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203
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