This Article focuses on the relationship between three specific invocations of dignity in American law, whose emphases are different. The first appeared in the late eighteenth century and is concerned with the dignity of a state or sovereign. The second made its appearance at the beginning of the nineteenth century and is devoted to the dignity of the court. The third is concerned with the dignity of the human person. International instruments and foreign constitutions evoked dignity in this sense in the 1930s and 1940s. In the United States, the Restatement of Torts, First evoked this sense of the term as early as 1934. While human dignity has since gained constitutional footing in American law, given its subordination to the dignities of the sovereign and court, its future is uncertain.
The Article’s core insight is that the theory of conscience, as espoused by the court of conscience (which is now largely referred to as "equity"), can help dignity face the problems threatening its longevity. Conscience has been in the American legal system and its precursors for as long as dignity, and conscience has been deployed because it could (and did) create a transformative array of legal devices that now survive as a series of procedural, substantive, and remedial relics in the aftermath of the passage of the Rules Enabling Act of 1934. Specifically, the idea of a conscience now includes bits of the Federal Rules of Civil Procedure, the constitutional protection granted to the individual conscience of objectors, and various common-law doctrines such as the contractual doctrine of unconscionability and the shocks-the-conscience standard. Almost all of these were created or developed by the court of conscience.
This Article addresses itself to several critical audiences. To constitutional and human-rights scholars, the Article says that all forms of dignity retain their status based focus in American law, which threatens human dignity’s longevity. To procedure and remedies scholars, the Article argues that evocations of conscience, as developed by the court of conscience, have continued to be of practical significance longer than might be expected and that two major moral concepts have long tracked and informed each other—conscience and dignity—with conscience being of diminished utility after the passage of the Rules Enabling Act of 1934. Finally, for scholars of contracts, torts, and trusts and estates, the Article shows that dignity and conscience have had a direct bearing on the development of doctrines in those areas under American law and its precursors.
Dignity and the Promise of Conscience,
71 Clev. St. L. Rev.
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss2/5
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