File #2442: "2018_Book_TheRealityOfHumanDignityInLawA.pdf"
Text
1|Foreword|7
1|Acknowledgements|10
1|Contents|11
1|Contributors|14
1|The Realitie(s) of Human Dignity in Europe|16
1|The Concept of Human Dignity in Belgian Law: A Variety of Approaches|17
2|1 Human Dignity: An Undefined Concept|17
2|2 Human Dignity as Included in the Instruments|20
2|3 Human Dignity as Recognized by Case Law|22
2|4 Present in the Field of Biomedicine|26
3|4.1 Health Care|26
3|4.2 The Beginning of Life|27
3|4.3 The End of Life|32
2|5 Conclusion|36
1|The Jurisprudential Reality(-ies) of the Principle of Human Dignity in France: A Prevailing or an Authoritative Principle?|38
2|1 The Characteristics of the Principle of Dignity|40
3|1.1 A Matrix Principle|40
3|1.2 A Timeless Principle|42
2|2 The Role(s) of the Principle of Dignity|44
3|2.1 The Protection of Other Fundamental Rights|44
3|2.2 The Regulation of Other Fundamental Rights|45
2|3 The Risks of the Principle of Dignity|47
3|3.1 Dignity and Predictability|47
3|3.2 Dignity and Freedoms|49
1|The Principle of Dignity in Germany and Its Irradiating Effect with Regard to Biomedicine|51
2|1 The Protection of the Person Against the State and Third Parties|56
3|1.1 Some Examples of the Explicit Recognition of the Principle of Dignity|56
3|1.2 Other Concepts Translating an Implicit Use of Principle of Dignity|59
2|2 The Protection of the Person Against Himself|62
3|2.1 The Very Relative Principle of the Body Which Cannot Be Disposed of|62
3|2.2 The More Authoritative Principle of no Property Rights Over the Human Body|66
2|3 Conclusion|69
1|Applying the Overarching Principle of Human Dignity in Greek Law|71
2|1 Recognition of the Principle by Greek Law|71
3|1.1 International Texts Referring to Human Dignity Ratified by Greece|72
3|1.2 Domestic Greek Law|72
2|2 The Application of the Principle of Dignity by Courts|76
2|3 Application of the Principle by Other Bodies|78
3|3.1 National Bioethics Committee|78
3|3.2 Greek Authority for Protection of Personal Data|79
3|3.3 National Broadcasting Council|79
3|3.4 The Mediator of the Greek Republic|80
2|4 Conclusion|80
1|The Concept of Human Dignity as the Foundation of Rights in the Hungarian Biomedical Law|82
2|1 Theoretical Foundations of the Term Dignity and Its Relation with Human Rights|82
2|2 Human Dignity in the Hungarian Constitution|84
2|3 Protection of Human Dignity in the Civil Code|86
2|4 The Protection of Human Dignity in Criminal Law|87
2|5 Protection of Human Dignity in Health Law|88
2|6 The Special Cases for Respecting Human Dignity in Health Care|91
2|7 Conclusions|93
1|Practical Reason and Enantiosemy of Human Dignity: The Reality of the Principle in Italy|94
2|1 Principle of Dignity Validated by Italian Law|94
3|1.1 The Direct References in the Constitution|95
3|1.2 The Eloquent Silences of the Constitution|97
2|2 The Application of the Principle by the Courts|99
3|2.1 General|99
3|2.2 In the Field of Biomedicine|100
2|3 The Application of the Principle of Dignity by Nonjudicial Bodies|105
1|Human Dignity as a Fundamental Principle in Biomedicine: A Spanish Perspective|107
2|1 The Dignity of the Person: A Brief Summary of Its Origins and Its Legal Configuration at an International Level|109
2|2 The Dignity of the Person in the Different Branches of the Spanish Legal System|111
3|2.1 Criminal Law|112
3|2.2 Labor Law|113
3|2.3 Administrative Law|115
3|2.4 Civil Law|116
3|2.5 Constitutional Law|117
2|3 The Dignity of the Person in the Field of Biomedicine|119
3|3.1 Legislative References to Dignity|119
3|3.2 Ethical References to Dignity|122
2|4 Conclusion: What Is the Purpose of the Principle of Dignity?|123
1|Human Dignity: Conceptual Unity and Plurality of Content in Swiss Law|126
2|1 Respect for Human Dignity: A Fundamental Standard of the Rule of Law|127
2|2 Human Dignity Applied by the Legislature in the Field of Biomedicine|129
3|2.1 The Protection of Persons Involved in Transplantation|130
3|2.2 The Protection of Research Subjects|130
3|2.3 The Protection of the Embryo|131
2|3 In Case Law, Human Dignity Means…|132
3|3.1 The Right to Certain Baseline Conditions for Subsistence|132
3|3.2 Protection Against Unjustified Discrimination|133
3|3.3 Protection Against Degrading Treatment|134
3|3.4 Protection Against Humiliation|135
3|3.5 Respect for the Person’s Physical Integrity and Personal Freedom|135
3|3.6 The Right to a Dignified Death|136
3|3.7 Respect for the Dead|136
3|3.8 Protection of the Embryo|136
2|4 Conclusion: Appraisal of the Different Legal Applications of Human Dignity|137
1|Towards a Libertarian Application of Dignity in English Law: A Case Law Analysis|138
2|1 The Rejection of an “Undignified” Life: A Communitarian Interpretation|141
3|1.1 Respect for the Intrinsic Dignity of Each Individual|141
3|1.2 Quality of Life as an Objective–Subjective Appreciation|143
2|2 Dignity as a Principle Serving Subjective Rights|144
3|2.1 Dignity as an Element Necessary to Ensure Respect for Private Life|144
3|2.2 Quality of Life as an Element of Private Life|145
2|3 From Principle to Right: Liberalism Over Communitarianism|146
1|The Principle of Dignity and the European Court of Human Rights|150
2|1 General Points on the Role of Human Dignity in the Case Law of the European Court of Human Rights|151
3|1.1 The Emergence of Human Dignity in the Case Law of the European Court of Human Rights|151
3|1.2 Human Dignity in the Case Law of the European Court of Human Rights|152
2|2 The Role of Human Dignity in the Case Law of the European Court of Human Rights Concerning Biomedicine|154
3|2.1 Key Considerations|155
3|2.2 Epilogue: The Elberte v. Latvia Judgment of January 13, 2015|156
1|The Realitie(s) of Human Dignity in Africa|159
1|The Reality of the Human Dignity Principle in the Framework of the Egyptian Legal System|160
2|1 Statement of the Principle of Dignity|162
3|1.1 Legal Sources|162
3|1.2 Stated by Other Bodies|163
2|2 Application of the Principle of Dignity|166
3|2.1 Concept of Dignity in Egyptian Legal Culture|167
3|2.2 Judicial Practice|170
3|2.3 Application of the Principle of Dignity by Other Bodies|171
2|3 Conclusion|172
1|The Principle of Human Dignity in Tunisia: Between Political Recuperation and Low Practical Recognition|174
2|1 A Scattergun Treatment in Legal Instruments|176
3|1.1 The Assertion of Dignity|177
3|1.2 Dignity Inherent in Other Principles|178
2|2 Limited Case Law Protection|180
3|2.1 The Difficult Recognition of Dignity as a Subjective Right|181
3|2.2 The Perspective of Duties of Humanism|182
2|3 Conclusion|184
1|The Realitie(s) of Human Dignity in America|185
1|Human Dignity in Brazilian Law: A Founding Principle of Laws and Court Judgements|186
2|1 The Recognition of Human Dignity by the Law and by Case Law|186
3|1.1 Human Dignity as a Constitutional Principle|187
3|1.2 A Principle Recognized by the Different Branches of the Law|189
3|1.3 The Principle Explained by the National Council of Health and the Federal Medical Council|190
2|2 The Recognition of Human Dignity in the Context of Biomedicine|191
3|2.1 The Constitutionality of the Law on Research on Embryonic Stem Cells|192
3|2.2 Authorization of the Therapeutic Abortion of Anencephalic Foetuses|193
3|2.3 Human Dignity: An Essential Principle to Further Advance the Law|194
2|3 Conclusion|194
1|Dignity in Canadian Law, a Popular but Ambiguous Notion|196
2|1 The Importance of the Concept of Dignity in Canadian Law|197
3|1.1 An Omnipresent Notion|197
3|1.2 Dignity and Fundamental Rights|199
2|2 The Three Aspects of Dignity|201
3|2.1 Dignity-as-Self-worth|201
3|2.2 Dignity-as-Constraint|203
3|2.3 Dignity-as-Liberty|204
1|Putting the Principle of Human Dignity to the Test: A “Useless” Concept from an American Perspective?|207
2|1 Exploring the Use of Dignity in American Jurisprudence|211
2|2 American Bioethics and the Ashley Case|215
2|3 Conclusion|220
1|Human Dignity in the Case Law of the Inter-American Court of Human Rights|222
2|1 Dignity and Recognition of the Legal Personality|224
2|2 Dignity and Respect for a Dignified Life|224
2|3 Dignity and the Recognition of Human Rights Violations by Authoritarian Regimes|227
2|4 Conclusion|228
1|The Realitie(s) of Human Dignity in Asia|231
1|The Emergence of Human Dignity in China: From a Private Right to a Constitutional Principle|232
2|1 Human Dignity Reduced to “Personal Dignity”|233
3|1.1 The Recognition of Personal Dignity by the Constitution|233
3|1.2 Judicial Protection of Dignity|236
2|2 Moving Towards a Constitutional Principle of Human Dignity?|238
3|2.1 The Efforts Made|238
3|2.2 Doctrinal Contributions|239
3|2.3 Protection Beyond the Specific Rights Related to Honour|240
3|2.4 The Obstacles to Overcome|241
2|3 Conclusion|244
1|Ambivalence of the Relationships Between Dignity and Freedoms in Turkish Law|246
2|1 General System of the Protection of Human Dignity|247
3|1.1 Recognition by the Constitution and International Agreements|247
3|1.2 Recognition by the Laws|248
3|1.3 Recognition by Case Law|249
2|2 The Protection of Human Dignity in Biomedicine|252
3|2.1 A General Overview|252
3|2.2 The Protection of the Person Against Himself in the Name of Respect for Human Dignity|253
3|2.3 Reference to Human Dignity by the Ethics Committees|255
2|3 Conclusion|257
1|Interdisciplinary Approaches|258
1|The “Reality” of the Principle of Human Dignity: A Critical Philosophical Approach|259
2|1 An Extremely Controversial Fundamental and Universal Principle|259
2|2 Fukuyama and Bostrom: “Bio-Conservatives” Versus “Transhumanists”|261
2|3 Summary and Conclusion|264
1|From Dignity to Responsibility|268
2|1 The Birth of a Notion|268
2|2 Manipulation of the Notion of Dignity|271
2|3 Dignity Is How Others Perceive Us|273
2|4 Ethics in Liberal Societies|276
2|5 Summary and Further Discussion|279
1|Human Dignity: A Notion that Provides More Confusion Than Clarity|282
2|1 Human Beings and Commodities|283
2|2 The Moral Symmetry Principle|283
2|3 Relationship with the Self|284
2|4 Relationship with Others|284
2|5 A Notion that Provides More Confusion Than Clarity|285
1|Looking Forward|286
1|The Case for a Limited Use of Dignity as a Legal Principle|287
2|1 A Universally Shared Interest in the Concept of Dignity|291
3|1.1 Absence of Universal Recognition of the Concept of Dignity|291
3|1.2 Universal Interest in the Concept of Dignity|294
2|2 The Multiple Uses of the Concept of Dignity|297
3|2.1 Dignity: A Declaratory Instrument to Condemn the Tyranny of States|298
3|2.2 Dignity: An Instrument for Ensuring the Effectiveness of Subjective Rights|299
3|2.3 Dignity: An Instrument for Societal Transformation|305
3|2.4 Dignity: An Instrument for Restricting Freedom|306
2|3 The Limited Value of Dignity in Law|308
3|3.1 The Essential Value of Dignity in Law: Legal Recognition of the Individual|309
3|3.2 The Limit to the Relevance of Dignity in Law: The Effective Role of Rights and Liberties|313
1|Acknowledgements|10
1|Contents|11
1|Contributors|14
1|The Realitie(s) of Human Dignity in Europe|16
1|The Concept of Human Dignity in Belgian Law: A Variety of Approaches|17
2|1 Human Dignity: An Undefined Concept|17
2|2 Human Dignity as Included in the Instruments|20
2|3 Human Dignity as Recognized by Case Law|22
2|4 Present in the Field of Biomedicine|26
3|4.1 Health Care|26
3|4.2 The Beginning of Life|27
3|4.3 The End of Life|32
2|5 Conclusion|36
1|The Jurisprudential Reality(-ies) of the Principle of Human Dignity in France: A Prevailing or an Authoritative Principle?|38
2|1 The Characteristics of the Principle of Dignity|40
3|1.1 A Matrix Principle|40
3|1.2 A Timeless Principle|42
2|2 The Role(s) of the Principle of Dignity|44
3|2.1 The Protection of Other Fundamental Rights|44
3|2.2 The Regulation of Other Fundamental Rights|45
2|3 The Risks of the Principle of Dignity|47
3|3.1 Dignity and Predictability|47
3|3.2 Dignity and Freedoms|49
1|The Principle of Dignity in Germany and Its Irradiating Effect with Regard to Biomedicine|51
2|1 The Protection of the Person Against the State and Third Parties|56
3|1.1 Some Examples of the Explicit Recognition of the Principle of Dignity|56
3|1.2 Other Concepts Translating an Implicit Use of Principle of Dignity|59
2|2 The Protection of the Person Against Himself|62
3|2.1 The Very Relative Principle of the Body Which Cannot Be Disposed of|62
3|2.2 The More Authoritative Principle of no Property Rights Over the Human Body|66
2|3 Conclusion|69
1|Applying the Overarching Principle of Human Dignity in Greek Law|71
2|1 Recognition of the Principle by Greek Law|71
3|1.1 International Texts Referring to Human Dignity Ratified by Greece|72
3|1.2 Domestic Greek Law|72
2|2 The Application of the Principle of Dignity by Courts|76
2|3 Application of the Principle by Other Bodies|78
3|3.1 National Bioethics Committee|78
3|3.2 Greek Authority for Protection of Personal Data|79
3|3.3 National Broadcasting Council|79
3|3.4 The Mediator of the Greek Republic|80
2|4 Conclusion|80
1|The Concept of Human Dignity as the Foundation of Rights in the Hungarian Biomedical Law|82
2|1 Theoretical Foundations of the Term Dignity and Its Relation with Human Rights|82
2|2 Human Dignity in the Hungarian Constitution|84
2|3 Protection of Human Dignity in the Civil Code|86
2|4 The Protection of Human Dignity in Criminal Law|87
2|5 Protection of Human Dignity in Health Law|88
2|6 The Special Cases for Respecting Human Dignity in Health Care|91
2|7 Conclusions|93
1|Practical Reason and Enantiosemy of Human Dignity: The Reality of the Principle in Italy|94
2|1 Principle of Dignity Validated by Italian Law|94
3|1.1 The Direct References in the Constitution|95
3|1.2 The Eloquent Silences of the Constitution|97
2|2 The Application of the Principle by the Courts|99
3|2.1 General|99
3|2.2 In the Field of Biomedicine|100
2|3 The Application of the Principle of Dignity by Nonjudicial Bodies|105
1|Human Dignity as a Fundamental Principle in Biomedicine: A Spanish Perspective|107
2|1 The Dignity of the Person: A Brief Summary of Its Origins and Its Legal Configuration at an International Level|109
2|2 The Dignity of the Person in the Different Branches of the Spanish Legal System|111
3|2.1 Criminal Law|112
3|2.2 Labor Law|113
3|2.3 Administrative Law|115
3|2.4 Civil Law|116
3|2.5 Constitutional Law|117
2|3 The Dignity of the Person in the Field of Biomedicine|119
3|3.1 Legislative References to Dignity|119
3|3.2 Ethical References to Dignity|122
2|4 Conclusion: What Is the Purpose of the Principle of Dignity?|123
1|Human Dignity: Conceptual Unity and Plurality of Content in Swiss Law|126
2|1 Respect for Human Dignity: A Fundamental Standard of the Rule of Law|127
2|2 Human Dignity Applied by the Legislature in the Field of Biomedicine|129
3|2.1 The Protection of Persons Involved in Transplantation|130
3|2.2 The Protection of Research Subjects|130
3|2.3 The Protection of the Embryo|131
2|3 In Case Law, Human Dignity Means…|132
3|3.1 The Right to Certain Baseline Conditions for Subsistence|132
3|3.2 Protection Against Unjustified Discrimination|133
3|3.3 Protection Against Degrading Treatment|134
3|3.4 Protection Against Humiliation|135
3|3.5 Respect for the Person’s Physical Integrity and Personal Freedom|135
3|3.6 The Right to a Dignified Death|136
3|3.7 Respect for the Dead|136
3|3.8 Protection of the Embryo|136
2|4 Conclusion: Appraisal of the Different Legal Applications of Human Dignity|137
1|Towards a Libertarian Application of Dignity in English Law: A Case Law Analysis|138
2|1 The Rejection of an “Undignified” Life: A Communitarian Interpretation|141
3|1.1 Respect for the Intrinsic Dignity of Each Individual|141
3|1.2 Quality of Life as an Objective–Subjective Appreciation|143
2|2 Dignity as a Principle Serving Subjective Rights|144
3|2.1 Dignity as an Element Necessary to Ensure Respect for Private Life|144
3|2.2 Quality of Life as an Element of Private Life|145
2|3 From Principle to Right: Liberalism Over Communitarianism|146
1|The Principle of Dignity and the European Court of Human Rights|150
2|1 General Points on the Role of Human Dignity in the Case Law of the European Court of Human Rights|151
3|1.1 The Emergence of Human Dignity in the Case Law of the European Court of Human Rights|151
3|1.2 Human Dignity in the Case Law of the European Court of Human Rights|152
2|2 The Role of Human Dignity in the Case Law of the European Court of Human Rights Concerning Biomedicine|154
3|2.1 Key Considerations|155
3|2.2 Epilogue: The Elberte v. Latvia Judgment of January 13, 2015|156
1|The Realitie(s) of Human Dignity in Africa|159
1|The Reality of the Human Dignity Principle in the Framework of the Egyptian Legal System|160
2|1 Statement of the Principle of Dignity|162
3|1.1 Legal Sources|162
3|1.2 Stated by Other Bodies|163
2|2 Application of the Principle of Dignity|166
3|2.1 Concept of Dignity in Egyptian Legal Culture|167
3|2.2 Judicial Practice|170
3|2.3 Application of the Principle of Dignity by Other Bodies|171
2|3 Conclusion|172
1|The Principle of Human Dignity in Tunisia: Between Political Recuperation and Low Practical Recognition|174
2|1 A Scattergun Treatment in Legal Instruments|176
3|1.1 The Assertion of Dignity|177
3|1.2 Dignity Inherent in Other Principles|178
2|2 Limited Case Law Protection|180
3|2.1 The Difficult Recognition of Dignity as a Subjective Right|181
3|2.2 The Perspective of Duties of Humanism|182
2|3 Conclusion|184
1|The Realitie(s) of Human Dignity in America|185
1|Human Dignity in Brazilian Law: A Founding Principle of Laws and Court Judgements|186
2|1 The Recognition of Human Dignity by the Law and by Case Law|186
3|1.1 Human Dignity as a Constitutional Principle|187
3|1.2 A Principle Recognized by the Different Branches of the Law|189
3|1.3 The Principle Explained by the National Council of Health and the Federal Medical Council|190
2|2 The Recognition of Human Dignity in the Context of Biomedicine|191
3|2.1 The Constitutionality of the Law on Research on Embryonic Stem Cells|192
3|2.2 Authorization of the Therapeutic Abortion of Anencephalic Foetuses|193
3|2.3 Human Dignity: An Essential Principle to Further Advance the Law|194
2|3 Conclusion|194
1|Dignity in Canadian Law, a Popular but Ambiguous Notion|196
2|1 The Importance of the Concept of Dignity in Canadian Law|197
3|1.1 An Omnipresent Notion|197
3|1.2 Dignity and Fundamental Rights|199
2|2 The Three Aspects of Dignity|201
3|2.1 Dignity-as-Self-worth|201
3|2.2 Dignity-as-Constraint|203
3|2.3 Dignity-as-Liberty|204
1|Putting the Principle of Human Dignity to the Test: A “Useless” Concept from an American Perspective?|207
2|1 Exploring the Use of Dignity in American Jurisprudence|211
2|2 American Bioethics and the Ashley Case|215
2|3 Conclusion|220
1|Human Dignity in the Case Law of the Inter-American Court of Human Rights|222
2|1 Dignity and Recognition of the Legal Personality|224
2|2 Dignity and Respect for a Dignified Life|224
2|3 Dignity and the Recognition of Human Rights Violations by Authoritarian Regimes|227
2|4 Conclusion|228
1|The Realitie(s) of Human Dignity in Asia|231
1|The Emergence of Human Dignity in China: From a Private Right to a Constitutional Principle|232
2|1 Human Dignity Reduced to “Personal Dignity”|233
3|1.1 The Recognition of Personal Dignity by the Constitution|233
3|1.2 Judicial Protection of Dignity|236
2|2 Moving Towards a Constitutional Principle of Human Dignity?|238
3|2.1 The Efforts Made|238
3|2.2 Doctrinal Contributions|239
3|2.3 Protection Beyond the Specific Rights Related to Honour|240
3|2.4 The Obstacles to Overcome|241
2|3 Conclusion|244
1|Ambivalence of the Relationships Between Dignity and Freedoms in Turkish Law|246
2|1 General System of the Protection of Human Dignity|247
3|1.1 Recognition by the Constitution and International Agreements|247
3|1.2 Recognition by the Laws|248
3|1.3 Recognition by Case Law|249
2|2 The Protection of Human Dignity in Biomedicine|252
3|2.1 A General Overview|252
3|2.2 The Protection of the Person Against Himself in the Name of Respect for Human Dignity|253
3|2.3 Reference to Human Dignity by the Ethics Committees|255
2|3 Conclusion|257
1|Interdisciplinary Approaches|258
1|The “Reality” of the Principle of Human Dignity: A Critical Philosophical Approach|259
2|1 An Extremely Controversial Fundamental and Universal Principle|259
2|2 Fukuyama and Bostrom: “Bio-Conservatives” Versus “Transhumanists”|261
2|3 Summary and Conclusion|264
1|From Dignity to Responsibility|268
2|1 The Birth of a Notion|268
2|2 Manipulation of the Notion of Dignity|271
2|3 Dignity Is How Others Perceive Us|273
2|4 Ethics in Liberal Societies|276
2|5 Summary and Further Discussion|279
1|Human Dignity: A Notion that Provides More Confusion Than Clarity|282
2|1 Human Beings and Commodities|283
2|2 The Moral Symmetry Principle|283
2|3 Relationship with the Self|284
2|4 Relationship with Others|284
2|5 A Notion that Provides More Confusion Than Clarity|285
1|Looking Forward|286
1|The Case for a Limited Use of Dignity as a Legal Principle|287
2|1 A Universally Shared Interest in the Concept of Dignity|291
3|1.1 Absence of Universal Recognition of the Concept of Dignity|291
3|1.2 Universal Interest in the Concept of Dignity|294
2|2 The Multiple Uses of the Concept of Dignity|297
3|2.1 Dignity: A Declaratory Instrument to Condemn the Tyranny of States|298
3|2.2 Dignity: An Instrument for Ensuring the Effectiveness of Subjective Rights|299
3|2.3 Dignity: An Instrument for Societal Transformation|305
3|2.4 Dignity: An Instrument for Restricting Freedom|306
2|3 The Limited Value of Dignity in Law|308
3|3.1 The Essential Value of Dignity in Law: Legal Recognition of the Individual|309
3|3.2 The Limit to the Relevance of Dignity in Law: The Effective Role of Rights and Liberties|313