Academic

Daly on Dignity & Latin American Constitutional Tribunals

By Lawrence Solum

Erin Daly (Widener University School of Law) has posted Dignity in the Service of Democracy on SSRN. Here is the abstract:

At a broad level, perhaps the most noticeable trend in Latin American constitutional law is the increasing muscularity of constitutional tribunals. Throughout the region, particularly in South America, tribunals charged with interpreting their country?s constitution are increasingly asserting themselves and inserting themselves into public controversies, from abortion to same sex marriage to the rights of political association.

This heightened judicial activity can come at a cost to democracy: typically, the more social issues are decided by unelected and unaccountable judges rather than through a political process, the less the people control the resolution of those issues. The more outcomes are deemed to be constitutionally determined, the less room there is for political negotiation and change. And the more courts read into constitutional texts, the more value-laden their judgments, the less legitimacy they have.

But the trend in Latin America challenges this conventional wisdom: the form that judicial activism is taking is enhancing, rather than eroding, both judicial authority and democratic decision making. And the principal engine that is driving this process is judicial invocation of the constitutional right to dignity.

Latin American courts are relying on the constitutional right to human dignity to decide cases more often than one can count, and in an extraordinarily wide range of situations. The Colombian constitutional court has tried to schematize the concept of dignity, noting that the phrase ?human dignity? can manifest itself in two ways: from the point of view of the concrete object of protection and from the point of view of its normative function. With respect to the first perspective, the Court has identified three clear and distinct lines: human dignity can be understood (1) as autonomy or the possibility of designing a life plan and self-determination according to his or her own desires; (2) as entailing certain concrete material conditions of life; and (3) as the intangible value of physical and moral integrity. As shorthand, it characterizes these three dimensions, respectively, as living as one wishes, living well, and living without humiliation. In Part One, this paper illustrates this schema by discussing cases from throughout the region, showing how the courts have interpreted the right to dignity to insist on protection for a wide range of interests. Part Two explores the normative function of Latin America?s dignity jurisprudence by demonstrating the mutually reinforcing connection between dignity, as described by the cases, and democratic citizenship.

Full post as published by Legal Theory Blog on January 25, 2011 (boomark / email).