496 DIGNITY, PRIVACY & PERSONAL AUTONOMY <1> advocations as may be most suitable to develop his capacities, and them their highest enjoyment." The Austrian Supreme Court held, in 1990, that privacy entail? right to withdraw the design of one's private life and information a1 it from the public and the state. (Sammlung des Verfassungsgen 1991/12689, March 14, 1991.) Also note that a strong minority of ju. on the European Court of Human Rights (ECHR), in a case in w \ gypsies were not allowed to camp on public grounds, argued that pri is at least affected when a state does not affirmatively ensure its ■■ "Measures which affect the applicant's stationing of her caravans \ therefore a wider impact than on the right to respect for home. They i affect her ability to maintain her identity as a gypsy and to lead ! private and family life in accordance with that tradition." (Chapmc United Kingdom, Application no. 27238/95, 2001.) The judges on ' Court from the East European countries held, by and large, that ■ right to privacy was not violated. Does the understanding of the reat' rights depend on political traditions? Which interpretation seems ■ ■ vincing? 7. Dignity in international law. Several international legal norms ,■ vide for the protection of dignity in express terms. For some schoi "the United Nations Universal Declaration of Human Rights of 19' -the single most important reference point of cross-cultural discussic human freedom and dignity in the world today." Mary Ann Glen-:-Knowing the Universal Declaration of Human Rights, 73 Notre Dan» Rev. 1153 (1998). The Declaration provides that: Whereas recognition of the inherent dignity and of the equal inalienable rights of all members of the human family is the found; ' of freedom, justice and peace in the world * * * Art. 1-A11 human beings are born free and equal in dignity and ri ! ■ They are endowed with reason and conscience and should act tov one another in a spirit of brotherhood. Art. 22-Everyone, as a member of society, has the right to £ ' security and is entitled to realization, through national effort n international co-operation and in accordance with the organization resources of each State, of the economic, social and cultural r _ indispensable for his dignity and the free development of his person ' Human dignity is also explicitly protected in the preamble of the ' Charter, in Art. 10 of the International Covenant on Civil and Pol" \<-Rights, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into i •" March 23, 1966), in Art. 13 of the International Covenant on Econo. i ■ Social and Cultural Rights, U.N. Doc. A/6316 (1966), 993 U.N.T> (entered into force Jan. 3, 1976), and in Art. 1 of the (nonbindinf- ■ symbolically forceful) European Union's Charter of Fundamental R:-' (2000). In these documents dignity is associated with the protectio ■ i human life, physical integrity, the prohibition against torture and i I ' man and degrading treatment, personal autonomy as well as with ri ' related to self-realization. For instance, Art. 5(2) of the American ' ■ vention on Human Rights, O.A.S. Treaty Series No. 36, 1144 U.N I " 123 (entered into force July 18, 1978), provides that "no one sha I ''■ »M'B. DEATH PENALTY & LIFE IMPRISONMENT 497 3iected to torture or to cruel, inhuman, or degrading punishment or latment. All persons deprived of their liberty shall be treated with ipect for the inherent dignity of the human person." Note that the European Convention for the Protection of Human *hts and Fundamental Freedoms (hereafter, European HR Conven-n) does not mention dignity per se. Does this mean that the protection human dignity is beyond its scope? What does the express protection human dignity add to a scheme of rights protection beyond what uld be protected by other provisions mentioned above? Consider the isoning of the High Court of Singapore in a case concerning corruption it dealt with the question of the admissibility of certain evidence, Taw eng v. Public Prosecutor, 1998-1 S.L.R. 943 (Karthigesu J.A.): 25. * * * [I]n determining the scope of a right or liberty, the importance that the court have regard to the Constitution in its entirety cannot be overstressed. This is necessary in order that the court give equal effect to all the provisions of the Constitution, and not to distort or enhance the interpretation of a particular right to the perversion of the others. * * * 26. [Thus our] decisions illustrated that no right, even a constitutional one, is absolute. In many cases, the scope of a constitutional right is itself limited by the provisions of the Constitution itself. ies this mean that no right is absolutely fundamental in the sense of ing subject to no limitation? What, then, is fundamental about funda-sntal rights? LIFE IMPRISONMENT This section takes up an issue that has been considered mostly in ms of a constitutional protection of human dignity: punishment, and í death penalty and life imprisonment in particular. Although other isiderations are frequently entailed in the constitutional review of minal sentencing—due process and equality are chief among them— í following cases illustrate the centrality of dignity claims to the termination of the constitutionality of the extreme sentences of death d life imprisonment. These cases raise many of the issues and prob-as involved in attempting to constitutionalize fundamental questions sely related to morals and beliefs. On criminal justice issues generally, í Chapter 9. GREGG v. GEORGIA Supreme Court (United States). 428 U.S. 153 (1976). [Following the decision in Furman v. Georgia, there was a constitu-nal "moratorium" on the death penalty in the U.S., from 1972 to /b. By 1976, state legislation changed some of the features of the *th penalty that had made it "cruel and unusual punishment." The prenie Court upheld the constitutionality of the post-Furman Georgia ftute, which provides for the death penalty in certain cases.] 498 DIGNITY, PRIVACY & PERSONAL AUTONOMY Mr. Justice Stewart delivered the opinion of the Court. The Court, on a number of occasions, has both assumed and as ed the constitutionality of capital punishment. In several cases assumption provided a necessary foundation for the decision, as Court was asked to decide whether a particular method of carrying c ■ capital sentence would be allowed to stand under the Eighth Am> ment. But until Furman v. Georgia, 408 U.S. 238 (1972J, the Cm never confronted squarely the fundamental claim that the punishmej i death always, regardless of the enormity of the offense or the proce! followed in imposing the sentence, is cruel and unusual punishmew violation of the Constitution. Although this issue was presented addressed in Furman, it was not resolved by the Court. Four Jus11 would have held that capital punishment is not unconstitutional pei two Justices would have reached the opposite conclusion; and t.'i Justices, while agreeing that the statutes then before the Court v.-invalid as applied, left open the question whether such punishment n ever be imposed. We now hold that the punishment of death does invariably violate the Constitution. * * * But our cases also make clear that public perceptions of standard -decency with respect to criminal sanctions are not conclusive. A pei ■' also must accord with "the dignity of man," which is the "basic conn underlying the Eighth Amendment." Trop v. Dulles, supra at " (plurality opinion). This means, at least, that the punishment no" "excessive." When a form of punishment in the abstract (in this < .* whether capital punishment may ever be imposed as a sanction ľ murder), rather than in the particular (the propriety of death ■» penalty to be applied to a specific defendant for a specific crime under consideration, the inquiry into "excessiveness" has two asp ■ i First, the punishment must not involve the unnecessary and waji'11 infliction of pain. * * * Second, the punishment must not be grosslj '■ of proportion to the severity of the crime. * * * Mr. Justice Brennan, dissenting. The Cruel and Unusual Punishments Clause "must draw its i ing from the evolving standards of decency that mark the progresí maturing society." [Trop v. Dulles, 356 U.S. 86, 101 (1958)] The opi of Mr. Justice Stewart, Mr. Justice Powell, and Mr. Justice St today hold that "evolving standards of decency" require focus not c essence of the death penalty itself but primarily upon the proce employed by the State to single out persons to suffer the pena death. Those opinions hold further that, so viewed, the Clause i dates the mandatory infliction of the death penalty but not its infl under sentencing procedures that Mr. Justice Stewart, Mr. J Powell, and Mr. Justice Stevens conclude adequately safeguard a{ the risk that the death penalty was imposed in an arbitrary capricious manner. In Furman v. Georgia, 408 U.S. 238, 257, (1972) (concurring ion), I read "evolving standards of decency" as requiring focus upo essence of the death penalty itself and not primarily or solely upo procedures under which the determination to inflict the penalty u J3EATH PENALTY & LIFE IMPRISONMENT 499 ular person was made. I there said: "From the beginning of our on. the punishment of death has stirred acute public controversy, ough pragmatic arguments for and against the punishment have frequently advanced, this longstanding and heated controversy ot be explained solely as-the result of differences over the practical om of a particular government policy. At bottom, the battle has been ;d on moral grounds. The country has debated whether a society for h the dignity of the individual is the supreme value can, without a amental inconsistency, follow the practice of deliberately putting > of its members to death. In the United States, as in other nations .e western world, 'the struggle about this punishment has been one 'eon ancient and deeply rooted beliefs in retribution, atonement or ;eance on the one hand, and, on the other, beliefs in the personal j and dignity of the common man that were born of the democratic 3ment of the eighteenth century, as well as beliefs in the scientific oach to an understanding of the motive forces of human conduct, h are the result of the growth of the sciences of behavior during the teen t h and twentieth centuries.' It is this essentially moral conflict forms the backdrop for the past changes in and the present ation of our system of imposing death as a punishment for crime." at 296 [quoting T. Sellin, The Death Penalty, A Report for the Model d Code Project of the American Law Institute 15 (1959)]. That continues to be my view. For the Clause forbidding cruel and ■ äual punishments under our constitutional system of government odies in unique degree moral principles restraining the punishments xr civilized society may impose on those persons who transgress its . Thus, I too say: "For myself, I do not hesitate to assert the osition that the only way the law has progressed from the days of :ack, the screw and the wheel is the development of moral concepts, as stated by the Supreme Court ... the application of 'evolving dards of decency'...." [Novak v. Beto, 453 F.2d 661, 672 (C.A.5 .) (Justice Tuttle, concurring in part and dissenting in part).] This Court inescapably has the duty, as the ultimate arbiter of the ning of our Constitution, to say whether, when individuals conned to death stand before our Bar, "moral concepts" require us to that the law has progressed to the point where we should declare the punishment of death, like punishments on the rack, the screw, the wheel, is no longer morally tolerable in our civilized society. My ion in Furman v. Georgia concluded that our civilization and the law progressed to this point and that therefore the punishment of death, vhatever crime and under all circumstances, is "cruel and unusual" olation of the Eighth and Fourteenth Amendments of the Constitu- I shall not again canvass the reasons that led to that conclusion. I nasize only that foremost among the "moral concepts" recognized in -ases and inherent in the Clause is the primary moral principle that otate, even as it punishes, must treat its citizens in a manner istent with their intrinsic worth as human beings—a punishment not be so severe as to be degrading to human dignity. A judicial rmination whether the punishment of death comports with human 500 DIGPOTC^M^CY^PERSONAL AUTONOMY -i »»-3 dignity is therefore not only permitted but compelled by the Clause :n.> U.S., at 270. I do not understand that the Court disagrees that "[i]n compari- im to all other punishments today ... the deliberate extinguishmer i ■.{ human life by the State is uniquely degrading to human dignity." Id., nr 291. For three of my Brethren hold today that mandatory inflictio1' ■• the death penalty constitutes the penalty cruel and unusual punishir ■ i * I perceive no principled basis for this limitation. Death for what- •< crime and under all circumstances "is truly an awesome punishrt"1 ■ The calculated killing of a human being by the State involves, by its . •■!. nature, a denial of the executed person's humanity.... An exec ■'!<■; person has indeed 'lost the right to have rights.' " Id., at 290. Dea1' ■ not only an unusually severe punishment, unusual in its pain, iii ■-finality, and in its enormity, but it serves no penal purpose i n ■■ effectively than a less severe punishment; therefore the principle ir In ■-ent in the Clause that prohibits pointless infliction of excessive pui ■ -1 -ment when less severe punishment can adequately achieve the s ji.i purposes invalidates the punishment. Id., at 279. The fatal constitutional infirmity in the punishment of death is ! ■ it treats "members of the human race as nonhumans, as objects t>> t-i toyed with and discarded. (It is) thus inconsistent with the fundame ■■ i. premise of the Clause that even the vilest criminal remains a hui ■.. i being possessed of common human dignity." Id., at 273. As such it •- i penalty that "subjects the individual to a fate forbidden by the prin> i| '•■ of civilized treatment guaranteed by the [Clause]" [Trop u. Dulles, ''»' U.S., at 99 (plurality opinion of Chief Justice Warren)]. I therefore \v ■■■! hold, on that ground alone, that death is today a cruel and urn? ■ ■' punishment prohibited by the Clause. "Justice of this kind is obvio1 -no less shocking than the crime itself, and the new 'official' murder. I n from offering redress for the offense committed against society, -i"-instead a second defilement to the first." (A. Camus, Reflections oi Guillotine 5-6 (Fridtjof-Karla Pub. 1960). * * * I would set aside the death sentences imposed in those < ■■■-as violative of the Eighth and Fourteenth Amendments. S. v. [SOUTH AFRICA DEATH PENALTY CASE] Constitutional Court (South Africa). 1995 (3) SALR 391 (CC). [Two men sentenced to death were awaiting execution on death i"'-No executions had occurred in South Africa since 1989. The new £ " "' African government saw the death penalty as a cruel, inhuman, ■l degrading punishment, and asked the Court to declare it unconstitu ('■ '" al, while the Attorney-General contended that the death penalty v ■- ' necessary and acceptable form of punishment. The case addresse,1 death penalty in terms of the right not to be subjected to "t- •'' inhuman or degrading punishment" provided in section 11(2) o" Constitution.] ,. ,t. A ^_ DEATH PENALTY & LIFE IMPRISONMENT 501 Chaskalson P. * ■* * Capital punishment was the subject of debate before and fi'-ing the constitution-making process, and it is clear that the failure to en. I specifically in the Constitution with this issue was not accidental. 15] It would no doubt have been better if the framers of the Í" .nsiitution had stated specifically, either that the death sentence is not . lompetent penalty, or that it is permissible in circumstances sanc-: i-ned by law. This, however, was not done and it has been left to this (■ jrt to decide whether the penalty is consistent with the provisions of 11 Constitution. That is the extent and limit of the Court's power in this ca.se. [7] * * * It is a transitional constitution but one which itself establishes a new order in South Africa; an order in which human rights and democracy are entrenched * * * 181 Chapter Three of the Constitution sets out the fundamental rights to which every person is entitled under the Constitution and also contains provisions dealing with the way in which the Chapter is to be interpreted by the Courts. It does not deal specifically with the death penalty, but in section 11(2), it prohibits "cruel, inhuman or degrading treatment or punishment." There is no definition of what is to be regarded as "cruel, inhuman or degrading" and we therefore have to give moaning to these words ourselves. [91 [This Court] gave its approval to an approach which, whilst paying due regard to the language that has been used, is "generous" and "purposive" and gives expression to the underlying values of the Constitution. * * * 1.10] * * * I need say no more in this judgment than that section 11(2) of the Constitution must not be construed in isolation, but in its context, which includes the history and background to the adoption of the Constitution, other provisions of the Constitution itself and, in particu Lar, the provisions of Chapter Three of which it is part. It must also bo construed in a way which secures for "individuals the full measure" of its protection. Rights with which section 11(2) is associated in Chapter Three of the Constitution, and which are of particular importance to a decision on the constitutionality of the death penalty are included in section 9, "every person shall have the right to life", section 10, "every person shall have the right to respect for and protection of his or her dignity", and section 8, "every person shall have the right to equality before the law and to equal protection of the law." Punishment must meet the requirements of sections 8, 9 and 10; and this is so, whether these sections are treated as giving meaning to section 11(2) or as prescribing separate and independent standards with which all punishments must comply * * * 126] Death is the most extreme form of punishment to which a onvicted criminal can be subjected. Its execution is final and irrevoca- ble- U puts an end not only to the right of life itself, but to all other pergonal rights which had vested in the deceased under Chapter Three of 526 DIGNITY, PRIVACY & PERSONAL AUTONOMY í h - The USSC held that there is a right to consume pornography in prive Stanley v. Georgia, 394 U.S. 557 (1969), while others have argued tl pornography violates the rights of people, particularly the rights of won: and children. See Catharine A. MacKinnon, Sex Equality 1532-1626 (200 The Court stated that "the makers of our Constitution undertook to seci conditions favorable to the pursuit of happiness." Whose happiness coun Against what other rights should this happiness be balanced? And is porn> raphy about "happiness"? Consider that the SACC, in Curtis v. The Minis of Safety and Security and others, 1996 (3) SALR 617 (CO, with reference the Canadian decision R. v. Butler, [1992] 1 S.C.R. 452, argued that porn raphy should not be viewed from "a public-morality basis that underpins 1 American approach," but rather judged according to "a standard bat explicitly on the harm believed to be engendered by certain kinds of soxue explicit material." The Court, nonetheless, upheld its use in private. Remc ber that some crimes, particularly those committed against children e women, many of which are sexual in nature, are committed at home. Shoi this make a difference in considering the inviolability of privacy righ 4. "Private parts." Places that can be considered private, wh searches have to be based on law and be justifiable, are clearly not limited the home and the prison cell. But does the constitutional protection privacy extend to the body, to one's "private parts"? In the U.S., it was h> that, although vaginal searches "give us cause for concern as they implic and threaten the highest degree of dignity," after balancing all factors. 1,1 did not constitute a violation of privacy, since 'rthe search was not unreas< able by its very nature." Rodriques v. Furtado, 950 F.2d 805 (1st Cir.l9£ Is a right to dignity at stake here as well, or is this a violation of physi integrity? The USSC also held that surgery may constitute a potenlii unconstitutional search in Winston v. Lee, 470 U.S. 753 (1985). Consider constitutional requirements necessary to permit such intrusions. If one í consent to surgery, can one consent to a search of one's house or car ii criminal investigation? If a legal system accepts implied consent in modi cases, does it have to accept implied consent to police activities, or is thor difference? How do you know whether someone has "consented" freely ť violation of privacy? Can one voluntarily forfeit one's privacy? Can ( consent to the abridgement of a fundamental right? C. THE RIGHT TO BODILY SELF-DETERMINATION Cases on dignity, autonomy, and privacy do not deal only w territorial understandings of constitutional protection but also w decisional aspects of personhood. The right to bodily self-detemii. tion—the right to dispose of one's body as one chooses—is an integ component of this. The following cases illustrate that the private is . restricted to the literal space of the home but extends to the private b< as well. This is supported by a strong philosophical and jurisprudenl tradition that understands autonomy in terms of ownership of or body. Western thinking tends toward the position that human ben have a broad individual right to make decisions on matters with p found consequences for one's body and one's life. Thus we find the nj to privacy prominently in the so-called Biomedicine Convention. Si-c-. • ABORTION 527 "Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine" (Oviedo, 4.IV.1997), a European international treaty that seeks to complement the European HR Convention in an effort to protect the dignity and identity of all human beings without discrimination. See H.D.C. Roscam Abbing, The Convention on Human Rights and Biomedicine: An Appraisal of the Council of Europe Convention, European Journal of Health Law 377-87 (1998). But where are the limits of this kind of self-determination? Grand theories often ignore that a right to one's body is bound to social status, race, and gender. In addition, the tradition of self-ownership may, for example, conflict with conceptions of life and the body which stem from theoretical frameworks that view life as a given, either by nature or some metaphysical force, as in certain theological traditions. The longstanding and controversial debates about reproductive rights, at the forefront of which is the right to an abortion, raise these issues in complex ways, which is why we discuss them first. More recently, related questions have arisen around whether, given that one cannot take the life of another person, one has a legal right to take one's own life. Since suicide is not prohibited in most jurisdictions, these cases revolve around the issue of assisted suicide. C.l. ABORTION ROE v. WADE Supreme Court (United States). 410 U.S. 113 (1973). IA pregnant woman and others challenged the constitutionality of a statute making a crime to "procure an abortion" except "by medical advice for the purpose of saving the life of the mother."] Justice Blackmun delivered the opinion of the Court. * * * We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One's philosophy, one's experiences, one's exposure to the, raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion. In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem. * * * file principal thrust of appellant's attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. * * * f he Constitution does not explicitly mention any right of privacy. In a line of decisions, however, * * * [the] Court has recognized that a "ght of personal privacy, * * * does exist under the Constitution. [Based