Comentario a Dignidad y Proporcionalidad de Robert Alexy

CLÉRICO LAURA

CABA

Simposio; Dignidad y proporcionalidad; 2016

UBA, Facultad de Derecho

I agree with Alexy that the norm of dignity is in part a rule (easy cases) and beyond the rule is still a norm but a principle. Nevertheless I do not agree when he sustains that a rule construction of the human dignity norm is possible, but empty. I sustain that what you show as clear cases of vulneration of the inviolability of dignity, is the best argument to sustain that dignity as rule is not in every case empty. In easy cases the rule of dignity is applied through subsumption and without balancing. If your thesis is still a reconstructive one, then you have to submit, that the content of dignity can be determined through semantic arguments. The clearest example that I have found is about the inviolability of human dignity and the prohibition of enforced disappearances. Art. 1 of the Convention protects against all forms of enforced disappearances states: Article 1: 1. No one shall be subjected to enforced disappearance. 2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance. This norm is a rule, balancing is explicitly excluded. In the universe of cases of enforced disappearances the norm of inviolability of dignity has a precise content. You argue that ?In cases of these concrete rules subsumption is possible. Balancing will enter the stage only in borderline cases. This shows that the relative construction by no means implies that everything or nearly everything becomes possible.? I have tried to think, but I cannot imagine a borderline case of enforced disappearance where balancing (in a relevant way) could be possible as you sustained. My argument is that in clear cases the semantic argument plays a relevant role to determine the conditions of application of the dignity norm as rule and without balancing. To sum up: the thesis that the rule construction of the human dignity norm is empty cannot be as radical as it seemed to be presented in your paper. In easy cases the dignity is a rule and the content can be determined through semantic arguments. You are right, that the semantic argument, due to the open-texture of the concept of human dignity, is of low significance in hard cases. But, it is of high significance in easy cases. In other cases the content of the rule of human dignity can be determined by the application of case law. This is a case of analogy and subsumption, but not of balancing at the first glance.