Human Dignity.

• Author: Resta, Giorgio
• Position: Special Section: McGill Companion to Law

1. Human dignity has been perceived for a long time as an eminently moral, philosophical, or religious notion. Nowadays, it has acquired the status of a binding legal norm, frequently referred to as the cornerstone of the edifice of human rights. The duty to respect the dignity of every individual is solemnly stated by numerous international declarations and covenants, as well as by national constitutions and charters of rights. Even in domestic legal settings, in which dignity does not appear in statutes, the courts have increasingly referred to this principle when resolving disputes (particularly significant is the French experience of the last two decades; but also striking is the multiplication of references to dignity in the recent case law of the US Supreme Court). In short, dignity has undergone an impressive process of "juridification," having gradually lost the role of a purely moral precept and acquired that of a binding legal norm.

   However, it is not easy to define "dignity." According to some scholars, the characters of vagueness and indeterminacy are distinctive features of the notion of dignity. This tends either to render it a "useless concept" or to its being used as a "knock-down argument," a magic formula apt to circumvent any rational argumentation, by appealing to the pathos of dignity. Although this concern might occasionally prove well-founded, particularly in the field of bioethics (where "dignity" is frequently used as a conversation stopper), the picture is not always so grim. More than fifty years of judicial confrontation with dignity have not passed in vain. By looking at national and international case law on human dignity, some clear guidelines may be inferred.

   There seems to be wide consensus that dignity, at its core, implies the respect and recognition of the intrinsic worth possessed by any human person, merely by virtue of being human (see the references in the pre amble and in article 1 of the Universal Declaration of Human Rights). However, this minimum content is flexible enough to give rise to different results in concrete cases, depending on the particular conception of dignity adopted in a specific legal system. The notion of dignity, in other words, is at the same time universal, relying on a shared value of humanity, and context-specific, deriving its meaning from the cultural and institutional frame in which it is embedded. Therefore, it seems useful to disaggregate the content of dignity into three main functions:

   1. dignity as a negative right;

   2. dignity as the source of a government's duty to protect;

   3. dignity as the source of a government's duty to provide social benefits.

   Such a taxonomy may be helpful for any comparative inquiry because different legal systems tend to emphasize one or more "functions" and disregard the others, depending on the general value-choices and the institutional features of the system (such as the presence of a constitutional complaint mechanism, the state action doctrine, etc.). At one end of the spectrum we find legal systems that rely simultaneously on all such functions and regard dignity as a foundational value; at the other end are systems that either adopt a narrow version of dignity as a duty to respect or that completely disregard the notion. Although legal borrowings are particularly frequent in this area, one should never overlook the substantive variations in the uses of dignity and the possibility of its being received, in some legal settings, as a "legal irritant."

2. The most widespread conception of dignity is one based...