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The age of Dignity

I-CONnect Blog

Book Review: Jacob Weinrib on Catherine Dupré's "The Age of Dignity: Human Rights and Constitutionalism in Europe"

Posted: 07 Jul 2016 06:16 PM PDT

[Editor's Note: In this installment of I•CONnect's Book Review Series, Jacob Weinrib reviews Catherine Dupré's book on The Age of Dignity: Human Rights and Constitutionalism in Europe (Oxford: Hart 2015)]

Jacob Weinrib, Assistant Professor, Queen's University Faculty of Law

Catherine Dupré's The Age of Dignity is a truly ambitious book.  It promises nothing less than an exposition of the organizing idea of the European constitutional project, human dignity.  Pushing back against skeptics who dismiss the concept as too impoverished to do the work assigned to it,[1] Dupré presents human dignity as the concept that unifies and propels the constitutional practice of Europe's supranational institutions – such as the European Union (EU) and the European Court of Human Rights – and the constitutional transformations of its member states.  The result is a rich and sweeping study that refracts European history, constitutional case law, and institutional arrangements through the prism of a single idea.

What is the constitutional significance of the concept of human dignity?  Dupré's response to this question extends in three directions.

First, she looks backwards to the historical injustices that prompted the emergence of the concept.  Second, she looks to the role that human dignity plays in contemporary European case law.  Third, she looks to a future in which the ramifications of human dignity for constitutional governance are more fully realized.  In what follows, I provide an overview of each of these aspects in turn.  I close with some critical comments about the way in which Dupré conceptualizes human dignity and specifies its meaning.

Dignity's Past.  Departing from those who seek to explicate the constitutional significance of human dignity by looking to the long history of the word dignity (or dignitas) in ethical and theological thought, Dupré confines her focus to the historical moments in which the idea of human dignity came to intersect with constitutional concerns (29, 38).   Two historical moments are particularly significant.  The first is the French Revolution, in which the idea that human beings must serve the state was supplanted by the idea that the state must serve human beings (70).  The 1789 Declaration of the Rights of Man and the Citizen not only acknowledged "inalienable and sacred human rights" as imposing an obligation on all sovereign power, but defined the fulfillment of these rights as the "final end of all political institutions" (67).  The French Revolution thus popularized the idea that sovereigns are bound by the human rights of their subjects.  But it was not until the aftermath of Europe's experience of the brutality of the Holocaust and the injustice of dictatorial and totalitarian governments that peoples across Europe began the project of designing national and supranational institutions that transform the human rights of every person from a philosophical ideal into a legal reality (82).

Dignity's Present.  For Dupré, the commitment to protect human dignity forms the essence of the European constitutional project.  This commitment is codified both within national constitutions and in article 1 of the EU Charter.  The purpose of this codification is to give "human beings a concept, a voice and an institutional framework to challenge the sovereign law and alleged breaches of their humanity and perceived injustice." (81).  But Dupré is eager to emphasize that even in contexts where human dignity is not explicitly codified in a national constitution or at the supranational level, it remains an indispensable concept in the adjudication of human rights (87-90, 94, 101).  Canvassing a range of jurisdictions, she elaborates how human dignity has served as the basis for protecting the rights of vulnerable members of the European community, whether asylum seekers, the severely disabled, or workers.

Dignity's Future.  As the foundational principle of European constitutionalism, human dignity calls for a constitutional future in which the rights that it encompasses are increasingly realized.  Dupré refers to this vision as a dignity-democracy (172), a form of government in which each generation refines its understanding of dignity's demands and brings European constitutionalism into ever-closer conformity to its most fundamental norm.  Because human dignity is an abstract concept, it provides space for judges to respond to circumstances that prior generations could not have anticipated with innovative interpretations that move Europe "towards an enhanced degree of human rights protection" (184).  This is not to deny that the injustices of the past might resurface, but to insist that European constitutionalism must take steps to preserve a constitutional order committed to the human dignity and fundamental rights of its members.

It is not surprising that such an ambitious and wide-ranging book raises crucial questions that it does not confront.

One set of questions concerns the space that the concept of human dignity occupies. On the one hand, Dupré insists that human dignity is not established (and can never be extinguished by) a particular legal enactment (167-8).  The duty that dignity imposes might be acknowledged by positive law, but does not result from it.  On the other, she states that "human dignity has nothing to do with morality" (21).[2]  This statement raises a series of questions.  If human dignity is neither the product of positive law nor the subject of a moral requirement, what is it?  Further, can the idea of a public duty to protect human dignity (and the wrong of its violation) be captured in amoral terms?  This question is particularly vexing because Dupré conceives of human dignity as bound up with commitments to freedom (31), autonomy (33), equality (37), social justice (47), and democracy (70).  Are these commitments too extrinsic to morality?

A related issue concerns how to determine what the abstract concept of human dignity requires in concrete cases.  As Dupré notes, the codifications of human dignity in constitutional provisions "tend to provide no elaboration on what the concept is intended to mean" (11).  Thus, in order to elucidate what the concept demands of particulars, she turns to the constitutional case law of Europe's national and supranational courts.  This strategy of bridging the gap between concept and instance raises a difficulty.  For human dignity was introduced to offer a standard for assessing the adequacy of exercises of public authority, including judicial authority (169).  But if the demands of dignity are merely a reflection of how that authority is exercised, then dignity cannot form a basis for its critical assessment.  This is a thorny problem because as Dupré notes, the language of dignity is now so pervasive that each party to a constitutional dispute might make its claim in the language of dignity (86, 174).  What is needed, then, is a framework that provides resources for identifying instances where the term might be present, but where the idea is absent, or in which the idea is present but the term is absent.  While Dupré does not offer such a framework, she provides an indispensable resource to anyone interested in thinking about the European constitutional project or what it means to take human dignity seriously.

Suggested Citation: Jacob Weinrib, Review of Catherine Dupré's "The Age of Dignity: Human Rights and Constitutionalism in Europe", Int'l J. Const. L. Blog, July 8, 2016, at: http://www.iconnectblog.com/2016/07/book-review-jacob-weinrib-on-catherine-dupres-the-age-of-dignity-human-rights-and-constitutionalism-in-europe

[1] See, for example, Mirko Bagaric and James Allan, "The Vacuous Concept of Dignity," Journal of Human Rights 5 (2006): 269; Dennis Davis, "Equality: The Majesty of Legoland Jurisprudence" South African Law Journal 116 (1999): 413;  Christopher McCrudden, "Human Dignity and Judicial Interpretation of Human Rights," European Journal of International Law 19 (2008): 723; Stephen Pinker, "The Stupidity of Dignity," New Republic (May 28, 2008); and Michael Rosen, Dignity: Its History and Meaning (Cambridge: Harvard University Press, 2012), 67.

[2] When Dupré denies that human dignity is a moral concept, she approvingly cites George Kateb, Human Dignity (Cambridge: Harvard University Press, 2011), 10-17.  However, Dupré is more dismissive of morality than Kateb.  Whereas Kateb holds that morality is necessary but not sufficient to defend human dignity and rights (33), Dupré seems to suggest that morality is neither necessary nor sufficient when she claims that "human dignity has nothing to do with morality" (21).  Dupré does not indicate whether she endorses the particular vision of morality on which Kateb's claim rests, namely, that morality is simply about diminishing human suffering.

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