“Dignity in Judgment: Human Dignity in Five Jurisdictions” by Gideon Sapir

P.S. Krøyer’s painting of A meeting in the Royal Danish Academy of Sciences and Letters (PD-Art).

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This article is part of our Book Review Roundtable on Andrea Pin’s book, Dignity in Judgement: Constitutional Adjudication in Comparative Perspective (2025).
If you’d like to check out other reviews in this series, click here.

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In his book Dignity in Judgment (hereinafter: the book), Andrea Pin reviews the use of the concept of human dignity in five jurisdictions, both as an interpretive principle and as an independent human right. In the book’s introduction, Pin clarifies that he is not going to propose a “correct” definition of the concept, nor is he going to point out similarities in the interpretation given to the concept in the various jurisdictions (xx). However, Pin does point to several insights that emerge from the review:

First, in recent decades there has been a clear trend of expanding the use of the concept of human dignity (xii). Second, it is very difficult, and perhaps even impossible, to point to a  clear and coherent meaning of the concept (219). Third, over the years, there has been a tendency to separate two aspects of the concept: dignity and sanctity, with the first being perceived as secular and the second as religious (234). Fourth, in the secular sense, the most common meaning is that of dignity as autonomy (xvii). Finally, there are those who believe that the lack of a clear definition of the concept of human dignity makes its use in philosophical and legal discourse more harmful than beneficial, but Pin disagrees and believes that the benefit outweighs the harm (235-236).

Below, I will focus on the concept of human dignity in its sense as autonomy and will side with the position opposing the use of dignity in this sense, for two main reasons: the damage expected from this usage to democracy, and the danger it poses to the protection of human rights.

Why is the recognition of a constitutional right to autonomy undesirable?

The main problem with the recognition of a general right to autonomy lies in the enormous scope of the right. If we recognize a right to autonomy, the result will be that in every case where the government prohibits a citizen from doing something, he can petition the court to instruct the authority to permit him to do the same, on the grounds that doing so plays an essential role in his life as he would like to shape it. If so, we will have to grant his demand for constitutional status, due to the infringement of the autonomy involved in its rejection, which is an unacceptable outcome.

In response, it can be argued that the above criticism ignores the fact that the constitutional discourse is divided into two stages: in the first, it examines whether the right is violated, and in the second, it examines whether the infringement is justified. The argument will be that in most cases in which relief is sought due to a violation of autonomy, the court will reject the petition – even though it will recognize a violation of the right – on the grounds that the weight of the interest underlying the governmental prohibition is heavier than the weight of the violated right. If this is the case, there is no impediment to including the right to autonomy within the framework of protected constitutional rights.

But this answer misses the point. While it explains why the inclusion of the right to autonomy in the framework of protected rights will not necessarily lead to unjustified restraint of the government, it ignores two other problems: the harm expected to democracy from the recognition of the right to autonomy, and the danger posed to the protection of human rights by the recognition of that right.

Damage to Democracy

The first problem is easy to explain – almost every governmental decision involves a restriction of autonomy. If we grant autonomy constitutional status, almost every governmental decision will become a judicial issue on constitutional grounds. In this way, the court will become not only the protector of a certain area of rights, but also the supreme arbitrator. As is well known, in the academic and public discourse, different opinions are heard on whether judicial review of primary legislation is legitimate. However, even if judicial review can be justified, this does not mean that it justifies turning the court into a body that has the authority to intervene and decide almost everything and matter. This is precisely the reality that will be created if we grant autonomy a constitutional status.

Admittedly, as noted above, in the vast majority of cases, the court will legitimize the decision of the political system, even though the decision violates autonomy. However, even then, the principle of majoritarian rule will be violated. The court’s broad authority to intervene violates the democratic principle, even in cases where the court decides at the end of the day not to invalidate the decision of the political system. 

Violation of the protection of human rights

The second problem is more difficult to explain. Ostensibly, expanding the framework of rights actually strengthens the protection of human rights. Why is there concern that recognition of the right to autonomy will weaken their protection? Here is my answer:

As noted, if we recognize the right to autonomy, every human desire will enjoy the status of a right. This fact will blur the distinction between mere caprice and human actions that serve an important value or interest. If every human whim enjoys constitutional status, there is a danger that we will not be able to distinguish between more important desires and less important ones and will allow harm to the former no less than the latter.

This blurring will also be caused by the fact that recognition of the right to autonomy will strengthen the use of autonomy not only as a general right but also as the rationale underlying all other rights. As is well known, each of the specific human rights has its own unique rationales, which explain why special protection should be granted to the activity protected within it. Articulating the rationales is important not only for theoretical reasons, as it also has practical ramifications: it helps to define the scope of the right and determine the weight of its violation in each case. 

And this is precisely where the danger lies – granting constitutional status to autonomy will bear on specific rights and make them all based, at least to some extent, on autonomy. The danger is that the rationale of autonomy will “swallow” the unique rationales of each right, which will lead to a blurring of the difference between an infringement of one right and an infringement of another, and between a slight infringement and a severe infringement of the same right. 

How can we explain the trend of expansion?

Considering the cost involved in recognizing a general right to autonomy, the question arises, why do some insist on recognizing the right to autonomy as a constitutional right? Kai Möller believes that the move reflects a fundamental change in the perception of the role of constitutional law. The traditional Bills of Rights were born when the democratic regime was still in its infancy. The role of the bill was to limit the government and protect citizens from its great power. In such a reality, it would have made sense to focus on the main areas in which a threat is posed to the citizens from the government, such as expression, work, religious activity, mobility, and property. Today, however, the reality in democratic countries has changed. The idea of “limited government” is taken for granted, and in its place a new understanding of the role of the constitution is developing. According to this understanding, the purpose of the constitution is no longer protection from the government, but rather helping citizens develop their abilities, set goals for themselves, and realize them. The value that stands at the heart of the discourse today is self-realization or autonomy.

As Möller explains, the shift in understanding the role of the constitution can explain the turn to autonomy as the central value that the Bill of Rights is meant to protect. This change can also explain a number of other phenomena. It explains the courts’ growing recognition of positive aspects of civil and political rights, because sometimes it is not enough to remove obstacles placed by the state to achieve certain objectives, but rather the state’s assistance is needed. Similarly, it can explain the growing tendency to recognize the  constitutional status of social rights, since, as Joseph Raz explained, the realization of autonomy requires a number of prerequisites, including freedom from scarcity. It  can also explain the call to recognize the horizontal application of rights – not only in the relationship between the individual and the government, but also in the relationship between individuals – since if the goal is to promote autonomy, it does not matter whether it is the state that stands in the way or some “private” entity.

The emerging trend of recognizing a general right to autonomy can also be attributed to a more general phenomenon, which Iddo Porat discussed. Porat pointed out that the changes that have taken place in constitutional law in recent decades in various countries reflect the adoption of the logic of administrative law into constitutional law. This development stems from the fact that in European countries the discourse of rights has developed within administrative law, which has left its mark on this discourse. Porat suggests that one of the main changes in constitutional law, which attest to the process of administration it is undergoing, is the adoption of the concept that any action by the state that affects the individual – and not just a limited set of particularly important interests included in a written constitution – must meet the standards of fairness, reasonableness, and proportionality. Porat argues that the general direction of recognizing a general right to autonomy – an orientation that replaces the previously accepted approach, recognizing only specific rights – is a result of the influence of administrative law on constitutional law.

However, this is precisely where the problem lies. The premise of administrative law is that the citizen is free to do as he pleases, while the state – i.e., the executive branch – must point to a source in the law that authorizes it to limit this freedom. The authorization in the law – granted by the legislature, which represents the citizens – legitimizes governmental activity. The premise of constitutional law is quite different. According to the accepted understanding, the role of the constitution is to protect the citizen, usually one who belongs to minority groups, from harm by the majority, but the protection provided by the constitution is only for certain interests and not for general freedom of action.

Conclusion

In his book, Andrea Pin describes how the value of autonomy gets increasing emphasis in court rulings in various countries. This is expressed both in referring to autonomy as the rationale underlying specific rights, and in the recognition of autonomy as an independent right, derived from the concept of “human dignity.” 

In this short article, I argued that the process described by Pin reflects a change in the understanding of the role of rights in the constitution: from the perception that the purpose of rights is to limit the power of the government to the perception that the purpose is to promote self-realization. In addition, I raised the possibility that the move stems from the internalization of the logic of administrative law into constitutional law.

On the face of it, one might have thought that the recognition of the general right to autonomy was a welcome development, which would increase and expand the protection of human rights, but I expressed concern that it would have the opposite effect on the quality of the protection granted to the rights. Recognizing the right to autonomy could lead to a blurring of the uniqueness of the particular rights and the specific rationales that underlie them, a blurring that could lead to inaccurate judicial treatment in cases of infringement of these rights. ♦

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Recommended Citation

Sapir, Gideon. “Dignity in Judgment: Human Dignity in Five Jurisdictions.” Canopy Forum, March 27, 2026. https://canopyforum.org/2026/03/27/dignity-in-judgment-human-dignity-in-five-jurisdictions/.

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