Issue 48 February 2010 - Discussing Dignity and Human Rights

 

Questions posed by Professor Alan Miller, Chair of the Scottish Human Rights Commission and answered firstly by Dr Elaine Webster and secondly by Dr Mary Ford, Centre for the Study of Human Rights, University of Strathclyde - link

AM: Where does the concept/term human dignity come from and what has it come to signify in today's world?

Dr Elaine Webster: The etymological root of the word "dignity" comes from the Latin dignitas meaning "worth" and the origins of the concept go back to Stoic times. Scholars have traced a timeline of the term's usages. From its early origins it was associated with the idea of equality and with the idea of uniqueness - that man, as a being with reason, stood apart from animals. Enlightenment philosophy, and its reference to the capacity of reason, can be seen to have evolved from these early ideas. At the time of the creation of the inter­national human rights regime such understandings remained influential alongside reli­gious understandings of dignity, e.g. a Christian perspective that viewed dignity as deriving from the divine status of humans as beings created in the image of God. In the Universal Declaration of Human Rights, the reference to the, "inherent dignity of all members of the human family" was used as a mech­anism to ground the enumerated rights. Dignity was not aligned with any particular theoretical or religious tradi­tion. It was seen as something preceding human rights and something that could be agreed upon by the diverse parties to the negotiations, representing different tradi­tions. It, therefore, came to occupy a foundational place in human rights law In today's world, respect for human dignity is a fundamental value to aspire to, to direct how people should be treated in society.

AM: Where is human dignity explicitly or implicitly expressed in modern human rights law, inter­nationally and nationally?

EW: In international human rights law, dignity is referred to most prominently in the Universal Declaration of Human Rights; in the preamble, the first substantive ar­ticle and also in relation to the right to social security and employment remuneration (a legacy of the Socialist tra­dition that argued for the protection of socio-economic rights). These references were preceded by a reference to dignity in the Charter of the United Nations in 1945, which affirms faith in fundamental human rights and in the, "dignity and worth of the human person." The list of explicit references to dignity in international law is a long one—including the International Covenant on Civil and Political Rights; the International Covenant on Eco­nomic, Social and Cultural Rights; the Convention on the Elimination of All Forms of Racial Discrimination; the Convention on the Elimination of All Forms of Dis­crimination against Women; and the Convention on the Rights of the Child, to name a few examples. Both the American Convention on Human Rights and the African Charter on Human and Peoples' Rights contain explicit reference to human dignity. The European Con­vention on Human Rights does not, in fact, refer explic­itly to human dignity but it is indisputably underpinned by it. We know this because the Strasbourg organs have, since the early days of the Convention protection sys­tem, referred explicitly to respect for human dignity in their case-law For example, in the case of SW' v United Kingdom (A/355-B), the "very essence" of the Conven­tion was described as, "respect for human dignity and human freedom". Although not expressly referred to in the text of the European Convention, respect for human dignity has been positioned as a fundamental value of democratic societies. National human rights law, tied to the international protection system, can also be seen to embody respect for human dignity as a value. References to dignity are also prominent in national constitutional law, and some jurisdictions, such as South Africa, India, Germany and France, have been developing interesting jurisprudence that draws upon the concept.

AM: Some people might argue that human dignity is too vague a concept to be of practical value—do you agree?

EW: No. That would presume that concepts must be precise and clear to be of any practical value, which is not the way we operate. We need malleable concepts - concepts such as justice or freedom for example - to inspire and guide our decisions and actions. The complexity of such ideas stems from their importance for human lives, which is why we see them as valuable concepts in the first place. It is unsurprising that there is disagreement about the con­tent or implications of the concept of human dignity in particular situations. When we recognise the complexity of the concept then we can begin to use it in meaningful ways. It is helpful to be conscious, when appealing to human dignity, of what function we want that appeal to serve. It is also, notably, helpful to recognise that dignity is not one-dimensional but can be seen to have many facets in the way it is used. The European Court of Human Rights, for example, talks about the violation of dignity and it also suggests that the expression or manifestation of one's dignity can be harmed, which is probably best un­derstood as pointing to distinct facets of the concept of dignity. Some authors refer to the subjective and objective dimensions of dignity. The concept can perform differ­ent roles. I think that if we are sensitive to the complex­ity of the concept in this sense then it is ultimately about making arguments that we want to defend. Whether it is an individual or a court making a decision, we are all fa­miliar with the idea of dignity just by being members of the community in which it has significance. Often there is no one right answer; only sensitive judgments and good arguments.

AM: In what sense can it be said that human dignity finds concrete expression through human rights law?

EW: I understand respect for human dignity to take the form of a fundamental value in human rights law This suggests that it performs an important role in judicial interpretation of certain rights. In this sense, the need to respect human dignity can be seen to guide our understanding of the essence of particular rights. For example, there is evidence of this in the jurisprudence of the European Court of Human Rights in the context of the right not to be sub­jected to torture, inhuman or degrading treatment, or punishment When considering the scope of this right, the Court has taken into consideration that it is a purpose of this right to protect an individual's human dignity (this was first evident in the Tyrer v United Kingdom corporal pun­ishment case). Dignity takes on substantive meaning through interpretation of die meaning and scope of the rights themselves. A richer understanding of the ways in which human dignity is understood by the courts would help us to better understand the meaning of particular rights. There is scope for further research in this respect.

AM: What jurisprudential developments are we likely to see emerge from Strasbourg and what would be the relevance for Scotland?

EW: The Strasbourg jurisprudence is continually evolving; there is always scope for new developments. The pro­tection organs have built that evolution into the fabric of the Convention. The area ripe for development, in rela­tion to respect for human dignity, concerns the scope of application of art.3, in particular the right not to be sub­jected to inhuman or degrading treatment and art.8, the right to respect for private and family life, as well as the relationship between these two rights. I think this might encompass situations such as care of the elderly and pro­tection of elderly persons' home and family life. Inter­esting questions about the obligations of the state might also be implied here if care is provided by the private sec­tor. Socio-economic deprivation is an issue that has been raised in Strasbourg before and recently the concept of human dignity has been prominent in international de­bate and constitutional law, with references to a dignified standard of living, notably as a push towards enforce­ment of socio-economic rights. There is scope for de­velopment of art.3 in this sense, particularly given advances in the interpretation of State obligations. What­ever happens in Strasbourg is of relevance for the UK and Scotland. Nationally, of course, we can progress above the floor of protection already recognised by Strasbourg.

Dr Mary Ford, Centre for the Study of Human Rights 'Law, University of Strathclyde

AM: What does human dignity mean in the field of medical law and ethics?

MF: There is no agreement among academic commentators about the meaning of human dignity in this context It is probably fair to say that the evolution of the debate on dignity in medical law and bioethics parallels the de­velopment of wider - and more abstract - debates on dignity. These debates have evolved over time, moving from ancient understandings through religious accounts that link dignity with divine creation and ensoulment to the Kantian account that dominated Enlightenment thinking and which associated dignity with capacities like rationality and autonomy, and, finally, to more modern accounts in which, although still heavily influenced by Kant, there is beginning to be more emphasis on the role that factors like relationships play in the overall "dignity picture". I think that the "orthodox" understanding of dignity in medical ethics, if there is one, would be one which still places a lot of emphasis on abstract intellectual qualities and capacities. The concept of personhood, which has been influential in contemporary ethics, is an example of an approach that ascribes status on the basis of capacities. There are others. However, there is an in­creasing recognition that human dignity must signify more than abstract intellectual properties, as well as a gradual move toward understandings of dignity that deal with the corporeal (embodied) nature of human beings and their location within networks of social, familial and political relationships to other beings. In summary, the trend among scholars seems to be to try to understand dignity in a way that takes account of the whole human being, rather than just the collection of cognitive capac­ities sometimes called "the person".

AM: What is the relationship between the above and modern human rights law and values?

MF: As described above, the development of the concept of dignity in medical law and ethics has probably paralleled debates about dignity in other contexts, including inter­national human rights law: There is undoubtedly a lot of cross-fertilisation between the legal sub-disciplines, for a range of reasons. First, all of the sub-divisions converge in the courts. It would not be unusual for the same bench of judges that considered a medical law case last week to be asked, this week, to consider a case involving inter­pretation of human rights and so it is likely that ways of thinking about dignity will be transplanted from one type of case into another, whether deliberately or not Fur­thermore, judges and academic scholars grappling with any concept - particularly one as mercurial as "dig­nity" - will, as a matter of course, look to see how this concept is treated in other contexts, by other scholars and practitioners. If a working definition exists elsewhere, it may well be adopted.

However, there is no necessary reason why medical law and ethics need adopt the understandings of human dignity contained in human rights law, or vice versa. What is meant in each context may be slightly different or a different emphasis may be required. Medical law and ethics and human rights law are related disciplines and they often overlap (e.g. in high profile cases like the case of Diane Pretty, which was both a medical law and a human rights law case). But they are ultimately distin­guishable from one another, since their underlying pur­poses are different. It may well be essential that the concept of dignity as it appears in human rights law em­phasises the universality and equal distribution of dignity and what this means in terms of individual rights against states. This is because the purpose of human rights law is to protect (less powerful) individuals in their relation­ships with (more powerful) States and insist that States re­spect the status of all human beings equally. This is not a main purpose of medical ethics, which aims instead to mediate relationships between patients and professionals wherein the interests on both sides are supposedly congruent ("the best interests of the patient"), even where there is disagreement about how best to give ef­fect to them.

In summary, there is significant cross-fertilisation, both for historical and practical reasons, between the concept of dignity as it exists and operates in human rights law and the concept as it occurs in medical law and ethics; nevertheless, it is important to bear in mind that there need not be a single concept of human dignity for use in all legal or ethical contexts. The work the concept is being asked to do in each context is likely to be differ­ent and, accordingly, it may be appropriate to emphasise different components or facets of dignity in medical law and ethics than in human rights law

AM: What are some of the points of intersection be­tween human dignity, medical law and ethics, and human rights in terms of contemporary topics of public concern?

MF: The most obvious points of intersection occur in the area of reproductive rights, in claims about rights to re­ceive or refuse treatment and rights to die. Generally, any legal or ethical issue involving the creation of human life, the beginning or end of life, or any issue about the treat­ment of patients will fall simultaneously under the' 'med­icine and ethics" and "human rights" headings and will, therefore, engage human dignity

In particular, what is the relationship between human dignity, medical law and ethics, and human rights in terms of the current public debates con­cerning assisted dying and voluntary euthanasia?

If we accept (as I think we must) that dignity can mean different things within different contexts or frameworks, then it follows that assisted dying and voluntary eu­thanasia are sites of potential conflict between differing notions or understandings of dignity. Happily, the human rights framework is flexible; the courts should not apply the Convention rights rigidly or without regard to con­text Rather, in assessing whether an individual has been harmed in a way that violates a Convention right, the courts can always adopt a context-sensitive approach and consider all of the relevant aspects of a person's situation. In other words, courts can be flexible about how they regard "dignity" and identify offences to dignity, in each case. Where a dispute about assisted dying or euthanasia comes before a court, therefore, both medical law/bioethics and human rights are engaged simultane­ously. Part of the court's sensitivity to context in such cases will be a specific sensitivity to the particularities of the medical law context, including an appreciation of the realities of patienthood. Whatever understanding of dig­nity we (and the courts) use in cases with a medical law dimension, care must be taken not to exclude patients from dignity altogether by tying dignity too closely to characteristics like autonomy, rationality, independence, control, or other characteristics that, by the very nature of illness, disability or injury patients are likely to lack. In the medical law context it is important to develop an under­standing of dignity that is able to take account of vul­nerability, suffering and a degree of disorder.

AM: What other significant issues are likely to emerge in the near future in terms of the intersections be­tween human dignity, medical law and ethics, and human rights?

MF: I foresee dignity issues being at the forefront of at least three important horizons of bioethics. First, reproductive technology will continue to advance, and each advance will raise dignity issues which, even if not entirely' 'new"', are encountered in novel ways and in unfamiliar contexts. Dignity is also likely to be central to debates about "bio-capital", or markets in body parts and products. Among bioethicists debates about owning, selling gifting and profiting from bodies and their parts have been under­way for some considerable time and dignity has featured in these debates. As these discussions move increasingly to the forefront of the public consciousness, society will be confronted with numerous questions around issues of what owning, patenting, transferring, and profiting from our own bodies and their parts and products might mean for human dignity. A third type of debate involv­ing considerations of dignity that has been taking place among academic commentators (and is likely to become increasingly visible to the public) involves so-called "human enhancement technology" ("HET"). HET is broadly defined as the use of technology, either in the form of genetic engineering or in the use of emerging technologies like nanotechnology or neural implants, for non-therapeutic purposes. Some commentators advo­cate the use of these existing and emerging technologies not only in the treatment of illness or disability but to alter human characteristics in order to overcome current human restrictions and increase the limits of human ca­pability.

AM: How can the interrelatedness between human dig­nity, medical law and ethics, and human rights best be promoted in terms of language, approaches, a coherent framework of shared responsibilities, etc.?

MF: I think this is an interesting question. What "dignity" means (or what aspects of dignity require to be empha­sised) in a particular context will depend in large part on the context itself - on the values, purposes and norms that apply within the framework in question (e.g. the framework of international human rights law). Obvi­ously, as discussed above, there will be areas of overlap between different areas of law (and between uses of dig­nity in law and in other disciplines). My own view, however, is that it would be undesirable and probably im­possible to attempt to "harmonise" discourse about dig­nity, or standardise the concept's emphasis and expression across diverse disciplinary or sub-disciplinary contexts. Indeed, I think a greater threat to the effective use of the concept of dignity in any context is likely to be a failure to appreciate the particularities of that con­text, and the role dignity needs to fulfil within it One of the great strengths of the concept of dignity I believe, is its suppleness and adaptability, and this is why it contin­ues to feature, in some form or another, at such a fun­damental level in so many diverse discourses.