Human Dignity and the Australian Constitution – A Critique

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Abstract

The origins of the concept lie in Roman law, where it related both to a philosophical value and to an actionable right under the law of delict. Its role as the value underpinning human rights was the product of Renaissance and Enlightenment thought and of developments in international law in the wake of World War II. Today dignity is referred to as the foundational value of human rights documents and of the constitutions of several jurisdictions, in particular those of Germany and South Africa, where it is expressly recognised not only as a substantive right but also as an interpretative principle governing the entire constitution. In contrast to these values-based constitutions, the Commonwealth Constitution is ‘value-less’ in that it was drafted as a pragmatic response to competing claims of the colonies that would form the Australian federation, rather than in accordance with any over-arching theory of the relationship between the individual and the state. This anti-theoreticism continues to be reflected in the way in which the Constitution has been interpreted by the courts. Respect for human dignity is a universal entitlement, and the failure of the Constitution to provide protection for it imposes a moral duty on legal academics to encourage their students to think about the ways in which the Constitution should be reformed.
Original languageEnglish
Pages (from-to)3-22
Number of pages10
JournalCanberra Law Review
Volume17
Publication statusPublished - 2020

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