Abstract
The Article brings together anthropological and legal approaches to the concept of descent. Since Henry Maine, legal theorists have been interested in descent as a link between the generations that assembles the generations into a corporate body, a single collective personality. The Article proposes a view of intergenerational corporate continuity and defends an interpretation of the rights to family life – the rights to marriage and parenthood – as constitutional safeguards of the institution of descent. It argues that descent is the foundation of human dignity, and that the rights to family life should therefore be considered key constituents of human dignity. This notion of dignity is pre-modern but, as a number of authors have argued, our idea of dignity remains partly continuous with pre-modern notions. Our ideas about human dignity conflate in fact two diametrically opposed bases of dignity: the distinctly human capacity for intergenerational continuity and the contrary capacity to break free of the past. The rights to parenthood and marriage are rooted primarily in the notion of dignity-as-descent and not, as several authors have argued, in the inherent value of the intimacy that exists between family members. The Article comments briefly on the current round in the perennial debate on the foundation of kinship between the respective advocates of culture and biology.
Note:
The Article was first presented as early as 2008 in a conference on marriage and the constitution at Bar-Ilan University. Since then, it has been presented at Centre Marc Bloch (Berlin), Helsinki Summer Seminar on Human Rights, and the College of Law and Business, Ramat Gan. I have greatly benefited from comments offered on these occasions.
©2014 by De Gruyter
