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PAVEL BUREŠ
CYIL 7 ȍ2016Ȏ
nature of its meaning.
30
As human dignity is an element of human nature, we will
focus our attention on this concept to which the jurisprudence of the ECtHR is more
habituated.
4. Human dignity
Human dignity
31
is certainly a concept of legal discourse, but it has a deeper rooting
in many areas of human society – philosophy, ethics, morality etc. As human dignity
exceeds all limits of state-based society, it is anchored in
ius naturalis
conceptions.
“All human beings are born free and equal in dignity and rights”.
32
Human dignity is
somewhat in the centre of human rights protection, as nearly all human rights spring
from this concept.
33
As a concept of
ius naturalis
, strictly embedded in human nature, human dignity
cannot be (or at least should not be) a subject of the so-called democratic process.
It is not a matter of debate and interpretation.
34
Human dignity is something that
is “intrinsic for all human beings”
35
and at the same time to the entire humanity
in the sense of metaphysical cosmology. Thus, human dignity is more a concept of
philosophy (and religion), but with strong legal implications,
36
as the concept of
human dignity revives especially in the process of juridication (be it in the legislative
or judiciary sphere).
In the attempt at defining human dignity,
37
there are only two possibilities: either
to expose a deep philosophical argumentation
38
of the concept of human dignity, or
30
We are not able, here, to answer the old question of legal philosophy about the process of the creation
of these norms on human nature. In different words, to answer the question of who or what rules on
what human nature is.
31
The concept of human dignity has been already developed by the author. See BUREŠ, Pavel.
Reproductive rights and human dignity. Convergence or divergence in the Jurisprudence of the
European Court of Human Rights.
In
Czech Yearbook of public & private international law
, vol. 6
(2015), pp. 239-254. This version has been revised.
32
1948 Universal Declaration of Human Rights, Art. 1.
33
We are speaking about human rights which are strictly linked to the human person and which do not
need a State-based environment (e.g. political rights).
34
VON GEUSAU, Alting.
Human Dignity and the Law in Post-War Europe. Roots and Reality of an
ambiguous concept
. Wolf Legal Publishers, 2013, p. 40.
35
CHAPMAN, Audrey R. Human dignity, Bioethics and Human Rights, In. Health Care, Bioethics and
Law, 3 Amsterdam Law Forum, (2011), p. 4.
36
One may argue, that every era has its own philosophy trends, from Ancient Socratic, Medieval
Christian, Voltairian, Kant-Hegelian to nowadays post-modern philosophy. Would it thus mean that
the concept of human dignity and its content depend on the particular approach of the prevailing
current philosophical trend? If yes, even the contemporary conception of human dignity and human
rights cannot claim to be the universal and right/proper one. But just an interim and elusive one.
37
The ECtHR leaves the definition of human dignity aside and takes it as such. It usually stresses the
fact that “The very essence of the Convention is respect for human dignity and human freedom.” (Cf.
Grand Chamber judgement in the case
Pretty v. United Kingdom
, 22 April 2002, n° 2346/02, § 65.
38
E.g. Glensy presents different points of view towards dignity, going through Cicero, Thomas Aquinas,