Human Dignity and Democracy in Europe: Synergies, Tensions and Crises

This paper will examine the ways in which some members of the senior judiciary have begun to explore the potential of human dignity to transform the meaning of democracy. The paper will explore how human dignity is being relied on to reconceive democracy as a community of moral equals, which requires that any exercise of collective power be justified on the basis of principles that express concern for the basic needs of human beings, and equal respect for their creative potential. It also considers the way that democracy – as a community of moral equals - is understood to be composed of constructive relationships between the individual, wider community, and the public institutions of that community. It is argued that respect for human dignity is seen as a building block of relationships of inclusion and cooperation that are important to the functioning of democracy, whilst denials of respect are damaging not only to the individual concerned but to those relationships.

The paper discuses the role of human dignity in connecting the individual to the social and to the political sphere. It discusses some of the most recent and significant judicial rulings on human dignity across the world and argues that what they have in common is to position individual human beings (that is the petitioners) at the heart of the society, and therefore to recognise petitioners not as ‘atomistic entities‘ but as participants in the polity in which they live. As a result, the key role played by judges in promoting human dignity is not to be seen as a questionable judicial overstepping of their boundaries of separation of powers. Rather, it has expanded the political space of democracy enhancing its quality.

This paper aims to explore the interconnection between the right to citizenship, in its strict legal sense, and the principle of human dignity. To this end, different uses of the principle of human dignity in the case law of the Inter-American Court of Human Rights and the Supreme Court of the United States concerning the right to citizenship are discussed. They are compared to judgments delivered on the same issue by the European Court of Human Rights and the House of Lords and the Supreme Court of the United Kingdom, where, on the contrary, the idea of a dignity-based right to nationality is absent. Court‘s references to human dignity in nationality issues – far from simply adding a rhetorical flourish in highly contested cases – may help strengthen the implementation of this crucial, even though contested, right, while transforming the theoretical foundations of citizenship.

This paper proposes to read some of the contemporary usages of the human dignity principle as instances of what Joseph Gusfield once called status politics. Gusfield‘s frame allows us to read these uses as a result of crusades, triggered by identitarian panic entrepreneurs, who seek to (re)affirm the cohesiveness of their group by rallying around or behind abstract norms of behavior. By doing so, they simultaneously include and exclude – thus producing “Others“ at the very moment they affirm an “Us“. The chapter focuses on two main illustrations of such contemporary “moral panics“ in France and Europe in an era in which anxieties relating to national security feed into pre-existing challenges posed by multiculturalism - these illustrations are taken in the fields of nationality law and the legal status of aliens.

This paper explores the role of national identity in driving measures that limit or circumvent the protection of human dignity. Particular attention will be paid to the changes affecting the protection of dignity over time, including those that relate to the implementation of international and European Union (EU) obligations aimed at protecting the rights of asylum seekers. The paper will, in considering these changes, consider the versions of national identity that have been brought to the fore by some governments/politicians whenever the treatment of aliens is to be managed, and the implications of this for the maintenance of constitutionalism.