‘Different faces of dignity’: A functionalist account of the institutional use of the concept of dignity in the European Union
| Author | Davor Petrić |
| Published date | 01 December 2019 |
| Date | 01 December 2019 |
| DOI | 10.1177/1023263X19879042 |
| Subject Matter | Articles |
Article
‘Different faces of dignity’:
A functionalist account
of the institutional
use of the concept of dignity
in the European Union
Davor Petric
´*
Abstract
The article provides a functionalist account of the ‘institutional uses’ of (human) dignity in the
jurisprudence of the Court of Justice of the European Union. It looks at how the legal concept of
dignity is invoked and used in the adjudication processes in the European Union, what is its role,
and what are its practical effects. The aim is to arrive at a better understanding of the dignity’s
functional roles in the EU, but also of the functional similarities and differences in comparison with
other European jurisdictions. This will further show in what aspects dignity is independent of or
dependent on institutional contexts in which it operates, especially regarding the judicial practices
and mutual relationships between different courts.
Keywords
Dignity, functionalism, institutional use, jurisprudence, human rights, Court of Justice of the
European Union
1. Introduction
The word ‘dignity’ sounds obvious, something universal, almost self-explanatory, but hard to
define when one is asked to give their best try. The word (or different words expressing the same
idea) is arguably known in every corner of the world, but its meaning is highly contextual. Dignity
as propriety has been ascribed to diffe rent entities; most notably, to human be ings, living or
* University of Zagreb, Croatia
Corresponding author:
Davor Petric
´, University of Zagreb, Trg Republike Hrvatske 14, Zagreb, 10000, Croatia.
E-mail: dpetric@pravo.hr
Maastricht Journal of European and
Comparative Law
2019, Vol. 26(6) 792–814
ªThe Author(s) 2019
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X19879042
maastrichtjournal.sagepub.com
MJ
MJ
deceased – thus ‘human dignity’ as the word’s most frequent iteration, especially in legal parlance;
but also to (some) animals and species, even inanimate objects or phenomena like institutions,
professions, activities, lifestyles, works of art and the like.
Every contemporary community is arguably familiar with some sort of dignity concept(s) that
capture(s) its social, political and legal identity. In this context, European philosophical and
jurisprudential traditions have probably been the most fruitful contributors to the current academic
discourse on (human) dignity. In general, however, it remains difficult to understand the concept of
dignity, define its substance, or pinpoint its procedural implications, no matter which dimension
one decides to focus their inquiry on – historical, philosophical, theological, sociological, political
or jurisprudential.
1
Something always seems to be missing. The same goes for legal analyses: still,
attempts to make sense of dignity as a legal concept, albeit (philosophically speaking) narrower in
scope and ambition and (perhaps) less inspirational, are indispensable for our understanding of the
existing constitutional orders and the values they profess.
An emerging constitutional order that this article examines is today’s European Union (EU).
Perhaps unsurprisingly and like in many other jurisdictions – national, regional and international
alike – the concept of dignity in the EU remains somewhat indeterminate and elusive. Aside from
few remarks offered in passing, here I do not primarily engage with a more theoretical question of
what the current substantive meaning of human dignity in the EU is. There are two main reasons
for that. On the one hand, it seems that the answer to this question has not yet been decidedly
offered by the EU political and judicial authorities, despite its growing relevance and the frequent
usage. On the other, some ideas as to what the possible answer(s) might be have already been
floated in the European legal scholarship. Even though my primary intention is not to engage with
the diverse arguments proposed by various authors, in certain instances the discussion in this article
will inevitably draw on (and benefit from) their insights.
Leaving the theoretical question mostly in the background, the central aim of this article is to
provide a functionalist account, what Christopher McCrudden termed ‘a process-oriented’, ‘insti-
tutional use’ of human dignity:
2
How is this concept used and to what ends it is invoked in the
adjudication processes in the EU? As a legal concept, what is its role? What are the practical effects
of its use in the EU’s composite constitutional order? As such, doctrinal analysis attempted here
will inevitably be more descriptive, albeit not completely stripped off of any normative discussion.
More specifically, for the purposes of this article the focus will be narrowed down to (a) legal
aspects of the concept of human dignity in (b) a particular jurisdiction, while acknowledging
possible limitations of such an approach, namely regarding (a), its single-dimensionality, in phi-
losophical terms; and regarding (b), its regional (European) relevance, as opposed to the alleged
universality of the concept of dignity that some comparative human rights scholars tried to capture
and address.
This account, moreover, needs to be linked with the framework of a multilevel ‘European
constitutionalism’.
3
The analysis of the institutional use of human dignity in the jurisprudence
1. C. Dupr´e, The Age of Dignity: Human Rights and Constitutionalism in Europe (Hart Publishing, 2015), p. 4.
2. C. McCrudden, ‘Human Dignity and Judicial Interpretation of Human Rights’, 19 European Journal of International
Law (2008), p. 712-713. In his seminal article, Professor McCrudden essentially concludes that the substantive content
of dignity is highly contextually and temporally specific across different (and even within the single) constitutional
systems and provides little beyond ‘a basic minimum core’. He therefore proposes, as a more useful approach, to look
into its functional roles.
3. C. Dupr´e, The Age of Dignity: Human Rights and Constitutionalism in Europe, p. 5-8.
Petric
´793
To continue reading
Request your trial