Aharon Barak, former President of Israel’s Supreme Court, has published a very insightful book on human dignity. The fundamental underlying idea, Barak summarizes as follows:
“Human dignity as a constitutional right is a person’s freedom to write her life story. It is her free will. It is her autonomy and her freedom to shape her life and fulfill herself according to her own will rather than the will of others. […] A sub-constitutional norm (statute or common law) that limits human dignity in order to protect another conflicting constitutional right or to fulfill a conflicting interest will be constitutional only if it is proportional.” (pp. XIX-XX).
After explaining fundamental concepts and sources Barak explains how human dignity serves as a value and as a right in international documents and constitutions. In part II he explains the constitutional value of human dignity by (i) defining “constitution” and determining its ultimate purpose, by (ii) evaluating three types of models for understanding the concept of human dignity and (iii) by providing the content of the concept. Part III defends human dignity as a constitutional right and as a framework of all other rights, what Barak calls “daughter rights of human dignity” (pp. 160ff). Part IV compares the use of the concept in different constitutional laws (US, Canada, Germany, South Africa and Israel).
The book is more juridical than philosophical, but general the insights for everyone interested in understanding the importance of human dignity are of great importance. So, the reader may excuse the judge if he is using concepts like autonomy in a broad sense as self-determination, not according to Kant’s use in the meaning of its Greek origins as self-legislation.
Barak’s use of dignity as value and right, however, is more problematic. He seems to mix up an understanding of dignity as a value and dignity as a right. A right must be enforceable, whereas dignity as a value is a more fundamental moral concept. Though dignity is a more general value, its universalism profoundly impacts rights regimes. This makes dignity a potent constitutional principle for situations like Israel struggling to preserve its commitment to its constitutional principles while dealing with the complexities of long-term occupation. Barak is saying that human dignity is not an eternal right, but a relative right in Israel’s constitution, because if Israel’s existence as democratic and Jewish state is at stake, dignity, called the “mother-right” of all other rights, may be abandoned. The right of existence of Israel, therefore, seems to be the true mother-right of all rights and dignity is relative to this right.
Nevertheless, we recommend the book. It stresses the importance to understand human dignity as linked to freedom. Whereas the Christian concept of dignity as well as the Kantian concept is linked to duties, Barak understands dignity as a right protecting people from being violated in their fundamental rights.
The Constitutional Value and the Constitutional Right
Author: Aharon Barak, Interdisciplinary Center Herzliya
Publisher: Cambridge University Press
Data Published: January 2015
Length: 360 pages
Images sources: © Cambridge University Press 2015.