The story of Brazilian constitutional dignity – and why it matters to constitutional and human rights studies

Natalia Brigagão

Human Rights and Global Justice Lab, Brazil

Understanding how human dignity made its way into the Brazilian 1988 Constitution, how it relates to social rights and Catholicism and why this unprecedented case offers significant contributions to human rights and constitutional law.

Human dignity is undoubtedly one of the most important legal concepts of our time. Present in nearly 150 constitutions and most international human rights instruments, dignity has become a common language for scholars, lawyers and advocates all over the world. However, if the role of dignity for contemporary law is undisputed, its legal suitability is far from consensual. Human dignity has been severely criticised and passionately spoken against – even called useless and stupid.

Putting aside scholarly controversies, the fact is that, in the words of the philosopher Michael Rosen, dignity ‘is not going anywhere’. In the case of Brazil, for example, the ‘dignity of the human person’ is perhaps the most relevant principle of the entire legal system. Upheld as the country’s supreme constitutional value and the foundation of fundamental rights, dignity has made its way through all areas of legal practice – from criminal law to labour law, civil liability and procedure. It became a powerful legal tool to advance social change, and it is often used to call on the courts to (sometimes actively or ‘activistly’) make rights effective.

Given the unparalleled importance of dignity, we must channel our efforts towards understanding this legal concept and developing standards for its optimal interpretation. This is why I decided to research the origins of dignity in Brazilian constitutionalism, investigating why and how constitution-drafters inserted dignity in the Brazilian Constitution of 1988.

How dignity made its way into Brazilian constitutionalism

The roots of Brazilian constitutional dignity are often attributed to the Kantian influence and the reaction to the horrors of the World Wars. However, this could not be more distant from the reality I have encountered and described in the article ‘Catholic Social Thought, Politics and Human Dignity in the Brazilian Constitutional Assembly of 1987-1988’, recently published in the American Journal of Legal History.

During the constitutional drafting process, dignity was advanced through two main ideals, which I refer to as (1) egalitarian economics and (2) traditional morality. Progressives heavily employed human dignity to (1) fight for land reform as well as for workers’ and other minorities’ interests, with a pronounced focus on social and economic rights. The conservatives, in their turn, made use of the same rhetoric (2) to defend the values of traditional, heteronormative families and to push back against what we now identify as sexual and reproductive and LGBT+ rights.

As I argue in the article, such trends were related to the influence of Catholic Social Thought. In the previous decades, the Catholic Church had been significantly involved in the opposition to the military dictatorship, using dignity as (i) a slogan for their progressive social rights advocacy. In this context, dignity was closely connected to the experience of lower classes and the ideas of liberation theology. Later on, in the final dictatorship years, human dignity also became (ii) central to the defence of the values of the traditional family – especially due to conservative pushback within the Church.

Both processes had meaningful impact on the debates of the Constitutional Assembly. The use of dignity by both the progressive and the conservative sectors made it a strategic common language that no one dared to disagree with; allowing progressives to focus on social rights to advance their positions in conservative political environments – thus enabling agreements.

Why understanding the origins of Brazilian constitutional dignity matters

The first reason why we must take the Brazilian experience seriously is the underrepresentation of Latin-American perspectives in dignity studies and jurisprudence. As demonstrated in the article, the understanding of dignity can be closely connected to the socio-political experiences of a country – and (with rare exceptions) the roots of the dignitarian discourse in Latin America have been overlooked in scholarship. Even constitutional courts in the region tend to interpret dignity based on comparative law and European philosophy, often privileging other cultural experiences and perspectives over their own.

While I do not mean to argue that one should disregard such important contributions or favour an originalist approach, clarifying why and how specific provisions were adopted by the drafters can be helpful in determining how they relate to the local context and its challenges. Especially when it comes to human rights-related norms, taking local experiences into consideration is crucial for two reasons. First, to avoid portraying Latin America as a mere object of human rights, whose unique participation in their construction is the provision of violations challenged by external stakeholders. Second, because Latin American perspectives on dignity can be particularly useful to scholars and practitioners that, even if coming from outside the region, are committed to an inclusive multicultural interpretation of human rights.

One vital contribution of Latin America – and of Brazil, more specifically – is its understanding of the interdependence between dignity and economic and social rights. Traditionally, dignity is predominantly associated with the protection of civil rights and the establishment of duties of non-interference, such as those related to the prohibition of torture or inhuman or degrading treatment. Dignity is often considered ‘inviolable’ – something not to be hindered or interfered with. The Brazilian experience, on the other hand, displays a different account of human dignity: one that specifically demands the provision of socio-economic resources.

Even more importantly, as I discuss in more detail in the article, Brazilian dignity advocates highlight that no proper freedom can be achieved without social and economic rights; and that no democracy can be sustainable without their realisation. Brazil is therefore a particularly useful case study for understanding the indivisibility and interdependence of human rights, an important aspect of the study of human rights in current times. After all, the neglect of economic and social rights has been pointed to as one of the main causes of the crisis of the human rights project.

Another crucial takeaway from the story this article uncovers is that religions have the potential to have a positive effect on law by contributing to the establishment of human rights constitutional provisions. The role of religion in recognising social rights in this particular experience serves as an important example. In addition, the article addresses the concerns of those who believe dignity is a ‘Trojan horse for religiously inspired attacks on equality’. I suggest this because the religious background of a constitutional principle such as dignity does not necessarily follow that the state’s institutions will abide by the original religious meaning of this concept. As the article explains, the Brazilian Supreme Court has, for example, allowed abortion in some cases in the name of dignity – something that that morally conservative, religious constituents would definitely disapprove of.

Finally, an important contribution of the Brazilian case is the demonstration of how human dignity can help reach agreements in constitutional drafting processes. In the Constitutional Assembly of 1987-1988, the use of dignity aided the dialogue between severely dissenting groups, proving itself instrumental for Brazil’s successful democratic transition. Dignity may thus be a useful tool for the reconciliation of deeply divided societies.

The story of Brazilian constitutional dignity is a distinctive, unprecedented case that has a lot to contribute the way we understand, interpret and harness the potential of human dignity, human rights and constitution-drafting processes. To understand it in more detail, you can find the full article ‘Catholic Social Thought, Politics and Human Dignity in the Brazilian Constitutional Assembly of 1987-1988’ in the American Journal of Legal History.

Natalia Brigagão F. A. Carvalho is currently Coordinator at the Human Rights and Global Justice Lab (LabDH, Brazil) and Researcher at the Brazilian Center of Studies in Law and Religion

Suggested citation: Natalia Brigagão, ‘The story of Brazilian constitutional dignity – and why it matters to constitutional and human rights studies’ IACL-AIDC Blog (22 February 2019) https://blog-iacl-aidc.org/2019-posts/2019/2/22/the-story-of-brazilian-constitutional-dignity-and-why-it-matters-to-constitutional-and-human-rights-studies