How dignity was introduced into the law and what dignity contributed to the law

• Author: Cristina Sâmboan
• Position: University 'Artifex' Bucharest
• Pages: 155-161

155 Volume 2, Iss ue 1, December 2011 Juridical Tribune

How dignity was introduced into the law

and what dignity contributed to the law

Assistant Ph.D. Candidate Cristina SÂMBOAN1

Abstract

The exact cont ent of the rela tion bet ween digni ty an d la w ha s not been fully

cla rified yet. We on ly kno w that, alth ough it has been used since a ntiqu ity, the notion

enter ed inter natio nal legisla tion and nat ional constituti ons only after WWII. Since then, the

law uses the term, but i t does n ot define i t. Under the circ umstan ces, can we ta lk abo ut a

lega l concept? Is dign ity a mean s or a purpo se to la w? Wh ich i s its rela tion with t he

fundamenta l human right s? Is it a r ight a mo ng oth ers, or a ba sic gro und for a ll of them?

Here are a few questions t o which the p resent article is try ing to provi de some answers…

Keywords: dignit y, law, fundamenta l right s, na tural la w, abu se of r ight.

JEL Classificatio n: K00, K30

It is remarkable how the good old notion of „dignity” entered the realm of

law: hardly through the advent of the human rights, as we are inclined to believe,

but two centuries later, through the gate opened by the barbarity of the two world

conflagrations that splattered blood over the first half of the 20th Century on an

unprecedented scale.

Hence the acquaintance of dignity with the law was not the result of a

deliberate project, the conclusion of the meeting of several enlightened minds that

understood the need for the concept to be transferred into the regulatory area.

Instead it was prompted by dramatic events that crippled the human being in a

forthright shaking manner, on a wide scale. In other words, human dignity needed

to be massively mutilated in order to remind us of its existence.

However, the fact in itself is not surprising. In truth, no fundamental

institution of a state founded on the rule of law – or the rule-of-law state itself –

was ever born out of a project or a vision but „in the midst of the storm” and „civil

discord”, a s Ale xis de Tocqueville2 put it. The struggle between the King and the

Parliament that unfolded with the death of Elisabeth I and the economic policies

pursued by the Stuarts led to the first great articulation of the „freedom of the

subjects” principle a nd of that of the e quality of the citizens before the law. With

the abolition of the hateful Star Chamber in 1641, it was the first attempt to

establish the independence of judges, whereas the need to restrain the arbitrary use

of power by the Parliament caused the American colonists to draw up the first

written Constitution. The great debates of the 17th and 18th Centuries on various

notions such as freedom, the supremacy of the law, equality, the rule-of-law state,

the sepa ration of powers, the social contract and so on were held within the

1 Cristina Sâmboan, University "Artifex" Bucharest, crist ina@samboan.ro.

2 quoted by Friederich A. Hayek, The Constitution of Liberty, the European Instit ute, Iaşi, 1998, p. 77.