HUMAN DIGNITY: CONSTITUTIONAL VALUE
AND CONSTITUTIONAL RIGHT*
By
Aharon Barak
1. Human Dignity and the Judge
Human dignity has a long history. Philosophers, theologians, and political
scientists all have considered it, each from his own perspective. I am not a philosopher, a
theologian, or a political scientist; I am a judge. The constitution I work under specifies
that human dignity is a right,1 and I am duty bound to interpret that provision and to
apply it in real life. I must determine when a statute limits the right to human dignity and
whether that limitation is constitutional, and that is what I did in hundreds of decisions I
wrote during the twenty-eight years I served on Israel’s Supreme Court. I recognize, of
course, that human dignity is a complicated, complex, and vague concept. Some regard it
as void of content; others believe that all constitutional rights depend on it. These
perspectives, with all the value-laden baggage that lies behind them, do not to help me to
discharge my role as a judge. The question before me is not whether it is desirable to
have human dignity as a Constitutional right; the constitution mandates the use of that
concept, and I am required to afford it meaning. I must decide if a statute that limits
human dignity is constitutional. I am used to dealing with complicated, complex, and
vague concepts. Equality is one such concept; liberty is another. But now I face the
*
Translated from the Hebrew by Joel Linsider.
Art. 2 Basic Law: Human Dignity and Liberty Sefer Ha-Chukkim (17 March 1992) at 150 : “There shall
be no effect on the life, body or dignity of any person as such”; Art. 4 Basic Law: Human Dignity and
Liberty: “All persons are entitled to protection of their life, body and dignity”. The general limitation claus
(Art. 8) provides :” There shall be no effect on rights under this Basic Law except by a law befitting the
values of the State of Israel, enacted for proper purpose, and to an extent no greater than is required, or by
regulation enacted by virtue of express authorization in such law”.
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additional complicated, complex and vague concept of human dignity. What meaning
should it be afforded?
2. Purposive Interpretation of Human Dignity
The answer to that question is interpretive. I am required to interpret the term
human dignity in the Constitution’s Bill of Rights. Different legal systems use different
interpretive methods in construing constitutional texts.
An interpretive method that
examines the intent of the text’s authors (internationalism) is not the same as one that
considers the original understanding of the text on the part of the people in the society in
which it was written (originalism). And both of these methods differ from a purposive
method that attempts to understand human dignity in the context of social ideas
contemporary with the interpreter (purposivism). Purposive interpretation takes account
of intent and original understanding, but its principal emphasis is on the fundamental
values and concepts of modern society.
It can be influenced by religious and
philosophical approaches, but it will primarily reflect the understanding of modern
society. The choice of interpretive method will bear directly on the outcome. This
conference is not the place to consider which interpretive method is most appropriate, and
I will assume, therefore, that the approach to be used is that of purposive interpretation.2
In my view, it allows for optimally fulfilling the role of the judge-interpreter in a
democratic society.3 What, then, do we mean by human dignity as construed through
purposive interpretation?
2
3
Aharon Barak, Purposive Interpretation in Law (Princeton University Press, 2005).
Aharon Barak, The Judge in a Democracy (Princeton University Press, 2006).
2
To reply to that question, we must distinguish between human dignity as a
constitutional value and human dignity as a constitutional right—two matters that are not
the same. In many legal systems, human dignity serves solely as a constitutional value.
That is the case, for example, in the United States, Canada, and Spain. As an interpretive
value, human dignity has mainly a dual role. First, it serves as a standard for the
interpretation of constitutional rights. For example, human dignity as a constitutional
value will be relevant in interpreting the constitutional right to equality. Second, it plays
an important part in determining the constitutionality of limitations imposed on a
constitutional right by a sub-constitutional norm, such as a statute or a common-law
doctrine.
In some legal systems, however, human dignity is not merely a constitutional
value; it is a constitutional right as well. That is the case in Germany, South Africa,
Poland, and Israel. In these systems, human dignity as a value plays an additional and
central role: it constitutes the purpose on which the constitutional right to human dignity
is based.
There is a close, internal connection between the human dignity as a
constitutional value and right on the one hand, and the normative qualities of the right to
human dignity in the constitution on the other hand. Constitutional architecture has
considerable bearing on constitutional interpretation. In that respect, we must distinguish
between human dignity in German constitutional law and human dignity in other legal
systems, such as those of South Africa and Israel. In German constitutional law, human
dignity is an eternal right, not subject to change through constitutional amendment. It
also is an absolute right, not subject to limitation; proportionality does not apply to it.
3
Any limitation is a breach of the right that renders the limiting law unconstitutional. By
their very nature, these normative characteristics require that the scope of the value and
the right be narrow. In other systems, however, human dignity is not an eternal right, and
it is relative.
Proportionate limitations on the right may be constitutional.
These
normative qualities allow for the value and right of human dignity to be broader in scope.
On the premise that the right to human dignity is relative and not eternal, what is the
character of the constitutional value of human dignity and right to human dignity under
purposive interpretation? Let me begin with the constitutional value.
3. Human Dignity as a Constitutional Value
a. The Value of Human Dignity
What is the content of the constitutional value of human dignity? In trying to
ascertain how the value is understood in a given legal system, one certainly can consider
the ways in which it has been grasped by philosophers, theologians, and political
scientists. Under my approach to constitutional interpretation, however, the heaviest
weight should be assigned to the understanding of human dignity within the society
whose constitution I am interpreting. Every society will have a position on how it
conceptualizes human dignity and what does it mean to be human. The constitutional
judge must reflect the society’s deep concept of the value of human dignity. I took this
approach in a case where a question arose regarding the normative message of human
dignity with respect to how soldiers are buried in military cemeteries. In my decision, I
wrote as follows:4
4
High Court of Justice 5688/92, Wechselbaum v. Minister of Defense, 47(2) Pisqei Din 812, 827 (1993).
4
Human dignity is a complex principle. In concretizing it we should avoid
adopting one person’s ethical perspectives or another’s philosophical
notions. Human dignity should not be made into a Kantian concept, nor
should it be seen as expressing one or another view of natural law. The
content of “human dignity” will be set in accord with the perspectives of
the enlightened Israeli public, taking account of the purpose of the Basic
Law: Human Dignity and Liberty.
On this approach, what is the message of human dignity as a constitutional value?
My answer was given in a decision dealing with whether a statute exempting yeshiva
students from military service represents a non-proportional limitation of the right to
equality (a right that, in Israel, constitutes a derivative right of the right to human
dignity). I wrote as follows:5
We hold that the right to human dignity constitutes a bundle of rights
whose preservation is necessary so that dignity may be maintained. At the
base of the right to human dignity stands the recognition that a person is a
free being, one who develops his body and his in accordance with his will
in the society in which he lives; central to human dignity is the sanctity of
his life and liberty.
Basic to human dignity is the autonomy of the
individual will, the person’s freedom of choice, and the person’s freedom
of action as a free creature. Human dignity rests on recognition of the
person’s physical and mental integrity, his humanity, his value as a
person—all without regard to the extent to which he is useful to others.
That, then, is the constitutional value underlying human dignity in the Israeli
constitution. Of course, the value of human dignity may bear other meanings in other
5
High Court of Justice 6427/02, Movement for Quality Government in Israel v. Knesset, 61(1) Pisqei Din
619, 685 (2006).
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constitutions. Each society will have its own understanding of human dignity. True,
human dignity has universal aspects that will influence every democracy. But alongside
those universal aspects are others that reflect each and every society’s own history,
culture, and human experience—the matters that lead the society to its own unique
understanding of human dignity.
b. Comments on the Value of Human Dignity
Regarding this understanding of the constitutional value at the base of the
constitutional right to human dignity, let me add three notes.
1. My understanding of the constitutional value of human dignity may be subject
to dispute, but a court must reach a decision, and that understanding has been accepted by
all the judges of the Israeli Supreme Court. They have been working under it for some
ten years. If the people are dissatisfied with that result, there is a tool to change the
outcome of the decision, namely a constitutional amendment. It was not used.
2. My definition affords a broad scope to the value of human dignity. It follows
that the right to human dignity likewise is broad in scope. As I have noted, that breadth
results from the normative characteristics of the right to human dignity under Israeli law.
In legal systems that assign different normative characteristics to human dignity as a
constitutional right (such as the German Grundgesetz), the constitutional value will be
different—narrower—in concept.
3. The value of human dignity as I see it includes within it both complementary
and contradictory elements. The complementary elements will reinforce one another, and
no boundary will be set to divide them. The contradictory elements will coexist within
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the constitutional value of human dignity. They will not be subject to balancing, and one
element will not prevail over another. The scope of the constitutional right will be set on
the basis of the broadest value. The clash between the contradictory elements will be
resolved at the sub-constitutional level. A statute that fulfills one element and impairs
another, limits the constitutional right to human dignity (with respect to the element that
is impaired). The constitutionality of that limitation will be determined on the basis of the
unconstitutional rules of proportionality.6
If it is decided that the statute is
unconstitutional, it will have no bearing on the impaired element of the value of human
dignity at the constitutional level. The influence will be exerted only on at the subconstitutional level.
4. Human Dignity as a Constitutional Right
a. Human Dignity within the Bill of Rights
In some constitutions, human dignity is not only a constitutional value; it is a
constitutional right as well. In these systems, the constitutional value of human dignity
serves as the purpose underlying the constitutional right. Accordingly, the constitutional
right to human dignity is interpreted as encompassing all those actions or ommission
needed to protect and respect the constitutional value.
Thus, human dignity as a
constitutional right will have a wide scope. How does this broad right to human dignity
operate within the context of the constitutional bill of rights? Here, we must distinguish
between a partial bill of rights (in which only a small number of constitutional rights are
recognized) and a full bill of rights (in which most modern constitutional rights are
6
See Aharon Barak, Proportionality: Constitutional Rights and Their Limitation (Cambridge University
Press, 2012).
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recognized). With respect to both sorts, my premise is that all constitutional rights—
human dignity and the other “independent” rights recognized in the bill of rights—have
similar normative characteristics, that is, they may be amended and they are not absolute.
b. Human Dignity in a Partial Bill of Rights
Where the constitutional bill of rights includes only a small number of
constitutional rights, the constitutional right to human dignity will play a central role.
The area it covers—and that it alone covers—will be substantial. That is the situation in
Israeli constitutional law. For historical reasons, the Basic Law: Human Dignity and
Liberty and the Basic Law: Freedom of Occupation recognize only the following rights:
the right to life, the right to bodily integrity, the right to human dignity, the right to
property, the right to leave and enter the country, personal liberty, personal privacy, and
freedom of occupation. Many other important rights are not recognized as “independent”
rights that stand on their own. Through purposive interpretation, the Supreme Court has
avoided taking that lack of recognition to be a denial of those rights. Nevertheless, as an
interpreter, the Court was required to acknowledge that many rights are not recognized as
independent rights that stand side-by-side with human dignity. The court’s interpretive
method has been to treat human dignity as a “framework right” or a “mother-right” from
which derivative rights may be generated; the latter include the rights to equality, to free
expression, to freedom of conscience and religion, to have a family and be a parent, to
movement within Israel, to reputation, and to minimal core of dignified sustenance. All
these derivative rights have been recognized as inseparable progeny of the mother-right
to human dignity.
All that is subject, however, to one important restriction: these
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derivative rights will be recognized only insofar as they have close substantive ties to
human dignity as a value. For example, these derivative rights have been recognized with
respect to human beings, but not with respect to corporations, which do not have the right
to human dignity. Freedom of expression is a derivative right of human dignity only with
respect to that aspect of freedom of expression that pertains to development of the human
personality. Commercial speech, accordingly, is not part of human dignity. So, too, with
respect to equality.
Not every form of discrimination that might be considered an
impairment of equality if equality were recognized as an independent right will be
considered an impairment of equality as a derivative right of human dignity. The right to
dignified subsistence as a derivative of human dignity encompasses only the core of
minimal standards; to that extent, it bears a close, substantive connection to human
dignity. Were the right to human subsistence an independent right, its scope would
certainly be broader. This restriction on the scope of the right to human dignity follows
from the purposive interpretive method. Human dignity, as one of the constitutional
rights in the bill of rights, cannot occupy all the space that a partial bill of rights leaves
vacant. It can do so only with respect to those aspects having a close substantive tie to
human dignity as a value and thus as a right.
c. Human Dignity in a Full Bill of Rights
How does this concept of human dignity operate in the framework of a full bill of
rights that encompasses most of the commonly recognized rights—for example, in the
Final Constitution of South Africa (1996)? How are we to understand human dignity as a
constitutional right where most of the derivative rights that might be inferred from human
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dignity are themselves recognized as independent rights on their own? On my approach,
there is no difference in principle between the two types of bills of rights. In each,
human dignity (which is relative, not eternal) will be interpreted in a way that reflects the
value of human dignity in its broad scope. As a result, where there is a full bill of rights,
there will be a significant overlap between the various constitutional rights. How can
those situations be resolved?
In my view, where the same behavior is protected both by the right to human
dignity and by another constitutional right, the two rights reinforce each other. The
overlap does not affect the scope of the rights. Each right stands on its own, with the
scope warranted by its underlying purpose.
There is no basis for determining that
because human dignity is a general right while the other right is specific, the right to
human dignity should not be applied. Human dignity should not be relegated to the status
of a residual right. The specific right does not detract from the general right, and both
apply to the human conduct they pertain to. The overlap will be expressed normatively
not in the constitutional framework but in the sub-constitutional framework. A law that
impairs the two constitutional rights in the area they share will be constitutional only if it
is proportional. That proportionality will be assessed separately with respect to each of
the rights. That is certainly so if each right has its own specific limitation clause. But it
will be true even where the same general limitation clause applies to all the rights.
What happens if the constitutional right to human dignity clashes with some other
constitutional right? For example, human dignity may be constructed to
including
protection of an individual’s reputation. That aspect of human dignity may clash with the
right to free expression recognized as an “independent” constitutional right. How will
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that conflict be resolved? In my view, the resolution will not take place on the
constitutional level. The clash will be resolved on the sub-constitutional level. A subconstitutional (statutory or common-law) norm may impair one right in order to protect
the other. The constitutionality of that sub-constitutional norm will be determined on the
basis of its proportionality. Even if it is determined that the norm is proportional, that will
neither narrow the scope of the impaired right nor expand the scope of the protected right.
Proportionality will operate on the sub-constitutional level alone.
This approach raises interesting questions where the constitutional bill of rights
includes, along with the right to human dignity, the right to liberty. How are these two
rights related? Nice questions arise as well where the bill of rights includes social rights
that do not make provision for minimum core of human sustenance.
Under those
circumstances, can that minimum core be secured under the human dignity?
Where a constitution includes a full bill of rights, one can ask whether there is any
area that is covered by the right to human dignity alone. Could it be that every area
covered by the constitutional right to human dignity is covered as well by some other,
specific right? If the answer to the latter question is positive, does it not follow that the
right to human dignity, having no area unique to it, is effectively surplusage that could be
forgone? In my view the constitutional right to human dignity has a place whether or not
there exists some area that is uniquely covered by it. Its existence as a constitutional
right—not merely a constitutional value—grants special weight to the constitutional
value, affording it added vitality.
In legal systems in which human dignity is a
constitutional value only (such as those of the United States and Canada), the value is
used much less than it is in systems where it is a constitutional right as well. Moreover,
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,usually there will be areas that fall outside the bounds of other constitutional rights. It
depends on the overall structure of the bill of rights. Thus, at times the bill of rights will
omit the right to reputation or to family life. Many constitutions lack any provisions
related to social rights. Under those constitutions, certain aspects of these rights may be
encompassed under human dignity, which becomes a sort of “rights basket” (like the
right to free developments of one’s personality under article 2 (1) of the German
Grundgesetz). Moreover, I believe human dignity will gain even more importance in the
future with respect to bioethical issues such as genetic engineering and cloning. There
are those who go so far as to say that human dignity protects the human race from
impairment by scientific developments. One who drafts a constitution cannot anticipate
the future, and the existence of the right to human dignity will ensure proper protection
for our humanity.
Epilogue
Human dignity raises difficult questions in various areas, and our conference will
certainly reflect those difficulties. As judges, we must find ways to overcome them. For
now, two important questions remain to be noted:
First, what conclusions can be drawn from my analysis regarding the benefits of
using human dignity in a full bill of rights? In my view, considerable benefit can be
derived from human dignity as a constitutional value and a constitutional right. Despite
the difficulties that are posed, human dignity can play an important part in deriving subconstitutional rights and in interpreting other constitutional rights. In addition, human
dignity can play an important role in determining the proportionality of impairments of
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those rights. A constitutional bill of rights will be impoverished by the omission of
human dignity as a constitutional value or a constitutional right.
Second, what does my analysis teach us about the role of comparative law in
understanding the constitutional value and constitutional right of human dignity? In my
view, the analysis demonstrates, on the one hand, the importance of comparative law as a
source of interpretive inspiration. I have learned much from the role dignity plays in the
constitutional law of Germany, South Africa, and Canada, and what I have learned has
contributed to the crystallization of my own position. On the other hand, the analysis
shows the great degree of caution that must be exercised in the use of comparative law.
Every legal system has its own approach to the normative character of human dignity;
every legal system has its own approach to interpreting constitutional norms, and every
legal system has its own unique constitutional architecture.
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