Human dignity : the constitutional value and the constitutional right / Aharon Barak ; translated from the Hebrew by Daniel Kayros.
2015
KMK2097 .B3713 2015 (Map It)
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Details
Author
Title
Human dignity : the constitutional value and the constitutional right / Aharon Barak ; translated from the Hebrew by Daniel Kayros.
Uniform Title
Kevod ha-adam. English
Published
Cambridge, United Kingdom : Cambridge University Press, 2015.
Call Number
KMK2097 .B3713 2015
Former Call Number
Is 908.5 B231 2015
ISBN
9781107462069 (paperback)
1107462061 (paperback)
9781107090231 (hardback)
1107090237 (hardback)
1107462061 (paperback)
9781107090231 (hardback)
1107090237 (hardback)
Description
xxxviii, 360 pages ; 23 cm
System Control No.
(OCoLC)890912702
Summary
"The concept of human dignity has a 2500 year history. As it moved through history, the concept was been influenced by different religions which held it as an important component of their theological approach. It was also influenced by the views of philosophers who developed human dignity in their contemplations. In the 20th century, the concept encountered a new phenomenon. The atrocities of the Second World War, and particularly the Holocaust of the Jewish people, brought human dignity into the forefront of legal discourse. As a result, constitutional and international legal texts began to adopt the concept, and jurists appeared alongside the theologians and the philosophers. Legal scholars were called upon to determine the theoretical basis of human dignity as a constitutional value and as a constitutional right. Judges were required to solve practical problems created by the constitutionalization of human dignity, as a value or as a right"-- Provided by publisher.
Bibliography, etc. Note
Includes bibliographical references (pages 308-346) and index.
Record Appears in
Table of Contents
Preface
xvii
Acknowledgements
xxvi
Table of cases
xxvii
pt. I
Fundamental concepts and sources
1
1.
The various aspects of human dignity
3
1.
Theology, philosophy and constitutional law
3
A.
The difference between the intellectual history and the constitutional interpretation
3
B.
The similarity between the intellectual history and the constitutional interpretation
4
2.
Criticism of the use of the concept of human dignity and response to it
8
A.
The criticism
8
B.
The response
10
3.
Human dignity -- a social value, a constitutional value and a constitutional right
12
2.
The intellectual history of the social value of human dignity
15
1.
The ancient world
15
A.
History of ideas
15
B.
The Stoics and Cicero
17
C.
The world religions
18
(1).
Judaism
18
(2).
Christianity
21
(3).
Islam
23
2.
Philosophical approaches
24
A.
Philosophical approaches until Kant
24
(1).
The Renaissance
24
(2).
The Enlightenment
25
B.
Kant
26
C.
Dworkin
28
D.
Waldron
30
3.
The lessons learned from the intellectual history
33
3.
Human dignity as a value and as a right in international documents
34
1.
Human dignity in legal discourse
34
2.
Human dignity in international conventions
37
A.
Human dignity discourse in international conventions
37
B.
United Nations conventions
38
(1).
The UN conventions on human rights of 1966
38
(2).
United Nations conventions on particular issues
39
(3).
Conventions of the United Nations' specialized agencies
41
C.
Conventions on particular issues
42
D.
Regional conventions
44
(1).
Europe
44
(2).
America
45
(3).
Africa
47
(4).
The Arab League
48
(5).
The Organization of Islamic Cooperation
48
4.
Human dignity as a value and as a right in constitutions
49
1.
Pre-Second World War developments
49
A.
Pre-First World War developments
49
B.
Development from the First World War until the Second World War
49
2.
Development from the Second World War until the present
51
A.
The scope of the development
51
B.
Development of human dignity in the constitutions of the European states
52
(1).
The 1940s
52
(2).
The 1950s -- the European Convention for the Protection of Human Rights and Fundamental Freedoms
54
(3).
The 1960s, 1970s and 1980s
54
(4).
The 1990s
56
(5).
The start of the twenty-first century
58
(6).
In retrospect
59
C.
Development of human dignity in the constitutions of Latin American states
59
(1).
Until the end of the 1940s
59
(2).
Human dignity in modern constitutions
61
D.
Development of human dignity in the constitutions of African states
62
E.
Development of human dignity in the constitutions of Asian states
64
pt. II
Human dignity as a constitutional value
67
5.
Purposive constitutional interpretation
69
1.
Constitutional uniqueness and its influence on constitutional interpretation
69
A.
Human dignity as a constitutional value and constitutional interpretation
69
B.
A constitution as a supreme norm
70
C.
The uniqueness of a constitution and its purposive interpretation
72
D.
Purposive interpretation of a constitution -- comparative law
72
2.
Constitutional meaning
73
A.
Express and implied meaning
73
B.
Express meaning
74
C.
Constitutional silence
76
D.
Implied meaning
77
E.
Constitutional structure
80
3.
The constitution's subjective purpose
82
A.
Its essence
82
B.
Its sources: structure
83
C.
Its sources: constitutional history
84
4.
The constitution's objective purpose
84
A.
Its essence
84
B.
The sources of the objective purpose
85
(1).
Internal sources: the constitution as a whole and the search for constitutional unity
85
(2).
External sources: other constitutional provisions
86
(3).
External sources: post-constitutional history
87
(4).
External sources: precedent
87
(5).
External sources: fundamental values
89
(6).
External sources: comparative law
90
C.
Determining the ultimate purpose of the constitution
95
(1).
The approach of purposive interpretation
95
(2).
The subjective purpose of the constitution is not decisive
96
(3).
The objective purpose and protection of the individual
98
(4).
"A living constitution" and "a living tree"
99
(5).
Interpretation with a spacious view
100
6.
The role of human dignity as a constitutional value
103
1.
Three roles of human dignity as a constitutional value
103
2.
Human dignity as a constitutional value that lays a foundation for all of the rights
104
3.
The interpretational role of human dignity as a constitutional value
105
A.
General interpretational role
105
B.
Particular interpretational role: interpretation of the right to human dignity
110
4.
Human dignity as a constitutional value in the limitation of constitutional rights
112
7.
Three types of model for determining the content of the constitutional value of human dignity
114
1.
Theological models, philosophical models and constitutional models
114
2.
Theological models
114
3.
Philosophical models
116
A.
Assessment of the philosophical models
116
B.
Human dignity and Kant
117
C.
Human dignity and Dworkin
118
D.
Human dignity: Margalit and Statman
119
4.
Constitutional models
120
A.
The characteristics of the constitutional models
120
(1).
An interpretational approach with a spacious view
120
(2).
Interpretation of the constitutional value of human dignity and the constitutional rights with a spacious view
122
(3).
The multiplicity of constitutional models
123
B.
The content of the constitutional value of human dignity
124
(1).
The humanity of the person as a human being
124
(2).
The humanity of the person as a free being
127
(3).
The humanity of the person as autonomy of will
129
(4).
The humanity of the person as rejection of the person as a mere means
130
(5).
The humanity of the person in the framework of a society
130
(6).
The humanity of the person and the human race
131
C.
Criticism of the constitutional model of humanity
132
pt. III
Human dignity as a constitutional right
137
8.
Recognition of the constitutional right to human dignity and its content
139
1.
Constitutional recognition
139
A.
Express recognition of a constitutional right to human dignity
139
B.
Recognition of a constitutional right to human dignity by implication
141
C.
Recognition of human dignity as a constitutional right by filling a lacuna in a constitution
142
(1).
The lacuna
142
(2).
A lacuna in a constitution?
143
2.
The content of the constitutional right: the realization of the constitutional value
144
A.
The general approach
144
B.
The unique case of the German Basic Law
145
3.
Purposive constitutional interpretation and human dignity
147
A.
Interpretation with a spacious view
147
B.
A spacious view is not a limitless view
148
C.
Purposive interpretation of human dignity and limitation of a different right
149
D.
Purposive interpretation of human dignity and limitation of the public interest
150
E.
Criticism of this view and response
153
9.
Human dignity as a framework right (mother-right)
156
1.
Human dignity as a framework right
156
A.
Framework rights
156
B.
A bundle of rights
158
C.
Framework rights and rights with no special name
159
2.
Daughter-rights of human dignity
160
A.
Daughter-rights fulfill the mother-right's purpose
160
B.
The various aspects of the humanity of a person
160
C.
Deriving a daughter-right from the mother-right of human dignity
161
D.
Daughter-rights and those same rights as independent rights
162
E.
The relationship between the daughter-rights of human dignity
163
(1).
Lack of overlap, complementary overlap and conflicting overlap
163
(2).
Lack of overlap
163
(3).
Complementary overlap
163
(4).
Conflicting overlap
164
(a).
Conflicting overlap between two principles
164
(b).
Conflicting overlap between a principle and a rule
167
F.
The relationship between daughter-rights and independent constitutional rights
167
10.
The area covered by the right to human dignity
170
1.
The area covered and the overlap problem
170
2.
The area covered exclusively by the right to human dignity in a comprehensive bill of rights
170
3.
The constitutional right to human dignity and the complementary overlap with independent constitutional rights in a partial bill of rights
174
4.
Architectural difficulty: the right to human dignity and the right to personal liberty
175
A.
Presenting the problem
175
B.
South Africa
176
C.
Canada
177
D.
Israel
178
5.
Human dignity is not a "residual right"
181
pt. IV
Human dignity in comparative law
183
11.
Human dignity in American constitutional law
185
1.
A constitutional right to human dignity is not recognized in the federal constitution
185
A.
The lack of a special express provision on human dignity in the federal constitution
185
B.
Human dignity is not part of a framework right in the federal constitution
185
C.
Human dignity and Griswold v. Connecticut
189
2.
Human dignity as a constitutional right in the state constitutions
190
3.
Human dignity as a constitutional value in the federal constitution
192
A.
Human dignity and the dignity of the state
192
B.
The history of human dignity as a constitutional value
193
(1).
Pre-Second World War
193
(2).
The 1940s and 1950s
193
(3).
Continued use of human dignity in the Supreme Court
197
(a).
Expanding the application of human dignity to most of the Bill of Rights
197
(b).
The contribution of Justice Brennan
199
(c).
The contribution of Justice Kennedy
201
C.
The assessment of human dignity as a constitutional value in the US Constitution
205
(1).
The status of human dignity as a constitutional value
205
(2).
The essence of human dignity in American common law
206
12.
Human dignity in Canadian constitutional law
209
1.
The Canadian Charter does not recognize a constitutional right to human dignity
209
A.
The lack of an independent right to human dignity
209
B.
Rejection of human dignity as a derived (daughter) constitutional right
209
C.
Human dignity as a sub-constitutional value
211
2.
Human dignity as a constitutional value in the Canadian Charter
212
A.
The centrality of human dignity as a constitutional value
212
(1).
In the Canadian Charter in general
212
(2).
In certain constitutional rights
213
(a).
The right to equality
213
(b).
The right to freedom of expression
214
(c).
The right to life, liberty and security of the person
215
(d).
Legal rights
215
B.
The content of human dignity
217
(1).
Human dignity as the humanity of the person
217
(2).
The various expressions of human dignity
218
(a).
Human dignity in Law
218
(b).
Human dignity in Morgentaler
219
(c).
Human dignity, free will and individual autonomy
220
(d).
Human dignity and viewing a person as an end unto himself
221
(e).
Human dignity within a society
221
C.
The role of human dignity as a constitutional value
222
(1).
Human dignity as an interpretational standard for determining the scope of a constitutional right
222
(2).
Human dignity in the limitation of constitutional rights
223
13.
Human dignity in German constitutional law
225
1.
The normative traits of human dignity
225
A.
The provisions of Article 1(1) of the German Basic Law
225
B.
Human dignity as an absolute right
227
C.
Human dignity as an eternal right
229
D.
Human dignity as the supreme value in the German constitution
230
E.
The area covered by human dignity as a constitutional right
231
F.
The uniqueness of human dignity in German constitutional law
232
2.
Human dignity as a constitutional value and a constitutional right
233
A.
Human dignity solely as a constitutional value
233
B.
Human dignity as a constitutional right
234
3.
The definition of human dignity
235
A.
Negative and positive definitions
235
B.
Shared and conflicting elements of the various definitions
236
4.
The scope of human dignity
237
A.
The dignity of every person as a human being
237
B.
Human dignity's beginning and end
238
(1).
Human dignity's beginning
238
(2).
Human dignity's end
239
C.
Human dignity and bioethics
239
5.
Human dignity in German constitutional law and comparative law
240
14.
Human dignity in South African constitutional law
243
1.
The normative traits of human dignity
243
A.
The provisions of sections 10 of the South African Constitution
243
B.
Human dignity as a relative right
244
C.
Human dignity as a constitutionally amendable constitutional right
248
D.
Human dignity as a supreme value
252
E.
The area covered by human dignity as a constitutional right
256
(1).
A zone of exclusive application of human dignity
256
(2).
Human dignity and the residual right to freedom
259
F.
The uniqueness of the right to human dignity in South African constitutional law
261
(1).
Human dignity as a constitutional right that covers all conduct that falls within human dignity as a constitutional value
261
(2).
The overlap between the right to human dignity and the other constitutional rights
262
(3).
The minimum core problem
264
2.
Human dignity as a constitutional value and a constitutional right in South African constitutional law
266
A.
Human dignity as one of the human rights
266
B.
The relationship between the constitutional value of human dignity and the constitutional right to human dignity
267
3.
The scope of the constitutional value of human dignity
267
A.
Definitional difficulties
267
B.
Human dignity as seeing a person as an end and not a mere means
268
4.
The scope of the constitutional right to human dignity
271
A.
Overlap and conflict between human dignity and other constitutional rights
271
B.
The parties to the constitutional right to human dignity
272
C.
The content of the constitutional right to human dignity
273
(1).
The external context and the internal context
273
(2).
The content of human dignity as a constitutional right in light of the Constitutional Court's jurisprudence
275
(3).
Human dignity and the autonomy of individual will
277
15.
Human dignity in Israeli constitutional law
280
1.
The normative traits of human dignity
280
A.
Articles 2 and 4 of the Basic Law
280
B.
Human dignity as a relative right
281
C.
Human dignity is not an eternal right
283
(1).
There is no express eternity clause
283
(2).
Is there an eternity clause by implication?
284
D.
Human dignity as a supreme value
285
E.
The area covered by human dignity as a constitutional right
286
2.
The daughter-rights of human dignity
288
A.
The right to personality
288
B.
The right to dignified human subsistence
288
C.
The right to reputation
292
D.
The right to family life
292
E.
The right to equality
295
F.
The right to freedom of expression
296
G.
The right to freedom of conscience and religion
296
H.
The right to freedom of movement
298
I.
The right to education
299
J.
The right to employment
299
K.
The right to due process
300
3.
Parties to the right
301
A.
The bearer of the right to human dignity
301
(1).
A person
301
(2).
Groups
303
(3).
A corporation
303
B.
Obligee
304
4.
Temporal application
305
A.
Active application of the Basic Law
305
B.
A normative anomaly
306
Bibliography
308
Index
347