Benedetta Vimercati is an associate professor of constitutional law at the University of Milan.
Referring to the Universal Declaration of Human Rights (UDHR), Jacques Maritain stated,
Here we are no longer dealing with the mere enumeration of Human Rights, but with the principle of dynamic unification whereby they are brought into play, with the tone scale, with the specific key in which different kinds of music are played on the same keyboard, music which in the event is in tune with, or harmful to, human dignity.
It is precisely from the perception of dissonant elements within the harmony of human dignity, as played out in different legal systems, that the 2024 Declaration Dignitas Infinita seems to take its starting point.
Human Dignity as an Interpretative Jumble
Much has been already said and written about human dignity. It is one of those principles that has managed to attract a spasmodic attention, living paradoxically off the charm of those formulas capable of catalyzing both the widest consensus and disagreement. It is nothing new in the realm of constitutional law, particularly in our post-modern legal societies, where other fundamental principles such as equality, liberty, and nondiscrimination have faced similar definitional challenges yet remain lodestar principles in our legal systems.
However, dignity seems to exacerbate this paradoxical effect when introduced into the legal realm, where it is normatively assigned both descriptive and prescriptive roles. Human dignity is not merely a declaration of a trait inherent to human beings; it is also an assertion that demands respect. It evolves into a binding norm with significant political and legal implications. In its prescriptive capacity, human dignity is also tasked with playing various roles, sometimes even simultaneously: as the foundational principle of constitutional rights, as a right among other human rights, as a constitutional super-value, as a value that can be balanced with others, and/or as an elastic container of rights, expanding as rights grow.
Furthermore, these numerous “roles” ascribed to dignity progressively imbue themselves with diverse meanings until they encompass, often in a purely subjective manner, various understandings generated by individuals concerned with defining their own personal dignity. Consequently, dignity ends up intersecting with the notion of individual identity, which individuals are increasingly inclined to assert in their interactions with others. This results in a further convergence of dignity with persons’ self-determination and the emergence of diverse, and sometimes antithetical, conceptions of human dignity, both across various constitutional frameworks and within a single legal system.
For example, in 2019, the Italian Constitutional Court embraced and applied two opposing interpretations of human dignity. In June, the Court rejected a constitutional challenge to the criminalization of “recruiting, aiding, and abetting of prostitution” (especially in the case of voluntary prostitution), explaining that the human-dignity-based limitation imposed on freedom of private-sector economic initiative (protected by Article 41 of the Italian Constitution) must be “understood in an objective sense: it is not, of course, a matter of the ‘subjective dignity’ as conceived by the individual entrepreneur or the individual worker.”[1] In contrast, in November, the Court declared unconstitutional an absolute ban on assisting suicide because such a ban would conflict with the subjective principle of dignity, understood as the individual’s perception of their own human dignity in the final stages of life.
As a result of the interpretative jumble of human dignity perpetuated by many legal systems, it’s often argued that the charm of the dignity principle is now fading. Many commentators claim that dignity is merely an empty formula, a trump card to be played when necessary, or even a foolish or worthless concept. Some suggest “self-determination” or a similar concept may be more useful for constitutional-law purposes.
Why Is Human Dignity Infinite?
Against the ambivalence of human dignity in the secular context, the Catholic Church has aimed to take a stance. Thus, the Dignitas Infinita document emerges with the Church not only highlighting “the indispensable nature of the dignity of the human person in Christian anthropology” but also addressing what the Church regards as grave violations of human dignity.
Two specific aspects of the Declaration reflect dimensions of the term infinita in the document’s title.
First, the title echoes the assertion of John Paul II that “human dignity transcends all outward appearances and specific aspects of people’s lives.” Based on this presumption, Dignitas Infinita opens with the exploration of the subject of dignity—the human person. And it focuses on a concept that has always been close to the Church’s heart and is now more relevant than ever— human nature. In opposition to those who primarily embrace a functionalist thesis, arguing that not every human being can be considered a person,[2] the Church reaffirms an ontological-substantialist approach that does not allow a conception of the human person to be detached from human dignity. This approach echoes Ernst-Wolfgang Böckenförde who once said,
[Dignity] belongs to the human being independent of particular qualities, characteristics, or actual capacities; all that matters is being human, independent of the stages of this being. . . .
And the acknowledged dignity applies to every individual human being as well as to humans in general—the formulation “human dignity” covers both, including the reference to humans as a species.[3]
This conception allows the Declaration to warn against what C.S. Lewis provocatively described in 1943 as the “abolition of man by man”; this warning is especially important as human beings do not live atomistic lives (which the Declaration also refers to as a threat) but constantly interact with each other. Therefore, as Aharon Barak reminds us, “It is not the human dignity of the solitary Robinson Crusoe. It is the human dignity of a person in his or her relations with others. It is a ‘relational’ concept.”[4]
Within a relational dynamic, the development of the human person can unfold. The Church does not dismiss individuality, nor does it disregard the uniqueness of each human being, which are integral aspects of the principle of dignity itself. However, it encourages reflection on how the promotion of individuality and uniqueness can be harmonized with the network of relationships in which human beings are embedded. It’s noteworthy, from this perspective, how critiques of gender theories arise from the concern that asserting one’s own self-perception may lead to a tendency toward homogenization, which is “extremely dangerous since it cancels differences in its claim to make everyone equal” (para. 57).
Second, the reference to infinita is also important as it pertains to the enduring validity of dignity over time, throughout history, which persists even amidst profound cultural changes. Human dignity is conventionally interpreted as a relativistic concept. As Christopher McCrudden observed, “when the concept comes to be applied . . . , human dignity . . . is exposed as culturally relative, deeply contingent on local politics and values, resulting in significantly diverging, even conflicting, conceptions.”[5] A similar sentiment is expressed in a 1977 decision of the German Federal Constitutional Court: “The command to respect human dignity . . . cannot be separated from history. A judgment regarding what corresponds to human dignity can only be based on the current state of knowledge and cannot lay claim to interminable validity.”
Dignitas Infinita debates the inherent relativism of the dignity principle and an unavoidable link between human dignity, history, and culture. The document inspires the contemplation of the possibility that human dignity, at least in its essence, remains unchanged within and beyond human history within and throughout different cultures, while still being imbued with the productive tension between universalism and particularism that gave birth to the legal foundations of the dignity principle in the post–World War II world.
In this regard, the UDHR drafting process left us a timeless, valuable lesson. The UDHR drafters succeeded in identifying—albeit in what seemed like a utopian endeavor—points of common ground on which to build and establish the mutual responsibility of both the individual and polity.
But how can we reach such common ground today, in times of significant cultural controversies? To address this question, Joseph Ratzinger’s legacy endures: by engaging reason. This allows us to perceive human dignity as a rational intuition. Activating reason fosters a stance of personal responsibility in each person, including those who are responsible for making important decisions. In his 2011 address to the Bundestag, Ratzinger acknowledged this complexity: “The question of how to recognize what is truly right and thus to serve justice when framing laws has never been simple, and today in view of the vast extent of our knowledge and our capacity, it has become still harder.”
Conclusion
Dignitas Infinita is infused with awareness of this complexity to such an extent that it does not merely result in a simple recollection of disharmony on the strings of human dignity; rather, it extends an invitation to embrace complexity’s challenge and to not fear disagreement, which is the essence of discourse among divergent viewpoints. This disagreement fosters a dialogue that facilitates the exploration of pluralism and enables the pursuit of common ground, where feasible. Key to such dialogue are reason, responsibility, and confrontation—three elements encapsulated in a poignant passage by Paolo Carozza:
Focusing on our human experience of dignity cannot be the end point of our efforts but must rather be the beginning of a sustained and critical method of reasoning together, about which understandings of dignity, among the many deeply divergent approaches, corresponds best—which is to say most completely, most universally, most reasonably—to the reality of human life in all its complexity. What is needed, then, is not only a focus on our shared concrete human experience of dignity but a focus that opens up the possibility of critical reasoning about how that experience of dignity deepens our understanding of what is to be human, to have value, or, most to the point, to have a common, irreducible and universal value as human persons.[6]
Benedetta Vimercati is Associate Professor of Constitutional Law at the University of Milan, where she teaches constitutional law and and the class “Welfare State, New Social Rights, and the Third Sector.” She is a member of the PhD Committee “Public, International, and European Law” at the University of Milan and the PhD Committee “The New Public Administration: Data and Human Resources” at the University of Milan–Bicocca. Her main topics of research include the relationship between science and law (i.e., end-of-life issues, informed consent, neuroscience and law); fundamental rights; basic goods and social rights; the European Union, regional assemblies, and better regulation; and regional law. She has authored and co-authored several works, including “Consenso informato e incapacità. Gli strumenti di attuazione del diritto costituzionale all’autodeterminazione terapeutica” (2014) and “Neuroscience and End-of-Life Decisions. New Anthropological Challenges for Constitutional Law: ‘Is Human Nature the Only Science of Man’?” (2017).
References:
[1] Corte Constituzionale, 6 marzo 2019, n. 141, 6.1 (It.) (emphasis added). The Court continued by affirming that “[i]t is thus the legislator that – by interpreting the common social sentiment at a given historical moment – views prostitution, even that engaged in voluntarily, as an activity that degrades and debases the individual in that it reduces the most intimate sphere of one’s corporeity to the level of goods at the client’s disposal.” Id.
[2] According to Peter Singer, for instance, “there could be a person who is not a member of our species. There could also be members of our species who are not persons.” This is because, in order to be considered a person, a human being should possess certain properties: “(i) A rational and self-conscious being is aware of itself as an extended body existing over an extended period of time. (ii) It is a desiring and plan-making being. (iii) It contains as a necessary condition for the right to life that it desires to continue living. (iv) Finally, it is an autonomous being.” See Peter Singer, Practical Ethics76–84 (Cambridge Univ. Press 1979).
[3] Religion, Law, and Democracy: Selected Writings Ernest Wolfgang Böckenförde (Mirjam Künkler & Tine Stein eds., Oxford Univ. Press 2020).
[4] Aharon Barak, Human Dignity: The Constitutional Value and the Constitutional Right (Cambridge Univ. Press 2015).
[5] Christopher McCrudden, Human Dignity and Judicial Interpretation of Human Rights, 19(4) Eur. J. Int’l L. 655, 655–724 (2008).
[6] Paolo G. Carozza, Human Rights, Human Dignity, and Human Experience, in Understanding Human Dignity 615, 615–29 (Christopher McCrudden ed., The British Academy 2013).