A LUTA POR RECONHECIMENTO NO CONTEXTO DAS

TEORIAS DA JUSTIÇA

Abstract:
The concept of human dignity is a central concept in many legal systems. Yet the
increasing and sometimes excessive use of this concept has generated a number of serious
problems which have only recently become clear in empirical research and court rulings
showing that
the meanings of dignity have become contradictory and can no longer advance human
rights
protections. This paper offers a way out of the deadlock. We offer an approach which is
anchored in the psychology of the self, specifically in the human need for maintaining
positive self-worth. We elaborate on what this conceptualization means in terms of
violations
of dignity, emphasizing dignity’s antonym, humiliation, as well as other closely related
aspects of social exclusion, lowering of social status, and denials of recognition more
generally. We then demonstrate that this approach has in fact been applied in a range of
important legal cases, often establishing constitutional precedents. We illustrate this
through a comparative review and analysis of judgments from the United States Supreme
Court, the
European Court of Human Rights, and the Supreme Court of Israel. We argue that this
psychological approach to human dignity can bring logic and consistency back into its
meaning and usages.

The concept of human dignity is a central, if not the central, concept in legal systems the
world over. It is the concept that symbolizes the historical turning point following the
atrocities of World War II, from which the international human rights regime and liberal
democratic systems became ever more widespread and influential. Human dignity came to
be understood as the underlying value and cause for the specific human rights (freedom of
speech, privacy, due process, etc.) that are enshrined in international documents and
national constitutions, even though the concept itself is not defined in these documents
(Shultziner, 2003, and the references therein). As such, human dignity became a central
legal concept for the interpretation and development of human rights. Given its centrality
and increasing use in legal documents, the concept has also underpinned and helped to
establish various precedents and legal instruments in the case law of many systems, and
cross-border borrowing of these legal constructs and interpretations among justices has
been common.

Yet the lack of a clear definition coupled with the increasing and sometimes excessive use
of this concept has generated a number of serious problems which have only recently
become clear in empirical research and court rulings. Christopher McCrudden (2008) has
forcefully shown that the more dignity has been employed in various legal jurisdictions,
and the more it has been used for human rights interpretation, the more fluid and even
contradictory its meanings and applications have become, even when applied in quite
similar cases and contexts such as abortion, incitement to racial hatred, obscenity, and
socioeconomic rights. In Canada, where the concept of human dignity has been vigorously
employed, Supreme Court justices have recently reached the conclusion that it is too
abstract, subjective, confusing and difficult to apply as a legal test, and that “it has also
proven to be an additional burden on equality claimants, rather than the philosophical
enhancement it was intended to be.”1 This current understanding of the theoretical
complexity of dignity, and its actual limitations and difficulties in legal interpretation, pose
pressing challenges and raise serious problems that are at the heart of jurisprudence, human
rights interpretation, and arguably of liberal democratic theory more generally.

The challenges and problems that are now apparent cannot be underestimated given the
extensive body of law that has been built upon interpretations of human dignity. It would
not be an exaggeration to say that the current state of affairs may herald a crisis in the
doctrine
of human dignity. On the one hand, there has been strong dependence on human dignity as
a
justification for the existence of human rights, and a common legal practice of using dignity
as a legal-moral criterion for balancing and deciding between conflicting rights and
establishing law-like legal precedents. On the other hand, there is an increasing realization
that the doctrine of human dignity has exhausted itself and has run into serious inherent
conflicts. The widening meanings of the term, its fluid applications, and the lack of an
agreed
definition have turned human dignity to a term that means everything and hence no longer
means anything.2 Accordingly, applications of human dignity could now yield opposite or
contradictory outcomes: for example, extracting rights and limiting rights; protecting
individual rights against collective rights, minority rights, and indigenous rights, or vice
versa; shielding the individual from state encroachment or the state against the individual;
supporting socio-economic rights or more libertarian policies; and standing on the side of
prochoice or pro-life on the question of abortion.3 In such a state of affairs, it is no wonder
that the Canadian Supreme Court decided to abstain from using the concept, and other
courts may soon follow. More seriously, the doctrine of human dignity may collapse under
the weight of an extensive body of law that has been incoherently developed, and the term
may become a dividing notion rather than a unifying one.

It is in the context of these acute problems that we offer a way out of the deadlock.
This paper takes as its starting point the undisputed notion that “human dignity” protects
individuals from humiliation and explains this overarching agreement according to social
psychological research. We define human dignity as self-worth and offer an approach that
explains violations of dignity in terms of humiliation and other threats and injuries to
people’s
self-worth. This approach is revealed to be rich in content and able to explain much of the
system of protection of human rights as well as best suited to bring back logic and
consistency
into the legal usages of human dignity. In the first section of the paper, we specify the way
in which human dignity is best conceptualized as the source and justification of human
rights.
We emphasize the meaning of dignity, defined as the universal human need for and pursuit
of positive self-worth. We also discuss violations of human dignity involving injuries and
threats to people’s self-worth, especially humiliation and denials of social recognition more
generally. In the second section we discuss the link between the conception of human
dignity
as self-worth and the prescriptive aspects ascribing this protection special normative
weight.
We explore the logic and usefulness of this approach as well as the support for it from
international documents. In the third section we provide evidence and illustrate that judges
in three very different legal systems, and for several decades, have applied a psychological
approach to define human dignity and its violations, including in groundbreaking rulings.
Justices often apply the same logic and language pertaining to self-worth in defining and
defending human dignity despite the constitutional differences between the systems and
notwithstanding the reference to the concept in relation to constitutional rights and statutory
rights. We conclude by arguing for the usefulness and advantage of this psychological
approach of human dignity over its alternatives.