Edited by Tom Ginsburg and Rosalind Dixon
Chapter 25: Human Dignity in Constitutional Adjudication
Paolo G. Carozza1 Since the mid-twentieth century, the idea of human dignity has emerged as the single most widely recognized and invoked basis for grounding the idea of human rights generally, and simultaneously as an exceptionally widespread tool in judicial discourse concerning the content and scope of specific rights. It has become a pervasive part of the fabric of constitutional law worldwide.2 From South Africa, where judges concluded that dignity requires the government to implement ‘a comprehensive and coordinated programme progressively to realize the right of access to adequate housing’ (South Africa v Grootboom 2001, para. 23); to Israel, where the Supreme Court banned corporal punishment for violating the dignity of children (Plonit v Israel 2000; see Ezer 2003), to the decision of the Supreme Court of the United States finding criminal sodomy laws to be unconstitutional (Lawrence v Texas 2003), courts have assumed responsibility for identifying and guaranteeing the basic requirements of human dignity. Their decisions not only discuss human dignity but rely on the concept to explain, justify and determine case outcomes. As the South African Constitutional Court has put it, ‘dignity is not only a value fundamental to our constitution, it is a justiciable and enforceable right that must be respected and protected’ (Khosa v Minister of Social Development 2004, para. 41). The same can be said of a number of other constitutional systems. For these reasons human dignity has been appropriately described as the ‘ur-principle’ of the protection of the human person in the contemporary era...
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