Human dignity as a universal legal value

Introduction

The processes of global changes in the modern world condition an increase in attention to their value component, which bears the imprint of these processes, and gives signals about trends and prospects for their further development. This is especially noticeable in relation to such a sphere of society as law, in which there is a shift in guidelines from value neutrality to value fullness. This leads to increased interest in research in the field of axiology of law in post-Soviet jurisprudence (Babenko, 2002; Vetiutnev, 2013) and even the separation of the value component of law into a special structural element of the legal system, the so-called “axiosphere of law” (Gorobets, 2013). In modern Western philosophy of law, the topic of the relationship between law and values is considered in a more applied scope, for example, as a correlation of values and principles in the structure of constitutional rights (Alexy, 2002), or as a recreation of the classical formulation of the question of the value and purpose of law (Sellers, 2019). In the framework of the humanistic worldview, recognition of a man as the basic value is obvious. This causes the attention of legal philosophers to the topic of human dignity as an inalienable property of a human being. At this, dignity is regarded as the basis of human rights (Waldron, 2015) and as constitutional value (Chaskalson, 2002). The study of human dignity as a philosophical and legal category (Hryshchuk, 2018) and as a category of constitutionalism (Shevchuk, 2018) has been developed recently in Ukraine.

In this, the growing demand for axiology in modern jurisprudence is accompanied by a crisis of values justification and a rethinking of their nature. This is especially true with respect to dignity – a concept that in the modern world, on the one hand, is extremely relevant, and on the other hand, is seriously criticized (Singer, 1993, pp. 88-89).

In a legal context, human dignity is studied primarily in the framework of conceptual analysis. Thus, prominent German philosopher Jürgen Habermas analyzes the role of the concept of dignity in the composition of human rights from a systematic, conceptual and historical point of view. He explains the origin of human rights from the moral source of human dignity and connects with this their explosive power as a “realistic utopia” (Habermas, 2010). At the same time, the question of substantiating the very essence of dignity in jurisprudence often remains open. As Mette Lebech points out, the history of the expression “human dignity” is not identical with the history of human dignity as such while “What human dignity is determines how it can be used in an argument to ground and defend human rights, and many might think that it also determines how effectively it can do this” (Lebech, 2009, p. 151). Within the phenomenological approach Lebech investigates the idea of human dignity in the Western philosophical tradition and describes haw human dignity is experienced. A similar phenomenological account of human dignity was recently presented by Uriah Kriegel (2017). At the same time, phenomenologists, as a rule, do not emphasize the legal implications of their conclusions. However, a combination of the two aforementioned areas of understanding of dignity, it seems, can be very productive.

The purpose of this article is to substantiate the thesis about human dignity as the initial and universal legal value. Such an approach involves, as a preliminary task, the search for an answer to questions about what values are, how values and law are related, and also what values determine the internal content of law, its basis (1), and then the disclosure of the essence of human dignity (2) and its significance as the basic, universal legal value (3).

Methodology

The whole of the following investigation can be considered as belonging to philosophical and legal anthropology and axiology. Based on the subject of study characteristics, the methods applied in the paper involve phenomenological and analytical ones in their unity and complementarity. In this, the authors aim to give a fresh look at dignity – not from the point of view of norms and institutions, but from the perspective of experience. This determines the main motive of the study, which coincides with the main motive of phenomenology – the desire to think the world, first of all, not as the object of our cognition or technical domination, but as what happens to us. The study of the anthropological foundations of dignity is carried out as part of a phenomenological clarification of the kind of experience we have in its presence and which is the experience of mutual recognition. The methods of logical analysis and comparison are used to comprehend various theories about the foundations of dignity, as well as to determine the place of dignity in the structure of legal values. Using the method of historical and philosophical reconstruction, the transformation of ideas about dignity in the twentieth century is traced. The formal legal method will be used to analyze international documents that protect human dignity, as well as national legislation and the practice of its application.

Results and discussions

Legal values

Values, this is something that is significant, important for a person and evokes a positive attitude towards oneself. They represent the goals that people strive for. Values are associated with satisfaction of human needs, they motivate human activity.

A person evaluates certain phenomena or processes in terms of their significance as good or bad, right or wrong, that is, makes the activity of evaluation. The criterion on the basis of which the evaluation is made is values. They are embodied in the real life of people: on the one hand, in the being of people themselves as their specific qualities or virtues (prudence, courage, wisdom, justice); on the other hand, in the existence of things and events as a good (order, culture, civilization) (Alekseev, 1999, p. 101).

Since law is a cultural-historical phenomenon, that is, a phenomenon created by man, its nature and content cannot be understood without applying to the values that it embodies and that it protects. Such values are called the legal values.
Thus, legal values determine the essence and purpose of law underlying it. They find their embodiment (objectification) in the principles of law and legal norms. Each legal norm, which is not of a purely technical nature, serves as the embodiment, development, specification of a certain value. Particularly close relationship exists between legal values and the principles of law. If value focuses activity on a desired goal, then the principle determines general requirements for ensuring the implementation of such a goal (justice as the value and the principle of justice).

The concept of legal values is usually associated with the natural law approach, which emphasizes the content of law. Thus, even Augustine (The City of God) emphasized that the difference between the state and the band of robbers lies in the fact that it is based on justice: “Justice being taken away, then, what are kingdoms but great robberies?”

Without going into arguments about the nature of law, in serving this universal value the value and purpose of law is expressed. As Mortimer Sellers (2019) writes:

The purpose of law is to serve justice, all law claims to do so, and is justified and legitimate only when it does so in fact. The recognition, legislation, interpretation, and application of the law will always be governed by these purposes, whether acknowledged or not, and all assertions of law are supported, explicitly or implicitly, by the claim of systemic justice (p. 51).

At the same time, the idea of justice is revealed through other values, rooted in the mode of being in the world, or in a human experience, – freedom, equality and dignity. Depending on priorities, most theories of justice can be divided into those based on freedom, welfare, or virtues (Sandel, 2010). In this, the value of freedom, equality and dignity is not only conventionally postulated, but is presupposed by the very structure of experience as a mode of our being in the world. In turn, justice is a complex value designed to guarantee equality in freedom and dignity. In other words, the idea of justice is both descriptive and normative, since “is” and “ought” merge in the concept of experience, or, quoting Lloyd L. Weinreb (1987), “kosmos lies within ourselves” (p. 249). Understood in this way, freedom, equality, dignity and justice are not just values ​​subject to legal protection, but meanings that constitute law.

The fundamental nature of these meanings is reflected in Art. 1 of the Universal Declaration of Human Rights: “All human beings are born free and equal in dignity and rights.”

Among these fundamental values, it is dignity that remains the greatest mystery, despite the fact that this concept is central to most Western ethical systems. On the other hand, we suggest, it is dignity that is most closely related to that aspect of human existence that can be called the experience of law. What this experience is? And how does this experience ground our legal institutions?

Human dignity: from experience to norm

Dignity is connected to such a kind of experience, or a part of our everyday life, as experience of mutual recognition. It is noteworthy that Fichte and Hegel, whose ideas are associated with the origins of the modern discourse of mutual recognition, reveal this concept in the context of philosophical and legal considerations. Later, in the phenomenology of law, mutual recognition is regarded as a condition for the possibility of law. Thus, according to Nikolay Alekseev (1999), the rights and duties as two types of law are constituted in acts of mutual recognition – special intentional acts, expressed in the focus on the Other, who is seen as a value that deserves legal protection (p. 83-86). The direction of such recognition is twofold – to the other and to the norm: I recognize the norm while recognizing the generalized other, who constantly reminds me of my duties towards all other people, who, in turn, recognize me as the bearer of rights (Honneth, 1995, pp. 107-121).

In traditional societies, this recognition is confirmed by the ritual exchange of gifts, during which there is a constant circulation of return gifts, and each return gesture confirms the subjectivity of the first giver. Thus, people confirm to each other that they are not things (Ricoeur, 2010, p. 214), that is, confirm the dignity of each other. In his study of the gift, Marcel Hénaff (2015) very convincingly shows how the gesture of mutual acceptance and unity as the core of these rituals, was transferred to the legal institutions of modern society (pp. 77-84). Today, the direct expression of mutual recognition is human rights, which guarantee everyone the minimum public recognition of his equal freedom and equal dignity.

In this, unlike market relations, where it is a matter of mutual recognition of the members of a community on the basis of equivalent exchange, law is based on the initial excess recognition of any other. What in traditional cultures found expression in the traditions of hospitality is embodied in the modern world in the idea of ​​universal human rights and duties to refugees. And, as Hénaff (2019) notes, outside of ceremonial procedures and locally established communities, there is no other justification for the requirement to recognize the radical otherness of the other than his absolute dignity (p. 412).
The question is, who is this other? Around this question, debate over dignity criteria is unfolding.

What could be the defining feature inherent exclusively to a human being, thanks to which the dignity of a human being would be recognized? Or, as Francis Fukuyama (2002) formulates this, what is Factor X – “some essential human quality underneath that is wor­thy of a certain minimal level of respect”             (p. 149).

There are three main answers to this question.

1. Likeness to God. This is a religious (Christian) approach. Since God created man in his own image and likeness (Bible, Genesis 1:26), this rises him above all living beings. Although what is exactly this likeness, or similarity, is interpreted differently, but in any case, it includes reason and free will.
2. Designing one’s own capabilities. A person’s need to make himself what he would like to be is what distinguishes a person from other living beings.
3. The end in itself. Immanuel Kant sees a man as a self-centered being. It is human rationality and autonomy as a consequence of this rationality that are the distinctive features of a man and give him “priceless dignity”: “Autonomy is thus the ground of the dignity of the human and of every rational nature” (2002, p. 54).

Nevertheless, it will be difficult for someone who is not a Christian believer to recognize the similarity of a man to God as the basis of his dignity. Difficulties may also arise for a person with a materialistic worldview with the Kantian understanding of human dignity. Therefore, in a society neutral from the point of view of religion and worldview, both of these lines of proving can come closer together. Within the framework of understanding human dignity on the basis of “designing one’s capabilities”, the social principle of human dignity can be formulated as the socially recognized ability of a person to be what he wants to be, even if this ability cannot be actually realized (Kirste, 2010, p. 128).

Despite the lack of a generally accepted answer to the question of dignity criteria, today dignity is given an evident ethical priority over other legal values. The very opening sentence of the Universal Declaration of Human Rights reads: “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, …”

Human dignity within contemporary legal reality

The idea of human dignity, as well as the ideas of freedom, equality, justice, belong to the main topics of legal thought since the ancient times. Nevertheless, its importance as a legal concept (principle, value) sharply increased after the Second World War, when humanity faced the terrible cases of mass humiliation of human dignity in incredibly vast scope. To prevent the return of such state of barbarism, human dignity becomes a “new key concept” for law which contains the understanding that a person, due to his special properties that distinguish him from all other living beings, should be treated with a special care. As Kharytonov, Kharytonova, Kharytonova, Kolodin, & Tolmachevska (2019, p. 478) wrote, “the Second World War has become a kind of catharsis, showing the possible height and fall of the human spirit, the price and pricelessness of human life, honor, and dignity”. So, since the middle of the 20th century, human dignity has been regarded as the highest and inviolable value, which is at the top of the constitutional order, and the constitutional provision of its inviolability is an “anthropological prerequisite” and the starting point of all actions of a state.

The idea of human dignity is expressed in well-known legal documents. The 1948 Universal Declaration of Human Rights, article 1 states: “All people are born free and equal in dignity and rights”. The European Union Charter of Fundamental Rights in the preamble notes: “The European Union is founded on indivisible, universal values of human dignity, freedom, equality and solidarity”. The provision on human dignity as the most important constitutional value is reflected in some national constitutions, including the Constitution of Ukraine, the article 3 of which states: “An individual, his life and health, honor and dignity, inviolability and security shall be recognized in Ukraine as the highest social value”.

 The most thorough idea of human dignity is presented in the Constitution (The Basic Law) of Germany: “Human dignity is inviolable. To respect and protect it is the duty of all state authority”. There the value of human dignity is not only recognized, but the principle of the inviolability of human dignity as an important basis for its protection is also established. The doctrinal consolidation of the provision on human dignity as a right and a constitutional value was maintained in the Decision of the Constitutional Court of Ukraine of May 23, 2018 No. 5-r / 2018:

... human dignity must be interpreted as the right guaranteed by Article 28 of the Constitution of Ukraine, and as constitutional value, which fills human being with meaning, is the foundation for all constitutional rights, a measure of determining their essence and a criterion for the admissibility of possible restrictions on these rights.

The principle of human dignity in the functioning of the legal system is expressed through recognition of the status of a person as a subject of law as a holder of rights and obligations. That is, the recognition of a person as a subject of law (in accordance with the doctrine of the statuses of the German lawyer Georg Jellinek) confirms the recognition of his human dignity. Recognition of human dignity stems from subjectivity. A person has rights and obligations, can build his life by designing and implementing life projects.

In this aspect, human dignity is considered as the basis of human rights and, according to Jellinek, appears in accordance with the following statuses: negative status (status negativus) – in individual civil rights, which are a manifestation of the right to protection from arbitrary interference in human life; positive status (status positivus) - in the right to positive actions of the state to ensure a decent life (social rights); active status (status activus) – in participation rights, i.e. political rights (1905, 86 ff.).

Thus, the recognition of human subjectivity serves as a justification for the status of human dignity as the foundation of human rights. As John Tasioulas wrote: “Both universal human interests and human dignity are values that lie at the foundations of human rights; they are the underlying values that ground human rights claims” (2019, p. 1179). On the one hand, all human rights stem from the recognition of the person’s dignity, and on the other, the institution of human rights serves as the best form of embodiment and protection of the dignity of the person.

The philosophical approach to substantiating the thesis of human dignity as the basis of human rights is demonstrated by Jürgen Habermas. In the article “The Concept of Human Dignity and the Realistic Utopia of Human Rights”, he argues that the idea of human dignity is the normative source of modern basic human rights. This idea implies that rights are rooted in the universal content of morality. By their very legal essence, they are called upon to protect human dignity, which has, on the one hand, self-esteem, and on the other, the social recognition of the international status of democratic citizenship as its necessary connotations. Hence, the necessary correlation with the concept of realistic utopia, the inalienable goal of which is the realization of social justice inherent in the very institutions of a democratic constitutional state (Habermas, 2010). We observe how, like a reconstruction of the unfolding of universal legal values in Ulpian’s concept from the original legal value of “honest life”, or dignity, Habermas (2010) shows that “human dignity” should also be considered a moral “source”, which in content contains all basic rights: “Human dignity, which is one and the same everywhere and for everyone, grounds the indivisibility of all categories of human rights” (p. 35). The absoluteness of human dignity as a universal value is derived from the absolute value of a person. The “infinite dignity” of each person exists because all others honor this sphere of free will as untouchable, that is, as a result of social recognition. “Only this internal connection between human dignity and human rights give rise to the explosive fusion of moral contents with coercive law as the medium in which the construction of just political order must be performed” (p. 47), an outstanding philosopher concludes his reflection on the relationship between human rights and human dignity.

In addition to recognizing human dignity as the basis of human rights, the right to dignity is also justified as a separate human right. In particular, in the Constitution of Ukraine and in the doctrine, one finds recognition of such a right: “Everyone has the right to respect for his dignity” (The Constitution of Ukraine, art. 28).

The problem of human dignity has been repeatedly raised in the decisions of the Federal Constitutional Court of Germany. This allowed formulating principles for resolving cases on these issues. First of all, the criterion for the violation of human dignity is the attitude on the part of state power to a person as an object.

An appeal to the constitutional principle of the inviolability of human dignity formed the basis of the argumentation regarding the so-called Aviation Security Act. In 2006, the Federal Constitutional Court of Germany considered the issue of constitutionality of the law on “Aviation Security” adopted by the Parliament. The Parliament then kept in mind a 9/11 scenario, that is, a terrorist attack on the twin towers of the World Trade Center, and therefore allowed in situations where a passenger plane turns into a live bomb, to shoot it down to protect a much larger number of people who are on the ground. It was a violation of human dignity due to the attitude to people as objects that formed the basis for the conclusion that the decision of the German Parliament was unconstitutional:

Moreover, para. 3 § 14 of the Aviation Security Act is not compatible with the constitutional right to life and with a guarantee of personal dignity if, as a result of the use of armed forces, innocent people on board of an aircraft are affected. The indicated persons become exclusively objects, since the state takes their lives for the sake of saving other people; they are denied human value (Selected Decisions of the Federal Constitutional Court of Germany, 2018, p. 46).

The protection of human dignity is maintained not only in constitutional, but also in other branches of law.

Medical law prohibits human cloning, which is considered an interference with human nature, which is detrimental to human dignity (The Universal Declaration on the Human Genome and Human Rights, Additional Protocol on the Prohibition of Human Cloning to the Council of Europe Convention on Human Rights and Biomedicine, European Union Charter on Fundamental rights). In addition, the constitutional provision is specified in medical law that no person can be subjected to medical, scientific or other experiments without his voluntary consent.

The Civil Code of Ukraine provides for such a way of protecting civil rights and interests, as compensation for non-pecuniary damage, which fulfills the humanistic mission of protecting human dignity. The right to social security is designed to guarantee citizens an adequate standard of living and social security as components of a decent existence.

In addition to the constitutional provision that no one may be subjected to torture, cruel, inhuman or degrading treatment or punishment, the Criminal Code of Ukraine states that the punishment is not intended to inflict physical suffering or humiliation of human dignity, but according to the Executive-Penal Code of Ukraine, convicts have the right to a humane attitude to themselves and respect for the dignity inherent in the human person. In turn, The Criminal Procedure Law prohibits the transformation of people into a defenseless object of state activity, which is disposed of as an object, and helps to restore the dignity of the victim and protect the rights and freedoms of the suspect /accused. All this gives the reason to consider human dignity as an evaluation criterion within the limits of procedural justice.

Conclusions

A look at the value dimension of law from the standpoint of identifying deep systemic links between universal or basic legal values expressing the very nature of law, such as human dignity, freedom, equality and justice, made it possible to identify their systemic unity, centered around an integral value – justice. At the same time, the anthropological approach to the system of legal categories, or values, made it possible to emphasize the dignity of a person as an initial legal value that affects the configuration of other universal legal values.

The emphasis on human dignity as the most important guideline of natural law thinking in the newest conditions allows us to organically introduce the moral dimension into law, as its fundamental basis. Human dignity is recognized as the most important moral and legal value, through which the normative legitimization of human rights as a normative idea and legal institution is carried out.

The ethical priority of dignity in the system of legal values ​​emphasizes the universality of human rights, which are based on the initial and unconditional recognition of the other in his uniqueness, regardless of his belonging to a particular community.