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Introduction

Primary education is obligatory because citizens of modern societies need some level of education for fruitful participation in society, which is part of a successful human life. This line of reasoning obviously presupposes a view of the worth of an individual, which can be identified with human dignity.

An Analysis of the Legal Attributes of Human Dignity: Social Sciences in China: Vol 38, No 3

Whether the drafters of the Covenant actually supported an argument like the one in the paragraph above or not, it is telling that the founding-value thesis is officially introduced in a document which contains an individual action constraint. This constraint clearly responds to an ethical concern which grew out of scientific and technological change.

Being viewed as the founding value to be protected, human dignity could now be protected with specific action constraints on right holders. If the argument above was part of the rationale for the Art. Additionally, it could be noted that Art. Analogous reasons—i. Articles 16 and 21 of the Oviedo Convention of are apt examples of reactions to such concerns. They prohibit actions which do not harm others or violate their rights on the ground that they are disrespectful of human dignity.

France, Communication No. The provisions of Art. The Explanatory Report to this Protocol provides that review of research protocols is required in order to protect, among others, the dignity of research participants Council of Europe b. It should be stressed that these action constraints, which protect human dignity rather than freedom of choice, apply to persons who are capable of consent and not only to those who are not able to consent as in Art. Such provisions clearly limit exercise of rights by individuals.

However, provisions such as these show that rights alone do not afford sufficient reasons to justify every individual action which respects them. Some of those actions—even if they are exercises of rights, do not harm others, or generate significant benefits to others—are believed to conflict with human dignity. It was possible to include such judgments within the human rights discourse because human dignity was recognised as a value, and then, due to the legacy of the formation of the discourse, was understood as the founding value of human rights.

When the protective role of human rights appeared insufficient for articulation of some important intuitive judgments, the founding role of human dignity became attractive. This time, however, it is seen as founding action constraints and human rights. By the end of the twentieth century, human dignity as a founding value played a double role. First, due to lack of precise definition in the founding human rights documents, and the need to establish a more secure political order in the post-war era, human dignity was an attractive moral idea. It could be interpreted variously.

The influence of Catholic moral thought in the process of formation of the human rights discourse suggested interpretations which see it as a founding value.

Second, in response to ethical concerns aroused, among others, by some political and societal changes, and, later, by developments in biology and medicine, particularly in the last three decades, human dignity was more and more often appealed to as the source of constraints on actions of right holders, making human dignity more prominent and influential as the founding value.

Human dignity came to be seen as the founding value of both human rights and action constraints applying to right holders. Incorporation of the founding-value thesis into the human rights discourse as applying to both human rights and human dignity seems attractive, at least initially, because it promises a theoretical and axiological unity according to which all key ethical standards derive from a common foundation.

However, it is highly doubtful if such a unity could be achieved because human rights, at least the first-generation human rights such as those of the UDHR, and action constraints are of different natures. Human rights determine a sphere of individual liberty against other subjects governments or individuals ; action constraints place limits on exercise of rights which are justified by prevention of harms to the agent in question or by protection of an impersonal value.

What constitutes a harm within the sphere protected by rights is left to the right holder, whereas in the case of action constraints, harms are not defined by right holders or at least not exclusively by them.


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Rights are silent about the specific good of the right holders, whereas action constraints seem to presuppose an impersonal conception of the good or value to be protected. More importantly, it exemplifies the difficulties that stem from reliance on the founding-value thesis in a reconstruction of human dignity.

Understanding Legal Ethics (part 1)

The thesis is hoped to provide a unified foundation for both human rights and action constraints but the differences between the arguments that support human rights and those that support action constraints suggest a dualist conception of human dignity, in which some elements are redundant and other controversial. As a whole, such an approach may undermine some central components of the human rights discourse. Gewirth argues that every human agent must accept the claim that freedom and well-being are necessary goods whose possession is the precondition of action. Every agent must therefore see these conditions as objects of their generic rights.

It does not presuppose any substantive account of human nature with its specific goods; the rights that agents have are those against others individuals or institutions , and their obligations are implied by those generic rights.

A Difficult Legacy: Human Dignity as the Founding Value of Human Rights

Despite their faith in the argument cf. Beyleveld , Beyleveld and Brownsword see this limitation. To justify action constraints, which are part of the human rights discourse, they offer a substantive view of human beings and their worth or status. Beyleveld and Brownsword do not insist on these particular conceptions. Rather, they emphasise the need to address this anxiety in order to complete an account of human dignity as the source value of both human rights and action constraints.

First, the fact that the dialectically necessary derivation of rights from agency needs to be supplemented with the quasi-empirical i. The more important aspect of their argument, however, is that unlike the dialectically necessary derivation of rights from agency, which is intended to identify necessary claims regarding individual rights, the argument from existential anxiety is based on contingent claims that found action constraints.

In consequence, the intention to derive both human rights and action constraints from human dignity results in an account of dignity with two heterogeneous and mutually independent components.

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The account of human condition inspired by Kierkegaard and Fromm is intended as the source of action constraints, which are the more controversial part of the human rights discourse. Yet, the argument for them is much weaker than the Gewirthian derivation of rights. Aware of this, Beyleveld and Brownsword do not insist on this particular conception and are open to alternatives.

In this way, however, they may suggest that the rights of the human rights discourse, as opposed to action constraints, do not require a substantive view of human dignity. A single or unified view of the human condition could be more appropriate for derivation of both rights and action constraints. One might argue more traditionally e. Some of those obligations could be other-regarding, whereas other obligations could be self-regarding, i. This, however, would suggest that it is advisable not to derive human rights from human dignity, although human dignity might be the foundation on which action constraints rest.

And attempt to build a conception that identifies a shared foundation for both human rights and action constraints would require a specific substantive view of human dignity. Rights, as Beyleveld and Brownsword make it clear in their proposal, can be identified without a specific substantive account of the human agent, whereas action constraints require such a conception to determine, among others, what self-regarding actions should be prohibited. An attempt to derive both rights and action constraints of the human rights discourse from human dignity reveals the dualities which seem to question the idea of derivation of both human rights and action constraints from human dignity.

From this perspective, the decision of the drafters of the founding human rights documents not to derive human rights from human dignity can be viewed not only as evidence of pragmatism motivated by the desire to reach agreement regarding a catalogue of rights but also as an awareness that their diverse and sometimes irreconcilable views of the human good or flourishing do not leave much room for agreement on a substantive conception of a founding value of the human being.

Adoption of the founding-value thesis in the human rights discourse leads therefore to a situation which the drafters of the founding human rights documents wanted to avoid.

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They recognised that a view of human dignity from which human rights are to derive would be at least as difficult to adopt widely as the theological doctrine from which the concept of human dignity was originally brought into the human rights discourse. In order to win support for the widest possible moral and legal revival, human dignity was left undefined and its link to human rights was not specified.

The reasons recognised by the drafters were both theoretical and practical-political. Theoretically, it would be over-ambitious to develop a substantive account of human dignity as a universally recognised value. Practically and politically, in view of the ideological changes, whose momentum had been increasing, such an endeavour would be simply unrealistic. It was argued in the foregoing discussion that the thesis, according to which human dignity is the founding value of human rights, should be abandoned if human rights or a core portion of them are to maintain their wide acceptance, and the human rights discourse is to respond to intuitive moral judgments motivated by developments in societies and technology.

It was not suggested that human dignity should be removed from the human rights discourse. Nor was it claimed that, in the human rights discourse, action constraints cannot be construed as deriving from human dignity this issue requires separate treatment. The scepticism expressed was about the idea of human dignity as the ground for human rights. However, new ethical concerns which emerge in the rapidly changing world do need to be addressed, and an adequate approach to both human rights and action constraints is required. Since, as shown above, unification of human rights and action constraints via the founding-value thesis should be avoided, the two kinds of norms—action constraints and human rights—could be kept relatively independent of each other.

As suggested even by some accounts of human rights that make agency the defining term of human rights, a possible, pragmatically driven theoretical direction might be to treat human rights as free-standing instruments that articulate basic requirements of agency or individual liberty. Such a pragmatic and political view of human rights is reinforced by the current human rights discourse in the international arena.

Appeals to human dignity do not seem necessary; an international consensus regarding human rights can be sufficient. Nevertheless, since due to some moral intuitions new concerns need to be addressed, and one can expect that they will emerge in the near future more and more frequently, both action constraints and human dignity should remain in the human rights discourse.

Development of an account of the relation between human dignity, human rights, and action constraints lies beyond the scope of the present article. Only a most general outline of such an account can be offered here.