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Law

Human Dignity

Central problems emerged—at least in theory—with regard to how to justify the principle of respect as the cornerstone of the principle of human dignity. It is unclear whether the concept of human dignity can itself be objectively justified, and indeed modern philosophers have even suggested that at a fundamental level, human values about dignity may be incommensurable. Apparently conflicting values might have to be contextualized (or more deeply analyzed) in light of broader, more abstract formulations of value judgment. Thus, values including power, respect, rectitude, affection, enlightenment, well-being, skill, and wealth must be construed in terms of their enhancement of a more abstract human-dignity postulation. The policy-maker seeking the development of universal dignity must develop technical methods of decision-making, including sophisticated standards of construction and interpretation. Perhaps at this operational level, practical lawyers, social scientists, and real-world policy-makers must render decisions regarding how to integrate what are often regarded to be ostensibly conflicting values and norms in order to genuinely enhance the universal ethic of human dignity.

The South African Constitutional Court, for example, dealt in 1998 with a political party's claim regarding the "Truth and Reconciliation" statute that provided individuals who would otherwise have been prosecuted for human-rights violations with amnesty; essentially, this party contested the constitutionality of the statute and regarded it as a grave violation of international law. The Constitutional Court was confronted with a mechanism to explore truth and guide reconciliation that comprised a critical foundation for the internal peace and security of the entire Republic of South Africa, as well as of the effort to afford each South African political freedom. This statute, however, was in ostensible conflict with universally accepted tenets of international law, which do not accept excuses to mitigate the commission of grave crimes against humanity. It is possible to argue that the ethic of universal respect and human dignity demands universal compliance, but at what cost?

To ensure that respect, humanitarian law, and democratic entitlement are continuously adhered to and honored demands in-depth analysis and delicacy with regard to the process of decisional interventions. Rules of construction and interpretation painstakingly pieced together articulate, for example, that even if a peremptory norm of international law comprises an erga omnes obligation, it should be appraised and applied to enhance similar rights, which might also have to be accommodated. The currency underlying the ethic of human dignity is that it affords practical decision makers standards and goals that permit the transformation of regional, continental, and international law into a greater approximation of the standards and goals embodied in the United Nations Charter.

Principle of equality.

A central element in the development of the respect–human dignity precept is that it is rooted in the principle of equality. The principle of equality has a longstanding normative basis in the rule of law. For example, rule-governed behavior works on the principle of equality, namely, that rules cover like cases, regardless of identity, status, or personality. The more normative expression of the equality principle is established in the idea that all participants are formally equal before the law. Practical experience suggests, however, that even if formal equality is embraced it too often entrenches hierarchy, a lack of equity, and a depreciation of substantial justice. The specific way in which the international legal system approached the equality principle was a clear-cut recognition that the business of why World War II was fought was, in part, rooted in the racialism and Herrenvolkism of the Nazis. It would therefore be no surprise that both the preamble and the purposes of the UN Charter would codify not simply the importance of human rights, but would establish that racial and gender equality were crucial to a meaningful expression of the human-rights principle. Two of the most important covenants that reflect the specific development of the equality principle are the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and the 1980 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

International human-rights law has also made criminal the practice of seeking to destroy groups of human beings in whole or in part based on race, nationality, ethnicity, and religion as labels of identity. Thus, the very first human-rights treaty following World War II made genocide a human-rights crime. The full development of the equality principle in international law has also permitted regional developments and has deeply influenced constitutional development on the principle of equality. The race relations convention, for example, goes further than the idea of formal equality in race relations. It specifically holds that affirmative action to achieve substantive equality is not unfair or prohibited discrimination. It cannot be said that the public order of the world community has achieved a community in which both substantive and formal equality are, in fact, realized. However, enormous developments have been stimulated by the development of the equality principle at the international level through the prism of universal human rights. This rise has served as a base of power for important levels of social activism within the framework of civil society to improve the condition of women discriminated against because of sex, as well as minorities discriminated against because of race.

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