Human Dignity is a principle of law. Although there is no explicit legal definition of this term it is acknowledged that, positively, human dignity implies a legal commitment to act according to what is morally right. In this way, human dignity finds positive
278 Ibid., pp. 853-854 Suggesting that the “central idea of human dignity has a wide range of applications outside of the sphere of human rights” According to him “respect for human dignity may be realized in other ways than by asserting claims of rights i.e codes of conduct or good manner.
279 Fernández García, above note 194, p. 20.
280 See below in this chapter Dignity and positive law.
expression both as a general principle281 and as a right.282 As a principle, human dignity is a defining characteristic of the human animal. Therefore, human dignity is not only a general principle of domestic law or a principle applicable only to a particular group; it is also a general principle of international law of universal validity. Moreover, more than constituting the fundamentals of human rights law, human dignity is, for many, the foundation of international law itself, and of the law in general283, for human dignity is the element that serves to measure the correctness of any positive legal enactment. At the national level, the idea of human dignity retains a paramount importance. One of the most outstanding domestic provisions on the subject of human dignity is found in Article 1 of the German Constitution284, where human dignity is asserted as the justification of fundamental human rights, and peace, as established in the constitutions of many states.285
1 Human Dignity and decision making
Human dignity is an indeterminate concept of positive law. However, contrary to legislated forms of human dignity, as expressed in entire catalogues of fundamental human rights, there is not much agreement regarding its concrete expression at the adjudicatory level. The main challenge faced in attempting to work out the precise meaning of human dignity as a concept of positive law, by means of adjudication, lies in
281 Ibrahim Ö Kaboğlu “Qu’est-ce que la dignité?” in Justice, éthique et dignité S Gaboriau, H Pauliat (Collected Papers), 2002, p. 106.
282 Art 4 (right to the protection of the inherent dignity of the person), Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women 9 June 1994, 33 ILM 1534; See also Preamble; Art 5 (right to the respect of the dignity inherent in a human being African Charter on Human and Poeple’s Rights (Banjul Charter) See also Preamble (Dignity as a principle) Art 3 (Right to Dignity) Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa (Maputo Protocol) adopted on 11 July 2003, CAB/LEG/66.6 (13 September 2000) See also Sir Thomas More Lecture “The Right to Human Dignity and other lectures” Ian Mason (ed.) 2005 p.7 the author points out that the Charter of the Fundamental Rights of the European Union contains in its first Chapter entitled Dignity, the right to human dignity See also Art. 23. (the right to dignity) Constitution of Belgium [constitution]Considering human dignity as a right implies a reductionist conception of what human dignity is particularly if right is understood in the sense of positive right. However, putting it as a right should at least ensure the legal guarantees established for positive right, which are supposed to be more efficacious than those conceived for general or founding principles of law.
283 e.g. New Heaven School’s approach to International Law.
284 Grundgesetz für die Bundesrepublik Deutschland [constitution] Art. 1 a) Die Würde des Menschen ist unantastbar. Sie zu schützen und zu achten ist Verpflichtung aller staatlichen Gewalt b) Das Deutsche Volk bekennt sich darum zu unverletzlichen und unveräußerlichen Menschenrechten als Grundlage jeder Menschlichen Gemeinschaft, des Friedens und der Gerechtigkeit in der Welt. c) Die nachfolgende Grundrechte binden Gesetzgebung, vollziehende Gewalt und Rechtsprechung als unmittelbar geltendes Recht. Emphasis added.
285 Constitutción Espanola [constitution] Art 10. 1“La dignidad de la persona, los derechos inviolables que le son inherentes, el libre desarrollo de la personalidad, el respeto a ley y a los derechos de los demás son fundamento del orden politico y de la paz social”.
the alleged difficulty of achieving a detailed description of its substance in the context of the high risks to legal certainty and the predictability of legal decisions posed by such an indeterminate concept. Identifying the core content of the expression "human dignity" is also difficult in light of the fact that human dignity is both a moral ideal and a concrete form of human behaviour, expressed through fundamental freedoms, human rights, and statutory provisions. Unlike in legislative form, where human dignity finds expression in general provisions that serve rather as guidelines to posterior action, decision making at the adjudicatory level requires an understanding of human dignity in the context of the application and interpretation of the law, where circumstances and contingencies play a more fundamental role in guiding the shape that eventually it takes.
With respect to a positive conception of human dignity, we take as our starting point the two central fields of life to which mainly it refers: on one side, the physical integrity of the person and, on the other, to the various economic and social aspects of the individual. It is mainly with regard to these two specific aspects of human action that human dignity is positively protected.286 While some mechanisms in international law provide for some form of protection of human dignity (e.g. International Criminal Law), the economic and social dimension of human dignity at the international level is generally not the object of an effective level of protection.287 Even when all human rights are considered indivisible, the issue of justice in economic, social, and cultural rights remains. This is mainly a consequence of their heterogeneous character: they incorporate almost all aspects of social life.288 There are three main arguments against the presence of true justice in human rights. The first is that economic, social, and cultural rights demand positive action289 to ensure their realization, but that such positive action implies very high costs on implementation, especially if domestically it is argued that these rights are also imprecise. Second, to allow the judiciary to determine such matters may result in judiciary activity at risk of encouraging "undesirable"
activism that in turn could endanger the independence of the adjudicatory branch of power. Such judiciary activism may undermine the legitimacy given by states to international rules if adjudication substitutes the values of the judges with those selected
286 Joël Andriantsimbazovina, “La dignité et le droit international et europeén” in Justice, éthique et dignité S Gaboriau, H Pauliat (Collected Papers), 2002, p. 137.
287 Ibid., p. 139.
288 Ibid., p. 139.
289 Christopher McCrudden, “Human Dignity and Judicial Interpretation of Human Rights” European Journal of International Law 2003 Vol. 19 No. 4, p. 662.
by pre-determined processes.290 A further argument is that the courts are not competent satisfactorily to deal with the complexity of such economic, social, and political issues.
Another argument asserts that social reform through the establishment of rights is unrealistic; it is simply not possible. 291 Indeed, it is said that there exists a certain timidity or feeling of fear with regard to any interpretation of human dignity. 292 Some scholars prefer to assign such issues to politics or to other less formal channels; they prefer to banish them from litigation.293
Another critical question is, who has legitimate authority to define what should be understood by human dignity? Current thinking on the legitimization of decision making processes almost universally agrees that consensus is necessary authoritatively to establish a positive provsion of law. However, decision makers, who represent a community whose basic constitutive process demands a comprehensive order of human dignity, should contribute with their decisions to the achievement of this goal above and beyond the requirement of purely formal decision making procedures. It is precisely because human dignity is the central subjective or moral feature of the international law system that courts are fully legitimized to incorporate the notion of human dignity in their reflections and judgments. Decision making is not only legislation; it is also adjudication and, still more so, the administration of any kind of decision that has legal effect. In this sense, the notion of human dignity must be understood both within the context of positive law (as a general principle of law, as a right), and from within a cannon of interpretation (as the fundamental basis of the law and its laws). It is fully and universally accepted by legal practitioners and scholars that human dignity is not only a preambular reference, a statutory provision, or a right in itself; rather, it is the moral foundation and basic principle of all law. Therefore, the notion of human dignity cannot be used as an empty formula available to all kinds of claims, but rather as a substantive interpretative tool in the pursuit of the protection of individual moral worth.
In the context of a gross violation of the most basic human rights, particularly when that violation breaches the most profound depths of a human right, the very essence of the human entitlement, namely, a basic respect for human dignity, a lack of consensus is not
290 Steiner & Alston, above note 121, p. 302.
291 Ibid., p. 303.
292 Andriantsimbazovina, above note 286, pp. 140-141.
293 Schachter, above note 277, pp. 853-854.
an acceptable reason not to affirm or recognize the validity of some aspect or minimum content of human dignity.294 In this regard, Carozza argues that "the capacities of reason and wisdom, drawn from the dynamics of human experience, can lead us to certain conclusions about dignity independently of majoritarian conventionalism."295 He goes still further, stating that "a minimum consensus cannot be the decisive determinant of the minimum content of the status and basic principle of human dignity."296 We might add that, not only experience, but also the ideals towards which humanity strives, our human aspirations, deserve also the guarantees offered by positive legal enactments, legislative or adjudicatory. McCrudden describes certain parameters that a fundamental human right must meet, namely: a fundamental human rights must bring additional coherence to the substantive list of human rights, while at the same time being a unifying factor, common to all cultures while admitting of regional difference, both timeless and adaptable. Moreover, our understanding of human dignity must also appreciate the importance of the human person in the context of a human group, a human society. That is, human dignity must be understood in an humanistic sense.
Finally, human dignity should be viewed as a substantive right that is independent of state authority.297 The positive validity of human dignity is drawn from its imperative importance, the cogency of which acts then as the legitimating force that permits the courts, in the absence of formal procedures for decision making, or other positive legislated law, to pronounce binding statements concerning the moral aspect of both positive provision and fact.