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Human Dignity: Be Philosophical and European, but not Scottish

Published online by Cambridge University Press:  12 July 2019

CHARLES FOSTER
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Cambridge Quarterly of Healthcare Ethics , Volume 28 , Issue 3 , July 2019 , pp. 534 - 541
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Copyright © Cambridge University Press 2019 

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References

Notes

1. Brown, J. Dignity, body parts, and the actio iniuriarum: A novel solution to a common (law) problem? Cambridge Quarterly of Healthcare Ethics 2019;28(3):522–33.CrossRefGoogle Scholar

2. Foster, C. Dignity and the ownership and use of body parts. Cambridge Quarterly of Healthcare Ethics 2014;23(4):417–30.CrossRefGoogle ScholarPubMed

3. Foster, C. Human Dignity in Bioethics and Law: Oxford: Hart; 2011, at 1.Google Scholar

4. See note 1, Brown 2019, at 523.

5. See note 1, Brown 2019, at 522.

6. Laurie G. Personality, privacy and autonomy in medical law. In: Whitty NR, Zimmerman R, ed. Rights of Personality in Scots Law: A Comparative Perspective: Dundee: Dundee University Press; 2009, pp. 454–5 (adopting the definition from The New Oxford Dictionary of English: Oxford: Oxford University Press; 2001).

7. See note 1, Brown 2019, at 524.

8. See note 1, Brown 2019, at 524.

9. Macklin R. Dignity is a useless concept. British Medical Journal 2003;327:1419–20, at 1419.

10. See note 9, Macklin, at 1420.

11. See note 3, Foster 2011.

12. For further discussion, see Foster, C, Herring, J. Altruism, Welfare and the Law London: Springer; 2015;CrossRefGoogle Scholar Foster, C, Herring, J. Identity, Personhood and the Law. London: Springer; 2017;CrossRefGoogle ScholarPubMed Foster, C, Herring, J. Human Thriving and the Law. London: Springer; 2018.CrossRefGoogle Scholar

13. Cited by Hale B. Dignity. Journal of Social Welfare and Family Law 2009;31(2):101–8.

14. Foster, C, Miola, J. Who’s in charge? The relationship between medical law, medical ethics, and medical morality. Medical Law Review 2015;23(4):505–30.CrossRefGoogle ScholarPubMed

15. (2002) ECHR 427 (April 29 2002). Similarly, in SW v. United Kingdom the Strasbourg court observed that “the very essence of [the ECHR] …is respect for human dignity and human freedom.” (1995) 21 EHRR 363, para 44. See too, Gearty C. Principles of Human Rights Adjudication. Oxford: Oxford University Press; 2006, at 91.

16. Barak A. Human Dignity: The Constitutional Value and the Constitutional Right. Cambridge: Cambridge Univerity Press; 2015, at 54.

17. The Preamble to the Universal Declaration says, inter alia: “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….Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom…’ Article 1 of the Declaration provides, inter alia: ‘All human beings are born free and equal in dignity and rights.’ Article 23(3) of the Declaration provides: ‘Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.”

18. The preamble to the ECHR notes that the ECHR “aims at securing the universal and effective recognition and observance of the Rights…described [in the Universal Declaration]”—although it does go on to state that the signatory governments are resolved “…to take the first steps for the collective enforcement of certain of the Rights stated in the Universal Declaration” (added emphasis).

19. Costa J-P. Human dignity in the jurisprudence of the European Court of Human Rights. In: McCrudden C, ed. Understanding human dignity. Proceedings of the British Academy 2013;192;393–402.

20. Buyse A. Dignified law: The role of human dignity in European convention case-law: Lecture at Utrecht University, 11 October 2016; available at http://echrblog.blogspot.com/2016/10/the-role-of-human-dignity-in-echr-case.html (last accessed August 2018); Kuteynikov A, Boyashov A. Dignity before the European Court of Human Rights. In: Sieh E, McGregor J, eds. Human Dignity. London: Palgrave Macmillan; 2017.

21. See note 16, Barak 2015, at 54.

22. The Law Commission summarised the ingredients of the offence in its Report No. 358 (Simplification of Criminal Law: Public Nuisance and Outraging Public Decency: London, HMSO, 25 June 2015, paras 1.7–1.8: “The offence can consist of any act or display fulfilling the following conditions: (1) it must be lewd, obscene or disgusting to such an extent as to outrage minimum standards of public decency as judged by the jury (or other tribunal of fact) in contemporary society; (2) it must occur in a place which is accessible to or within view of the public; and (3) two or more persons must be present during the act or display, whether or not they are aware of the act or display or are outraged by it. The act or display must be deliberately undertaken by the defendant. But beyond this there is no requirement of fault. The defendant need not intend or believe that, or be reckless whether, the act or display is indecent. Nor need the defendant know, believe, or expect that any person will witness it or be outraged by it, or indeed that any person will be present at all.”

23. R v. Gibson [1990] 2 QB 619.

24. Lynn (1788) 2 Term Rep 733: 100 ER 394.

25. Grey (1864) 4 F & F 73, 176 ER 472.

26. Law Commission Report No. 358, ibid, at 3.179–3.180. “The new offence of seriously offending public decency should be formulated so as to cover: (1) voluntary conduct by the defendant; (2) involving or resulting in an act or display which: (a) is obscene or disgusting, to an extent sufficient to outrage minimum standards of public decency as judged by the jury or other tribunal of fact in contemporary society; and (b) occurs in a place which is accessible to or within view of the public; (3) [where] the defendant: (a) knew of the nature of that act or display, or was reckless as to whether the act or display was of that nature; and (b) knew or intended that the act or display was or would be in a place which is accessible to or within view of the public, or was reckless as to whether or not this was the case; (4) unless the defendant’s conduct was reasonable in the circumstances as he or she knew or reasonably believed them to be. In the foregoing recommendation: (1) the “nature” of an act or display means those characteristics which in fact make it obscene or disgusting (whether or not the defendant considers that it is indecent or believes that it will outrage generally accepted standards of decency); (2) “reckless” means that: (a) the defendant was aware of a risk that the act or display might be of that nature, or (as the case may be) that it might be in a place accessible to or within view of the public, and (b) it was, in the circumstances as the defendant knew or believed them to be, unreasonable to take that risk.”