Human Dignity as a Form of Life: Notes on Its Foundations and Meaning in Institutional Morality

In normative terms, human dignity usually implies two consequences: (a) human beings cannot be treated in some particular ways due to their condition as humans; and (b) some forms of life do not correspond to the ideal life of our community. This study consists in discussing the meaning of this idea of human dignity in contrast to the concept of humiliation in the context of institutional, i.e. political and legal, rights. Two concepts of human dignity will be discussed. The first absolute/necessary and formal/transcendental concept implies the proposition “because human beings have dignity, the following cluster of rights is valid”. Conversely, the second contingent and material concept corresponds to the thought “for being able to live in dignity, we must respect the following rights”. This paper claims that human dignity should be understood as the right to be protected from humiliation. Humiliation is the situation of incapacity or absence of self-determination.

     

人性尊严与农民平等权的保护

人性尊严伴随着人类的产生而产生,其之于人的如此重要作用,决定了它在宪法和人权保障中的核心地位。然而,农民的弱势处境导致其平等权利的落空,并在此基础上产生了侵害农民人性尊严这一社会现象,该现象的存在违背了人性尊严在主体、内容及目的方面的价值要求。因此,为消除其带来的不利影响,在尊重客观现实的前提下,课负农民、市民与国家以相应的义务,是保护农民平等权,进而维护农民人性尊严的现实路径。     

人权的内核——兼论“以人为本”的宪法涵义

宪法上基本权利的保障有其基础理论和核心内容,西方实证宪法和宪政理论都肯定“人的尊严”构成了人权的内核。人的尊严是人权宪法保障的哲学依据,是人权生长的原点,是对基本权利限制的限制。“国家尊重和保障人权”是一种规范性表述,而非描述性表述,其中蕴含着一定的价值判断,表明“以人为本”已经从实证法形式上升为国家理念,构成了我国宪政制度建构的根本,是借鉴世界其他国家宪政和人权理论与制度的坚固基础。     

Human Dignity and Socio-Economic Rights

The South African Constitution numbers among a very few constitutions around the world which include justiciable socio-economic rights. One of the controversies surrounding judicial enforcement of such rights is the extent to which it is appropriate for courts to engage in policy choices in relation to the use of state resources in light of the doctrine of the separation of powers. The South African Constitutional Court has responded by developing an approach to adjudication of socio-economic rights in which the role of the court is to determine the reasonableness or otherwise of measures taken by the legislature and executive to implement such rights. However, the South African Constitution is also notable for its identification of human dignity as an underlying value and the explicit duty placed on the courts to interpret the rights protected under the Bill of Rights in conformity with this value. This article scrutinises the socio-economic rights jurisprudence of the South African Constitutional court in light of the Constitutional commitment to human dignity. It questions whether reasonableness review in socio-economic cases successfully balances human dignity with the appropriate degree of deference to the legislature and executive, in compliance with the doctrine of the separation of powers.     

Two Challenges for Dignity as an Expressive Norm

The concept of dignity figures prominently in legal and moral discussion on such topics as human rights, euthanasia, abortion, and criminal punishment. Yet the notion has been criticized for being indeterminate and either insufficient or redundant (or both) in justifying the kinds of legal and moral rights and views its proponents use it to vindicate. The criticisms have inspired some novel conceptions of dignity. One of them is Tarunabh Khaitan??s proposal that dignity should be understood as an expressive norm. In this article, I assess Khaitan??s suggestion. I maintain that it faces two challenges that its advocates should be able to solve for the proposal to be plausible.     

Observations on the Development of Human Dignity and Personality in German Constitutional Law: An Overview

This paper provides an overview of the development of the constitutional value of human dignity under German constitutional law. First, it provides a background to the German constitutional order then it places the constitutional value of dignity within the framework of the constitutional court’s jurisprudence on personality rights. It then progresses to an examination of specific cases that have developed personality rights and the importance of the constitutional court’s interpretation of personality and dignity in the personal and outer spheres within the framework of the German legal order. The article concludes with some observations and comparisons between German and American law in this area.     

Human rights of persons with mental disabilities. The European Convention of Human Rights

It is not necessary to recount the numerous charters and declarations ... to understand human rights.... All persons are born free and equal in dignity and rights. Everyone ... is entitled to all the rights and freedoms set forth in the international human rights instruments without discrimination, such as the rights to life, liberty, security of the person, privacy, health, education, work, social security, and to marry and found a family. Yet, violations of human rights are a reality to be found in every corner of the globe.     

Dignity, Democracy, Civilisation

This paper contributes to international discussion about the difficulty of defining human dignity as a legal concept by locating it at the heart of (European) democracy and human rights. Focusing on emerging dignity case law in the United Kingdom, the paper explores the connections among dignity, human rights and democracy, and the uses of dignity to enhance and refine democracy. While judges are key actors in the construction of dignity, they operate within the boundaries of a particular democratic ‘civilisation’ anchored in the core prohibitions of art 2, 3 and 4 European Convention on Human Rights, combined with those of the EU Charter of Fundamental Rights (art. 2, 3, 4 and 5). This normative core, the paper argues, is to be understood in the wider time frame of democracy and dignity, which is equally important for refining and thickening human dignity’s conceptual and normative definition, as well as for reflecting on the legitimacy of its (judicial) uses.     

国家权力与人的尊严

国家权力也有尊严,但不能高于人的尊严,更不能建立在侵犯人的尊严基础之上。侵犯人的尊严有私人间的个体侵犯、当权者的侵犯、"上位者"的侵犯、多数人的侵犯等等。国家权力直接侵犯或参与侵犯人格尊严往往危害更大,而最严重的侵犯人格尊严多发生在国家权力与民间联手之时。宪法保障人格尊严意味着国家权力不仅不能侵犯人的尊严,还有保障人的尊严之义务。     

The Nature and Basis of Human Dignity

Abstract. We argue that all human beings have a special type of dignity which is the basis for (1) the obligation all of us have not to kill them, (2) the obligation to take their well‐being into account when we act, and (3) even the obligation to treat them as we would have them treat us, and indeed, that all human beings are equal in fundamental dignity. We give reasons to oppose the position that only some human beings, because of their possession of certain characteristics in addition to their humanity (for example, an immediately exercisable capacity for self‐consciousness, or for rational deliberation), have full moral worth. What distinguishes human beings from other animals, what makes human beings persons rather than things, is their rational nature, and human beings are rational creatures by virtue of possessing natural capacities for conceptual thought, deliberation, and free choice, that is, the natural capacity to shape their own lives.     

Human rights and forensic psychology

Objectives. Human rights serve to orientate practitioners to the necessary conditions for a minimally worthwhile life for service users, the prerequisites for a life of dignity and a chance at happiness, and the opportunity to incorporate into their life plans cherished values and goals. In this introduction to the special section paper, I discuss the basic concept of human rights and outline their relevance for clinical practice with offenders. Method. I explore the core values associated with human rights and suggest that one of their primary functions is to protect the internal and external conditions of individuals' agency and their pursuit of better lives. Conclusion. I briefly outline the three articles comprising this special section of LCP on human rights that address issues of risk, therapeutic jurisprudence, and the rights of detained persons.     

Overcoming Doctrinal School Thought: A Unifying Approach to Human Dignity

The concept of human dignity is criticized due to its vagueness, but by discussing the most important schools of thought, we can identify a core meaning that is common to most understandings of human dignity: Whether we conceptualize human dignity in terms of autonomy, self‐respect, social acts, or equal status, we always refer to some kind of personal identity. This personal identity consists in those aspects that we consider to be constitutive of our individual personality. Instead of remaining within doctrinal school thought, this core meaning can be taken as a common denominator for human dignity discourse.     

国际刑法维度的人权思考

立足于国际刑法的维度思考人权,首先应该通过明确国际刑法的研究对象、揭示其刑事法属性以及维护国际社会共同利益的目标来确立研究的视角。国际刑法对人权的研究中存在的意识形态的烙印、视野的狭隘、中心主义的思维定式以及盲目的偶像崇拜等若干理论争点,应厘清人权的涵义、属性、主体以及内容等,树立人权乃是人类尊严和基本价值的理念。     

作为基本权利的人格尊严及其规范意涵——以“卖淫女示众事件”为例

人格尊严早已入宪,成为中国宪法上的基本权利,但其对政府行为的规制功能远未显现出来。结合深圳"卖淫女示众事件",基于规范法学的立场,通过阐释我国《宪法》第38条的意旨与内涵——作为基本权利的人格尊严(一般人格权)所具有的规范功能,归纳出宪法上人格权保护体系之逻辑结构,即规定"人格尊严(一般人格权)+某些具体人格权"应成为宪法对人格权进行调整的模式,以期对学界在此问题上存在的一些歧见予以澄清。     

Criminalizing Behaviour to Protect Human Dignity

The purpose of this article is to discuss the criminalization of conduct based on human dignity arguments. It proposes a modest version of integrating human dignity into discussions about criminalization. After a critical examination of both the notion of ??human dignity as an objective value?? and the assumption that the meaning of human dignity can be explained by referring to Kant??s moral philosophy, human dignity violations are characterized as severe humiliations.     

人权：弱势群体法律保护的价值基础——兼议我国弱势群体权益保护立法的完善

人权是弱势群体法律保护的价值基础。人权的核心价值在于维护人之为人的基本尊严。人权的普遍性和平等性是这一核心价值的必然体现。弱势群体保护是由人权的普遍性和平等性推导出的必然结果。保护弱势群体,首要的任务是将弱势群体的人权实证化为法律权利。因此,完善我国保护弱势群体的法律制度,建立起完善的弱势群体权益保障机制是我们面临的迫切任务。     

Migrants,State Responsibilities,and Human Dignity

This article addresses two questions: First, how does the value of human dignity distinctively bear on a state’s responsibilities in relation to migrants; and, secondly, how serious a wrong is it when a state fails to respect the dignity of migrants? In response to these questions, a view is presented about the distinction between wrongs that violate cosmopolitan standards and wrongs that violate the standards that are distinctive to a particular community; about when and how the contested concept of human dignity might be engaged; and, elaborating a three-tiered and lexically ordered scheme of state responsibilities, about how we should assess the seriousness of a state’s failure to respect the dignity of migrants.     

The Mythology of Human Rights

Abstract. A special legal status is accorded to human rights within Western liberal democracies: They enjoy a priority over other human goods and are not subjected to the majoritarian principle. The underlying assumption—the idea that there are some human values that deserve special protection—implies the need for both a normative and a conceptual justification. This paper claims that neither can be provided. The normative justification is needed to support the priority of human rights over other human goods and to rank and balance conflicting human rights, but it can't be provided because of the fact of pervasive value pluralism, the fact that human values are many, incompatible and incommensurable. The conceptual justification is needed to avoid arbitrariness in the interpretation of human rights at the adjudication stage. Such a justification is impossible, however, as the concept of human rights, and the concepts used to justify them and to solve their conflicts are “essentially contested concepts.” The paper concludes that, provided that the interpretation of human rights presupposes value judgements and political choices, the special legal status accorded to human rights is not justified.     

民法视野下的人体法益构造——以人体物性的科技利用为背景

近现代民法体系所持的"人体为主体人格之一部"的立场系建立在传统人物两分理论基础之上,该理论虽有助于彰显人的主体价值和尊严,但在处理因人的活体、尸体、离体组织和基因的科技利用所生法律问题上,已显现出部分失灵和易加剧人体物性利用与人性尊严保障之间价值冲突的不足。人与物或人格与财产的区分并非绝对不容许因应时代变迁而作必要修正。通过逻辑的、价值的、实践的和法释义学的综合考量,理论上可以得出,有限地承认人体为物,并将"人体财产权"和人类作为物种享有的"类的人性尊严"纳入到人体法益构造体系之中,能较好地克服以上不足。在以公序良俗原则限制人体或其一部的利用和处分时,应建立和实践"人性尊严关联度原则"。     

Protecting mental health clients' dignity — The importance of legal control

Protecting human beings' dignity is a fundamental value underlying the UN's Universal Declaration of Human Rights as well as several recommendations and conventions derived from this, among them the European Convention of Human Rights (ECHR), a declaration that also takes precedence over Norwegian legislation. Still, clients' stories inform us that their dignity is not always protected in the mental health service systems.The aim of the study has been to investigate violations of dignity considered from the clients' points of view, and to suggest actions that may ensure that practice is brought in line with human rights values.The method used has been a qualitative content analysis of 335 client narratives.The conclusion is that mental health clients experience infringements that cannot be explained without reference to their status as clients in a system which, based on judgments from medical experts, has a legitimate right to ignore clients' voices as well as their fundamental human rights. The main focus of this discussion is the role of the ECHR and the European Court of Human Rights as instruments for protecting mental health clients' human rights. To bring about changes, recommendations and practices should be harmonized with the new UN Convention on the Rights of Persons with Disabilities (2006). Under this convention, the European Court of Human Rights has support for the application of the ECHR without exemptions for special groups of people.