A reflection on the concept of human dignity in the international legal

discourse

Philosophy of Law – 20.10.2015Marina Bonfili

Introduction

In this lesson we will address the concept of human dignity from a jusphilosophical perspective applied to the area of the international legal discourse.

Post World War II

In response to the atrocities of the Second World War, the majority of Liberal and democratic Countries believed it impossible to elude the moral duty of giving national and international protection to man against any form of power.

The horrors of the Second World War led to the establishment of the United Nations(UN) in 1945.

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Preamble Charter of the United Nations

We the peoples of the United nations are determined:

“to save succeeding generations from the scourge of war,

which twice in our lifetime has brought untold sorrow to

mankind, and to reaffirm faith in fundamental human rights,

in the dignity and worth of the human person, in the equal

rights of men and women and of nations large and small…”

Universal Declaration of Human Rights

December 10, 1948 ParisUN General Assembly

In the Universal Declaration of Human Rights, there are five explicit references to the idea of human dignity, two of which can be found in the Preamble and the remaining three in the articles.

The Preamble mentions dignity in two places:

“Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world..”

“Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom”

Article 1 All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 22Everyone…<..> …has the right to social security and is entitled to the realization ..<..>..of the economic, social and cultural rights indispensible for his dignity and the free development of personality.

Article 233. Everyone who works has the right to the just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity…

Human Rights

Universal Inalienable Indivisible and interrelated Non-discrimination Empowerment/participation Accountability

from one legal instrument to another

Universal Declaration of Human Rights (1948)

European Convention on Human Rights (1950)

International Covenant on Economic, Social and

Cultural Rights (1966)

International Covenant on Civil and Political

Rights1(1966)

The Vienna Declaration and Programme of Action.

Adopted at the World Conference on Human

Rights,14-25 June 1993

Charter of Fundamental Rights of the European

Union (2000)

National Constitutions

Specific sectors: Bioethics

Universal Declarations on the Human Genome and

Human Rights (1997)

International Declaration on Human Genetic Data

(2003)

Universal Declaration on Bioethics and Human

Rights (2005)

By 1986, dignity had become so central to United Nations’ conceptions of human rights that the UN General Assembly provided, in its guidelines for new human rights instruments, that such instruments should be ‘of fundamental character and derive from the inherent dignity and worth of the human person’.

Vienna Declaration adopted by the World Human rights Conference 1993

“ …all human rights derive from the dignity and worth inherent in the human person, and that the human person is the central subject of human rights and fundamental freedoms…”

Defintion of dignity

This insistence on the universality of human dignity is one of the significant contributions of the human rights paradigm.

However, from the text of the Universal Declaration

of Human Rights onwards the drafters of human rights instruments have chosen not to explicitly define it.

The incorporation of the concept of human dignity in the Universal declaration was the culmination of a significant historical evoultion of the concept.

But the idea of human dignity does have a history in so far as it has been thought to rely on various things and consequently been accounted for in various ways.

History of the concept of human dignity

Classical Roman Christian thought Enlightenment (Kant)

Classical Roman thought The concept of dignitas hominis in classical roman thought

largely meant “status”. Honour and respect should be accorded to someone who was worthy of that honour and respect because of a particular status that he or she had.

So the appointment to particular offices brought with it dignitas

Indeed , dignitas was not confined to humans and applied to institutions and to the State itself:

This has long been incorporated in some legal systems in the private law contexts as the basis for providing protection for dignity in the sense of “status”, “reputation” and “priviliges”.

i.e. The English Bill of rights1689, for instance, referred to ‘the Crown and royal dignity’. In legal systems based on Roman law, dignity was seen as a right of personality and status, and criminal and civil remedies were frequently provided if dignity in this sense was infringed

Classical Roman

second, broader, concept of dignity present, particularly in Cicero, where dignitas referred also to the dignity of human beings as human beings, not dependent on any particular additional status.

In this use of dignity, man is contrasted with animals: ‘ … [i]t is vitally necessary for us to remember always how vastly superior is man's nature to that of cattle and other animals; their only thought is for bodily satisfactions … . Man's mind, on the contrary, is developed by study and reflection … . From this we may learn that sensual pleasure is wholly unworthy of the dignity of the human race.’

Christian thought

During the Middle Ages, with the ferment of debate in intellectual circles about the relationship between God and Man, the idea of dignitas came to be used as the way of distinguishing between Man and other creatures, as it had in Cicero.

Kant

Kant* – Human Dignity: “Act in such a way that you treat humanity, whether in your own person or in the person of another, always at the same time as an end and never simply as a means." (anti-utilitarian)

Human Dignity is connected to the nature of man and is unseparable

Foundational linkage from a legal perspective between human dignity and

human rights

Literature: essentially three approaches

1. the first argues that human dignity is a vague notion, that appears to provide a deeper foundation for human rights but that in fact doesn’t;

2. Human dignity is rooted in some particular characteristic of humans. A kind of intrinsic worth that belongs to all human beings as being such constituted by some intrinsicably valuable .Following Kant autonomy and reason are frequently mentioned as the characteristics of human that are worth taking seriously.

3. Foundational, declaratory and undefined sort of notion. Is an intermediate concept that helps to link human rights to deeper foundational, moral, political views using John Rawls idea of overlapping consensus.

One approach

Human rights are legal and political concepts and the body of international law can be seen as a political conception of justice that is justified by incredibly diverse fundamental doctrines

Human dignity is also not a foundational concept but an intermediate notion, a political conception of justice: that in fact there is no single conception of human dignity that grounds human rights but rather there are wide varieties of conceptions of human dignity and that human dignity is a placeholder, point of convergence between different substantive conceptions

Human dignity is not truly foundational but rather something on which there is an overlapping consensus that different comprehensive doctrines provide different substantive accounts of human dignity. But these accounts are sufficiently convergent that they end up supporting each other and provide a shared but diversed foundation for human rights. And those who don’t want to go any deeper than political conception of justice represented by the body of international human rights law, can simply accept it as an accident but those who want deeper foundations can by working through the overarching thin idea of human dignity root it in their own deeply held views about the nature of man, nature of society and nature of the cosmos.

Dignity is a signaling term that goes to the heart of humanness but that ambiguity arises neither from any special lack of clarity, nor from the absence of deeper substantive foundations. Rather it arises from the fact that for different people human dignity points to different deeper foundations which provide a personal or moral meaning and remove much of the ambiguity of the meaning of the concept.

another approach The body of established human rights law also shapes

our understanding of human dignity, that there is a two way relationship between human rights and human dignity in the contemporary world.

The concept of human dignity originally emerged largely separate from the idea of human rights (as we have seen, when tracing back origins).

Today however human dignity and human rights have increasingly become fused.

One can think of human dignity independently of human rights: philosophically possible, historically common. However today this is increasingly becoming uncommon, the growing prominence of human rights makes the link between human dignity and human rights increasingly appeared to be normative rather than accidental.

Human rights and human dignity are mutually co-constitutive:

Human rights reflect a particular specification of certain minimum preconditions for a life of dignity, but our detailed understandement of human dignity has been shaped by our ideas and practices of human rights. And the practice of human rights can be seen as justified in some ultimate sense by its regulating the lives of human beings that are able to live a life of dignity.

In other words human rights go beyond the inherent dignity of the human person to provide mechanisms for realizing a life of dignity in the social and political world.

Provide legal and political practices to provide a life of dignity that vindicates the inherent worth of the human person. Human rights insist that the inherent worth of human beings must not be left in an abstract philosophical or religious domaine but rather must be expressed in everyday life through practices that respect and realize human rights and thus human dignity.