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Publication - Professor Aurora Plomer

    The Asymmetry of Human Dignity as a Constitutional Value and Fundamental Right in Europe

    Citation

    Plomer, A & Tsarapatsanis, D, 2014, ‘The Asymmetry of Human Dignity as a Constitutional Value and Fundamental Right in Europe’. in: Giuliana Ziccardi Capaldo (eds) Global Community Yearbook of International Law and Jurisprudence 2012. Oxford University Press, pp. 113-144

    Abstract

    The meaning of human dignity as a fundamental value or right has traditionally been a focal point of interest for moral philosophers who have noted the historical variability of the concept and the centrality of Kantian theory in modern thinking. In recent years, human dignity has also begun to generate intense interest amongst jurists and legal theorists looking to understand the role of human dignity in constitutional texts and judicial reasoning in supreme courts. One important contribution links the historical variability of the philosophical and moral principle to legal indeterminacy in modern constitutions and their interpretation by constitutional courts. In this chapter, we offer an alternative perspective on human dignity as a fundamental value or principle in human rights instruments and national constitutions. We argue that the indeterminacy of human dignity as a fundamental constitutional value or principle facilitates the co-existence of a plurality and diversity of conceptions of human dignity in the constitutional architecture of democratic European legal systems. Indeterminacy accommodates expansive and religiously motivated conceptions of human dignity which extend dignity to all human life from the moment of conception as well as gradualist or secular conceptions which attach human dignity only to persons already born. We show that a comparative analysis of human dignity as a constitutionally protected human rights value and principle reveals an important asymmetry in the meaning and role of human dignity which runs along two lines. The first line of asymmetry reveals that the dividing line between pre-natal and post-natal human life is critical to human rights claims and directly enforceable legal entitlements flowing from the protection of human dignity as a constitutional value. Secondly, we argue that a second line of asymmetry is disclosed in the weight that human dignity carries as a limiting and ‘relational’ value against interference with fundamental human rights, whether by the State or others, particularly in the context of experimental and research interventions on ‘human beings’ and ‘human life’. The first part of the chapter charts the rise of human dignity as a fundamental principle in human rights texts, including the Council of Europe and European Union Treaties and case law, culminating in the paradoxical judgment of the Grand Chamber of the Court of Justice of the European Union in the Brüstle case. The second part examines the role of human dignity in the national constitutions of France and Germany and the respective case law of their supreme courts. Our analysis shows that the indeterminacy of human dignity as a fundamental value or principle creates an asymmetry in the existence, substantive content and attribution of direct legal rights in legal orders which are founded on respect for the plurality and diversity of moral and religious cultures in democratic societies in Europe.

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