CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ CONSENSUS ON HUMAN NATURE? THE CONCEPT OF EUROPEAN CONSENSUS … to restrain it to the legal perception and to present this concept without any clear and accurate way. 39 In the clash of these two approaches, human dignity comes out as a sort of “treasure hunting” especially when it comes to the judiciary. 40 However, for the purposes of this article, there must be at least a delicate flavour of philosophical perception of human dignity. Without any specification of the human dignity concept, the process of differentiating between rights subject to European consensus (where human nature is not affected) and those rights strictly linked to human nature would be totally impaired. Some would object that in choosing just one perception of human dignity, we are eliminating others. And this is perhaps the crucial point of the legal discourse on human dignity. It is difficult to accept that in a multicultural society where every opinion or conviction has its place of existence, 41 there could be a “totalitarian” position of only “one” perception of human dignity. However, in this regard, the search “for the truth is clear”. As human being and humanity are a unique and at the same time universal conception, there can be only one conception of human dignity. If there are others, this means either they are not the right ones or they are not complete ones. The concept of human dignity can evolve in time, and certainly it has evolved during history. However, there is one fundamental element of human dignity – freedom. “There is an unbreakable link between human freedom and human dignity.” 42 However, this freedom is not attached exclusively to individuals (in their existence towards State power) but to humanity, where every single person is a part of it. Von Geusau contends that dignity belongs to humanity and is inseparable from it. 43 If there is a rupture between freedom and truth, it undermines society itself. 44 Human dignity is a substance being formed simultaneously by individual human liberty and the liberty of humanity (an over-all understanding 45 of the human Kant, Federalists, Schachter, Pope Benedict XVI and others. See: GLENSY, Rex D., The Right to Dignity. Columbia Human Rights Law Review , Vol. 43.1 – Fall 2011, pp. 65-142. 39 UN Charter, “the dignity and worth of the human person”, UDHR, “All human beings are born free and equal in dignity and rights.” Charter of the Human Rights of the EU, “Human dignity is inviolable. It must be respected and protected.” (Art.1). 40 McCrudden says: “The meaning of dignity is therefore context-specific, varying significantly from jurisdiction to jurisdiction and (often) over time within particular jurisdictions. Indeed, instead of providing a basis for principled decision-making, dignity seems open to signify cant judicial manipulation, increasing rather than decreasing judicial discretion. See McCRUDDEN, Christopher. Human Dignity and Judical Interpretation of Human Right. European Journal of International Law , Vol. 19 (2008), pp. 655-724. 41 Even “those that offend, shock or disturb the State or any sector of the population.” See the ECtHR judgment in the case Handyside v. United Kingdom , 7 Dec. 1976, n° 5493/72, par. 49. 42 VON GEUSAU, Alting., op. cit. p. 47. 43 Ibid. , p. 46. 44 Ibid. 45 To read a further development of the over-all (holistic) perception of the human person, see BUREŠ, Pavel. What is not right in human rights protection? A few reflections on some European Court of

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