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PAVEL BUREŠ
CYIL 7 ȍ2016Ȏ
person).
46
This means that human beings are (by and through their existence) in
relation to other human beings (and humanity in its entirety) and they are influencing
(affecting and shaping) other human beings (and humanity). Spaemann contends
that all of us are exploiting others as a means to reach other purposes. Nobody in that
system is
only
a means without being a purpose for itself.
47
Thus human dignity has to be understood in this over-all perception. To
apprehend human dignity (and so human liberty) only as an opposition to State
power would impair and deteriorate the concept and the substance of human
dignity in its over-all perception. The existence of State power, representing society
(and thus humanity) in the concept of human dignity is very essential.
48
Then, this understanding of human dignity should play a big (not even the
biggest) role in human rights adjudication. This is valid not only for the “hard”
human rights (right to life, prohibition of torture, or slavery) but to other “soft”
human rights where there might be some limitation and interference of State power.
Human dignity in this over-all perception reflects the specific elements and issues of
reproductive rights.
Thus in the analysis of human nature, human dignity serves as a specific element
of human nature or more as a specific quality. Human beings, having their proper
unchangeable nature, are entitled to (human) dignity. Respect for human dignity is
shown to human beings because they belong to the human race, the nature of which
is something special (comparing to other species). It has to be noted however, that it
does not mean that all acts performed by human beings are covered by the human
dignity concept and thus are natural.
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Can the unchangeable character of human dignity be concealed anyhow with
the logic of an evolutive interpretation and more specifically with the concept of
European consensus? From the point of view of the adjudications of the ECtHR,
this question should be rephrased in more legal patterns: Can the interpretative
technique of European consensus be employed in every situation of societal change?
Or, are there any limits or areas where European consensus should not play any role?
Human Rights judgments. In:
Czech Yearbook of public & private international law
, vol. 5 (2014),
pp. 243-253.
46
Clarke points out the Thomistic over-all perception of human being –
esse in substancia
and
esse in
relatio –
being in the sense of substance and in the sense of relation. CLARKE, W. Norris. Osoba a Bytí.
Krystal OP, Karmelitánské nakladatelství, 2007, 117 p.
47
SPAEMANN, Robert.
Základní mravní pojmy a postoje
. Nakladatelství Svoboda, Praha. 1995,
pp. 77-78. Spaemann goes on in concluding: “It is why Kant contended that the person has not a value,
but
dignity
. Every value has its proper quantity and can be included in a comparative calculation.
Unlike dignity as a characteristic.”
48
In the right understanding of human dignity, society cannot limit the human liberty of individuals, but
society helps human liberty to flourish.
49
There are lots of human behaviours which are disapproved of by society and repressed by the legal order.