of these scenarios represents real cases decided by high courts throughout the world and share one common trait: the meaning and scope of the idea of human dignity. In recent decades, human dig- nity has become one of the Western world's greatest examples of ethi- cal consensus, mentioned in countless international documents, na- tional constitutions, legal statutes, and judicial decisions.2 In theory at least, few ideas garner such spirited and unanimous concurrence. In practice, however, dignity as a legal concept frequendy functions mere- ly as a mirror onto which each person projects his or her own values. It is not by chance that human dignity is invoked throughout the world by opposing sides in such matters as abortion, euthanasia, assisted suicide, same-sex marriage, hate speech, cloning, genetic engineering, sex- change operations, prostitution, the decriminalization of drugs, the shooting down of hijacked aircrafts, protection against self-incrimin- ation, the death penalty, life imprisonment, the use of lie detectors, hunger strikes, and the enforcement of social rights. The list is endless.
In the United States, references to human dignity by the Supreme Court trace back to the 1940s.3 The use of the concept in American law, however, is episodic and underdeveloped,4 relatively incoherent and inconsistent,5 and lacking in sufficient specificity and clarity.6 Despite this history, in recent years a clear and noticeable trend emerged in which courts employ human dignity in cases involving fundamental rights, such as the rights to privacy and equal protection, the preven- tion of unconstitutional searches and seizures, the prevention of cruel and unusual punishment, and the "right to die. …