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A human dignitas? Remnants
of the ancient legal concept
in contemporary dignity
jurisprudence
Stéphanie Hennette-Vauchez*
This paper suggests that the contemporary principle of human dignity in some of its
“dignitarian” uses (in such landmark cases as those concerning dwarf-throwing, as well as
when it is employed to oppose prostitution, certain sexual conducts, or the right to refuse
medical treatment) does not have much in common with the human dignity principle that
came into prominence after World War II. Instead, it shares many resemblances with the
ancient legal concept of dignitas, for it has the same function (as a ground for obligations
rather than rights), structure (grounding obligations toward oneself), and regime (inalienability). The link between contemporary dignity and ancient dignitas is a crucial one, for
it implies that the rationale as a foundation of human rights, very common to narratives
about the human dignity, is deceptive at least so far as the concept’s contemporary fashion
is concerned.
*
Professor of Law, Université Paris Ouest Nanterre. Essentially, this paper was written while I stayed at the
European University Institute’s Robert Schuman Center as a Marie Curie Fellow. The extraordinary facilities and the intensely stimulating intellectual environment contributed greatly to the paper, as did the
colleagues who visited at the EUI during my stay and took the time to comment on earlier versions. I wish
to thank Julie Suk and Gerald Neuman, in particular. In addition, Antoine Vauchez and Ruth SeftonGreen have helped a great deal at various stages of the writing. Discussions with Jeremy Waldron on the
basis of the Max Weber Lecture he gave at the EUI in Florence in May 2010 have contributed to significant changes in the paper that, I hope, have improved its quality—and I also thank him for engaging with
my views. Finally, the comments made by anonymous reviewers for the International Journal of Constitutional Law (I·CON) have also been extremely helpful. Email: [email protected]
I•CON (2011), Vol. 9 No. 1, 32–57
doi: 10.1093/icon/mor031
A human dignitas? Remnants of the ancient legal concept in contemporary dignity jurisprudence 33
The legal concept of human dignity has become inescapable. International covenants, universal1 and regional,2 old3 and new,4 general5 and specific,6 soft and hard,7
almost all refer to the principle of human dignity. The national constitutions that
refer to the principle are equally numerous,8 and they increase at an accelerated pace
as a number of new legal orders are founded9 on the debris of dictatorships.10 Even
in countries in which the principle originally seemed to be rather marginal—for
example, the United States11—it is gaining in importance.12 Moreover, the concept
Among other examples: United Nations Charter, preamble: “We the peoples of the United Nations 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. . . .” Also, Universal Declaration of Human Rights, art. 1: “All human beings are
born free and equal in dignity and rights.”
2
See the African Charter on Human and Peoples’ Rights of 1981, art. 5: “every individual shall have the
rights to the respect of the dignity inherent in a human being”; or the Arab Charter on Human Rights of
1997, whose preamble refers to the Arab nations’ belief in human dignity.
3
See the UN Declaration on the Elimination of all Forms of Racial Discrimination of 1963.
4
See the EU Charter of Fundamental Rights of 2000.
5
Such as the International Covenant on Civil and Political Rights (1966) and the International Covenant
on Economic, Social and Cultural Rights (1966), which both state that the rights they proclaim “derive
from the inherent dignity of the human person.”
6
Such as the Convention for the Protection of Human Rights and Dignity of the Human Being with Regard
to the Application of Biology and Medicine (1997), or the UNESCO Declaration on the Human Genome
and Human Rights (1997).
7
Directive 98/44/EC of 6 July 1998 on the Legal Protection of Biotechnological Inventions, recital 16:
“patent law must be applied so as to respect the fundamental principles safeguarding the dignity and integrity of the person.”
8
It is not possible here to list all the constitutions that refer to the human dignity principle. Let us only
mention they are as varied as those of Afghanistan (2003), Madagascar (1998), Brazil (1988).
9
Typically, in this respect, see the 1949 German Basic Law; or the 1947 Japanese Constitution whose art.
24 states that in “manners pertaining to marriage and the family, laws shall be enacted from the standpoint of individual dignity and essential equality of the sexes.”
10
As David Feldman puts it: “It is a common feature of new constitutions in States which are trying to
shake off a legacy of disregard for the human dignity of some, at least, of its citizens.” See David Feldman,
Human Dignity as a Legal Value–Part I, Pub. L., 682, 696 (1999). This was true of Greece (1975), Portugal
(1976), and Spain (1978), but the phenomenon has been multiplied since the fall of the Berlin wall and
the refoundation of many Eastern European legal orders; the human dignity principle is mentioned in
most of the corresponding constitutional texts. For a monograph on the Hungarian case, see Catherine
Dupré, Importing the Law in Post-Communist Transitions. The Hungarian Constitutional Court and the Right
to Human Dignity (2003). The South African example is also very interesting in this respect, since the
human dignity principle is assigned a very important role and serves as an emblem of the breaking up
with the apartheid. On this specific example, see Arthur Chaskalson, Human Dignity as a Foundational
Value of our Constitutional Order, 16 S. Afr. J. Hum. Rts. 193 (2000).
11
On the traditional paucity of references to human dignity in American law, see Jordan Paust, Human Dignity
as a Constitutional Right: A Jurisprudentially Based Inquiry Into Criteria and Content, 27 How. L.J. 145 (1984).
12
Recent Supreme Court decisions have interestingly made strong references to the principle of human dignity in order to strike down a Texan law prohibiting sodomy (Lawrence v. Texas, 539 U.S. 558 (2003)), or
to establish that capital punishment was a violation of the Eight Amendment when applied to minors (Roper
v. Simmons, 125 U.S. 1183 (2005)) or the mentally retarded (Atkins v. Virginia, 536 U.S. 304 (2002)).
As a consequence, Maxine D. Goodman now describes human dignity as a “core value” of American
constitutional law. See Maxine D. Goodman, Human Dignity in Supreme Court Constitutional Jurisprudence,
84 Neb. L. Rev. 740, 743(2005). See also the study by Gerald L. Neuman, Human Dignity in United States
1
34 I•CON 9 (2011), 32–57
has been inferred by a number of constitutional courts, even in cases in which it was
not explicitly mentioned in the text of the constitutions; this occurred, for instance, in
France13 and Poland.14
These quantitative aspects are only strengthened by qualitative appreciations of
the human dignity principle; it is often presented as the very founding rock of fundamental rights in post–World War II constitutionalism.15 “Underpinning what one
might call legal humanism,”16 it is said to be not only a fundamental right in itself but
also the basis of all fundamental rights17 and, sometimes, even the founding value of
legal orders altogether.18 To put it succinctly: “[I]f we were looking for one phrase to
capture the last fifty years of European legal history . . . we might call it the high era
of ‘dignity.’”19
Much of the human rights literature links the concept of dignity with the
notions of autonomy, empowerment, and agency.20 Recently, authors such as
13
14
15
16
17
18
19
20
Constitutional Law, in Zur Autonomie des Individuums: Liber Amicorum Spiros Simitis 249 (Dieter Simon, Manfred
Weiss eds., 2000), in which the author argues that despite its limited role in US constitutional law, the
human dignity principle “has informed the interpretation of particular constitutional rights.”
See Conseil Constitutionnel, decision 94-343-344DC, 27 July 1994 (available at: http://www.conseilconstitutionnel.fr, last visited Nov. 6th 2007).
Biruta Lewaszkiewicz-Petrykowska, Polish Report, in European Commission for Democracy Through Law: The
Principle of Respect for Human Dignity 15 (1999).
Christopher McCrudden, Human Dignity and Judicial Interpretation of Human Rights, 19 Eur. J. Int’L L. 655
(2008) cites Carl Friedrich’s 1950 assessment of postwar constitutionalism as resting on “the stress laid
upon the dignity of man” as a core value; and Naomi Rao, On the Use and Abuse of Dignity in Constitutional
Law, 14 Colum. J. Eur. L. 201, 213 (2008) cites Lorraine Weinrib who has characterized dignity as a part
of the “postwar constitutional paradigm.”
Feldman, supra note 10, at 682.
See the report of the Praesidium of the Convention that authored the EU Charter of Fundamental Rights:
“Explanations relating to the complete text of the Charter,” which notably reads, on page 15: “The dignity
of the human person is not only a fundamental right in itself but constitutes the real basis of fundamental
rights” (available at: http://ue.eu.int/uedocs/cms_data/docs/2004/4/29/Explanation%20relating
%20to%20the%20complete%20text%20of%20the%20charter.pdf last visited June 6, 2008).
See the way this is expressed by the Federal Constitutional Court of Germany, which sees in the principle
of human dignity the “highest value of the constitutional order” (Life Imprisonment Case of 1977, 45
BVerfGE 187) and rules that “the Basic Law erected a value-oriented order that limits public authority”
(Elfes case of 1957: 6 BVerfGE, 32) and that “this value system, which centers upon the dignity of the
human personality developing freely within the community, must be looked upon as fundamental
constitutional decision affecting all spheres of law” (Lüth case of 1958, 7 BVerfGE 198). English versions
of these decisions may be found in Donald Kommers, The Constitutional Jurisprudence of the Federal Republic
of Germany 305, 315, 363 (1997). But this is true also elsewhere; see section 1 of the 1996 Constitution
of South Africa: “The Republic of South Africa is one, sovereign, democratic state founded on the following
values: a) human dignity. . .” (emphasis added); art. 1 of the amended 1976 Constitution of Portugal:
“Portugal is a sovereign Republic, based on the dignity of the human person. . .” (emphasis added).
James Q. Whitman, On Nazi Honor and New European Dignity, in Darker Legacies of Law in Europe: The
Shadow of National Socialism and Fascism over Europe and its Legal Traditions 243 (Christian Joerges &
Navraj Singh Ghaleigh eds., 2003).
See, in particular, Roger Brownsword & Deryck Beyleveld, Human Dignity in Bioethics and Biolaw 11 (2001):
“. . . the post–Second World War international instruments that laid the foundations for the culture of
human rights that was to develop throughout the second half of the twentieth century. Here, intrinsic
A human dignitas? Remnants of the ancient legal concept in contemporary dignity jurisprudence 35
James Q. Whitman21 and Jeremy Waldron22 have suggested, in several important
publications, that the legal concept of dignity could also be understood as an evolution
of rank- or honor-based legal norms. As the result of a “leveling up process,” by way
of which there has been a “generalization of the respect and solicitude for dignity
that was previously confined to a particular high and exclusive rank of humanity,”
the legal concept of dignity would actually refer to the respect due to all individuals
because of their equal standing as humans.
In this paper, I would like to bring two complementary sets of considerations into
the picture. First, I would insist that there are important trends in positive law in contemporary human dignity jurisprudence that reveal that the human dignity principle
serves to construct obligations—not just rights. In the field of the interaction between
law and modern biotechnology, Roger Brownsword has famously characterized these
trends in his works on the “constraint” (as opposed to empowerment) dimension of
some legal usages of the dignity principle23. Brownsword thus points at “dignitarian”24
readings of the principle that compete with the more classical, utilitarian, or human
rights–inspired theoretical frameworks of rights theories. More recently, Therese
Murphy has started to broaden the picture by arguing that the “dignitarian alliance”
is actually igniting a new “rights revolution” albeit one that is actually fuelled by
“a new anti-rights sentiment that queries the legitimacy of rights in a time of alleged
crisis or exception.”25 It will be asserted, here, that there are many examples of such
dignitarian uses of the human dignity principle (eg. uses by which dignity actually
serves for the antonym of rights) in contemporary jurisprudence in general (that is,
not only in the field of new technologies), and that it is, therefore, worth paying attention to this particular meaning of dignity.
Second, I would like to make the case for extending the argument put forth by James
Whitman and Jeremy Waldron as to the existing links between the ancient, rankbased legal concept of dignity and the more contemporary human dignity principle.
21
22
23
24
25
human dignity is a seminal idea that acts as the background justification for the recognition of human
rights and as the source of fundamental freedoms to which all humans (qua human) are entitled. In this
context, human dignity as empowerment (specifically, the empowerment that comes with the rights to
respect for one’s dignity as a human, and the right to the conditions in which human dignity can flourish)
is the ruling conception.”
See Whitman, supra note 19 ; as well as James Q. Whitman, Enforcing Civility and Respect: Three Societies,
109 Yale L.J. 1279 (1999–2000); James Q. Whitman, The Two Western Conceptions of Privacy: Dignity
versus Liberty, 113 Yale L.J. 1151(2003–2004); James Q. Whitman, Harsh Justice: Criminal Punishment and
the Widening Divide Between America and Europe (2003).
Jeremy Waldron, Dignity and Rank: In Memory of Gregory Vlastos, 2 Archives Européennes de Sociologie 201
(2007); Jeremy Waldron, Dignity, Rank and Rights, The 2009 Tanner Lectures at UC Berkeley, available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1461220); Jeremy Waldron, Dignity, Rights and
Responsibilities, European University Institute Max Weber Lecture (May 2010).
Roger Brownsword, Derek Beyleveld, Human Dignity in Bioethics and Biolaw, 2002
Roger Brownsword, Stem Cells and Cloning: Where the Regulatory Consensus Fails, 39 New Eng. L. Rev.
535–571 (2005).
Thérèse Murphy, Taking Revolutions Seriously: Rights, Risk and New Technologies, 16 Maastricht J. Eur. &
Comp. L. 15, 22 (2009).
36 I•CON 9 (2011), 32–57
The present paper, thus, acknowledges that the former might well have evolved into
an egalitarian conceptual framework for human rights, in general. It does claim, however, that ancient rank-based dignity has not entirely morphed into the humanistic
and inclusive human rights rationale. Rather, in this paper, I suggest that significant
elements of the legal concept of dignity as rank still find their way in contemporary
jurisprudence—and that these account for its dignitarian trends, defined as those
in which the idea of dignity grounds obligations more than rights. In other words,
besides ancient dignity, on the one hand, and an equalizing dignity as the background
justification for human rights, on the other, the paper wishes to distinguish a third
meaning of the legal concept of dignity; namely, one that rests on the construction of
“humanity” as a new rank and derives obligations from that, which, in turn, weigh
on the individual.
The paper unfolds in three parts. Section 1 describes the extent to which some trends
of contemporary human dignity jurisprudence go hand in hand with the construction of humanity as a rank; thus, it establishes a preliminary bridge between contemporary human dignity and ancient dignitas. Section 2 extends the analogy between
human dignity and dignitas on technical grounds and argues that the ancient legal
concept has provided contemporary dignitarian jurisprudence with a useful grammar, since the latter has revived the former’s functions (ground obligations), structure
(ground obligations toward oneself), and regime (inalienability). Section 3 then goes
back to the stimulating works of Whitman and Waldron to make the case for pushing
their argument further along, chiefly by insisting that dignitas may well have been
democratized and provided human rights with a background justification. However,
this is only part of the story, inasmuch as other elements of dignitas have followed a
different route and continue to diffuse into contemporary jurisprudence with their old
and original aristocratic and inegalitarian connotations.
1. From social rank to humanity as rank: A human dignitas?
It is necessary at this point to provide a precise description of what this paper refers
to as “dignitarian human dignity jurisprudence.” The label is not so much a validating ground for the individual making a claim against third parties (the state or other
private parties) as it is the basis upon which those third parties may seek to impose
obligations on the individual26
1.1. Dignitarian contemporary dignity jurisprudence: Examples
In 1995, in the famous dwarf-throwing case,27 the French Supreme Administrative
Court ruled that the municipal orders prohibiting such games were valid insofar as
the orders were grounded in the human dignity principle, regardless of the fact that
This distinction has been made and developed before; see Charlotte Girard, Stéphanie Hennette-Vauchez, La
Dignité de la Personne Humaine. Recherche sur un Processus de Juridicisation (2005).
27
See Conseil d’Etat, Ass., 27 October 1995, Cne de Morsang-sur-Orge, Recueil Lebon, p. 372.
26
A human dignitas? Remnants of the ancient legal concept in contemporary dignity jurisprudence 37
the games only involved competent consenting adults. Interestingly enough, the protection of human dignity never before had been recognized as a basis for justifying
police orders. A year earlier, the Israeli Supreme Court had decided that a film could be
censored and specific scenes deleted insofar as it could be said to violate the principle
of human dignity.28 Earlier still, the German Federal Administrative Court had ruled
that peep-show devices could be denied a license merely for placing women, albeit
competent and consenting, on display contrary to the principle of human dignity.29
This understanding of human dignity as a legal principle was upheld, yet again, by
the European Court of Justice in the Laserdrome case as a valid limitation of the free
movement of goods and services.30
Outside Europe, one can cite the South African Constitutional Court’s recourse to
human dignity as a basis for upholding a ban on prostitution;31 similar uses of the
principle in abortion-regulation cases in the United States can also be mentioned.32
In less-authoritative judgments but in a seemingly ever-increasing number of legal
orders and cases, the protection of human dignity has been evoked in order to overrule
a patient’s right to refuse a life-saving treatment (in France)33 or to ground criminal
charges against people engaging in sadomasochist sexual relationships (in Belgium).34
In all these cases, the human dignity principle does not serve as the “foundation of
See the decision Station Film Co v. Public Council for Film Censorship (1994) of the Supreme Court of
Israel (cited by C. McCrudden, above n. 15, 53–54) that upholds the decision to delete scenes that were
considered to be degrading to women and thus a violation of human dignity.
29
1981 BVerwGE 64, 274, decision of the Federal Administrative Court in Germany that argues that placing naked women on display in such shows “attributes to them the character of an object of others’ desire,” which is incompatible with the human dignity principle. An English version may be found in Sabine
Michalowski & Lorna Woods, German Constitutional Law: The Protection of Civil Liberties 105 (1999).
30
E.C.J. 1st chamber, 14 Oct. 2004, Omega Spielhallen versus Oberbürgmeisterin der Bundesstadt Bonn,
case C36/02.
31
Constitutional Court of South Africa, 9 Oct. 2002, Case CCT31/01, Jordan v. the State (available at: http://
www.constitutionalcourt.org.za/Archimages/661.PDF last visited 4 June 2008): “The very nature of
prostitution is the commodification of one’s body. Even though we accept that prostitutes may have few
alternatives to prostitution, the dignity of prostitutes is diminished . . . by their engaging in commercial sex
work.” For a comment, see Jonathan Barrett, Dignatio and the Human Body, S. Afr. J. Hum. Rts. 525 (2005).
32
See Reva Siegel, Dignity and the Politics of Protection: Abortion Restrictions under Casey/Carhart, 117 Yale
L.J. 1694 (2008).
33
See, for example, the conclusions of the commissaire de gouvernement M. Heers in the case: Cour Administrative d’Appel de Paris, 9 juin 1998, Senanayake et Donhoy (available at: http://www.legifrance.
gouv.fr/affichJuriAdmin.do?oldAction=rechJuriAdmin&idTexte=CETATEXT000007436393&
fastReqId=1558200836&fastPos=9 last visited June 6, 2008), in: Revue Française de Droit Administratif,
1231 (1998). It must be noted that this judgment was eventually quashed (C.E., Ass., 26 oct. 2001,
Senanayake, available at: http://www.legifrance.com/affichJuriAdmin.do?oldAction=rechJuriAdmin&
idTexte=CETATEXT000008072785&fastReqId=871484051&fastPos=10 last visited 9 Oct. 2008);
however, the administrative supreme court confirmed that the doctor’s liability for administering an
unwanted blood transfusion was not engaged even though he knew very well of the patient’s refusal,
as long as his sole intention was to save the patient’s life through the use of a proportionate treatment.
34
The Antwerpen Appellate Court in Belgium explicitly referred to the human dignity principle for doing so, as
is recalled by the European Court of Human Rights in a 2005 case (see E.Ct.H.R., 17 Feb. 2005, K.A. et A.D. c.
Belgique, n°42758/98, see in particular §23: “[la cour d’appel] considéra que la morale publique et le respect
de la dignité de la personne humaine imposaient des limites qui ne sauraient être franchies en se prévalant
28
38 I•CON 9 (2011), 32–57
human rights.” Rather, it allows for otherwise well-established rights to be limited35
or, at least, for the liberal principle according to which all that is not prohibited is permitted to be reversed.36 Also of great interest to the present demonstration is the fact
that in all these cases, judges have ruled that human dignity as such was violated and
needed to be rehabilitated judicially. In other words, it is not the dignity of dwarves per
se (nor even that of dwarf-throwing-shows spectators), of prostitutes (or prostitutes’
clients) or of Laserdrome players that judges have claimed to be protecting. Rather, it
is human dignity as such, an abstract and completely objectivized.37
1.2. Humanity as rank?
The hypothesis according to which a dignitarian understanding of the human dignity
principle is understood as a revival of an ancient, rank-based conception of dignity is
based on elements of positive law drawn from contemporary comparative jurisprudence. Since the raison d’être of dignitas was to protect social and professional statuses (that is, political, religious, judicial, and the like), verifying this hypothesis would
entail the demonstration that contemporary dignitarian jurisprudence is also about
rank, and that its aim is to protect humanity as a matter of rank. It is contended that
the notion of a ranklike conception of humanity has taken hold in contemporary
jurisprudence.
du ‘droit à disposer de soi’ ou de la ‘sexualité consensuelle’. Même à une époque caractérisée par l’hyperindividualisme et une tolérance morale accrue, y compris dans le domaine sexuel, les pratiques qui
s’étaient déroulées. . .étaient tellement graves, choquantes, violentes et cruelles qu’elles portaient
atteinte à la dignité humaine et ne sauraient en aucun cas être acceptées par la société. Le fait que les
prévenus continuaient de soutenir qu’il n’y avait ici qu’une forme d’expérience sexuelle dans le cadre du
rituel du jeu sadomasochiste entre personnes majeures consentantes et dans un lieu fermé, n’y changeait
rien.” At any rate, the 1997 Laskey, Jaggard and Brown E.Ct.H.R. judgment is also of interest here for,
although it upheld criminal charges in a somewhat similar configuration on the sole basis of the legitimate
“protection of morals” (see E.Ct.H.R., 19 February 1997, Laskey, Jaggard and Brown v. R.U., n°109/95,
§51), it has been argued that the true motivation for the Court’s judgment was better found in Judge
Pettiti’s concurring opinion which reads as follows: “Not every aspect of private life automatically qualifies
for protection under the Convention. The fact that the behavior concerned takes place on private premises does not suffice to ensure complete immunity and impunity. Not everything that happens behind
closed doors is necessarily acceptable. . ..The protection of private life means the protection of a person’s
intimacy and dignity, not the protection of his baseness or the promotion of criminal immoralism.”
See Jean-Manuel Larralde, L’article 8 de la CEDH et l’identité sexuelle, 65 Revue Trimestrielle Des Droits
del ’Homme 41, 50 (2006).
35
This is undoubtedly the case in the French refusal-of-treatment case and in the European freedom-ofservices case.
36
See, for instance, the South African prostitution case or the French dwarf-throwing case.
37
Granted, this does not mean that the dignity of third parties (dwarf-throwing-games spectators, for
instance) plays no part at all in the judges’ mode of reasoning, although I do not believe it plays a crucial
role. While this could be investigated further, at any rate, it does not weigh on the course of the present
investigation, which looks not at that subjective dimension of the human dignity principle but at its
objective one.
A human dignitas? Remnants of the ancient legal concept in contemporary dignity jurisprudence 39
The debate fuelled by the KA and AD v. Belgium decision of 2005 by the European
Court of Human Rights (ECtHR) is emblematic in this respect. In KA and AD, the
Strasbourg Court was once again confronted with the question of whether criminal
sentences for people who had taken part in extremely violent sadomasochistic practices were to be considered violations of article 8 of the European Convention on
Human Rights (ECHR). Departing somewhat from its previous case law,38 the Court
decided that “the right to engage in sexual relationships stems from one’s right to
dispose of her body, [as] an integral part of the notion of personal autonomy.”39 As a
consequence, the Court judged that, in principle, criminal law shall not interfere with
sexual practices, unless there are imperative motives to the contrary.40 It also considered that in this particular case, such compelling motives did exist, which stemmed
from the facts of the case, namely, that the free will and consent of one of the participants in the incriminated practices had not been respected at all times.41
This specific aspect of the Court’s mode of reasoning ignited a leading French scholar’s
criticism of the decision. Muriel Fabre-Magnan42 reproached the Court with giving
too much weight and centrality to the notions of autonomy and consent; rather, she
argued, the Court should have relied on the principle of human dignity:
Human dignity was at stake in the examined sadomasochistic relationships, because it is at
stake every time humanity is injured. . . . The concept of human dignity arose because traditional human rights, centered on the individual, his liberty, his private life, and his autonomy,
precisely were no longer sufficient. . . . The principle of dignity marks the unity of the human
species. Throughout each individual person, humanity can be injured and so can all others.
E.Ct.H.R., 19 February 1997, Laskey, Jaggard and Brown v. U.K. In this decision, §36 indicated that a
given activity does not necessarily fall under the protection of article 8 for the sole reason that it takes
place behind closed doors. For a thorough and convincing critique, see Olivier Cayla, Le plaisir de la peine
ou l’arbitraire pénalisation du plaisir, in La Liberté Sexuelle 89 (Daniel Borillo & Danièle Lochak eds., 2005).
39
§83 of the decision [my translation for, interestingly enough, the decision is available only in French on
the HUDOC database, which could account for the absence, to my knowledge, of commentaries of the
case in English language].
40
§84 of the decision: “Il en résulte que le droit pénal ne peut, en principe, intervenir dans le domaine des
pratiques sexuelles consenties qui relèvent du libre arbitre des individus. Il faut dès lors qu’il existe des
« raisons particulièrement graves » pour que soit justifiée, aux fins de l’article 8§2 de la Convention, une
ingérence des pouvoirs publics dans le domaine de la sexualité.”
41
§85 of the decision: “En l’espèce, en raison de la nature des faits incriminés, l’ingérence que constituent les condamnations prononcées n’apparaît pas disproportionnée. Si une personne peut revendiquer
le droit d’exercer des pratiques sexuelles le plus librement possible, une limite qui doit trouver application est celle du respect de la volonté de la ‘victime’ de ces pratiques, dont le propre droit au libre choix
quant aux modalités d’exercice de sa sexualité doit aussi être garanti. Ceci implique que les pratiques se
déroulent dans des conditions qui permettent un tel respect, ce qui ne fut pas le cas. En effet, à la lumière
notamment des éléments retenus par la cour d’appel, il apparaît que les engagements des requérants
visant à intervenir et arrêter immédiatement les pratiques en cause lorsque la ‘victime’ n’y consentait
plus n’ont pas été respectés. De surcroît, au fil du temps, toute organisation, tout contrôle de la situation
étaient devenus absents. Il y a eu une escalade de violence et les requérants ont eux-mêmes avoué qu’ils
ne savaient pas où elle se serait terminée.”
42
E.Ct.H.R., 17 February 2005, K.A. et A.D. c. Belgique ; and commentary by Muriel Fabre-Magnan, Le
sadisme n’est pas un droit de l’homme, Recueil Dalloz 2973 (2005).
38
40 I•CON 9 (2011), 32–57
The emergence of the human dignity principle is the sign that there is something superior
(transcendent) to individual wills. . . . No one can renounce the human dignity principle, obviously not for others but no more so for oneself: no one can thus validly consent to having her
dignity violated. The relationship of one with oneself does not pertain only to the private sphere
but also has to do with the public one. We return to the first meaning of the word dignity: the
humanity of man resembles an entrusted office, but an office one cannot dispense himself of
nor be dispensed of; a dignity that, as in its original meaning, never dies.43
1.3. Calling on Kantorowicz
If only from a rhetorical standpoint, one is likely to be struck by the resemblance
between a presentation of the principle of human dignity, such as Fabre-Magnan’s,
and common presentations of ancient dignitas. Indeed, it quite strongly echoes what
Ernst Kantorowicz wrote about royal dignitas in his analyses of medieval political
theology.44 Kantorowicz drew attention to the centrality of the metaphor of the
phoenix in medieval legal commentaries on royal dignitas. Among other examples, he
referred to the manner in which Baldus de Ubaldis, in the sixteenth century, used it:
“the Phoenix represented one of the rare cases in which the individual was at once the
whole existing species so that indeed species and individual coincided.”45 The same
narrative structures much legal scholarship about human dignity, which is said
to join together the individual and the human species, for it is simultaneously one
and multiple—or universal. Fabre-Magnan insists: “The principle of dignity marks
the unity of the human species Throughout each individual person, humanity can
be injured and so can all others.”46 This echoes positive law formulas such as those
used by the German Federal Constitutional Court when it argues that “human dignity
is not only the individual dignity of every person, but also the dignity of the human
being as a species.”47 In such understandings, “humanity” serves as an emblem of the
dignity principle, quite the same way the Phoenix did in medieval legal imagery.
Additionally, in both its contemporary and medieval versions, the dignity principle
is marked by an essential duality, for it is always simultaneously public and private.
Fabre-Magnan writes of human dignity that there is an aspect of the relationship of
one with oneself that not only pertains to the private sphere but to the public one, as
well.48 So, Kantorowicz insisted that dignitas “was of a public, and not merely private,
nature.”49 These elements can be linked, further, to constitutional or judicial statements according to which the human dignity principle is a foundational value or a
Fabre-Magnan, supra note 42, at 2978–2980 (my translation).
Ernst Kantorowicz, The King’s Two Bodies: Essays in Medieval Political Theology (1957) and, especially, the
chapter “Dignitas Non Moritur,” at 383.
45
Id., at 389 (emphasis added).
46
Fabre-Magnan, supra note 42.
47
BVerfGE 87, 209 (1992); an English version may be found in Michalowski & Woods, supra note 29, at 99.
48
Fabre-Magnan, supra note 42.
49
Kantorowicz, supra note 44, at 384.
43
44
A human dignitas? Remnants of the ancient legal concept in contemporary dignity jurisprudence 41
public order exception.50 Indeed, it has been demonstrated51 convincingly that such
modes of reasoning only favor a “communitarian public interests” approach thus taking over or displacing the “individual rights” approach; thus the public dimension of
the human dignity principle prevails over the private.52
A third strong resemblance may be found between the two elaborations of the dignity principle. When human dignity is said to “never die,”53 this is another invitation
to view it as heir to medieval royal dignitas that was best described by the following
aphorism: dignitas non moritur. In other words, it can be argued that from this contemporary discourse on human dignity we can derive the formulation “humanity itself is a
dignity,”54 the human dignity principle becoming the legal vector of the philosophical
assertion based on the conceptualization of “humanity as a dignity.”
Thus, it can be said that dignitarian dignity jurisprudence, by its reliance on the
principle of human dignity, does construct humanity as a status or rank. The theoretical conditions for establishing a genealogical link between dignitarian approaches of
the human dignity principle and ancient dignitas, therefore, have been met. However,
they need to be complemented in a more technical fashion. The next section of this
article will aim at demonstrating that the two also share technical features, for they
have a similar function, structure, and regime.
McCrudden, supra note 15, 56; but see also the analyses in this sense by Rao, supra note 15, especially at
227, on the human dignity principle in limitation clauses.
51
Rao, supra note 15.
52
See, typically, BVerfGE 45, 187 (1977, Life Imprisonment Case; English version in D. Kommers, above n
18, 428): “This freedom within the meaning of the Basic Law is not that of an isolated and self-regarding
individual but rather [that] of a person related to and bound by the community. . . . The individual must
allow those limits on his freedom of action that the legislature deems necessary in the interest of the community’s social life; yet the autonomy of the individual has to be protected.”
53
Fabre-Magnan, supra note 42.
54
Immanuel Kant, Métaphysique des Mœurs, II, Doctrine de la vertu, Vol. 3 758 (1986). It is worth noticing
that Kant refers to the concept of dignity not only in order to argue for the intrinsic worth of man but
also as a way of referring to certain ranks or specific functions. See, on this particular aspect, Michael
J. Meyer, Kant’s concept of dignity and modern political thought, 8 Hist. Eur. Ideas 319, 328 (1987): “Kant
uses and discusses the idea of the natural dignity of mankind while at the very same time he makes extensive use of the idea of a dignity within established social hierarchies. . . . The bulk of these remarks on
social dignity can be found in Kant’s ethical writings on jurisprudence, in Immanuel Kant, The Metaphysical
Elements of Justice (1797), primarily in the second part on ‘Public Law.’” It, therefore, is incorrect or, at
least, partially wrong to mention Kant as a thinker concerned with the sole dignity of man, and not of
dignitas-like dignity. Similarly, it would be worth the while to engage in a critical assessment of the rather
common tendency of contemporary scholarship to refer to the Kantian categorical imperative (“So act
that you use humanity, whether in your own person or in the person of any other, always at the same
time as an end, never merely as a means”) in order to (a) define the substance of the dignity principle (b),
ground, legally, obligations of the individual towards herself (cf. “in your own person”). For indeed, this
categorical imperative is central to Kant’s moral philosophy and depicts the reign of ends, which—Kant
acknowledges—is an ideal elaboration. For those reasons, drawing normative (juridical) consequences
from such utterances is, at best, unfaithful and at worst, contradictory with the very structure of Kantian
argument. For a tentative demonstration, see Stéphanie Hennette-Vauchez, Kant contre Jéhovah? Refus de
soins et dignité de la personne humaine, Recueil Dalloz 3154 (2004).
50
42 I•CON 9 (2011), 32–57
2. Dignitas and dignitarian readings of the human dignity
principle: Legal morphing
As is well-known, the human dignity principle has attracted much attention and
interest on the part of legal scholars, judges, legislators, and legal theorists. When
one looks at all the studies that have been devoted to the subject, the massive focus
on substantive issues is rather striking, since most of these works seek to identify the
presumably true meaning of human dignity. It is not necessary, here, to recall or discuss the different definitions that have thus been produced.55 Instead, emphasis will
be placed on the fact that despite their high numbers, such works have not succeeded
in giving a stable meaning to the dignity principle. As C. McCrudden has it, generalization must not be mistaken for the achievement of uniformity; “there is little common understanding of what dignity requires across jurisdictions.”56 For that reason,
it is argued that it might be interesting to operate differently and focus on what the
human dignity principle does instead of on what it means.57 This alternate approach
will lead to the conclusion that, at least in its dignitarian interpretations, the principle
of human dignity and the ancient dignitas principle share the same function, structure, and regime.
2.1. Similar functions: Ground legal obligations
The unifying dimension of what has been called dignitarian interpretations of the
human dignity principle is that they strongly differ from “dignity as autonomy”
approaches.58 The essential difference lies in the fact that the dignitarian interpretations ground obligations59 (or prohibitions)60 rather than rights. In that, they very
much resemble the main function of the ancient dignitas.
For a survey, see Girard & Hennette-Vauchez, supra note 26; and McCrudden, supra note 15.
McCrudden, supra note 15; as well as the other references cited in that note.
57
Albeit differently (for he then turns to “the institutional use of the concept in human rights
adjudication”), McCrudden, supra note 15 at 64, also acknowledges the fruitlessness of substantive
approaches of the human dignity principle.
58
The notion of dignity-as-autonomy unfolds mostly in activist judicial and scholarly literature about
socioeconomic rights. For an example that draws mostly from German and South African references,
see Evadné Grant, Dignity and Equality, 7 Hum. Rts. L. Rev. 299 (2007). See also Rory O’Connell, The Role
of Dignity in Equality Law: Lessons from Canada and South Africa, 6 Int’l J. Const. L. (I·CON) 267 (2008).
59
Brownsword has coined this the duty-led approach; see Brownsword, supra note 23, at 536, 552: “For
the dignitarians, it is the duty to respect human dignity that is fundamental. Because it takes such a dutyled approach, rights are a reflex of prior duties; and transactions with rights holders are governed by the
duty side of the relationship, not by the rights side.”
60
From a theoretical standpoint, obligations and prohibitions belong to the same category, the latter being
a negative version of the former. See, for this perspective, A. Ruiz-Miguel & A.-J. Arnaud, Prohibition, in
Dictionnaire Encyclopédique de Théorie et de Sociologie du Droit 482 (2nd ed. 1993): “La relation entre prohibition et obligation est bien claire et se concrétise dans l’usage de la négation: prohibition et obligation
sont interchangeables moyennant la négation de la conduite dont il s’agit. . . . En d’autres termes, une
interdiction est une obligation negative.”
55
56
A human dignitas? Remnants of the ancient legal concept in contemporary dignity jurisprudence 43
Dignitarian readings of the human dignity principle are all about obligations. In
fact, this function of the human dignity principle is so primary that there has been
a debate in Germany as to whether it could ground anything else, namely, fundamental rights. Although the question ultimately received a positive answer, the sole
fact that it was asked is interesting.61 The kinds of obligations that stem from the
human dignity principle include the prohibition of dwarf-throwing,62 prostitution,63
peep shows,64 as well as the obligation of a competent patient to undergo unwanted
medical treatment.65 These solutions strongly resonate with the words of the ECtHR
judge L.-E. Pettiti according to whom dignity involves closer connections with duties
than with rights: “The exercise of rights does not necessarily reveal dignity. Dignity
has more to do with respecting duties and obligations.”66
In all theses cases, the source of the obligations is to be found in the concept of
humanity. The mode of reasoning invariably unfolds as follows: every human being is
a repository (but not a proprietor)67 of a parcel of humanity, in the name of which she
may be subjected to a number of obligations that have to do with this parcel’s preservation at all times and in all places. “Human dignity” is thus believed to synthesize all
the obligations that stem merely from belonging to humankind.68
Moreover, such obligations are understood to be of an objective nature and, therefore, binding on all legal actors: the state, third parties, and the individual herself
(at a later point I will return to this question of the individual’s obligations toward
herself). The German Federal Constitutional Court is probably the one legal actor that
has made this most explicit, repeating many times that the German legal order is articulated around an “objective order of values” that has the human dignity principle
at its core. This objective nature is crucial to securing the success of the principle of
human dignity. In fact, such objectivity reinforces considerably its actual normative
strength. As many authors have noted, the principle of human dignity often overrules
See Christian Walter, “Human dignity in German Constitutional Law,” in European Commission for Democracy
Through Law: The Principle of Respect for Human Dignity 26, 28 (1999).
62
Conseil d’État, Ass., 27 Oct. 1995, Commune de Morsang sur Orge, supra note 27.
63
Constitutional Court of South Africa, 9 Oct. 2002, Case CCT31/01, Jordan v. the State, supra note 31.
64
BverwGE, 1981, supra note 29.
65
Cour administrative d’appel de Paris, 9 juin 1998, supra note 33.
66
Louis- Edmond Pettiti, La dignité de la personne humaine en droit européen, in La Dignité de la Personne
Humaine 53, 57 (M.-L. Pavia, T. Revet eds., 1999) (emphasis added).
67
Cf. the quite telling expression coined by Catherine Labrusse-Riou. See Catherine Labrusse-Riou,
Servitudes, Servitude, in, L’homme, la Nature et le Droit (Bernard Edelman & Catherine Labrusse-Riou eds.,
1988), according to which the individual is “dépositaire, mais pas propriétaire” of human dignity.
68
As Olivier Cayla puts it: “[les] droits de l’humanité . . . sont précisément opposables aux individus lesquels
sont assujettis à des obligations envers cette humanité qui les transcende,” in Olivier Cayla, Le droit de se
plaindre. Analyse du cas (et de l’anti-cas) Perruche, in, Du Droit de ne pas Naître. A Propos de l’Affaire Perruche
48 (Olivier Cayla & Yan Thomas eds., 2002).
61
44 I•CON 9 (2011), 32–57
otherwise well-established principles;69 when it is given an absolutist interpretation,
this ensures that it will prevail in any kind of balancing or proportionality analysis,
when it does not disqualify such judicial modes of reasoning altogether. Again, it
is the German Federal Constitutional Court that has acknowledged, explicitly, the
inappropriateness of any kind of balancing when the principle of human dignity is
at stake: “Human dignity, as the root of all fundamental rights, cannot be balanced
against an individual right.”70 In other words, human dignity functions somewhat
like the Grundprinzip71 of legal orders or as a Dworkinian “trump.”72 A principle, however, that would not be a right and would only define founding prohibitions as central
and beyond the question (neither negotiable in intensity nor scope), because it is conditional to nothing less than man’s freedom.73
Such an obligation-oriented approach of the principle of human dignity shares
many similarities with that which once unfolded (and, in certain aspects, still does)
regarding dignity as rank (dignitas). There is no question that the very purpose of
rank-based dignity was also to ground obligations and prohibitions: obligations to
respect, to treat in certain ways, to yield to, to comply with orders given by, and the
like. Anyone who infringed such obligations was to be sanctioned (the dignitas bearer
As recalled earlier, the French judicial settling of the dwarf-throwing cases eventually amounted to
reversing the liberal principle according to which everything that is not prohibited is permitted, for there
were no grounds other than the ad hoc ground created by human dignity principle for upholding the
municipal police orders that prohibited the show. The best piece on this aspect of the dwarf-throwing
case in France is by Olivier Cayla, Le coup d’État de droit, 100 Le Débat 108 (1998). More generally and
in a comparative perspective, see also the interesting comparative developments on the human dignity
principle as a ground for limiting freedom of contract in Maria Rosaria Marella, The Old and New Limits to
Freedom of Contract in Europe, 2 Eur. Rev. Cont. L. 257 (2006).
70
This, again, has been explicitly expressed by the German Federal Constitutional Court (BVerfGE 93, 226
(1995): “Human dignity, as the root of all fundamental rights, cannot be balanced against an individual
right,” cited by Craig T. Smith, Thomas Fetzer, The Uncertain Limits of the ECJ’s Authority: Economic Freedom Versus Human Dignity 10 Colum. J. Eur. L. 445, 451(2004)). For further analysis of German constitutional law in this respect (and the demonstration that “when a particular right or other value is described
as engaging dignity, this indicates that the court considers that considerable (even in some cases overwhelming) weight should be attributed to it”), see McCrudden, supra note 15, at 67–68. But beyond the
obvious German example, it is worth insisting that this idea is present elsewhere. For an example, see
the words of the deputy secretary of the Venice Commission: “Dire que le respect de la dignité humaine
constitue le noyau dur du patrimoine constitutionnel européen implique qu’on associe cette valeur à des
droits qui ne sauraient souffrir aucune diminution, aucune restriction, même en cas de circonstances
exceptionnelles,” in Commission européenne pour la démocratie par le droit, above n 14, 12–13.
71
I allow myself this formula in order to echo Muriel Fabre-Magnan’s analogy between the human dignity
principle and the Kelsenian hypothetico-deductive Grundnorm. See Muriel Fabre-Magnan, La dignité en
droit: un axiome, Revue Interdisciplinaire d’Etudes Juridiques 1, 10 (2007).
72
Ronald Dworkin, Rights As Trumps, in Theories of Rights (Jeremy Waldron ed., 1985).
73
This is what Alain Supiot calls “law’s dogmatic function,” which he defines as one of “interposition” and
“prohibition”; see Alain Supiot, Homo Juridicus. Essai sur la Fonction Anthropologique du Droit 82 (2005).
This book has been translated into English—see Alain Supiot, Homo Juridicus: on the Anthropological
Function of the Law (2007).
69
A human dignitas? Remnants of the ancient legal concept in contemporary dignity jurisprudence 45
as well as any third party). Offenses to a dignitas bearer were sanctioned by whatever punishments were associated with insult or affront.74 The bearer herself could
be degraded,75 condemned, or even exiled76 if found guilty of disrespect toward the
dignitas inhering within or pertaining to her.
To this day, the specific function of the rank-based conception of dignity has not disappeared, as the laws of citizenship77 or the law of professions78 demonstrates. A statistical analysis of judicial usages of the concept of dignity in French law reveals that
a critical proportion of them (49.8 percent) actually are references to a dignitas-like
dignity, and not human dignity.79 Such numbers put the assertion that the remnants
of rank-based dignity are still quite strong well beyond question, and this, is turn,
strengthens the tentative investigation into genealogical links between ancient dignitas
and dignitarian interpretations of human dignity. If the former remains more vigorous
than is generally held, the idea that it informs or influences some contemporary uses
of the human dignity principle becomes more plausible. It is my understanding that
the survival of direct instances of rank-based dignity has been instrumental in the
development of a dignitarian human dignity jurisprudence; the idea’s vocabulary and
grammar were plainly available.
2.2. Similar structures: Ground obligations toward oneself
Beyond the fact that they share similar functions as grounds for obligations, ancient
and dignitarian dignity also share similar structures in that both serve as justifications
See in Roman law, the actio iniurarium as well as, later on, the legal mechanisms intended to compensate
for insult that have notably been analyzed by Whitman, supra note 21.
75
See many examples in Charles Loyseau, A Treatise of Orders and Plain Dignities (H. A. Lloyd ed. & trans.,
1994) (1610), especially 182 on “Solemn deprivation of order”; and, for an example, an excerpt from the
Justinian code, on 188: “Judges convicted of being defiled by deceitful and wicked acts shall be deprived
of their badge of office and dignity and placed among the plebeians; nor shall they afterwards delight in
those honors of which they have shown themselves unworthy.”
76
C. R. Miguel, Human Dignity: History of an Idea, 50 Jahrbuch des öffentlichen Rechts 281 (2002).
77
In a historical perspective, see Derek Heater, What is Citizenship? 85 (1999): “For long in the classical
world citizenship was a status to be coveted, a privilege to be prized, therefore the possession of a worthy
elite. . . . If the honour ‘of citizenship’ was diluted, it was meaningless. For those who have earned it, its
dilution was an insult.” Also, this rank/dignitas-inspired notion of citizenship explains the offenses of
“civic degradation” [dégradation civique] or “national indignity” [indignité nationale] that allowed persons
who had behaved against the nation to be stripped from civic and political rights. See Anne Simonin, Être
non-citoyen sous la Révolution Française. Comment un sujet de droit perd ses droits, in Citoyens et Citoyenneté
sous la Révolution Française 289 (Raymonde Monnier ed., 2006); and Anne Simonin, De l’indignité nationale
à l’atteinte à la dignité nationale: a-t-on jugé le bon crime?, in Traîtres et Trahisons. Guerres, Imaginaires Sociaux
et Constructions Politiques 90 (Sylvain Boulouque & Pascal Girard eds., 2007). For the most contemporary
perspective on the subject, see the role of the rhetoric of “dignity” in naturalization processes, such as
analyzed by Didier Fassin & Sarah Mazouz, Qu’est-ce que devenir français ? La naturalisation comme rite
d’institution, 48 Revue Française de Sociologie 723 (2007).
78
For legal professions in general, see, The Legal Professions in the New Europe 84, 186, 225, and 289
(Allan Tyrell & Zahd Yaqub eds., 2nd ed. 1996) for examples drawn from the Belgian, Greek, Italian, and
Portuguese laws of professions. But dignity as rank also plays a great role in the legal construction of the
obligations of civil servants—see Jacques Ziller, Egalité et Mérite. L’accés á la Fonction Publique dans les
états de la Communauté Européenne (1988)—or physicians.
79
Girard & Hennette-Vauchez, supra note 26, at 107, 114.
74
46 I•CON 9 (2011), 32–57
for very specific types of obligation, that is, obligations toward oneself, which otherwise rests on rather uncertain theoretical grounds.
Indeed, there is a particular magic to the concept of dignitas, namely, its capacity to
ground obligations that can be imposed not only on third parties but also, and quite
remarkably, on the dignitas bearer herself. As Kantorowicz remarks: “Kings not rarely
were charged—we may think of Edward II or Richard II—with having blemished and
prejudiced the Crown and the royal dignity and the heirs of England.”80 To be sure,
there is an element of artifice in such a construction, for it rests (in Kantorowicz’s
words) on the fiction of the bearer’s “two bodies”: one by virtue of which she is subjected to a number of obligations and another by virtue of which she is dignified. In
other words, while the obligations that stem from dignitas may appear to be obligations the bearer has toward herself, in fact, they are directed toward the function, the
office in her; they are linked to the office and not to the person.
Again, such crucial features of the ancient concept of dignitas have not disappeared;
contemporary illustrations may be found, for example, in the law of professions,
which remains another contemporary locus of dignitas-like manifestations of the
dignity principle. Indeed, up to the present day, in most countries, many judicial
offices (such as the magistrature) still speak of “honor” and “status” much as they
did under the Roman Empire81 or in medieval times.82 They often are defined as offices
for which one must be sufficiently dignified to hold or to exercise, and any breach of
the corresponding obligations may result in professional sanctions.83 This is true for
a significant number of other professions as well as for most systems of civil service.
Interestingly, such mechanisms have been transposed to dignitarian human
dignity jurisprudence. In fact, the ability to ground the obligations of the individual
toward herself is the most striking feature of these jurisprudential trends, since it allows
judges to ignore or overlook an otherwise crucial element: the individual’s consent.
In the examples that were cited earlier, consent to allegedly undignified behavior has
been deemed irrelevant in many instances, as the Court explained to the German
stripteaser,84 the South African prostitute,85 the French dwarf,86 and even—again, in
Kantorowicz, supra note 44, at 383.
See “Honor (honos): The dignity and privileges attached to the power of a magistrate, both in Rome
and municipalities; hence the reverence, consideration due to him (honorem debere, tribuere). Honor is
frequently synonymous with magistratus. When both terms occur together, magistratus refers to the power
and its exercise, whereas honor covers the dignity, rank and privileges connected with a magistracy.
Honor was extended later to any honorific position occupied by a person in a municipality,” in Adolf
Berger, Encyclopedic Dictionary of Roman Law 488 (1953).
82
As Kantorowicz observes: “[the presidents of Parlement] represent the King’s person or the doing of
Justice, which is the principal member of his Crown and by which he reigns and has sovereignty.” See
supra note 44, at 415.
83
See for example French Ordinance n° 58-1270 of 22 December 1958 article 43: “any breach of the
duties linked to [a judge’s] status, to honor, to tactfulness or dignity, constitutes a disciplinary fault”
[my translation].
84
See the Peep Show case referred supra note 29.
85
See the Jordan decision by the Constitutional Court, supra note 31.
86
See decision cited above supra note 27.
80
81
A human dignitas? Remnants of the ancient legal concept in contemporary dignity jurisprudence 47
France—to participants in a reality TV show.87 The sheer irrelevance of the individuals’
consent appears clearly in the commissaire de gouvernement’s plea at the Conseil d’État
in the dwarf-throwing cases: “the respect for human dignity, an absolute concept
if any, cannot accommodate any kind of concession dependent on subjective
appreciations.”88
The particular ability of the dignitas-concept of dignity to ground obligations toward
oneself (or, more accurately, toward the status in the self) is all the more interesting,
from a strategic point of view, in that it corresponds to the normative aim of many
who would promote for similar purposes the contemporary principle of dignity, which
is otherwise difficult to ground theoretically.89 Numerous and diverse are the works
of political and legal philosophy that identify “Others” as valid grounds for limiting
or restricting the exercise of individual rights. Less numerous are those that conceive
of oneself90 as validly performing the same function.91 (Some theoretical works even
deny the very idea that rights or obligations toward oneself exist.)92 Thus, it follows
This actually does not stem from a judicial decision, but from a sanction taken by an administrative
body, the Conseil Supérieur de l’Audiovisuel (broadcasting authority). It obliged the TV channel that
was airing the first reality show not to film the “players” constantly, out of respect for human dignity,
even though they might have consented to it (CSA, communiqué n. 449, 14 may 2001: “Quel que soit
l’objectif poursuivi par les programmes et en dépit du consentement exprimé par leurs participants, il est
impératif, au regard du respect de la dignité de la personne humaine, que ces participants disposent de
moments et de lieux où ils ne sont pas soumis à l’observation du public. Le Conseil demande donc que
ces programmes comportent des phases quotidiennes d’un répit de durée significative et raisonnable ne
donnant lieu à aucun enregistrement sonore ou visuel ni à aucune diffusion” (emphasis added).
88
P. Frydman, Conclusions on C. E., Ass., 27 oct. 1995, Cne de Morsang sur Orge et Ville d’Aix en Provence,
Revue Française de Droit Administratif 1209 (1995).
89
See, generally, the important works of Olivier Cayla, in particular those referenced in supra note 69.
90
It may be emphasized here that I refer here to legal and political philosophy—and not to moral philosophy.
However, I believe it would be too simple to draw normative (legal) consequences from Kant’s (“So act
that you use humanity, whether in your own person or in the person of any other, always at the same
time as an end, never merely as a means”), Ricoeur’s (since “Self” is “as Another”) or others’ moral precepts or axioms. Principles of moral philosophy may not be simply transposed from the moral to the legal
field. Not to mention the very serious analysis of Waldron’s, according to which: “some Kantians write as
though ‘dignity’ were synonymous with ‘worth’, or as though it were a word that we could substitute for
the phrase ‘the intrinsic worth that inheres in every human being’. This provides an evaluative meaning
to the term ‘dignity’ that is quite thin. It is not conveying much more than the word ‘value’ provides,”
“Dignity and Rank,” supra note 22, at 206.
91
It might be added that moral philosophy of the twentieth century, in particular, has insisted on what has
been called the ethics of responsibility, based on the idea that man is under a number of obligations for
the sole reason that he is a man. Levinas and Jonas, among others, have argued this point. They, however, also have been severely criticized, notably for the “absolute confusion between ethical and juridical
categories” they have favored. See Giorgio Agamben, Remnants of Auschwitz: The Witness and the Archive
20–25 (Daniel Heller-Roazen trans., 1999).
92
This is what an author like F. C. von Savigny has to say in Traité de droit romain trad. Ch. Guenoux
(Paris: Firmin Didot, 1840), t. 1, as he expresses his tripartite vision of the empirical world. According
to him, the individual is situated at the center of three concentric circles, of which she forms the nucleus
(the original “me”); the second circle is defined as “me extended by family”; and the third circle refers to
the external world. Within this framework, Savigny argues, there is no law, no legal relationships in the
nucleus: “the primitive me. . . is out of reach of positive law” (at 338).
87
48 I•CON 9 (2011), 32–57
that the concept of dignity appears to be of immediate theoretical interest to those who
wish to fill what they consider a legal gap, that is, the absence of a general principle
that would serve, straightforwardly, as a ground for defining the legal obligations
of the individual toward herself. Maybe this aim partially overlaps with that which
Jeremy Waldron has assigned himself in his works on rights as responsibilities and
the role of the concept of dignity therein.93 At any rate, this particular aspect most
likely can be seen as the critical element of dignitarian human dignity jurisprudence
in Western legal orders.
2.3. Similar regimes: Inalienability
Finally, similarities in the legal regime associated with the dignity principle in both
its ancient (dignitas) and contemporary manifestations must be added to the previous
functional and structural parallels. Indeed, both versions of the dignity principle
seem to rely heavily on the concept of inalienability (“nonrenounceability”)94 when
it comes to their legal regime. The theoretical stakes are high on this particular issue,
for the question of human dignity’s inalienability reopens the wider issue of rights
waivers in general. It is well-known that the question of waiving rights is a highly
difficult one. Admittedly, it is somewhat disturbing to imagine a situation in which a
given individual behaves in a way that is exactly opposite to the one that is generally
expected of her—which is the case, for instance, when she waives fundamental rights.
It can indeed convincingly be argued that the quest for and recognition of human
rights have been sufficiently long and painstaking processes for one legitimately to
expect that their beneficiaries would not want to renounce them. This is probably
why human rights literature sometimes expresses uneasiness toward the whole issue
of fundamental rights waivers and finds it somewhat discomforting95 to reflect on
the case of the patient who refuses a benign and lifesaving treatment or of the mute
convict who refuses to be defended by a lawyer. Such embarrassment thus finds refuge
in the poorly demonstrated idea96 that that human rights (or, at least, core human
rights) are inalienable and, hence, cannot be renounced.
The European Court of Human Rights initially if implicitly had intended as much;
in 1983, it declared that “admittedly, the nature of some of the rights safeguarded by
See, in particular, the references listed in supra note 22.
The word “nonrenounceability” seeks to emphasize that I am referring, here, to only one of the multiple meanings of the notion of inalienability, namely, the sense according to which something (in this
case, rights) cannot be relinquished by their holder because they are unavailable to her; her consent is
irrelevant. This is certainly not to deny the many other possible meanings of inalienability (rights that
are nonsalable, nontransferable, nonforfeitable); for a list and references on these many meanings, see
Margaret Jane Radin, Market Inalienability, 100 Harv. L. Rev. 1849, 1849–1851(1987).
95
For instance, Diana Meyer, Inalienable Rights: A Defense (1985); Bénédicte Lavaud-Legendre, Oú sont Passées
les Bonnes Moeurs? 127 (2005): “Il est choquant d’affirmer que le droit protège la liberté d’avoir un comportement contraire à sa propre dignité.”
96
Philippe Frumer, La Renonciation aux Droits et Libertés. La Convention Européenne des Droits de l’Homme
a l’épreuve de la volonté Individuelle (2001) insists that the notion of fundamental rights’ inalienability is
both omnipresent and left undemonstrated in most of legal scholarship.
93
94
A human dignitas? Remnants of the ancient legal concept in contemporary dignity jurisprudence 49
the Convention is such as to exclude a waiver of the entitlement to exercise them.”97
However, such a difficult question does not admit of blunt and categorical answers;
the European Court itself never went much further down that path. Notably, it did not
engage the issue on the terrain where it would be most expected—that of developing
a theory according to which those rights for which the Convention itself excludes the
possibility of derogations (that is, those listed under article 15) are not susceptible to
waiver. As a consequence, it must be admitted that in ECHR law, as in other instances
and absent clear rulings to the contrary, fundamental human rights98 may be waived.
Thus, it follows that if human dignity were considered a human right it would be
exposed to similar challenges. It would indeed follow, necessarily, that, like other
human rights, human dignity potentially could be waived.99 It can easily be seen that
such a perspective openly contradicts an important element of the axiological grounds
on which the human dignity principle has flourished in contemporary legal thought.
A critical aspect of the interest contemporary legal scholars have in the human dignity principle has to do precisely with the fact that they believe it can be described
as presented an absolute, transcendent, inalienable, and axiomatic principle—their
analyses often invoking some of the above-mentioned positive law formulas when
referring to the human dignity principle’s objective dimension. For many authors, the
major interest in the human dignity principle, thus, is linked to its presumed capacity to
escape the tragic fate of all other human rights,100 implacably undermined—despite
E.Ct.H.R., 10 Feb. 1983, Albert et Le Compte, §35; the Court cautiously went on: “but the same cannot be
said of certain other rights.” Additionally, there are scattered examples throughout the European Court’s
case law of rights deemed to be inalienable (see notably, that of “personal liberty” in the 1969 De Wilde,
Ooms and Versyp report of the European Commission of Human Rights (§172 cited by Ph. Frumer, above
n 125 at 11); or that of the right not to be discriminated against (European Court of Human Rights, D.H.
v. Czech Republic, 13 Nov. 2007, not. §204). However in the former case, the idea of nonrenounceability
is only present in the Commission’s report, but not in the later decisions the Court rendered in that case;
and in the latter case, the Court expressed doubts as to the very consent of the individuals in question
(in other words, it did not consider they had voluntarily waived their right, which thus makes this case a
case of nonforfeitability rather than nonrenounceability).
98
Frumer, supra note 96, at 412–415, convincingly argues that no difference is to be made in this respect
between procedural and substantial rights.
99
Even Frumer, however, who tries to validate the hypothesis according to which human dignity would be
a ground for ascertaining fundamental rights’ inalienability, recognizes that he does not manage to do
so satisfactorily. Read, for example, at 319: “the current strengthening of the human dignity principle
would a priori be an indication that an irreducible minimum of rights so inherent to the human person
that they could not be waived exists. However, such an idea is only in the cradle, and one must at this
stage avoid any speedy conclusion” (my translation). Further, Frumer eventually rejects the idea (see at
447sq.).
100
Symmetrically, many efforts are also undertaken in order to oppose as invalid all legal usages of the
human dignity principle that ignore such presumed specificity. See, for example, how significant trends
of French legal scholarship have criticized the Constitutional Council’s recourse to the human dignity
principle in the field of social rights, on the grounds that it induced contingency into this absolute principle; see the contribution by Bertrand Mathieu in Constitution et Ethique Biomédicale 50–51 (Noëlle
Lenoir, Bertrand Mathieu, & Didier Maus eds., 1998): “L’extension du principe de dignité à des droits
sociaux que le Conseil constitutionnel a opéré dans une décision postérieure, conduit à protéger non plus
la personne humaine mais l’individu, aux prises avec les contradictions et les tensions du champ social.
Le principe de dignité perd alors de sa spécificité, il est dilué, rabaissé au niveau des autres droits sociaux
avec lesquels il entre alors en concurrence”).
97
50 I•CON 9 (2011), 32–57
many efforts to oppose this—by their alienability. This explains the relentlessness of
significant trends in legal scholarship to convince us that the human dignity principle is not similar to other legal principles, that it is sui generis. The human dignity principle, therefore, is often said to be a “matrix”101 more than a regular legal
principle; it is presented as “absolute,”102 “objective.”103 In other words, “it is a very
unique legal principle,”104 altogether different from the others. Some authors even go
as far as to refuse to consider human dignity as a right105 in order to oppose the idea
of its “renounceability” in an even more convincing manner. What is of interest here,
for the sake of our demonstration, is the justification upon which this claim for the
human dignity principle’s uniqueness and specificity rests. How, then, do these trends
in scholarship argue in favor of the idea according to which, since human dignity is
inalienable, its bearers cannot renounce it? It is argued that status-based dignity, provided as it is with many attractive and strategic features, enables a conceptual operation that allows for the transposition of its inalienability to the contemporary human
dignity principle.
There is no doubt about the fact that dignitas is inalienable in the particular sense
of being beyond the reach of its bearer’s will (unavailable to her). Be it in its Roman
or medieval version, in the contemporary laws of professions or of citizenship, dignitas
is, by definition, exterior106 to and out of the individual’s reach. The dignitas bearer
appears to be a merely temporary repository of the dignity vested in her; as a vulgar
mortal, she is implacably submitted to dignity’s brilliant eternity and atemporality.
Once again, that this particular magic can operate is thanks to the fact that what
dignitas really is linked to is the function and not the person. This is evidenced by many
of the technical aspects of dignitas as a legal concept. For instance, Kantorowicz clearly
establishes that all honors, all obligations of respect, all the obligations that derived
Bertrand Mathieu, Pour la reconnaissance de ‘principes matriciels’ en matière de protection constitutionnelle des
droits de l’homme, Recueil Dalloz 211 (1995).
102
Bertrand Mathieu, La dignité de la personne humaine: quel droit? quel titulaire?, Recueil Dalloz
282(1996); see also Noëlle Lenoir, Bioéthique, Constitutions et droits de l’homme, Diogéne 13, 26 (1995):
“the dignity principle is of an absolute nature. This means that it cannot be subjected to any restrictions,
unlike the other principles, those that found liberties”; and at 29: “As a source of new specific rights,
and as a general principle of absolute nature, human dignity appears to be the one right from which one
cannot derogate.”
103
McCrudden, supra note 15, insists on the objective and systematically prevailing force of the human
dignity principle.
104
Fabre-Magnan, supra note 71, at 13 ; and also Lenoir, supra note 102, at 26: ““Every man is all mankind”: the famous phrase by J.-P. Sartre summarizes the legal and philosophical scope of the dignity principle, in that it is to be distinguished from all other existing legal principles.”
105
Cf. the above-mentioned debate in German legal scholarship as to whether the human dignity principle
was (only) an overarching value or also a fundamental right; in France see, for example, Bernard Edelman,
La dignité de la personne humaine, un concept nouveau, Recueil Dalloz 185 (1997), or Fabre-Magnan, supra
note 71.
106
See Hubert Cancik, Dignity of Man and ‘Personal’ in Stoic Anthropology: Some Remarks on Cicero, De Officiis,”
in The Concept of Human Dignity in Human Rights Discourse 19 (David Kretzmer & Eckart Klein eds., 2002),
according to whom the word dignitas “denotes worthiness, the outer aspect of a person’s social role.”
101
A human dignitas? Remnants of the ancient legal concept in contemporary dignity jurisprudence 51
from the notion of royal dignitas were only due to the king (corpus politicum) and were
not to be paid to the king (corpus naturale). This is why medieval jurists commonly
examined whether legal acts (contracts, delegations, and so forth)107 had been signed
by the person-king or the dignity-king (facta personae or facta dignitati108). The stakes
were high, indeed, for in the latter case, the king’s immortality attached to the legal
acts he took, hence their bindingness upon his successor.
Similarly, the royal funeral ceremonies clearly established this duality, for the flesh-andblood king deserved no particular grandeur. In fact, separate rites could be held for the
burial of each of the two dimensions of kingship: “one ritual of the Church, observed
by the clergy for the misery of the naked or half-naked man in the coffin . . . and
another ritual of the State, celebrating through the effigy109 the immortal and regal
dignity exposed in the coffin.”110All these elements reflect the strong duality the concept of dignitas implies in medieval legal and political constructions; coincidentally, it
has to do with the physical person but functionally it is mostly attached to an office.
Historically, this royal dignitas was progressively extended to members of the clergy
or the nobility; its function, however, remained the same. As H. Spiegelberg put it:
“Dignity . . . is a matter of degree. It . . . is subject to change, to increase and decrease.
It can be gained and lost. It finds its expression in such dignities as are conferred on
‘dignitaries’ through honors or titles and can be expressed in dignified or undignified
comportment.”111 Because it varies according to the individuals in which it is vested,
dignitas is not an ontological quality—hence its unavailability to the individual.
The thesis proposed here is that this technical conceptual construction has been
copied and imported into contemporary legal thought and jurisprudence as it pertains
to human dignity. By many means, the notion of humanity has been used as a mediator between the individual and human dignity. As an abstract concept that has to do
with eternity and atemporality, humanity may well be described as deposited within
each and every one of us. Yet at the same time, humanity remains unchallenged by
individual disappearances; it is eternal and atemporal. In other words, “dignity” in
the contemporary human dignity principle is linked to humanity but not to individual
men and women. This allows for the notion of humanity to play the same role that
specific (social, professional, religious) functions used to play in the ancient concept of
dignitas. Its mission is to operate as a mediator between the individual and dignity and
to make the latter incapable of being alienated by the former. Since human dignity
109
110
Kantorowicz, supra note 44, at 398.
On this distinction, Kantorowicz, supra note 44, at 385–86.
For important discussion on the role of the effigy in this respect, Kantorowicz, supra note 44, at 422.
Kantorowicz, supra note 44, at 425. There are also enlightening analyses, at 429, as to why the “successor king had to stay away” from ceremonial involvements, for “the new king could not at once wear
mourning and not wear mourning; nor could he, at the same time, act the person of the Dignity and cede
this privilege to the effigy of his deceased predecessor.”
111
H. Spiegelberg, quoted by Beyleveld & Brownsword, supra note 20, at 50.
107
108
52 I•CON 9 (2011), 32–57
relates to humankind more than it does to the human individual, it remains out of the
latter’s reach:112 she cannot renounce it, she is stuck with it.113
This is precisely the mode of reasoning that underlies many judicial usages of contemporary human dignity principle, perhaps more conspicuously in German law than
elsewhere. As explained above, the Federal Constitutional Court has made it clear
that, as the cardinal point of the “objective order of values”114 upon which the entire
German legal order rests, the human dignity principle does not refer to the individual
but to the human species.115 Hence the explicit statements as to the impossibility of
renouncing the principle116 and other examples are but variations on the same theme;
the human dignity referred to is the human dignity of humankind, and not of the sole
individual.
Another French case is still more enlightening from this perspective. At the
beginning of the 1990s, the Benetton clothing company decided to go for yet another
provocative advertising campaign based on photographs representing body parts
tattooed with the words “HIV Positive.” AIDS patients’ associations as well as public
opinion were quite shocked by the ad, and the former eventually sued the company
and won their case. The Benetton company was found guilty of exceeding the limits
of freedom of expression in that it had recourse to “degrading symbols stigmatization”
that injured “the dignity of people who suffer in their flesh and soul,” by “provoking or
accentuating, at their expense, the phenomenon of exclusion.”117 What is most interesting, from our perspective, is the technical fact that the petitioners in this case had
no actual link with the incriminated photographs; none of them had modeled for the
photographs the campaign was based on, none of them had a relationship with the
Benetton company. Therefore, the court could have dismissed the case on the basis
that the legal grounds chosen by the petitioners (a violation of their right to respect
See Edelman, supra note 105; and also Fabre-Magnan, supra note 71, at 21: “in fact, the human dignity
principle . . . does not have the protection of a particular person as a horizon, no more than that of a particular group of persons; it aims at protecting humanity in general.”
113
I borrow the expression from Eric Heinze, Sexual Orientation: A Human Right 143 (1995): “fundamental
rights . . . may not be so readily compromised. They may not be taken away (e.g. by force) or even contracted away (e.g. by consent). We are stuck with them, for we are stuck with our humanity.”
114
On this notion, see Olivier Jouanjan, La conception allemande des droits fondamentaux Actualité Juridique
Droit Administratif 44 (1998).
115
BVerfGE 87, 209 (1992): “Human dignity is not only the individual dignity of every person, but also
the dignity of the human being as a species. Everybody possesses human dignity, regardless of his characteristics, achievements, or social status; those who cannot act in a meaningful way because of their
physical or psychological condition also possess human dignity. It is not even forfeited by means of
‘undignified’ behavior; it cannot be taken away from any human being.” An English version may be
found in Michalowski & Woods, supra note 28, at 99.
116
BVerwGe, 15 déc. 1981, cited by Frumer, supra note 96, at 463. An English version may be found in
Michalowski & Woods, supra note 29, at 105. “This violation of human dignity is not excluded or justified
by the fact that the woman performing in the peep show acts voluntarily. Human dignity is an objective,
indisposable value, the respect of which the individual cannot waive validly”.
117
Cour d’Appel de Paris, 28 mai 1996, Recueil Dalloz, 618 (1996), commentary by Bernard Edelman.
112
A human dignitas? Remnants of the ancient legal concept in contemporary dignity jurisprudence 53
for a private life) were inappropriate for condemning offenses that had nothing to do
with these particular individuals. However, the court decided differently and judged
that the petitioners’ membership in humankind alone constituted a sufficient ground
for their course of action; it thus admitted the case and eventually upheld their views.
The human dignity principle may well be said to operate as a mediator between humanity and the individual.
3. Dignitarian human dignity jurisprudence as heir to
ancient dignitas
To be sure, it may seem rather counterintuitive to compare ancient dignitas and the
contemporary principle of human dignity—let alone to assert the existence of any
kind of genealogical relationship between the two. Indeed, when one refers to the legal
dictionaries,118 it is only to see how tenuous is the link. While human dignity is readily
defined as an ontological concept (it is something with which all human beings are
endowed solely by virtue of being human) and is generally associated with equality
(for precisely its main feature is that it is bestowed equally upon men and women),
dignitas, on the other hand, appears contrarily to refer to inequality. As an element of
social distinction, it necessarily indicates the existence of a hierarchy. Moreover, dignitas is not specifically human: institutions, the state, its emblems,119 and the like may be
dignified in that sense. In other words, whereas human dignity is defined as a quality
that cannot be withdrawn, the whole point of dignitas is that it can be awarded and
taken away, bestowed and withdrawn—not to mention all the possible intermediary
positions by means of demotion, degradation, deprivation, and so forth.
This apparently strong contrast between dignitas and human dignity is the reason
the concept of dignitas often remains overlooked by scholarship relating to the human
dignity principle. In the words of David Feldman, “[I]t is not human dignity of the sort
which could conceivably be treated, in a sane world, as a fundamental value or as capable of generating a fundamental constitutional right.”120 Jeremy Waldron similarly
acknowledges that it “may seem an unpromising idea for human rights discourse, for
such discourse is characteristically egalitarian.”121 However, he deems the reversal of
the picture to be heuristically valid—as does this paper, hypothesizing the existence of
a strong genealogical link between the ancient legal dignitas principle and the contemporary “dignity of the human person.”
See, for example, Black’s Law Dictionary 488 (8th ed. 2004): “Dignity: 1. The state of being noble; the
state of being dignified 2. An elevated title or position 3. A person holding an elevated title; a dignitary 4.
A right to hold a title of nobility which may be hereditary or for life.”
119
American law, for example, is familiar with notions such as the dignity of the state, of the flag, of the coat
of arms. Generally speaking, as far as nonhuman usages of the human dignity principle are concerned,
see Judith Resnik, Julie Chi-hye Suk, Adding Insult to Injury: Questioning the Role of Dignity on Conceptions
of Sovereignty, 55 Stan. L. Rev. 1921(2002–2003).
120
Feldman, supra note 10, at 682.
121
See Waldron, “Dignity and Rank,” supra note 22, at 216.
118
54 I•CON 9 (2011), 32–57
Albeit counterintuitive and thus frequently misjudged or even silenced, the idea of
a genealogical link between dignitas and dignity of the human person has been argued
before, notably by James Q. Whitman122 and Jeremy Waldron.123 In several works,
J. Q. Whitman has suggested that the commonly told story of the principle of human
dignity coming to existence in the wake of World War II is erroneous. According to
him, the principle’s historical origins are to be found in the old legal norms of honor.
He explains that throughout the centuries, honor-protection mechanisms were gradually extended to everyone (the “leveling up process,”124) and that, subsequently, the
protection afforded to the layman or woman was elevated to the level only the upper
classes of society initially enjoyed.125 The generalization of these ancient norms of
honor unfolded to the point of applying to the entire population, ultimately resulting
in the contemporary human dignity principle: “human dignity for everybody, as it
exists at the end of the 20th century, means definitive admission to high social status
for everybody.”126
Further along that line of reasoning, Jeremy Waldron has suggested that it was
valuable to explain (certain) rights as the result of a “universalization of rank”: “it
gives us a useful and salutary perspective on these rights. For, in each case, there is a
concern that familiarity with these rights may breed if not contempt then an underestimation of what they mean so far as our implicit rank is concerned. I think that if
we review each right and ask what its equivalent would have meant to some noble in
a pre-egalitarian society, we can get a better grip on the real significance of the right to
all of us who enjoy it now and see something special and distinctive about the dignity
that its in possession by each of us indicates.”127
The present article’s main claim both draws from and seeks to extend this dimension
of Whitman’s and Waldron’s work. As the two previous sections have shown, this
paper draws from their work insofar as it shares the assumption according to which it
is heuristically stimulating to hypothesize a genealogical continuity between dignitas
and human dignity. However, it also pushes the hypothesis further, by arguing that,
although equal dignity—that is “empowerment dignity” in the form to which it was
See references above, supra note 22.
See references above, supra note 22.
124
See, for instance, Whitman, The Two Western Cultures of Privacy, supra note 21, at 1166 as well as
Whitman, Enforcing Civility and Respect: Three Societies, supra note 21, at 1387: “there is authentic
egalitarianism in European dignitary culture, but [that] it is a high-status egalitarianism. . . . Today, it is
the deep ambition of European dignitary thinking to make all persons high-status-equals.”
125
Whitman, On Nazi ‘Honor’ and New European ‘Dignity’, supra note 19, at 245–246: “Modern ‘dignity,’ as
we see it in continental legal cultures, is in fact often best understood, from the sociological point of view,
as a generalization of old norms of social honor. . . . What has happened, in continental Europe, is indeed
fundamentally this: old norms of ‘honor’, norms that applied only to aristocrats and a few other highstatus categories of persons in the 17th and 18th centuries, have gradually been extended to the entire
population.”
126
Whitman, On Nazi Honor and New European Dignity, supra note 19.
127
Waldron, Dignity and Rank, supra note 22, at 232–233.
122
123
A human dignitas? Remnants of the ancient legal concept in contemporary dignity jurisprudence 55
most commonly elevated after World War II (for instance, the Universal Declaration
of Human Rights)—can be pictured as the result of a leveling-up process applied to
old norms of honor, the same may not hold true for the dignitarian uses of the dignity
principle that insist on its human (rather than its equality) dimension. In addition,
although the idea that the importance of social status massively decreased as a mode
of social organization throughout the nineteenth century seems pretty much beyond
question, it may be doubted that such a generalization was ever pushed to its full
consequences: Have ancient norms of honor ever become applicable to everyone?
A positive answer is hardly plausible. Even though generalization did occur, the process never became comprehensive.128 In other words, the quintessentially status-based
logic of the norms of honor has not reached the point of being fully subverted by its
generalization. Such contentions are grounded in the very fact that the status-based
logic of ancient dignitas has not disappeared and still infuses many contemporary bodies
of law. As we have seen, the law of professions or the law of citizenship, for example,
provide us with many illustrations of legal norms that are attached to specific functions and do not, by definition, apply to everyone. Granted, the ancient notion of
dignitas did evolve; its initial scope, limited as it was to the protection of the honor
due to certain persons because of their rank and functions, did widen. However, its
intrinsically status-based (and thus unequal) meaning did not disappear; the ancient
dignitas’s extension in scope was not pushed to the point of applying to everyone under
the auspices of a dignity principle.
Therefore, the argument presented here relies to a great extent on an element that
seems to have been overlooked by both Whitman and Waldron; that is, the lack of
a unified and permanent meaning of the dignity principle throughout the twentieth
century. In fact, the analyses presented here derive from an observation of the strong
differences between equality and humanity, seen as two competing, contemporaneous
poles between which the dignity principle is torn. This would contradict the view,
therefore, that the contemporary conception of dignitywould be internally coherent,
or sufficiently so, if viewed solely as the result of the evolution of dignitas. In other
words, I question whether the leveling-up process ever would have been—or if it ever
has been—pushed to its logical conclusion, that is, the ultimate subversion of its own
inegalitarian roots. Rather, the view presented here insists that inegalitarian elements
are still at play in contemporary dignity jurisprudence.
In other words, my contention is that while Whitman’s and Waldron’s perspectives
allow us to understand that our most praised human rights’ rationales have aristocratic or inegalitarian roots, it is actually worth considering that this link between
dignitas and, at least, dignitarian understandings of the human dignity principle is
not just a matter of historical roots. In fact, the aristocratic and inegalitarian components of dignitas may be thought to have some holding power still, for the leveling-up
See this idea also put forth by Gerald L. Neuman, On Fascist Honor and Human Dignity: A Skeptical
Response, in Darker Legacies of Law in Europe: The Shadow of National Socialism and Fascism over Europe and
its Legal Traditions 272–273 (Christian Joerges & Navraj Singh Ghaleigh eds., 2003).
128
56 I•CON 9 (2011), 32–57
process (and, thus, equal dignity) is not the only legacy of ancient dignitas. Another
very important legacy is to be found in the more diffuse legal manifestations of the
dignity principle, that is, those that insist on its human as opposed to its equal dimension. Thus, this latter meaning of the dignity principle can also129 very accurately be
described as heir to the old status-based conception of dignity—dignitas—for it retains
many of its essential features.
4. Conclusion
As he diagnosed the obsolescence of the concept of honor and explained it by a wish of
the individual to free herself from institutions, sociologist Peter Berger insisted on the
precariousness of the situation this produced.130 He then warned that “the contemporary mood of anti-institutionalism is unlikely to last. . . . Man’s fundamental constitution is such that, just about inevitably, he will once more construct institutions
to provide an ordered reality for himself.”131 Future developments have proved him
right, for it does seem that the recent successes of the legal human dignity principle
have amounted to constructing the idea of humanity as a new institution. Such a
“return of the repressed” further corresponds (as Berger had also foreseen) to a return
of honor insofar as—so this paper tentatively has argued—the contemporary human
dignity principle is but chiefly a reappraisal of ancient dignitas. Hence, current legal
conceptualizations and usages of the principle are seen erroneously as derivations
of post–World War II dignity; rather, they descend from the old dignitas, essentially
status-based more than humanist. Such a distinction is crucial: the human dignity
principle is not all about human rights.
In the most contemporary version of the human dignity principle, humanity thus
corresponds to the status to which the individual has been admitted or elevated.
However, and by definition, status-based dignity may be withdrawn. French dwarf
M. Wackenheim, as a matter of fact, has pleaded that the famously upheld prohibition
that affected his professional demonstrations amounted to a violation of his dignity;
and Ms. Jordan (the South African prostitute), M. Senanayake (the French Jehovah
Witness upon whom a blood transfusion was forced), and the gentlemen Laskey, Jaggard, and Brown (the Englishmen who engaged in sadomasochist relationships) are
most likely under very similar impressions. Here lies the most crucial aspect of the
problem: Is it possible to ensure that the contemporary human dignity principle—in
In prior versions of this paper, I made a different claim and actually presented human dignity alone as an
heir to dignitas—and denied the relevance of linking equal dignity to dignitas. I have amended my views,
and thank anonymous reviewers from I·CON in helping me make progress on an initially too-crude
argumentation.
130
Peter Berger, On the Obsolescence of the Concept of Honour, in Liberalism and its Critics 149 (Michael J. Sandel
ed., 1984).
131
Id., at 158.
129
A human dignitas? Remnants of the ancient legal concept in contemporary dignity jurisprudence 57
that it shares so much with ancient dignitas—has positively and for good separated
from its inherent contingency and fragility (its conditionality)? How is it possible
to construct dignity, simultaneously, as a status and guarantee that no one will be
stripped of it?132 If dignity primarily refers to (moral) duties and (legal) obligations,
what is to become of those who refuse to comply?
Because there are no clear-cut answers to questions of such importance, it matters that we confront the relatively unchallenged orthodoxy according to which the
human dignity principle belongs to the human rights paradigm. Does it truly have to
do with the promise of 1948 (“all men are born equal in dignity and rights”)? Or is it,
rather, the result of a democratization process that would have applied, against all
odds, to an institution central of the ancien régime? Is it a humanist and inclusive answer to the question asked by Primo Levi (“If this is a man”)133 or an injunction that
would permanently weigh on men and women and thus invoke, rather, a Saint-Just
inspired aphorism (no liberty for the enemies of liberty; no dignity for the enemies
of dignity)? In other words, whereas it is generally acknowledged that the human
dignity principle has no precise substantive meaning, the functional resemblance of
some of its contemporary usages—the dignitarian ones—with ancient dignitas only
strengthens the doubts one may have as to its beneficence. If it is admitted that at
least a significant element of what the human dignity principle actually performs in
contemporary law is to ground obligations and prohibitions but not rights, then its
promoters (be they judges, legislators, scholars) should be compelled to engage in the
task of elaborating a justificatory scheme for such usages.
This question is all the more complex as we part with the simplistic and incomplete humanistic approach
according to which all man are human and thus deserve dignity. As Agamben’s reading of Levi’s testimony recalls, “One must acknowledge the insufficiency of the two opposed theses built upon Auschwitz:
that of the humanistic discourse, that affirms that all men are human, and that of the anti-humanistic,
that wishes to reduce the quality of human to some men only. The testimony says something quite different, possibly summarized as: ‘men are inhuman men,’ or more accurately: ‘men are men in that they
testify for the non-human’”: Agamben, supra note 91, at 132. For, indeed (at 47): “As for Levi . . . the
nature of the experience to which he was called to bear witness was never in question. ‘Actually what
interests me is the dignity and the lack of dignity’ (Levi). . . . The new ethical material that he discovered
at Auschwitz allowed for neither summary judgments nor distinctions and whether he liked it or not,
lack of dignity had to interest him as much as dignity. As suggested by the ironically rhetorical Italian
title Se questo è un uomo (literally ‘If this is a man,’ translated as ‘Survival in Auschwitz’ in English),
in Auschwitz, ethics begin precisely at the point where the Muselmann, the ‘complete witness’ makes it
forever impossible to distinguish between man and non-man.”
133
Agamben, supra note 91, strikingly insists on the conditional (and uncategorical) form of Levi’s title (If
this is a man) (at 47). In other words, he reminds us of how complex it is to affirm that it is a man, precisely because there is a stage of suffering and degradation beyond which “dignity and self-respect have
become useless,” “concepts [that] make no sense” (at 63–64). Hence: “This is also why Auschwitz marks
the end and the ruin of every ethics of dignity and conformity to a norm. The bare life to which human
beings were reduced neither demands nor conforms to anything. It itself is the only norm; it is absolutely
immanent. And the ‘ultimate sentiment of belonging to the species’ cannot in any sense be a kind of
dignity. The good that survivors were able to save from the camp—if there is any sense of speaking of a
good here—is therefore not dignity. On the contrary, the atrocious news that the survivors carry from
the camp to the land of human being is precisely that it is possible to loose dignity and decency beyond
imagination, that there still is life in the most extreme degradation.”
132