This experience resulted in collective trauma, consisting of… the structural effects of disrupting families and communities; the loss of parenting skills as a result of institutionalization; patterns of emotional response resulting from the absence of warmth and intimacy in childhood; the carryover of physical and sexual abuse; the loss of Indigenous knowledges, languages, and traditions; and the systematic devaluing of Indigenous identity Child welfare systems continue to intervene in the lives of Aboriginal families in Canada at a rate greater than any other population in the country 33 , and currently more Aboriginal children live as governmental wards than were ever in residential schools.
Both colonization and colonialism are more than economic or material structures. Colonialism results in multiple forms of discrimination. Stemming from racism are microaggressions, which are often very subtle. Racism, along with these microaggressions, is evidence of advanced colonization 39 and has become entrenched in society. Taken together, these realities can be considered Aboriginal-specific determinants of health in that they result in a disproportionate experience with socioeconomic inequities that are rooted in a particular socio-historical context.
A sense of cultural continuity for First Nations individuals and communities, and likely for Indigenous peoples more broadly, builds resiliency and reduces negative health outcomes, particularly youth suicide For Aboriginal people, the right to identify as an Indigenous person, the right to practice Indigenous ceremonies, and the right to speak an Indigenous language, are all crucial to identity and health, both of which are also especially linked to spirituality Language and cultural revitalization are viewed as health promotion strategies If Aboriginal children are provided opportunity for growth and development that fosters and promotes cultural strengths and citizenship, health disparities resulting from the impacts of colonialism may be lessened.
Interventions and practices designed to foster and enhance the health and well-being of Aboriginal children require holistic concepts of health that move beyond biomedical realms and, instead, address and focus upon social determinants. Approaches must be flexible, while also addressing historical and contemporary determinants and should include decolonizing strategies. Interventions should not target individual behavioural change or focus solely on proximal determinants of child health.
Instead, interventions should account for broader contexts and distal determinants that continue to influence the context and, thus, the health of the child. These broad contexts require collaborations across and between sectors and disciplines; medical or even health sectors alone cannot address or influence these determinants of health and must work in concert with other sectors such as education, child welfare, housing and justice, among others.
A critical starting point is to create awareness of the social and historical context in which Aboriginal peoples find themselves. This begins with the education and training of professionals that interact with Aboriginal people on a daily basis. Students in the health professions who are not trained to understand socioeconomic and historical contexts may be vulnerable to adopting common, social stereotypes about Indigenous peoples Concentrated effort is required to include the knowledge and strengths held by Aboriginal peoples into the curriculum.
Elliott and de Leeuw 44 write that:. This type of education opens opportunities for transmission of knowledge to other disciplines and even broader society. These individuals provide relational bridges of understanding between the health care system and the Aboriginal children and their families interfacing with it. While much baseline data about Indigenous peoples are needed, intervention research aimed at improving the lives of Aboriginal children is also necessary. This type of research demands collaborative partnerships with Aboriginal communities based on respectful, equitable relationships.
Recognizing multiple ways of knowing and being in the world is fundamental to effective research and effective health care practice, with and for Aboriginal peoples. Understanding that this knowledge exists within Aboriginal communities, and engaging with the community from the onset of research and practice processes will be the basis for understanding and ensuring relevant, meaningful work. Principles of ownership, control, access and possession are also necessary to research endeavours involving Aboriginal peoples Effective programs are characterized by vision and leadership, holism, active community participation, strengths-based orientation, and reinvigoration and revitalization of Aboriginal cultures aimed at realizing self-determination.
Little doubt exists that Aboriginal children experience a greater burden of ill health compared with other children in Canada. It is time for a change — a change that will impact individuals, families, communities and, ultimately, future nations. This change must last beyond seven generations. Funding provided by the Public Health Agency of Canada. The views expressed herein do not necessarily represent the views of the Public Health Agency of Canada.
National Center for Biotechnology Information , U. Journal List Paediatr Child Health v. Author information Article notes Copyright and License information Disclaimer. Accepted Jun See " Healing winds: This article has been cited by other articles in PMC. Aboriginal health area of specialization , Children and youth, Health inequities, Social determinants.
Open in a separate window. Achieving strength through numbers: Commission on Social Determinants of Health Closing the gap in a generation: Health equity through action on the social determinants of health Final report of the Commission on Social Determinants of Health. World Health Organization; The Ottawa Charter for Health Promotion. From root causes to fair outcomes.
Social determinants of health and the future well-being of Aboriginal children in Canada
Social determinants of health inequalities. The crisis of chronic disease among Aboriginal peoples A challenge for public health, population health and social policy. Leaving no child behind. Can J Public Health. Public Health Agency of Canada. Tuberculosis in Canada Public Health Agency of Canada; Paediatric tuberculosis in Canada; pp. Injuries in Aboriginal children. Suicide among Aboriginal people in Canada. Aboriginal Healing Foundation; Office of the Provincial Health Officer.
Pathways to health and healing: The health of Aboriginal peoples. Social Determinants of Health: Canadian Scholars Press Inc; Smylie J, Adomako P, editors. Health Assessment in Action. Effects of a community-based prenatal nutrition program on the oral health of Aboriginal preschool children in northern Ontario. Results for adults, youth and children living in First Nations communities. Metaphorically, it expresses itself in umuntu ngumuntu ngabantu, describing the significance of group solidarity on survival issues so central to the survival of communities. While it envelops the key values of group solidarity, compassion, respect, human dignity, conformity to basic norms and collective unity, in its fundamental sense it denotes humanity and morality.
Its spirit emphasises respect for human dignity, marking a shift from confrontation to conciliation. Dignity has been central to the approach which several jurisdictions take to the woman's interest in deciding whether to have an abortion. In the case of Thornburg v. American College of Obstetricians and Gynaecologists, Blackmun J explained the fundamental nature of the privacy of a woman's decision to terminate her pregnancy: A woman's right to make that choice freely is fundamental.
In the plurality opinion, the woman's autonomy interest in making the abortion decision is seen as one of several spheres in which dignity required state abstention: Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.
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At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. Justice Stevens also considered the relationship between dignity and privacy to be a close one: The principle of human dignity is often drawn on as one of several values that anti-discrimination norms further.
We have seen already that Judge Tanaka and Vice President Ammoun drew on dignity in the South West Africa case to explain the underlying wrong which apartheid occasioned. There has been a particular increase in the use of dignity arguments in the judicial interpretation of constitutional and statutory equality and anti-discrimination requirements in several jurisdictions. Romania , where the ECtHR upheld the claim of a number of Roma that their rights under Article 14 had been breached.
In addition to providing a theoretical underpinning to constitutional and statutory equality guarantees, dignity has been drawn on heavily as a theoretical underpinning by judges in interpreting prohibitions against sexual harassment, both in Europe and the United States. Dignity has also come to play an increasingly important foundational role in the judicial interpretation of the meaning of constitutional anti-discrimination prohibitions in Canada and South Africa.
It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences.
Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society. There has been a significant relationship in several jurisdictions between dignity and the granting of rights to gay, lesbian, and trans-gendered individuals, beginning with claims that the criminalization of sodomy was contrary to human rights principles, and continuing most recently in the context of claims to permit marriage between same-sex partners.
Minister of Justice , Ackermann J stressed the extent to which the common law offence of sodomy was an infringement of the right to dignity, as well as equality. There can be no doubt that the existence of a law which punishes a form of sexual expression for gay men degrades and devalues gay men in our broader society. As such it is a palpable invasion of their dignity and a breach of section 10 of the Constitution. The harm also radiates out into society generally and gives rise to a wide variety of other discriminations, which collectively unfairly prevent a fair distribution of social goods and services and the award of social opportunities for gays.
Dignity has also been drawn on in order to support decisions which declared legal restrictions on marriage between same-sex couples to be unconstitutional. Attorney General , the Court of Appeal for Ontario recognized the relationship between dignity and access to the institution of marriage: Marriage is, without dispute, one of the most significant forms of personal relationships. This can only enhance an individual's sense of self-worth and dignity. In doing so, it offends the dignity of persons in same-sex relationships.
Clearly, they are, and in no small degree. The effect has been wounding and the scars are evident in our society to this day. By both drawing on and reinforcing discriminatory social practices, the law in the past failed to secure for same-sex couples the dignity, status, benefits and responsibilities that it accords to heterosexual couples. Control over the use of lethal force by the state's security forces has been seen as a necessary condition for guaranteeing survival by some courts.
In cases dealing with the use of force by the security forces, the German Constitutional Court has emphasized the importance of reading the protection of the right to life and the protection of dignity as mutually reinforcing. These provisions were incompatible with the fundamental right to life and with the guarantee of human dignity to the extent that the use of armed force affected persons on board the aircraft who were not participants in the crime. By the state's using their killing as a means to save others, they were treated as mere objects, which denied them the value that was due to a human being for his or her own sake.
Other courts have gone further, using dignity to expand the conception of the right to life to meet basic needs. The provisions on socio-economic rights in human rights texts have also been interpreted as strongly engaging with dignity. Both the Hungarian and South African Constitutional Courts, for example, have drawn on dignity to support their decisions regarding socio-economic rights. In case of services not reaching the above minimum level, the right to social security may not be deemed enforced.
Therefore, only in case of such an extreme situation is the State obliged to take care of those who themselves cannot provide for the fundamental preconditions of human life. A similar approach was taken by the Constitutional Court of South Africa in the Grootboom case, in which Yacoob J also emphasized the connection between dignity and socio-economic rights: Affording socio-economic rights to all people therefore enables them to enjoy the other rights enshrined in [the Constitution's Bill of Rights].
The realisation of these rights is also key to the advancement of race and gender equality and the evolution of a society in which men and women are equally able to achieve their full potential. A society must seek to ensure that the basic necessities of life are provided to all if it is to be a society based on human dignity, freedom and equality. To be reasonable, measures cannot leave out of account the degree and extent of the denial of the right they endeavour to realise. Those whose needs are the most urgent and whose ability to enjoy all rights therefore is most in peril, must not be ignored by the measures aimed at achieving realisation of the right.
There is an additional feature of the use of dignity in several jurisdictions that is noticeable. In applying dignity, judges in several jurisdictions draw on the judicial interpretation of dignity in other jurisdictions as well as their own, sometimes explicitly, sometimes without attribution. The German Constitutional Court has been particularly influential in Hungary and Israel, for example. The House of Lords, for example, has begun to use the concept of human dignity. German and Hungarian judicial decisions have influenced South African jurisprudence.
One of the best examples of this is to be found in the decision of the US Supreme Court in the case of Roper v. Simmons , in which it held that the imposition of the death penalty on offenders under 18 was unconstitutional under the Eighth Amendment. He sought to dampen down concerns that it might.
These doctrines and guarantees are central to the American experience and remain essential to our present-day self-definition and national identity. On the contrary, we should not be surprised to find congruence between domestic and international values, especially where the international community has reached clear agreement … that a particular form of punishment is inconsistent with fundamental human rights.
Despite differences in positive law, in historical and political context, in religious and cultural heritage, there is the common recognition of the worth of the human person as a fundamental principle to which the positive law should be accountable. It certainly seems to be the case, as Carozza clearly demonstrates, that judges in several jurisdictions see dignity as giving them a licence to draw on decisions from other jurisdictions.
There is clearly a perception that the conception of dignity is common to these jurisdictions and the use of dignity in one judicial decision justifies the use of that jurisprudence by courts interpreting the concept of dignity in another jurisdiction. Carozza's argument thus seems supported by judicial practice. Not only is the enterprise of human rights interpretation seen to be common, so too there seems to be a perception that there is a common understanding of what dignity is, at a deep level.
1 Finding Human Dignity in the History of Ideas
Carozza's explanation is one that sees the interpretation of dignity as a search for the universal. The universality of human rights is often thought to be central to a valid conception of human rights. In this, he appears to share some common ground with that strand of comparative law theory which stresses the importance of dialogue. In a previous part of this article Part 3 , we identified three elements of the minimum core of the concept of human dignity: We saw that there are different understandings of each of these elements of the concept of human dignity, reflected in the historical and textual use of the concept, which indicate that different conceptions of human dignity are identifiable.
This part of the article demonstrated that courts have generally confirmed that when judges use the concept of human dignity, they too appear to adopt the minimum core. We can also see that the judiciary in several jurisdictions has attempted to explore, in particular, the second and third elements, and to do so, in part, through a transnational dialogic process. As a result of this judicial activity, we can also identify more clearly than before the contexts in which human dignity seems likely to have most resonance for understanding the relational and limited-state elements in the core concept.
Can we say, therefore, that we are any further advanced in identifying a common conception of human dignity, either in any particular jurisdiction or transnationally? There are significantly differing expressions of the relationship between human rights and dignity, and significant variations between jurisdictions in how dignity affects similar substantive issues.
We should not, however, reject the more universalistic analysis of Carozza simply because there may be differences between jurisdictions at any one point in time. A principled interpretation of a grand principle often seems to call for agreement on what the effect of applying the principle is, whilst nevertheless disagreeing on what a full theoretical basis for the principle may be.
Such agreements exist where individuals can agree on a specific result, even if they do not agree on all the aspects of the specific theory justifying that result. When we dig deeper, such significant differences appear to arise that a somewhat different story must be told. Unfortunately, perhaps, Carozza's preferred normative function of dignity does not seem to be supported by judicial practice.
We shall find such significant differences in understanding dignity that Carozza's universalistic naturalism seems overly optimistic a description. In practice, very different outcomes are derived from the application of dignity arguments. This is startlingly apparent when we look at the differing role that dignity has played in different jurisdictions in several quite similar factual contexts: In each, the dignity argument is often to be found on both sides of the argument, and in different jurisdictions supporting opposite conclusions.
Before turning to specifics, we can observe more generally that claims to universalism and naturalism in human rights discourse have proven deeply controversial, with some arguing that the inclusion of common principles in these texts or judicial decisions merely camouflages profound disagreement on their application as well the theory supporting them. Lord Hoffmann, for example, has stated: Different communities will, through their legislature and judges, adopt the answers which they think suit them.
Is this a better explanation for what is happening to the interpretation of dignity in judicial interpretation of human rights norms? Just as Carozza's universalistic approach has parallels with universalistic approaches in comparative law theory, so too this more sceptical approach has some similarities with pluralistic approaches to comparative law.
These debates in comparative law echo the approach in human rights that veers towards cultural relativism. There are significant variations between jurisdictions on the legal status and weight of human dignity. Does human dignity have a status superior to that of other human rights as in Germany generally, and in Hungary when combined with the right to life , in the sense that it is the highest constitutional principle, subject neither to other rights, nor to other values? There is, according to the jurisprudence of the courts, no way to balance other legal interests, be they of other individuals or of the community, with the dignity of a person.
The principle of proportionality does not come into play as long as an intrusion upon human dignity has been established. We saw when considering the emergence of dignity historically that an important distinction could be identified between the use of dignity to express a communitarian ideal and one that was much more focussed on the role of dignity in furthering individual autonomy, in the sense of advancing individual liberty based upon the choice of the individual.
This difference in approach is also reflected in the different approaches which courts adopt. In brief, the German Constitutional Court adopts a more communitarian approach, whilst the predominant approach to dignity in the US Supreme Court, the Canadian Supreme Court, and the Hungarian Constitutional Court is more individualistic.
The South African Constitutional Court appears to be significantly split on the issue. The reasoning of the German Constitutional Court's judgment in the Lifetime Imprisonment Case illustrates well a more communitarian approach: The free person and his dignity are the highest values of the constitutional order. The state in all of its forms is obliged to respect and defend it.
This is based on the conception of man as a spiritual-moral being endowed with the freedom to determine and develop himself. This freedom within the meaning of the Basic Law is not that of an isolated and self-regarding individual but rather 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.
It empowers the individual to take control over his life without any interference, or indeed any help, from others or from the state. Human dignity … does not essentially facilitate interaction and relationships between people. Instead, human dignity surrounds the individual in a sort of protective sphere, and thus isolates individuals from each other. These differences in approach are particularly important in the context of socio-economic rights, where the crucial question is how far, if at all, the state is under a positive duty to safeguard human dignity.
In Israel, whilst the Basic Law has been interpreted as generating some socio-economic rights, these encompass only the most minimal material conditions necessary to exist: The issue was whether a provincial workfare scheme which provided social benefits below the poverty line for those aged below 30 was unconstitutional, particularly on grounds of age discrimination. As we have seen, in the Canadian context part of the test of what constitutes discrimination depends on whether the individual's dignity has been damaged.
The majority of the Court held that there was no discrimination. The Chief Justice held that it was not discriminatory in part because there was no breach of the individual's dignity; rather, the reverse: The participation incentive worked towards the realization of goals that go to the heart of the equality guarantee: These are the stuff and substance of essential human dignity. This discussion leads into the identification of another difference between jurisdictions in the role that dignity plays. We saw earlier that dignity has been viewed as a principled basis of support for the human rights enterprise.
In practice, however, dignity has come to be used as a major constraint on some rights. This can arise because dignity is used by both sides of a dispute to support their particular rights claims. Dignity sometimes functions as a justification for limiting the protection of rights or obligations, like a public order or public morals exception, allowing the state to place limits on what particular rights would otherwise require.
In the Israeli context, human dignity has been developed not only as a basis for rights but also as a constraint on rights, leading to decisions in which pornographic films could legitimately be censored where they were regarded as degrading to human dignity, especially the dignity of women. Public Council for Film Censorship , expressly recognized that the artistic value of the film had to be weighed against the need to protect human dignity.
In the Supreme Court of Canada's decision in R. The issue was whether the acts committed in this establishment were acts of indecency. Such conduct may violate formally recognized societal norms, like the equality and dignity of all human beings. Director of Public Prosecutions , the Constitutional Court of South Africa considered whether the conviction of a film producer under a criminal provision relating to child pornography was unconstitutional. Child pornography is universally condemned for good reason. It strikes at the dignity of children. The degradation of children through child pornography is a serious harm which impairs their dignity and contributes to a culture which devalues their worth.
So too, the area of incitement to racial and other forms of group hatred has given rise to a similar use of dignity arguments. France the concurring opinion of Prafullachandra Bhagwati in the Human Rights Committee emphasized that the restrictions in French law relating to denial of the holocaust the Gayssot Act were justified in part on the basis that the restrictions upheld human dignity.
Why Aboriginal Peoples Can’t Just “Get Over It”
The restriction on the author's freedom of expression imposed under the Gayssot Act was necessary for respect of the rights and interests of the Jewish community. Therefore, the imposition of a restriction by the Gayssot Act was necessary for securing respect for the rights and interests of the Jewish community to live in society with full human dignity and free from an atmosphere of anti-semitism. A very similar approach has been taken by the Canadian Supreme Court in Kreegstra. The derision, hostility and abuse encouraged by hate propaganda therefore have a severely negative impact on the individual's sense of self-worth and acceptance.
It inflicts pain and indignity upon individuals who are members of the group in question. The point of these examples is to emphasize the highly contested nature of the type of arguments which dignity is used to support. In the free speech context, this approach would find no support in the US Supreme Court, for example, where the judicial approach to the status of freedom of expression would be sure to lead, for example, to the explicit rejection of these decisions. It is noteworthy that, to my knowledge, such arguments based on dignity have not even been attempted in that court, undoubtedly because they would be doomed to fail.
So, too, dignity has come to be seen as equally controversial in the equality context. Several commentators have argued that the Canadian Supreme Court has effectively incorporated an additional barrier that applicants must surmount; that the individual or the group with which the victim identifies or is identified has been subject to discrimination of such a type that dignity has been under attack. Although this approach has been the subject of much supportive academic comment, attempts to establish the utility of dignity as a foundational norm for equality at other than the rhetorical level have also provoked a wave of criticism.
For some the divorce of anti-discrimination law from distributive justice in this way is desirable. Indeed, dignity is regarded as desirable precisely because it provides an alternative rationale to distributive justice in the equality context. Post has picked up the potential limits which dignity arguments may introduce, and argues that modern American anti-discrimination law should not be conceived, as is commonly supposed, as protecting the dignity of individuals but, rather, as attempting to transform social practices which define and sustain potentially oppressive categories such as race or gender.
Indeed, it is interesting that the Canadian Supreme Court long the main proponent of the use of dignity in the equality context has in its most recent case sharply moved away from dignity language, recognizing that: How far, if at all, can dignity be waived by an individual?
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Where a choice-based autonomy approach to dignity is adopted, then it would seem strange to think that it cannot be waived by the person whose dignity is supposedly in issue. To do otherwise smacks of paternalism. On the other hand, a more communitarian approach to dignity seems potentially compatible with not being permitted to waive dignity.
We are used in some contexts to viewing certain rights as not at the disposal of the individual, for example the right not to be enslaved cannot be waived.
Dignity is therefore not at the disposal of the individual. In Canada, the position seems more ambiguous. In the Butler case, from which this approach derives, the issue was the constitutionality of restrictions on pornographic material. They run against the principles of equality and dignity of all human beings. In the appreciation of whether material is degrading or dehumanizing, the appearance of consent is not necessarily determinative.
Consent cannot save materials that otherwise contain degrading or dehumanizing scenes. Sometimes the very appearance of consent makes the depicted acts even more degrading or dehumanizing. Whilst a strongly anti-paternalist approach is adopted, as we have seen in the context of the gay rights cases discussed earlier, a very different approach is adopted in the case of prostitution. In the Jordan case, the Constitutional Court upheld the criminalization of prostitution. 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.
The very character of the work they undertake devalues the respect that the Constitution regards as inherent in the human body. One can sympathize with the difficulty courts have in this context. On the one hand, for the court to say that the appropriate approach is to adopt a particular individual's own judgement on what seems to breach his or her dignity is to risk putting in place an unmanageable and unworkable standard.
On the other hand, adopting an entirely court-centred view of what constitutes a breach of dignity seems patronizing. In Poland, both the subjective feelings of the person seeking legal protection and the objective reactions to those claims are taken into account. This requires a court to consider the individual's or group's traits, history, and circumstances in order to evaluate whether a reasonable person, in circumstances similar to the claimant, would find that the impugned law differentiates in a manner which demeans his or her dignity.
An even more radical difference between jurisdictions can be identified. Who should make the decision whether dignity should be accorded to a particular entity, and who should decide whether the balance between dignity and other values is appropriate? The Hungarian Constitutional Court did not consider that the right to human dignity would limit abortion in ways equivalent to those found by the German Court unless Parliament had recognized the foetus as a human person.
In other words, the opinion implies that the job of the court is merely to ensure that the legislature is balancing, not to police how it is balancing. We have seen that what I termed the ontological claim is central to the minimum core of the concept of human dignity. How have courts treated this aspect of the concept? Does human dignity apply only to a live, sentient person? Apparently not, at least in some jurisdictions. In Israel, dignity attaches to those who have died, as well as to the living.
In Let the Animals Live v. The animal welfare organization argued that the show abused the alligators and caused them suffering and should therefore be stopped. Cheshin J interpreted the relevant provisions of the Protection of Animals Act as prohibiting any kind of conscious abuse of animals unless it could be justified, whether that abuse was severe or mild, physical or mental, and he rejected the lower court's interpretation of the provision as prohibiting only abuse that caused the animal extreme suffering.
The purpose of the shows, presented exclusively for entertainment, did not constitute an appropriate aim that might justify the suffering inflicted on the alligators. Such an act is simply immoral and we should not allow it. The animal is a helpless creature, much like a helpless minor. Neither of them can protect themselves, or claim their insult, or regain their dignity. This is not to be taken lightly. I do not know if the alligator itself feels humiliated when the human wrestler hold its tail, tumbles it back and forth, turns it on its back, and so forth, as if it were a lifeless rag doll.
However, this I know — that the acts inflicted by man on alligator, were they to be inflicted on man, would be considered humiliating and oppressing. The greatest unresolved difference between jurisdictions over the application of human dignity arises, however, over the question whether a human foetus has dignity. It is clear that the foetus is under the protection of human dignity in Germany.
Wherever human life exists it merits human dignity; whether the subject of this dignity is conscious of it and knows how to safeguard it is not of decisive moment. The potential capabilities inherent in human existence from its inception are adequate to establish human dignity.
Poland , the dissenting opinion of Judge Borrego regarded dignity as directly engaged, but the Court did not take up this challenge. In Hungary, as we saw above, the Hungarian Constitutional Court did not consider that the right to human dignity would limit abortion in ways equivalent to those found by the German court, unless Parliament had recognized the foetus as a human person.
In the interpretation of the Constitutional Court, the right to life and human dignity is an absolute subjective right, i. Since in a biological sense, the foetus is a human, i. The apparently common recognition of the worth of the human person as a fundamental principle to which the positive law should be accountable considered in Part 3 of this article seems to camouflage the use of dignity in human rights adjudication to incorporate significantly different theoretical conceptions of the meaning and implications of such worth, enabling the incorporation of just the type of ideological, religious, and cultural differences that a common theory of human rights would need to transcend.
By its very openness and non-specificity, by its manipulability, by its appearance of universality disguising the extent to which cultural context is determining its meaning, dignity has enabled East and West, capitalist and non-capitalist, religious and anti-religious to agree at least superficially on a common concept. But this success should not blind us to the fact that where dignity is used either as an interpretive principle or as the basis for specific norms, the appearance of commonality and universality dissolves on closer scrutiny, and significantly different conceptions of dignity emerge.
Few courts acknowledge that the conception of human dignity that they apply is different from that applied in other countries. Indeed, to do so would appear to undermine a legitimizing function of human dignity. A possibly significant breach in the dyke has now appeared, however. In the Omega case, the ECJ seems to have accepted that human dignity has potentially significantly different meanings from country to country. The company argued that because the game was lawful in other Member States, Community law required that it be allowed in Germany on the basis that Community law protected the freedom to provide services in the Community.
The German government argued that the prohibition was justified on the same grounds on which peepshows and dwarf throwing were prohibited, namely on grounds of human dignity. The company argued in rebuttal that a restrictive measure based on the protection of fundamental rights must be based on a common conception of those fundamental rights under European Community law across the Community. The ECJ disagreed; it was not indispensable for the restrictive measure adopted by a Member State to correspond to a conception shared by all Member States as regards the precise way in which the fundamental right or interest was to be protected.
We need to be careful, however, not to claim too much. There are several reasons to be cautious about drawing a conclusion that there is a lack of consensus on a particular conception of human dignity based on the evidence presented in this part of the article. First, much of the evidence supporting the divergence thesis as it might be called is taken from a limited range of jurisdictions, mostly at the domestic level. Secondly, it is arguable that I have put the bar too high in judging whether there is a judicial consensus on a common conception of dignity beyond the minimum core.
Basing a strong divergence thesis on this mostly domestic material may be problematic because, as we have seen already, different jurisdictions incorporate the idea of human dignity into their legal texts in different ways, using different legal instruments. It may be unsurprising, therefore, if judges in different jurisdictions say different things about, for example, the weight or status of dignity if they are dealing with differently constituted texts which say different things about weight and status.
Judicial differences may be attributable, in other words, to the texts, rather than to judicial interpretation. Clearly, it would be more telling at the interpretive level if there were examples of judges in different jurisdictions working with the same text but coming up with quite different interpretations. The examples I have used do not clearly do that. Instead, the examples are drawn from jurisdictions which seem to have comparable texts, but comparability is a matter of judgement, a judgement with which readers may reasonably disagree.
Have I put the bar on consensus too high?
Using my approach, would consensus ever be achievable? Unanimity is unlikely ever to be achieved across all jurisdictions. Arguably, all I have done is to provide examples of judicial outliers. Germany says it is giving absolute weight to dignity when no one else does. The United States refuses to limit freedom of expression for the sake of the dignity of disadvantaged groups. Israel apparently uses the concept of dignity to protect alligators. These may all simply be examples of judicial outliers rather than illustrations of an absence of consensus.
Divergent results in hard cases may not necessarily mean that a universal conception of dignity does not exist, but suggest only that a universal understanding of dignity does not exist at the margins.
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Could a more sophisticated methodology be adopted? A richer approach would examine much more carefully the judicial discourse in particular countries in their historical, social, cultural, political, and legal contexts. This type of study is already underway in some countries where studies of the meaning of dignity in legal discourse in this richer sense have been completed. Such work will be an important resource in the future.
If such work is undertaken, as I hope it will be, it will however need to tackle the immensely difficult issue of how to deal with the concept of human dignity in different languages. Given these problems, all that can be said is that the account given in this part of the article seems to me to show but by no means incontestably that judicial interpretation of the concept of human dignity has contributed little to developing a consensus on the implications of any of the three basic elements of the minimum core I sketched out earlier, and therefore that no common conception of dignity is yet discernible.
Dignity discourse has, so far at least, done little to provide a conception with significant enough substantive content to solve the most profound issues in the judicial resolution of human rights claims: But perhaps it is too ambitious to assess the utility of dignity in human rights adjudication on the basis of whether it either creates or instantiates a substantive conception of human dignity. Perhaps we should think more modestly and ask whether dignity plays a different role.
At this point in the article, we turn from the issue of whether there has been a substantive consolidation of the meaning of human dignity to consider the institutional use of the concept in human rights adjudication. In this context, the concept of human dignity provides a useful, but limited, language with which to address certain institutional difficulties to which human rights adjudication gives rise. Although dignity has yet to assist in providing a shared substantive basis for judicial decision-making, dignity has, however, provided something else to human rights adjudicators.
Weisstub's analysis provides a useful starting point: Its centrality and attractiveness for global ethics may be, thereby, its malleability rather than the tightness of its logic. I will argue in the remainder of this article that we can identify from the previous analysis a distinctively useful institutional function which dignity plays in judicial interpretation, one that fulfils a need occasioned by the institutional characteristics of judicial decision-making in human rights adjudication.
In other words, dignity plays an important legal-institutional function. I am not arguing that all judicial decision-making should be seen from the functionalist perspective which this particular argument presents. My more limited argument in this concluding part of the article is that the judicial use of dignity in human rights adjudication should not be seen only from the perspective of universalistic naturalism or from the perspective of pluralistic cultural relativism.
Rather, we should see the role that dignity plays in adjudication at least partly from an institutional perspective. At least since the Second World War, courts have increasingly been given or taken on a role in interpreting and applying constitutional and human rights, sometimes in specially created constitutional courts, sometimes in courts of general jurisdiction, and sometimes in administrative courts.
Such adjudication usually involves the judiciary being asked to adjudicate on disputes which involve an allegation of a breach of a claimed right by a public body such as a department of government, or by the legislature itself. This role of the courts is controversial not least because it runs the risk of creating tension with other constitutional principles, such as the separation of powers. These tensions have led to a continuing debate about the legitimacy of judicial review, particularly of this strong type, and how far it is compatible with notions of democratic self-government.
In all the jurisdictions which have adopted dignity in their judicial decision-making, judicial review in the human rights context is more or less controversial, constantly aiming to justify itself, its methods, and its reasoning. There are at least three particular institutional problems which are commonly identified with human rights adjudication which courts use dignity to help to deal with. The first arises from the need to decide how to resolve conflicts of rights, and conflicts between rights and other values. The second arises from the need to decide how far the rights which are to be interpreted should be seen as instantiating international standards, as opposed to how far they should be seen as protecting more national or local concerns where there is a conflict.
The third arises from the need to decide how far the text of the national or regional, or international Bill of Rights should be seen as determinative, and how to react when the text appears not to support a strong judicial desire to intervene. I will consider each in turn. I begin with the problem of how to handle conflicts of rights and conflicts between rights and other values. We can balance an amount of sugar against an amount of flour because both have mass and weight and we therefore have a common measure to compare them by.
Frequently, however, rights and other values are said to be incommensurable. Incommensurability is essentially the theory, first popularized by Isaiah Berlin, that some values cannot be compared against each other, and this has been taken up in the legal context. The Evans case is a prime example of an intra-rights conflict being seen to give rise to a problem of incommensurability.
Mrs Evans was diagnosed with cancer in both ovaries and they had to be removed. Her relationship with her husband broke down and he asked for the gametes to be destroyed. The British legislation allowed the withdrawal of consent at any time pre-implantation. Mrs Evans wanted the gametes preserved so that she could have a baby. Whatever decision was arrived at might be capable of being explained but would be practically impossible to justify.
One approach to conflicts of this kind is to say that resolving such conflicts is not a role for the courts. So, for example, Alder argues that when we reach the stage where values conflict, we must employ human emotions to resolve the conflict. The legislature, Alder argues, is the best forum for the discovery and application of such emotions.
The courts have no special insight into the issue and the legislature is ultimately more suited. Translated into court-talk, courts should defer to the legislature. Another possible approach is for the court to resort to utilitarian balancing. Consider the A case, involving the issue whether detention of alleged terrorists without trial was contrary to Articles 5 and 6 of the ECHR.
We could convert the argument to a purely utilitarian form, something like the greatest good for the greatest number, asking the court to consider whether the damage of holding a person in a prison without allowing him to plead his innocence in a court is greater than the potential effect on national security of letting him free. Apart from the fact that this seems to be the type of decision which legislatures perhaps even the Executive are better able to make than courts, there is another problem.
If we take liberty not as a utilitarian consideration but as an intrinsic value, valuable in and of itself, then it seems difficult to perform the utilitarian balancing act between the two. There are various other ways of addressing the problem of such conflicts. An approach which is often, perhaps increasingly, adopted is for the court to adopt proportionality as a tool by which it can structure its analysis of the conflict. There are many variations in the ways courts formulate proportionality, but for my purposes nothing hangs on these differences.
Essentially, each formulation has several common elements: A problem which is commonly identified with proportionality analysis, however, is that the proportionality test requires the injection of a significant element of value judgement in at least two particular parts of the test: Rather than solving the problem of incommensurability, the court is still faced with the problem and the courts resort to similar techniques described in the previous paragraphs: The use of dignity is particularly associated with those jurisdictions which have adopted proportionality analysis, whether that word is used or not.
That is not coincidental, I think. One important institutional function for dignity is to provide a language in which courts can indicate the weighting given to particular rights and other values in this context. 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.
The Act was challenged as unconstitutional. In deciding the case, the FCC identified the conflicting interests at stake as the mother's right to personality under Article 2 1 and the state's duty to protect life under Article 2 2. Faced with balancing the mother's rights and the state's duty to protect life, the FCC turned to dignity. Once dignity entered the balancing calculus on the side of the life interest, the conclusion that the protection of the foetus's life must receive priority over the women's freedom was inevitable.
Thus, the FCC relied heavily on dignity to tip the scales in favour of finding the act unconstitutional, and restrict the rights of the mother. The FCC decided that, despite its potential to avert a major disaster and save thousands of lives, the law was impermissible because it infringed the guarantee of human dignity to the extent that it allowed the lives of innocent people to be taken to save the lives of others.
The FCC's use of dignity here resembles the use of dignity in the First Abortion Case because in both cases the FCC invoked dignity in conjunction with the right to life in order to imbue that right with a weight which justified the application of strict scrutiny when assessing whether incursions into the right were acceptable, and found that they were not. So, too, when the FCC in the Second Abortion decision wanted to give greater weight to the rights of the woman, it began using the concept of dignity to describe those rights, thus indicating that they should be accorded greater recognition than in the First Abortion decision.
In the Second Abortion decision, the FCC departed from its technique of attributing dignity primarily to the life interest in the foetus. Dignity was no longer used to tip the scales in favour of the life interest. Rather, dignity's association with both sides of the conflict resulted in the decision that the state's duty to protect life and the woman's basic rights must be balanced. The Second Abortion decision also illustrates the use of dignity as providing a common metric within which balancing of apparently incommensurable values can take place, and a metric which is not simply expressed as utilitarian.
This, too, is a common practice in other courts which use proportionality. So, for example, in the South African Port Elizabeth Municipality case, the city sought an eviction order against a group of individuals occupying private land. Although the City proposed that the group move to a different piece of land, the individuals rejected the offer because the proposed site of relocation was crime-ridden, crowded, and would not offer them security from another eviction. The City had housing to serve the needs of the poor, but contended that allowing individuals to receive priority in the allocation of this housing was tantamount to rewarding them for illegally occupying land.
The Court found itself in a situation of conflicting rights: Sachs J was clearly unwilling simply to use a utilitarian approach to resolve the conflict: Given that they were commensurate, the Court's role was to seek the solution that would best comport with dignity.
When the Court decided that it would not uphold the eviction order, it justified its decision to limit the right of the landowners to be free from unlawful deprivation of their land as being the choice more congruent with dignity. Consider the similar role of dignity in the context of freedom of expression in the Canadian Supreme Court cases considering obscenity and hate speech. In contrast, in the Canadian cases, the interests of the government were reformulated in dignity terms, and the result was markedly different.
Thus, in Keegstra , we saw earlier that Dickson CJ conceptualized the protection accorded by the legal restrictions on hate speech as heavily engaging dignity. The majority considered that the right to freedom of speech was also underpinned by dignity. Such open participation must involve to a substantial degree the notion that all persons are equally deserving of respect and dignity. In this case, according to the majority, since the speech is one that undermines dignity, the dignity-based reasons why speech ordinarily should be protected from interference are substantially reduced.
But given the unparalleled vigour with which hate propaganda repudiates and undermines democratic values, and in particular its condemnation of the view that all citizens need be treated with equal respect and dignity so as to make participation in the political process meaningful, I am unable to see the protection of such expression as integral to the democratic ideal so central to the … rationale [for protecting free speech].
In my view, hate propaganda should not be accorded the greatest of weight in the [proportionality] analysis. How far should human rights instantiate international or local standards? For example, it allowed the South African court in Port Elizabeth to contextualize its decision in light of the history of apartheid.
Indeed, some scholars have argued that this function of dignity has been vital in particular jurisdictions, not just in the context of individual cases but more generally. Dignity was ideally placed to supply an alternative theory in this context, and we should not be surprised, therefore, to find it heavily used by the Court.
At the same time, the use of imported law is couched in a discourse of globalization or ius commune, in which the Court presents itself as an active participant. The point is not simply that the concept of dignity is vague and open to interpretation and gives judges discretion; in that it does not differ from all human rights obligations and rights. Rather, my argument is that, just as dignity played a significant role politically in smoothing over the transition to human rights in the post-Second World War period at the international level, so too dignity is playing a similar role judicially, enabling rights to be interpreted in a way that domesticates them.
Its role, in practice, is to enable local context to be incorporated under the appearance of using a universal principle. Dignity, in the judicial context, not only permits the incorporation of local contingencies in the interpretation of human rights norms; it requires it. Dignity allows each jurisdiction to develop its own practice of human rights. Dignity has functioned, thirdly, as a source from which new rights may be derived, and existing rights extended. In the Israeli context, for example, human dignity has been seen as providing a basis on which to import rights that had not, intentionally, been included in the text of the Basic Law: Human Dignity and Liberty.
The most blatant exclusions are equality, freedom of religion and conscience and freedom of speech. Notably, several of the religious parties objected to their inclusion. Given that the self-perceived role of the Israeli Supreme Court is to assist in the building of an Israel that is committed to the broad range of human rights, that was unsatisfying. The challenged legislation had revoked the authority of the Secretary of State to provide support for asylum seekers who did not make a recorded claim for asylum as soon as reasonably practicable after arriving in the UK.
Nor were such asylum seekers permitted to work, even where they were destitute. The asylum seekers contended that the regime diminished their human dignity and violated Article 3 of the ECHR , which provided an absolute prohibition on torture, and inhuman or degrading treatment. Dignity was the standard for determining whether treatment rose to the level of inhuman or degrading treatment for the purposes of Article 3.
How should we react to these institutional uses of dignity? Some may see the three uses of dignity as merely rhetorical. The courts use the concept of dignity merely to disguise, for example, the absence of a theory on how to resolve conflict between incommensurable values. Instead of making a choice between conflicting rights, they present the conflict as an issue internal to dignity.
Some may well consider that this approach obscures the moral issues which give rise to conflicts of rights, pretending that the problem is the absence of a common metric, where the real disagreement is deeper. There may be a similar reaction to the other uses of dignity discussed in this part of the article. If these arguments are accepted, then from a substantive point of view, dignity is a placeholder, but it has taken on a rhetorical function in these three distinct contexts to give judges something to say when they confront the really hard issues. Some, indeed, may consider this as a breach of the Rule of Law which, as conceptualized by Raz, requires decisions to be open, prospective, and clear, such that individuals are able to plan their lives around them.
Others may see the uses of dignity described in this part of the article as anti-democratic. This article is not the place to consider whether these arguments are convincing. My only purpose, I repeat, is to identify what seems to me to explain the increasing popularity of the concept of dignity among judges and advocates, not to justify these uses of dignity. Dignity has undoubtedly played a pivotal political role in enabling different cultures with vastly different conceptions of the state, differing views on the basis of human rights, and differing ethical and moral viewpoints to put aside these deep ideological differences and agree instead to focus on the specific practices of human rights abuses that should be prohibited, as Maritain suggested.
Dignity has helped to achieve this by enabling all to agree that human rights are founded on dignity. A basic minimum content of the meaning of human dignity can be discerned: The fault lines lie in disagreement on what that intrinsic worth consists in, what forms of treatment are inconsistent with that worth, and what the implications are for the role of the state. Although a more specific common theory going beyond the minimum core content was not necessary for the political acceptance of the Charter and the Universal Declaration, or for the acceptance of the subsequent human rights texts at the international, regional, and domestic levels, and attempts to generate one might well have been counter-productive, this did not help much when it came to the judicial interpretation of those specific rights that were enacted.
When judges read their texts and found that these rights were founded on human dignity, or found that there was a right to dignity as such, it was not surprising that some considered that dignity should be given a more substantive content. It is significant that dignity is so often drawn on where there is some personal security issue at stake torture, death , where equality is at stake including as a basis for limiting other rights like freedom of expression , and where some forms of autonomy are at stake abortion, sexual practices.
This might have led and may still lead to the development, through discussion among judges nationally and transnationally, of an agreed transnational, transcultural, non-ideological, humanistic, non-positivistic, individualistic-yet-communitarian conception of human dignity which was absent when the Charter and the Declaration were being drafted. I understand Carozza to be arguing that this is what is currently underway. We appear to have significant consensus on the common core, but not much else. I am not arguing that there is no more precise conception of human dignity that is possible beyond this minimum content.
Nor am I arguing that there is no coherent extra-legal conception of dignity which could form the basis of a common transnational legal approach.
The problem is rather the opposite: Dignity appears to become other than impossibly vague only when it is tethered to a coherent community of interpretation. But none of these currently provides a consensus conception of the legal use of dignity, and I am sceptical whether any of these could really provide a secure foundation for its judicial application in the future.
When any one of these conceptions is adopted, dignity loses its attractiveness as a basis for generating consensus with those who do not share that tradition. The central meaning of dignity remains the common minimum core and judicial interpretation has done little, so far, to help us move beyond this. So far, the use of the concept of human dignity has not given rise to a detailed universal interpretation, nor even particularly coherent national interpretations.
No one jurisdiction has a coherent judicially interpreted conception of dignity across the range of rights, and no coherent conception of dignity emerges transnationally. But that does not mean that dignity has no role to play in the judicial interpretation of human rights. The absence of a consensus substantive meaning of the concept beyond that minimum core has not, it seems, prevented it from being used to enable a much looser coordination of human rights adjudication to take place, with significant room for disagreement and divergence over specific practical applications.
Rather than providing substantive meaning, a significant use is institutional: It is a limited role, and possibly a different one from that played in philosophical, religious, and political debate, but it seems to me to go some way towards explaining its current, and I predict future, judicial popularity in human rights adjudication. I would like to thank the following for reading and discussing earlier drafts: Oxford University Press is a department of the University of Oxford.
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