Circle of Safety, Circle of Friends (Human Rights, Radical Solutions Book 2)

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In Greg Madison Ed. Emerging practice in focusing-oriented psychotherapy: Innovative theory and applications. Stolen from our embrace: The abduction of First Nations children and the restoration of Aboriginal communities. Restorative Aboriginal child welfare in diverse urban spaces. Journal of Social Work. Skip to main content. Printer-friendly version Share this. Understanding and addressing intergenerational trauma Jeffrey J.

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Pathways to health and healing: The health of Aboriginal peoples. Social Determinants of Health: Canadian Scholars Press Inc; Smylie J, Adomako P, editors. Health Assessment in Action. Effects of a community-based prenatal nutrition program on the oral health of Aboriginal preschool children in northern Ontario. Results for adults, youth and children living in First Nations communities.

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Journal of Aboriginal Health. Loppie-Reading C, Wien F. Commission on Social Determinants of Health. Closing the gap in a generation: Gracey M, King M. Indigenous health part 1: Determinants and disease patterns. Indian-European Relations in British Columbia, — Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society.

There has been a significant relationship in several jurisdictions between dignity and the granting of rights to gay, lesbian, and trans-gendered individuals, beginning with claims that the criminalization of sodomy was contrary to human rights principles, and continuing most recently in the context of claims to permit marriage between same-sex partners. Minister of Justice , Ackermann J stressed the extent to which the common law offence of sodomy was an infringement of the right to dignity, as well as equality. There can be no doubt that the existence of a law which punishes a form of sexual expression for gay men degrades and devalues gay men in our broader society.

As such it is a palpable invasion of their dignity and a breach of section 10 of the Constitution. The harm also radiates out into society generally and gives rise to a wide variety of other discriminations, which collectively unfairly prevent a fair distribution of social goods and services and the award of social opportunities for gays. Dignity has also been drawn on in order to support decisions which declared legal restrictions on marriage between same-sex couples to be unconstitutional.

Attorney General , the Court of Appeal for Ontario recognized the relationship between dignity and access to the institution of marriage: Marriage is, without dispute, one of the most significant forms of personal relationships. This can only enhance an individual's sense of self-worth and dignity. In doing so, it offends the dignity of persons in same-sex relationships. Clearly, they are, and in no small degree. The effect has been wounding and the scars are evident in our society to this day.

By both drawing on and reinforcing discriminatory social practices, the law in the past failed to secure for same-sex couples the dignity, status, benefits and responsibilities that it accords to heterosexual couples. Control over the use of lethal force by the state's security forces has been seen as a necessary condition for guaranteeing survival by some courts. In cases dealing with the use of force by the security forces, the German Constitutional Court has emphasized the importance of reading the protection of the right to life and the protection of dignity as mutually reinforcing.

These provisions were incompatible with the fundamental right to life and with the guarantee of human dignity to the extent that the use of armed force affected persons on board the aircraft who were not participants in the crime. By the state's using their killing as a means to save others, they were treated as mere objects, which denied them the value that was due to a human being for his or her own sake. Other courts have gone further, using dignity to expand the conception of the right to life to meet basic needs. The provisions on socio-economic rights in human rights texts have also been interpreted as strongly engaging with dignity.

Both the Hungarian and South African Constitutional Courts, for example, have drawn on dignity to support their decisions regarding socio-economic rights. In case of services not reaching the above minimum level, the right to social security may not be deemed enforced.

Therefore, only in case of such an extreme situation is the State obliged to take care of those who themselves cannot provide for the fundamental preconditions of human life. A similar approach was taken by the Constitutional Court of South Africa in the Grootboom case, in which Yacoob J also emphasized the connection between dignity and socio-economic rights: Affording socio-economic rights to all people therefore enables them to enjoy the other rights enshrined in [the Constitution's Bill of Rights].

The realisation of these rights is also key to the advancement of race and gender equality and the evolution of a society in which men and women are equally able to achieve their full potential. A society must seek to ensure that the basic necessities of life are provided to all if it is to be a society based on human dignity, freedom and equality.

To be reasonable, measures cannot leave out of account the degree and extent of the denial of the right they endeavour to realise. Those whose needs are the most urgent and whose ability to enjoy all rights therefore is most in peril, must not be ignored by the measures aimed at achieving realisation of the right. There is an additional feature of the use of dignity in several jurisdictions that is noticeable. In applying dignity, judges in several jurisdictions draw on the judicial interpretation of dignity in other jurisdictions as well as their own, sometimes explicitly, sometimes without attribution.

The German Constitutional Court has been particularly influential in Hungary and Israel, for example. The House of Lords, for example, has begun to use the concept of human dignity. German and Hungarian judicial decisions have influenced South African jurisprudence. One of the best examples of this is to be found in the decision of the US Supreme Court in the case of Roper v.

Simmons , in which it held that the imposition of the death penalty on offenders under 18 was unconstitutional under the Eighth Amendment. He sought to dampen down concerns that it might. These doctrines and guarantees are central to the American experience and remain essential to our present-day self-definition and national identity.

On the contrary, we should not be surprised to find congruence between domestic and international values, especially where the international community has reached clear agreement … that a particular form of punishment is inconsistent with fundamental human rights.

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Despite differences in positive law, in historical and political context, in religious and cultural heritage, there is the common recognition of the worth of the human person as a fundamental principle to which the positive law should be accountable. It certainly seems to be the case, as Carozza clearly demonstrates, that judges in several jurisdictions see dignity as giving them a licence to draw on decisions from other jurisdictions.

There is clearly a perception that the conception of dignity is common to these jurisdictions and the use of dignity in one judicial decision justifies the use of that jurisprudence by courts interpreting the concept of dignity in another jurisdiction. Carozza's argument thus seems supported by judicial practice.

Not only is the enterprise of human rights interpretation seen to be common, so too there seems to be a perception that there is a common understanding of what dignity is, at a deep level. Carozza's explanation is one that sees the interpretation of dignity as a search for the universal. The universality of human rights is often thought to be central to a valid conception of human rights.

In this, he appears to share some common ground with that strand of comparative law theory which stresses the importance of dialogue. In a previous part of this article Part 3 , we identified three elements of the minimum core of the concept of human dignity: We saw that there are different understandings of each of these elements of the concept of human dignity, reflected in the historical and textual use of the concept, which indicate that different conceptions of human dignity are identifiable. This part of the article demonstrated that courts have generally confirmed that when judges use the concept of human dignity, they too appear to adopt the minimum core.

We can also see that the judiciary in several jurisdictions has attempted to explore, in particular, the second and third elements, and to do so, in part, through a transnational dialogic process. As a result of this judicial activity, we can also identify more clearly than before the contexts in which human dignity seems likely to have most resonance for understanding the relational and limited-state elements in the core concept.



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Can we say, therefore, that we are any further advanced in identifying a common conception of human dignity, either in any particular jurisdiction or transnationally? There are significantly differing expressions of the relationship between human rights and dignity, and significant variations between jurisdictions in how dignity affects similar substantive issues. We should not, however, reject the more universalistic analysis of Carozza simply because there may be differences between jurisdictions at any one point in time.

A principled interpretation of a grand principle often seems to call for agreement on what the effect of applying the principle is, whilst nevertheless disagreeing on what a full theoretical basis for the principle may be. Such agreements exist where individuals can agree on a specific result, even if they do not agree on all the aspects of the specific theory justifying that result.

When we dig deeper, such significant differences appear to arise that a somewhat different story must be told. Unfortunately, perhaps, Carozza's preferred normative function of dignity does not seem to be supported by judicial practice.

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We shall find such significant differences in understanding dignity that Carozza's universalistic naturalism seems overly optimistic a description. In practice, very different outcomes are derived from the application of dignity arguments. This is startlingly apparent when we look at the differing role that dignity has played in different jurisdictions in several quite similar factual contexts: In each, the dignity argument is often to be found on both sides of the argument, and in different jurisdictions supporting opposite conclusions.

Before turning to specifics, we can observe more generally that claims to universalism and naturalism in human rights discourse have proven deeply controversial, with some arguing that the inclusion of common principles in these texts or judicial decisions merely camouflages profound disagreement on their application as well the theory supporting them. Lord Hoffmann, for example, has stated: Different communities will, through their legislature and judges, adopt the answers which they think suit them.

Is this a better explanation for what is happening to the interpretation of dignity in judicial interpretation of human rights norms? Just as Carozza's universalistic approach has parallels with universalistic approaches in comparative law theory, so too this more sceptical approach has some similarities with pluralistic approaches to comparative law. These debates in comparative law echo the approach in human rights that veers towards cultural relativism. There are significant variations between jurisdictions on the legal status and weight of human dignity.

Does human dignity have a status superior to that of other human rights as in Germany generally, and in Hungary when combined with the right to life , in the sense that it is the highest constitutional principle, subject neither to other rights, nor to other values? There is, according to the jurisprudence of the courts, no way to balance other legal interests, be they of other individuals or of the community, with the dignity of a person.

The principle of proportionality does not come into play as long as an intrusion upon human dignity has been established. We saw when considering the emergence of dignity historically that an important distinction could be identified between the use of dignity to express a communitarian ideal and one that was much more focussed on the role of dignity in furthering individual autonomy, in the sense of advancing individual liberty based upon the choice of the individual. This difference in approach is also reflected in the different approaches which courts adopt.

1 Finding Human Dignity in the History of Ideas

In brief, the German Constitutional Court adopts a more communitarian approach, whilst the predominant approach to dignity in the US Supreme Court, the Canadian Supreme Court, and the Hungarian Constitutional Court is more individualistic. The South African Constitutional Court appears to be significantly split on the issue. The reasoning of the German Constitutional Court's judgment in the Lifetime Imprisonment Case illustrates well a more communitarian approach: The free person and his dignity are the highest values of the constitutional order.

The state in all of its forms is obliged to respect and defend it. This is based on the conception of man as a spiritual-moral being endowed with the freedom to determine and develop himself. This freedom within the meaning of the Basic Law is not that of an isolated and self-regarding individual but rather of a person related to and bound by the community. The individual must allow those limits on his freedom of action that the legislature deems necessary in the interest of the community's social life; yet the autonomy of the individual has to be protected.

It empowers the individual to take control over his life without any interference, or indeed any help, from others or from the state. Human dignity … does not essentially facilitate interaction and relationships between people. Instead, human dignity surrounds the individual in a sort of protective sphere, and thus isolates individuals from each other. These differences in approach are particularly important in the context of socio-economic rights, where the crucial question is how far, if at all, the state is under a positive duty to safeguard human dignity. In Israel, whilst the Basic Law has been interpreted as generating some socio-economic rights, these encompass only the most minimal material conditions necessary to exist: The issue was whether a provincial workfare scheme which provided social benefits below the poverty line for those aged below 30 was unconstitutional, particularly on grounds of age discrimination.

As we have seen, in the Canadian context part of the test of what constitutes discrimination depends on whether the individual's dignity has been damaged. The majority of the Court held that there was no discrimination. The Chief Justice held that it was not discriminatory in part because there was no breach of the individual's dignity; rather, the reverse: The participation incentive worked towards the realization of goals that go to the heart of the equality guarantee: These are the stuff and substance of essential human dignity.

This discussion leads into the identification of another difference between jurisdictions in the role that dignity plays. We saw earlier that dignity has been viewed as a principled basis of support for the human rights enterprise. In practice, however, dignity has come to be used as a major constraint on some rights. This can arise because dignity is used by both sides of a dispute to support their particular rights claims.

Dignity sometimes functions as a justification for limiting the protection of rights or obligations, like a public order or public morals exception, allowing the state to place limits on what particular rights would otherwise require. In the Israeli context, human dignity has been developed not only as a basis for rights but also as a constraint on rights, leading to decisions in which pornographic films could legitimately be censored where they were regarded as degrading to human dignity, especially the dignity of women. Public Council for Film Censorship , expressly recognized that the artistic value of the film had to be weighed against the need to protect human dignity.

In the Supreme Court of Canada's decision in R. The issue was whether the acts committed in this establishment were acts of indecency. Such conduct may violate formally recognized societal norms, like the equality and dignity of all human beings. Director of Public Prosecutions , the Constitutional Court of South Africa considered whether the conviction of a film producer under a criminal provision relating to child pornography was unconstitutional.

Child pornography is universally condemned for good reason. It strikes at the dignity of children. The degradation of children through child pornography is a serious harm which impairs their dignity and contributes to a culture which devalues their worth. So too, the area of incitement to racial and other forms of group hatred has given rise to a similar use of dignity arguments.

France the concurring opinion of Prafullachandra Bhagwati in the Human Rights Committee emphasized that the restrictions in French law relating to denial of the holocaust the Gayssot Act were justified in part on the basis that the restrictions upheld human dignity. The restriction on the author's freedom of expression imposed under the Gayssot Act was necessary for respect of the rights and interests of the Jewish community. Therefore, the imposition of a restriction by the Gayssot Act was necessary for securing respect for the rights and interests of the Jewish community to live in society with full human dignity and free from an atmosphere of anti-semitism.

A very similar approach has been taken by the Canadian Supreme Court in Kreegstra. The derision, hostility and abuse encouraged by hate propaganda therefore have a severely negative impact on the individual's sense of self-worth and acceptance. It inflicts pain and indignity upon individuals who are members of the group in question. The point of these examples is to emphasize the highly contested nature of the type of arguments which dignity is used to support. In the free speech context, this approach would find no support in the US Supreme Court, for example, where the judicial approach to the status of freedom of expression would be sure to lead, for example, to the explicit rejection of these decisions.

It is noteworthy that, to my knowledge, such arguments based on dignity have not even been attempted in that court, undoubtedly because they would be doomed to fail. So, too, dignity has come to be seen as equally controversial in the equality context. Several commentators have argued that the Canadian Supreme Court has effectively incorporated an additional barrier that applicants must surmount; that the individual or the group with which the victim identifies or is identified has been subject to discrimination of such a type that dignity has been under attack.

Although this approach has been the subject of much supportive academic comment, attempts to establish the utility of dignity as a foundational norm for equality at other than the rhetorical level have also provoked a wave of criticism. For some the divorce of anti-discrimination law from distributive justice in this way is desirable.

Indeed, dignity is regarded as desirable precisely because it provides an alternative rationale to distributive justice in the equality context. Post has picked up the potential limits which dignity arguments may introduce, and argues that modern American anti-discrimination law should not be conceived, as is commonly supposed, as protecting the dignity of individuals but, rather, as attempting to transform social practices which define and sustain potentially oppressive categories such as race or gender. Indeed, it is interesting that the Canadian Supreme Court long the main proponent of the use of dignity in the equality context has in its most recent case sharply moved away from dignity language, recognizing that: How far, if at all, can dignity be waived by an individual?

Where a choice-based autonomy approach to dignity is adopted, then it would seem strange to think that it cannot be waived by the person whose dignity is supposedly in issue. To do otherwise smacks of paternalism. On the other hand, a more communitarian approach to dignity seems potentially compatible with not being permitted to waive dignity. We are used in some contexts to viewing certain rights as not at the disposal of the individual, for example the right not to be enslaved cannot be waived.

Dignity is therefore not at the disposal of the individual. In Canada, the position seems more ambiguous. In the Butler case, from which this approach derives, the issue was the constitutionality of restrictions on pornographic material. They run against the principles of equality and dignity of all human beings. In the appreciation of whether material is degrading or dehumanizing, the appearance of consent is not necessarily determinative.

Consent cannot save materials that otherwise contain degrading or dehumanizing scenes. Sometimes the very appearance of consent makes the depicted acts even more degrading or dehumanizing. Whilst a strongly anti-paternalist approach is adopted, as we have seen in the context of the gay rights cases discussed earlier, a very different approach is adopted in the case of prostitution. In the Jordan case, the Constitutional Court upheld the criminalization of prostitution. Even though we accept that prostitutes may have few alternatives to prostitution, the dignity of prostitutes is diminished … by their engaging in commercial sex work.

The very character of the work they undertake devalues the respect that the Constitution regards as inherent in the human body. One can sympathize with the difficulty courts have in this context. On the one hand, for the court to say that the appropriate approach is to adopt a particular individual's own judgement on what seems to breach his or her dignity is to risk putting in place an unmanageable and unworkable standard. On the other hand, adopting an entirely court-centred view of what constitutes a breach of dignity seems patronizing.

In Poland, both the subjective feelings of the person seeking legal protection and the objective reactions to those claims are taken into account. This requires a court to consider the individual's or group's traits, history, and circumstances in order to evaluate whether a reasonable person, in circumstances similar to the claimant, would find that the impugned law differentiates in a manner which demeans his or her dignity. An even more radical difference between jurisdictions can be identified.

Who should make the decision whether dignity should be accorded to a particular entity, and who should decide whether the balance between dignity and other values is appropriate? The Hungarian Constitutional Court did not consider that the right to human dignity would limit abortion in ways equivalent to those found by the German Court unless Parliament had recognized the foetus as a human person.

In other words, the opinion implies that the job of the court is merely to ensure that the legislature is balancing, not to police how it is balancing. We have seen that what I termed the ontological claim is central to the minimum core of the concept of human dignity.

How have courts treated this aspect of the concept? Does human dignity apply only to a live, sentient person? Apparently not, at least in some jurisdictions. In Israel, dignity attaches to those who have died, as well as to the living. In Let the Animals Live v. The animal welfare organization argued that the show abused the alligators and caused them suffering and should therefore be stopped.

Cheshin J interpreted the relevant provisions of the Protection of Animals Act as prohibiting any kind of conscious abuse of animals unless it could be justified, whether that abuse was severe or mild, physical or mental, and he rejected the lower court's interpretation of the provision as prohibiting only abuse that caused the animal extreme suffering. The purpose of the shows, presented exclusively for entertainment, did not constitute an appropriate aim that might justify the suffering inflicted on the alligators.

Such an act is simply immoral and we should not allow it. The animal is a helpless creature, much like a helpless minor. Neither of them can protect themselves, or claim their insult, or regain their dignity. This is not to be taken lightly. I do not know if the alligator itself feels humiliated when the human wrestler hold its tail, tumbles it back and forth, turns it on its back, and so forth, as if it were a lifeless rag doll.

However, this I know — that the acts inflicted by man on alligator, were they to be inflicted on man, would be considered humiliating and oppressing. The greatest unresolved difference between jurisdictions over the application of human dignity arises, however, over the question whether a human foetus has dignity.

It is clear that the foetus is under the protection of human dignity in Germany. Wherever human life exists it merits human dignity; whether the subject of this dignity is conscious of it and knows how to safeguard it is not of decisive moment. The potential capabilities inherent in human existence from its inception are adequate to establish human dignity. Poland , the dissenting opinion of Judge Borrego regarded dignity as directly engaged, but the Court did not take up this challenge.

In Hungary, as we saw above, the Hungarian Constitutional Court did not consider that the right to human dignity would limit abortion in ways equivalent to those found by the German court, unless Parliament had recognized the foetus as a human person. In the interpretation of the Constitutional Court, the right to life and human dignity is an absolute subjective right, i. Since in a biological sense, the foetus is a human, i. The apparently common recognition of the worth of the human person as a fundamental principle to which the positive law should be accountable considered in Part 3 of this article seems to camouflage the use of dignity in human rights adjudication to incorporate significantly different theoretical conceptions of the meaning and implications of such worth, enabling the incorporation of just the type of ideological, religious, and cultural differences that a common theory of human rights would need to transcend.

By its very openness and non-specificity, by its manipulability, by its appearance of universality disguising the extent to which cultural context is determining its meaning, dignity has enabled East and West, capitalist and non-capitalist, religious and anti-religious to agree at least superficially on a common concept. But this success should not blind us to the fact that where dignity is used either as an interpretive principle or as the basis for specific norms, the appearance of commonality and universality dissolves on closer scrutiny, and significantly different conceptions of dignity emerge.

Few courts acknowledge that the conception of human dignity that they apply is different from that applied in other countries. Indeed, to do so would appear to undermine a legitimizing function of human dignity. A possibly significant breach in the dyke has now appeared, however. In the Omega case, the ECJ seems to have accepted that human dignity has potentially significantly different meanings from country to country. The company argued that because the game was lawful in other Member States, Community law required that it be allowed in Germany on the basis that Community law protected the freedom to provide services in the Community.

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The German government argued that the prohibition was justified on the same grounds on which peepshows and dwarf throwing were prohibited, namely on grounds of human dignity. The company argued in rebuttal that a restrictive measure based on the protection of fundamental rights must be based on a common conception of those fundamental rights under European Community law across the Community.

The ECJ disagreed; it was not indispensable for the restrictive measure adopted by a Member State to correspond to a conception shared by all Member States as regards the precise way in which the fundamental right or interest was to be protected. We need to be careful, however, not to claim too much. There are several reasons to be cautious about drawing a conclusion that there is a lack of consensus on a particular conception of human dignity based on the evidence presented in this part of the article.

First, much of the evidence supporting the divergence thesis as it might be called is taken from a limited range of jurisdictions, mostly at the domestic level. Secondly, it is arguable that I have put the bar too high in judging whether there is a judicial consensus on a common conception of dignity beyond the minimum core. Basing a strong divergence thesis on this mostly domestic material may be problematic because, as we have seen already, different jurisdictions incorporate the idea of human dignity into their legal texts in different ways, using different legal instruments.

It may be unsurprising, therefore, if judges in different jurisdictions say different things about, for example, the weight or status of dignity if they are dealing with differently constituted texts which say different things about weight and status. Judicial differences may be attributable, in other words, to the texts, rather than to judicial interpretation. Clearly, it would be more telling at the interpretive level if there were examples of judges in different jurisdictions working with the same text but coming up with quite different interpretations.

The examples I have used do not clearly do that. Instead, the examples are drawn from jurisdictions which seem to have comparable texts, but comparability is a matter of judgement, a judgement with which readers may reasonably disagree. Have I put the bar on consensus too high? Using my approach, would consensus ever be achievable? Unanimity is unlikely ever to be achieved across all jurisdictions.

Arguably, all I have done is to provide examples of judicial outliers. Germany says it is giving absolute weight to dignity when no one else does. The United States refuses to limit freedom of expression for the sake of the dignity of disadvantaged groups. Israel apparently uses the concept of dignity to protect alligators. These may all simply be examples of judicial outliers rather than illustrations of an absence of consensus. Divergent results in hard cases may not necessarily mean that a universal conception of dignity does not exist, but suggest only that a universal understanding of dignity does not exist at the margins.

Could a more sophisticated methodology be adopted? A richer approach would examine much more carefully the judicial discourse in particular countries in their historical, social, cultural, political, and legal contexts. This type of study is already underway in some countries where studies of the meaning of dignity in legal discourse in this richer sense have been completed.

Such work will be an important resource in the future. If such work is undertaken, as I hope it will be, it will however need to tackle the immensely difficult issue of how to deal with the concept of human dignity in different languages. Given these problems, all that can be said is that the account given in this part of the article seems to me to show but by no means incontestably that judicial interpretation of the concept of human dignity has contributed little to developing a consensus on the implications of any of the three basic elements of the minimum core I sketched out earlier, and therefore that no common conception of dignity is yet discernible.

Dignity discourse has, so far at least, done little to provide a conception with significant enough substantive content to solve the most profound issues in the judicial resolution of human rights claims: But perhaps it is too ambitious to assess the utility of dignity in human rights adjudication on the basis of whether it either creates or instantiates a substantive conception of human dignity. Perhaps we should think more modestly and ask whether dignity plays a different role.

At this point in the article, we turn from the issue of whether there has been a substantive consolidation of the meaning of human dignity to consider the institutional use of the concept in human rights adjudication. In this context, the concept of human dignity provides a useful, but limited, language with which to address certain institutional difficulties to which human rights adjudication gives rise. Although dignity has yet to assist in providing a shared substantive basis for judicial decision-making, dignity has, however, provided something else to human rights adjudicators.

Weisstub's analysis provides a useful starting point: Its centrality and attractiveness for global ethics may be, thereby, its malleability rather than the tightness of its logic. I will argue in the remainder of this article that we can identify from the previous analysis a distinctively useful institutional function which dignity plays in judicial interpretation, one that fulfils a need occasioned by the institutional characteristics of judicial decision-making in human rights adjudication.

In other words, dignity plays an important legal-institutional function. I am not arguing that all judicial decision-making should be seen from the functionalist perspective which this particular argument presents. My more limited argument in this concluding part of the article is that the judicial use of dignity in human rights adjudication should not be seen only from the perspective of universalistic naturalism or from the perspective of pluralistic cultural relativism.

Rather, we should see the role that dignity plays in adjudication at least partly from an institutional perspective. At least since the Second World War, courts have increasingly been given or taken on a role in interpreting and applying constitutional and human rights, sometimes in specially created constitutional courts, sometimes in courts of general jurisdiction, and sometimes in administrative courts. Such adjudication usually involves the judiciary being asked to adjudicate on disputes which involve an allegation of a breach of a claimed right by a public body such as a department of government, or by the legislature itself.

This role of the courts is controversial not least because it runs the risk of creating tension with other constitutional principles, such as the separation of powers. These tensions have led to a continuing debate about the legitimacy of judicial review, particularly of this strong type, and how far it is compatible with notions of democratic self-government. In all the jurisdictions which have adopted dignity in their judicial decision-making, judicial review in the human rights context is more or less controversial, constantly aiming to justify itself, its methods, and its reasoning.

There are at least three particular institutional problems which are commonly identified with human rights adjudication which courts use dignity to help to deal with. The first arises from the need to decide how to resolve conflicts of rights, and conflicts between rights and other values. The second arises from the need to decide how far the rights which are to be interpreted should be seen as instantiating international standards, as opposed to how far they should be seen as protecting more national or local concerns where there is a conflict.

The third arises from the need to decide how far the text of the national or regional, or international Bill of Rights should be seen as determinative, and how to react when the text appears not to support a strong judicial desire to intervene. I will consider each in turn. I begin with the problem of how to handle conflicts of rights and conflicts between rights and other values.

We can balance an amount of sugar against an amount of flour because both have mass and weight and we therefore have a common measure to compare them by. Frequently, however, rights and other values are said to be incommensurable. Incommensurability is essentially the theory, first popularized by Isaiah Berlin, that some values cannot be compared against each other, and this has been taken up in the legal context. The Evans case is a prime example of an intra-rights conflict being seen to give rise to a problem of incommensurability. Mrs Evans was diagnosed with cancer in both ovaries and they had to be removed.

Her relationship with her husband broke down and he asked for the gametes to be destroyed. The British legislation allowed the withdrawal of consent at any time pre-implantation. Mrs Evans wanted the gametes preserved so that she could have a baby. Whatever decision was arrived at might be capable of being explained but would be practically impossible to justify.

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One approach to conflicts of this kind is to say that resolving such conflicts is not a role for the courts. So, for example, Alder argues that when we reach the stage where values conflict, we must employ human emotions to resolve the conflict. The legislature, Alder argues, is the best forum for the discovery and application of such emotions.