Liberty of Faith and Conscience
Human Dignity – Constitutional Principle of Fundamental Human Rights
As a constitutional principle of the
human rights, the human dignity is a supreme value,
a norm and a right, thus that the reconfiguration of
protection standards of fundamental human rights is
made by cohesion of the legal, social and moral
dimensions of human dignity. With this article, the
author argues that legal meaning, social meaning and
moral meaning of human dignity, are centerpiece of
protection of freedom under law.
Keywords: human dignity, legal meaning,
social meaning, moral meaning, human rights,
„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”, as it is stated ad literam in the Preamble of the Universal Declaration of Human Rights, one must find, under the auspices of the Constitution of Romania the fact that, irrecusably, the human rights and human dignity are inseparable concepts and realities in a state subject to the rule of law.
As a constitutional principle of the human rights, the human dignity is a supreme value, a norm and a right, thus that the reconfiguration of protection standards of fundamental human rights is made by cohesion of the legal, social and moral dimensions of human dignity.
Legal meaning: human dignity – the right to have rights:
If one acknowledges the authority of „human dignity” concept from the perspective of the constitutional principle of fundamental rights, one accepts the irrecusable legal force of the principle to order a priori on guaranteeing and protecting a fundamental right, and the rigors of right acknowledgement are subordinated to the „human dignity” concept.
As against the role of general principles that precede all constitutional regulations, I declare the legitimacy and defining importance of paragraph (3) in article 1 of the revised Constitution of Romania that proclaims expressis verbis the supreme values that determine directly the content and purposes of state functions. Fully complying with the provisions in the Constitution of Romania, these supreme values are the following: human dignity, rights and freedoms of citizens, free development of human personality, justice and political plurality. These principle provisions create a reference system for the regulations that concern the fundamental rights and freedoms, as well as for those concerning the public authorities. Given the obligation to revise the constitutional text in year 2003, a revalorization and guaranteeing criterion of these supreme values was introduced, according to the democratic traditions of the Romanian people and the ideals of the 1989 Revolution.
This revalorization of human dignity and of the supreme values proclaimed by the Fundamental Law of Romania is meant to reconfigure the protection standards of the fundamental human rights, from the perspective of understanding the fact that the law world is basically a world of significations - values embedded in legal norms, in legal relations and facts.1 It must be emphasized the fact that the legal area must not be mistaken for the right; it is the limited value that prescribes the behavior and limits its manifestations, while the right is the wrap of this value, customized differently diachronically and synchronically. The law as manner to crystallize the value regulates the types of behaviors and ensures their observances by the addressees. It has an imperative form included in the power of a regulating authority that one finds constantly in all cultures and all communities.2 Thus, given the ideas of J. Rawls, the arguments that the right term is not only a category, but also a value – precisely the contrary of what Kelsian legal advisors supported are vaster; pas le droit sans valeurs. To move further, I must remind the fact that Ihering said on the Latin word jus that it comes from the Sanskrit word jaus – connection between people having a three-fold significance: moral, legal and religious. The connection was part of the social reality. The right is an element of legal reality, thus that the social reality comprises the legal reality, and the right, its defining element, makes and structures it. It must be emphasized, in this context, that the right is configured and evolves in the legal reality environment, by which it refers to the other social reality forms. Any legal conscience continues to amplify even after the crystallization of its ideas into adequate norms, evolving either based on or against the law, which implies the rights – legal conscience relation. Without a doubt, the legal norms are not drafted, empirically or statistically, before being filtered in the legal conscience of those that crystallize them.
If one speaks of a legal civilization, implicitly the legal culture concept is brought to discussion – the manner in which an identified society / community, by intersubjective communication, understands / interprets the law according to the same stimuli, as well as the manner used by a society / community for speaking / writing on the law based on the same language. These societies can be marked as interpretative communities or epistemic communities. There are societies that manifest naturally collective assumptions, attitudes, aspirations and antipathies to the right, expressing reflexively – at the level of some inconscient cultural manifestations – the legal mentalities that characterize them. Given these conditions, the legal culture grants a certain legal identity to a society. Part of the legal identity of a society, the legal norms and institutions are embedded in a specific weaving that cannot be ignored.3
Given this perspective, the idea according to which the constitutional principle of human dignity is integrated ab initio in the public order claims its full legitimacy.4 The human dignity is not only an exclusive attribute of the person, but it becomes the dignity of everybody, and the person must be protected against its free choice.
Integrating the human dignity principle in the public order implies not only the unconditional obligation of the state to protect the human dignity erga omnes, but also the existence of a constitutional standard of „public dignity”, by protecting and guaranteeing the freedom of belief and thought that determines the dignity of individual beings.
It must be emphasized, in a reveling manner, the fact that in Germany the human dignity principle is enlisted in the beginning of the Fundamental Law: „the human dignity is sacred. All public powers are held to respect and protect it (article 1 paragraph 1).” In the German law, the human dignity acquired a constitutional value expresis verbis, by the formulation of the Constitutional Court of Law: „supreme value of fundamental law”, „fundamental element of the constitutional values system”5, and „constitutional principle that dominates all parts of the Constitution”. In the case law of German constitutional court, the human dignity principle was called upon in decisions concerning extremely sensible matters that result in controversies: right to life, imprisonment conditions, and protecting the physical integrity of the person.
In the Belgian law system, one can witness a limited confirmation of the human dignity principle, unlike the absolute formulation manner of the German formula. Article 23 paragraph 1 of the Belgian Constitution provisions „anyone is entitled to lead a life in conditions complying with the human dignity”.
Thus, the right to dignity arises as a „relational right” designated to determine the existence and extent of some rights, confirming in the case law area the conceptual autonomy of human dignity: „intangibility of human dignity can occur as inspiring the right to have private life respected, as well as economic and social rights.” Beyond the case law variations, the legal doctrine acknowledges the legal authority and ontology of human dignity. It is „the alpha and omega of constitutional system for protecting rights and freedoms” (F. Delperee). This opinion is influenced fully by the position granted to human dignity by the system of European Convention on Human Rights.6
Although it has a variable making up, the human dignity concept is believed as a true pedestal of fundamental rights”7 or a matrix principle of these ones. It must be underlined the fact that acknowledging and guaranteeing the freedom of thought, conscience and religion involves a neutral state from this point of view. Observing different convictions and religious beliefs is an extremely important obligation of the state. It must accept the fact that individuals can adopt convictions freely and can change their minds, excluding any intervention while exercising the right guaranteed by article 9. The right to freedom of religion excludes any appreciation from the state in connection to the legitimacy of religious beliefs or the manner for expressing them. Also like this, the state cannot intrude in the leading of religious communities. The principle of state neutrality is not yet absolute. Thus, it is not possible to avoid certain obligations connected to the life in society in the name of convictions and beliefs.
However, a question arises and the response of the Court is a consequence of political correctness’s seduction. Can a state impose certain practice connected to a religion? This question arose in a member state where the deputies had to give their oath while putting their hand on the Gospels. The Court concluded that article 9 was violated, the fact of imposing this oath being equal to the obligation, for the individuals elected by the people, to swear allegiance to a certain belief (ECHR, February 18, 1999, Buscarini and others v. San Marino).
A reveling cause considering the public-private relation, in the context of article 9 in the Convention, is the Pichon and Sajous v. Franţa Case of October 2, 2001, OCHR, on the inadmissibility of the pharmacists’s request that refused selling birth control pills given their religious beliefs. The European judges showed that article 9 protects, before all, the area of personal convictions and religious believes, this being of inner conscience, as one calls it sometimes. As well, it protects the acts connected tightly to these components, such as the religious or devotion deeds, which are aspects of practicing a religion or a conviction under a generally acknowledged form. More, article 9 enumerates different forms that manifesting a religion or a conviction can take, this being the cult, teachings and rites. Still, in order to protect the personal realm, article 9 in the Convention does not guarantee always the right to behave in public according to the manner dictated by a conviction. The term „practice” in the meaning of this article does not designate any type of public deed or behavior motivated or inspired by a religion or a conviction, even if they are well-crystallized convictions.8
Social meaning: human dignity v. political correctness:
Kant chases shadows away!
Beyond the celebration of diversity and over appraising the human rights in the European space, one must admit that the freedom of through, conscience and religion must not be subordinated invariable and irrevocable to the political correctness. If the religious freedom is protected and guaranteed genuinely in the New Europe, it must be underlined the fact that one cannot ask everything in the name of human rights and one cannot accept everythingin the name of political correctness. That is why, certain dilemmas and contradictions in the European space must be reconsidered in order to emphasize the negative influence of political correctness of the freedom of thought.
At the upper levels of European power, political correctness is an authentic sword of Damocles as regards the freedom of thought: the Rocco Buttiglione case is the most preeminent, but not the only one. The Buttiglione case, says Rémi Brague, „shows strongly a capital fact: Christians cannot claim to be citizens of the European Union, entitled to candidate to leading positions. They can be loyal subjects, according to the duty to submit to the political regime that leads them, but not citizens stricto sensu.9 The paradox we are facing is the demand of political correctness that it comes from inside the human rights, which is totally false because then its action would not rely on discriminating some in favor of other.
From this perspective, the political correctness creates in the society an opinion current according to which the discussing of correct political statements must be dealt with the same severity and indignation as a penal felony.10 Political correctness is a genuine thinking police and does not comply directly with the human rights doctrine, as the progressists claim, the same as its true opponent is not the reactionary spirit as its advocates claim but the critical spirit and the freedom of speech.
Even if in the explanation attached in article 1 of the European Chart of Fundamental Human Rights it is stated „The human being’s dignity is not only a fundamental right in itself, but it is the basis of fundamental rights”, the human dignity principle cannot be over appraised politically and depreciated implicitly by excessive politicization. Au contraire, the human dignity must be acknowledged as the only absolute value in a world of relative values.11
Political correctness is rendered relative before the conceptions of German philosopher Immanuel Kant that deepens the idea of dignity, showing that its substance is connected to spirit: nobody must be treated as means, but only as end. The right to dignity is each person’s right to be treated as end, never as tool for meeting some one else’s interests. It is a positive human right; bur such a right that claims to be democratic must comprise laws by which each law subject finds itself as end, and not as tool or means.12
By far the most influential definition of dignity has been the so-called „object formula”. This definition, which found its first systematic elaboration in the work of Günter Dürig, rests on Kant’s categorical imperative in terms of which a human being is an end in itself and not simply a means to an end. According to Dürig, the dignity guarantee is rooted in the idea that man is distinct from impersonal nature by virtue of his mind, which enables him to become conscious of himself, to determine himself and to shape his own environment.62 To treat human beings as objects is to deny their capacity to shape themselves and their environment. In Dürig’s formulation: „Human dignity as such is affected when a concrete human being is reduced to an object, to a mere means, to a dispensable quantity. [Violations of dignity involve] the degradation of the person to a thing, which can, in its entirety, be grasped, disposed of, registered, brainwashed, replaced, used and expelled”.13
Thus, the human dignity must not be privatized exclusively, but mainly integrated in the public order for annihilating the troubling effects of political correctness on the freedom of belief and conscience.
Moral meaning: human dignity – reconfiguration of relation between morality and law
In what way can the human rights understood correctly be legitimate? Can the fundamental rights be observed fully in a society with relative values? Considering the presence and auspices of the Supreme Being, called upon in the Declaration of the Rights of Man of 1789, connected closely to the origin of man, the response to these legitimate questions makes one accept that the single complete expression of human rights and human dignity can be found only by acknowledging the true existential and anthropologic nature of Man, IMAGO DEI. This acknowledgement is the basis of what one calls civilization.
The human dignity states the preeminence of natural right and acknowledging the man as being bearer of the divine face in the history of Universe creation. As political solution to the freedom matter, the democracy is incomplete, thus that one has to admit that the equal inalienable rights are included in the human nature, this meaning they are not due to any political regime, by modern law creation excess. To believe in the human rights means implicitly to state their universality, but especially the fact that the human dignity principle contains all arguments for proving the protection of human rights in Romania.14
The legal force of the human dignity constitutional principle as supreme value claims the relevance of moral norms as against the legal norms, accentuating by legislative initiatives the inherent cohesion of moral with the law during the law creation process.15
Professor H.L.A. Hart emphasizes, in his grand book The Concept of Law the fact that „the legal norms and the moral ones are created as being mandatory and independent of the consent of those they bind; both of them are supported by a social pressure; the conformation to the legal norms and to the moral one is not a merit, but it is a minimum natural contribution to the social life.” Thus, to accentuate always what separates the moral values of the legal ones does not serve anybody in theory or in practice.
The right to dignity, by over appraising the character of supreme constitutional value, is presented as a „relational right” designated to determine the existence and length of other rights, confirming in the case law area the conceptual autonomy of human dignity: „the human dignity’s untouchable character can appear to inspire the respect of private life, as well as the economic and social rights.” Beyond the case law variations, the legal doctrine acknowledges the legal authority and oncology of human dignity. It is „the alpha and omega of constitutional system for protecting rights and freedoms” (F. Delperee). This opinion is influenced fully by the position granted to human dignity by the system of European Convention of Human Rights.16
Although it has a variable making up, the human dignity concept is believed as a true pedestal of fundamental rights”17 or a matrix principle of these ones, and that is why integrating this principle of guaranteeing the protection of fundamental rights in the public order claims completely its legitimacy.
BOTHA, Henk, „Human Dignity in comparative perspective”, in STEEL LAW REVIEW (2009).
DRĂGANU, TUDOR, Declaraţiile de drepturi ale omului şi repercursiunile lor în dreptul internaţional public, Editura Lumina Lex, Bucureşti, 1998.
ENDERS, CHRISTOPH, „A right to have rights – the German constitutional concept of human dignity”, in NUJS LAW REVIEW, July-September, ( 2010) .
GUŢAN, SELEJAN BIANCA , Spaţiul European al drepturilor omului. Reforme. Practici. Provăcări, editura C.H.Beck, Bucureşti, 2008.
GUŢAN, MANUEL, „Forme pe un alt fond: transplantul juridic comunitar şi cultura juridică românească” (Forms on another fund: EU legal transplant and Romanian legal culture), in Pandectele Române Magazine no. 5/2008.
HONORÉ TONY, Necessary Connection between Law and Morality”, in Oxford Journal of Legal Studies, 3, autumn (2002).
MIHAI, GHEORGHE, Fundamentele dreptului. Dreptul subiectiv. Izvoare ale drepturilor subiective (Law fundaments. Subjective law.. Sources of subjective rights), volume IV, All Beck Publishing House, Bucharest, 2005.
PATAPIEVICI, HORIA ROMAN, „Noua Europă şi vocea care lipseşte: creştinismul” (New Europe and the voice missing: Christianity) in Idei în Dialog (Dialoguing Ideas) Magazine, 1 (52) January, (2009).
PATAPIEVICI, HORIA ROMAN, Omul recent (Recent man), Humanitas Publishing House, Bucharest, 2008.
RENUCCI, JEAN-FRANÇOIS, TRATAT DE DEPT EUROPEAN AL DREPTURILOR OMULUI, Hamangiu Publishing House, Bucureşti, 2009.
VALENTIN, CONSTATIN, „Valori fundamentale vs. drepturi fundamentale” (Fundamental values v. fundamental rights) in Noua Revistă a Drepturilor Omului (New Magazine of Human Rights) 4 (2006).
Gheorge Mihai, „Fundamentele dreptului (Fundaments of law)”,
volume I-II, Publishing House All Beck
, Bucharest, (2003): 14.
Manuel Guţan, „Forme pe un alt fond: transplantul juridic comunitar şi cultura juridică românească”
(Forms on another fund: EU legal transplant and Romanian legal culture),
in Pandectele Române Magazine
no. 5 (2008): 21.
Opinion confirmed by the French Council of State in a case quoted by Valentin Constantin in „Valori fundamentale vs. drepturi fundamentale” (Fundamental values v. fundamental rights) in Noua Revistă a Drepturilor Omului (New Magazine of Human Rights),
Christoph Enders, „A right to have rights – the German constitutional concept of human dignity”, in NUJS LAW REVIEW
, July-September, ( 2010), 255.
Bianca Selejan Guţan, Spaţiul european al drepturilor omului (European space of human rights),
(C.H.Beck Publishing House: Bucharest), 2008, 133.
B. Mathieu, „La dignité de la personne humaine; quel droit? Quel titulaire?”in Recuil Dalloz
, (1996), 282.
Jean François Renucci, Tratat de drept european al drepturilor omului (European law treaty concerning human rights),
Horia Roman Patapievici, „Noua Europă şi vocea care lipseşte: creştinismul” (New Europe and the voice missing: Christianity) in Idei în Dialog
(Dialoguing Ideas) Magazine, 1 (52) January, (2009):30.
Horia Roman Patapievici, Omul recent (Recent man),
(Humanitas Publishing House: Bucharest, 2008), 317.
Henk Botha, „Human Dignity in comparative perspective”, in STEEL LAW REVIEW
Gheorghe Mihai, Fundamentele, 121-122.
Henk Botha, „Human”, 183.
Tudor Drăganu, Declaraţiile de drepturi ale omului şi repercursiunile lor în dreptul internaţional public (Declarations of human rights and their consequences in the public international law),
(Lumina Lex Publishing House: Bucharest, 1998), 84.
Tony Honoré, „The Necessary Connection between Law and Morality”, in Oxford Journal of Legal Studies
, 3, autumn (2002 ): 493.
Bianca Selejan Guţan, Spaţiul,
B. Mathieu, La dignité
– Graduated, Law Faculty, West University Timisoara ìn 2oo9, master degree in Judicial Career,West University in 2011. Law of atorney Tìmìs Bar since 2010, and political advisor for Mr. Deputy Marius C. DUGULESCU.