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Part I
Human dignity and the rise of morality politics
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1 The duality of human dignity in Europe
Aurora Plomer
On the 25th of March 2017, the European Union (EU) marked its 60th anniversary in Rome, the city where the six founding members1 gathered to sign the Treaty creating the European Economic Community (EEC). The six original members have grown to 28 members. Likewise, the original minimalist ambition to create an economic union has morphed into the expansive vision of an ever-closer union with shared political and social values founded on respect for fundamental human rights.2 That vision of an ever-closer union came to brutal end on the 23 June 2016 when a majority of UK citizens voted to leave the EU. The United Kingdom did not take part in the 60th anniversary. There were no fanfares or celebrations. The Pope, who had been invited to address the heads of states of the EU, warned that “Europe is not a conglomeration of rules to obey, or a manual of protocols and procedures to follow.” There was a need to rediscover the centrality of the human being to the European project and the values of dignity, freedom and justice amidst the “widespread crisis of institutions”.3 Yet, it is not that European Treaties are silent on the need to protect the dignity of every person. On the contrary, the latest version of the EU Treaties has elevated human dignity to a fundamental right whose centrality and primacy are prominently displayed in Article 1 of the Charter of Fundamental Rights of the EU (EU Charter), originally proclaimed in 2000 and legally binding since 2009. For jurists, a striking incongruity is that the elevation of human dignity to the highest value in Europe has been achieved through the creation of a binary Europe of fundamental human rights and values enunciated in two human rights texts, the Charter and the European Convention on Human Rights (1950), to be protected through two distinct legal orders, the EU and the Council of Europe (CoE) by two separate supranational courts, the Court of Justice of the EU (CJEU) and the European Court of Human Rights (ECrtHR). This prompts the question of whether the fragmentation of human dignity risks diluting protection of fundamental human rights in Europe. This chapter argues that the risks can be mitigated if the CJEU, a relative newcomer to human rights, adopts an integrative reading of dignity-based protections in the EU Charter and draws on the reasoning and jurisprudence of other international human rights courts and the ECrtHR in particular to interpret the scope of application of human dignity. The first part of the chapter retraces the historical and philosophical origins of human dignity and its inclusion in human rights treaties. In contrast to the commonly held view that the legal meaning of human dignity in human rights texts may be detached from its moral content, it argues that an integrative, contextual reading of the Universal Declaration of Human Rights (UDHR) and the European Convention on Human Rights (ECHR) discloses a continuous underlying moral vision of the dignity of the person as a universal value which is expressed in the full spectrum of discrete political, civil, social and economic rights whose realization is required to enable the full development of individual capabilities and the human personality. It further shows how respect for dignity in human rights text presupposes the existence of democratic institutions and respect for the rule of law of which human rights courts are the guardians. From this perspective, the chapter argues that the elevation of human dignity to a stand-alone right in the EU Charter is problematic because it eludes a stable legal meaning and moral content. The second part argues that the empty normative content of human dignity in the EU Charter is further exacerbated by the juxtaposition of human rights values with market freedoms in the same text. The EU Charter’s normative rupture from the ECHR thus creates multiple risks of dilution and erosion of well-established fundamental human rights grounded in human dignity. The last part argues that the risk is intensified by the CJEU’s determination to establish its own hegemony over the ECrtHR. It draws on empirical analyses of the CJEU’s approach to the interpretation of human rights which evidence the fracture already underway and the degradation of human dignity and social rights caused by the EU’s economic policies and facilitated by the CJEU’ minimalist reasoning and unwillingness to engage with other international and regional human rights courts.
The moral content of human dignity
There is a common view in recent writings on human dignity by jurists and law scholars that the meaning of human dignity as a constitutional value or right is independent of any moral or philosophical content (Dupre, 2016; Barak, 2015). This chapter argues that this view is flawed. The difficulty in ascertaining the moral content of dignity is that numerous studies of the history of the concept reveal a disjointed trajectory from early conceptions of dignity as “dignitas”denoting social standing and status4 to the most influential understanding of dignity in the history of Western Philosophy, articulated by Kant in his seminal Groundwork of the Metaphysics of Morals (Kant, 1785). For Kant, respect for human dignity is founded on each individual’s autonomy and ability for self-determination. It denotes the freedom of individual agents to act in accordance with principles which they have chosen. It is this ability to set their own ends and act as autonomous agents which distinguishes human beings from the rest of the creation and confers on them human dignity. Yet, Kant’s conception of agency and freedom is also closely bounded by rationality. According to Kant, lying and suicide are violations of human dignity because principles of reason dictate that individuals who belong to the metaphysical realm of ends are under a moral imperative to treat themselves or others as ends in themselves rather than means to an end only. As argued by Michael Rosen (2012) when examined closely, Kant’s metaphysics of dignity is somewhat removed from contemporary conceptions of dignity. Most importantly, Kant’s conception of dignity detracts from alternative approaches which focus on what it means for a person to be treated with dignity and respect.
There are other methodological difficulties with the Kantian theoretical scaffold which have instructive insights for the interpretive task raised by human dignity in constitutional texts. Human dignity in classical, Kantian theory is an overarching moral value and principle which is logically prior to discrete moral rights from which discrete obligations and prohibitions may be derived by a process of rational deduction. Human dignity is a universal ideal which also functions as a foundational principle because of its deontological and obligatory character. Duties to oneself (e.g. not to commit suicide) and to others (not to lie) in the Kantian system can be ultimately traced back to and deduced from the fundamental principle of respect for human dignity. The deductive approach in Kantian theory stands in contrast with the casuistic, virtue based ethics of Aristotle (Rowe and Broadie, 2002) and the inductive empiricist approach of David Hume (2000). These different approaches have profound implications on the heuristic role of human dignity in the resolution of moral dilemmas be they on matters of criminal justice, abortion, euthanasia or social and economic rights.5 This is not simply because Kantian theory privileges autonomy and rationality over human desires and emotion. It is also because of the different modalities of reasoning between rationalist and casuistic or empiricist approaches to moral values and obligation. Kantian theory resolves a moral problem by application of a general principle. By contrast, neo-Aristotelian theory looks to all the relevant aspects of a case to determine how a virtuous person would respond. Thus, a neo-Aristotelian would talk about the dignity OF self-direction or “self-constitution”6 of a person where Kant talks about the inherent dignity of a human being as a moral agent. Moral and philosophical conceptions of human dignity are therefore manifold and cannot simply be forced into human rights texts to decipher the meaning of dignity. But it doesn’t follow that the meaning of dignity in legal texts is detached from moral content.
It is true that in the absence of a stable, substantive moral content, “human dignity” in constitutional texts is liable to act as a vehicle to channel wide variations in judicial understandings of human dignity. Christopher McCrudden (2008) seminal review of the interpretation of human dignity by constitutional courts underscores the malleability of the concept. Human dignity, critics argue, is liable to be used as a “jurisprudential Legoland tool” by constitutional courts in whatever form or shape is required by the judge.7 Dignity has variously been variously described as a “placeholder”,8 a “useless” concept,9 a concept “that is not fixed in its meaning and can marry otherwise opposed views.”10 According to Costas Douzinas, dignity is “an empty or flawed signifier” which has become the site of a hegemonic battle by one particular ideology seeking to capture the concept and represent its own particular ideology as universal.11 A clear example of ideological appropriation of human dignity by the European Dignity Watch, an EU based pro-life non-governmental organization (NGO), campaigning against abortion, biotech research and gay rights, styled after radical pro-life advocacy groups in the United States.12 It is described by the European humanist federation as the most prominent, active anti-human rights NGO in the EU.13
According to historian Samuel Moyn (2010), the religious, conservative understanding of human dignity and human rights presenting as a universal ideal may be traced back to the vague language of the Universal Declaration of Human Rights whose drafters, he argues, were predominantly moved by a catholic, politically conservative agenda. These ideals, Moyn claims, did not fully resonate until the late 1970s with the explosion of dissident Catholic, forces in totalitarian and authoritarian regimes in Europe disillusioned with socialist politics. For Moyn, human dignity and human rights represent a recent, contingent, moral utopia which has displaced other “shipwrecked” political utopias “forcing aspirations for change to present themselves as less controversial than they really are.”14 Moyn’s historical reconstruction of the rise of dignity in European and international law is by no means shared by international lawyers who have critiqued the rigour and soundness of his methodology.15 It certainly underestimates the contribution of socialist ideas in the elaboration of the full spectrum of human rights, civil, political, social and economic, which are included in the UDHR and Covenants and their interconnection with the normative ideal of the equal dignity of all persons enunciated in the Preamble of the UDHR (Morsink, 1999). It also seriously overlooks the role of human rights at the turn of the millennium in facilitating the global mobilization of civil society from Africa to Asia and Latin America reclaiming human rights and dignity in the fight for access to life-saving medicines. The adoption of the World Trade Organization (WTO) TRIPS Agreement in 1995 provided a platform for 39 pharmaceutical companies to sue the South African government with the aim of stopping the import of affordable generic medicines from India at the height of the AIDS crisis, when millions of lives were at stake (Sell, 2003). Faced with the globalizing power of transnational, private corporations, developing countries counter-acted by calling into question the primacy of trade rights over human rights and recalled the obligation of all members of the United Nations (UN) to protect fundamental human rights (Helfer, 2004). Human rights to life and health were successfully invoked and relied upon by states and public interests groups to successfully challenge the intellectual property rights of private corporations in constitutional courts in Africa, India and Latin America (Kapczynski, 2009; Dreyfuss and Garavito, 2014; Yamin and Gloppen, 2011. This is no coincidence. Contrary to the view that dignity functions as an empty and variable placeholder with no settled moral content (McCrudden, 2008 Shultziner, 2007) a historically informed and integrative reading of human dignity in human rights texts discloses an underlying core moral content which aspires to capture enduring moral values of universal application. The next section retraces the origins of human dignity and its core moral content in human rights texts. The claim is not that an “originalist”reading of human dignity is required to understan...
