The expressive function of human dignity: A pragmatic approach to social rights claims
| Published date | 01 June 2021 |
| Author | Stefano Civitarese Matteucci,Giorgio Repetto |
| DOI | 10.1177/1388262721994122 |
| Date | 01 June 2021 |
| Subject Matter | Articles |
Article
The expressive function of
human dignity: A pragmatic
approach to social rights claims
Stefano Civitarese Matteucci
University G. d’Annunzio Chieti-Pescara, Viale Pindaro, Chieti, Italy and York Law School, UK
Giorgio Repetto
University of Perugia, Perugia, Italy
Abstract
In this article, we appraise an idea of human dignity (HD) as pragmatically oriented to support
social rights claims. By analysing the role of dignitarian arguments in the constitutional-like case law
of four European jurisdictions (France, the UK, Italy and Germany), we demonstrate that caution
prevails about the possibility of using HD in each of these countries as an ultimate yardstick for
upholding social policies. Such findings challenge the assumption that one can grasp HD as a legal
notion through a foundational approach. In our view, neither HD reflects any natural or social
essence of men and women, nor can it consequently be conceived as the source of universal
fundamental rights. Instead, (1) we recommend a notion of HD as a status primarily conceived as a
political-institutional (conventional) artefact. Thus, (2) we consequently sustain that dignity may
pertain to states too, and we can see it as a way of reciprocating the duty to fair cooperation in a
just society. In the same vein, (3) HD works best in the social realm when an expressive function,
rather than a defining one, is recognised as its proper function. This aspect helps explain why HD is
often called to support other principles in judicial argumentation. This notion of HD seems to us
coherent with social rights as relying on a complex institutional arrangement centred on political
responsibility and a commitment to social justice. Concerning the assessment of the conditions
attached by the states to the enjoyment of welfare benefits, HD tells us that disproportionate
sanctions, whose objective appears to be more a way of blackmailing welfare recipients than
pursuing an ideal of fair reciprocity, do violate both the institutional dignity of public authorities and
that of the persons affected.
Keywords
welfare rights, human dignity, comparative constitutional law, legal theory, unemployment benefits
Corresponding author:
Stefano Civitarese Matteucci, University G. d’Annunzio Chieti-Pescara, Viale Pindaro, 42 Chieti, 66100 Italy.
E-mail: s.civitarese@unich.it
European Journal of Social Security
2021, Vol. 23(2) 120–143
ªThe Author(s) 2021
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DOI: 10.1177/1388262721994122
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1. Introduction
Both in contemporary legal discourse and judicial applications worldwide, human dignity (HD)
stands nowadays as an overarching value. Its composite moral foundations have not prevented it
from becoming a standard in adjudicating fundamental rights (Shulztiner and Carmi, 2014: 461).
1
Additionally, its capacity for diverse application has made recourse to it viable in a variety of
circumstances. One can invoke the protection of dignity against the intrusion of public authority in
one’s domain as well as against degrading practices put forth by non-state actors and claim, on this
basis, the existence of positive obligations upon public authorities. Moreover, HD is supposed to
act both as an instrument aimed at protecting individual liberty and autonomy and as a basis of
moral justification for the introduction of public policies aimed at safeguarding objective values. It
is commonplace in legal discourse that on some debated issues, such as abortion or genetic control
of offspring, human dignity may be invoked as a vehicle either of empowerment or constraint
(Brownsword and Beyleveld, 2001: 146; McCrudden, 2008: 698; Sourlas, 2016: 37). Against this
background, we aim to enquire as to whether and to what extent HD is a viable basis for assessing
the safeguard of social rights.
To this end, after sketching out in section 2 some basic remarks about the connections between
human dignity and social rights, we analyse the case law in four countries – France, the UK, Italy
and Germany – to try to understand where dignity stands in legal practice regarding social rights
safeguards (section 3). We also explain in section 3 why the selected countries are significant for
our analysis, also in light of the same conceptions of dignity emerging in those jurisdictions. In
section 4, we engage with the broader theoretical debate on HD to explain and contextualise some
of the implications of the case law survey findings. The aim here is to account for a concept of HD
that suits the pursuit of social rights protection. By combining the two perspectives – that is, by
looking to practice and reflecting on its theoretical presuppositions – we identify in section 5 the
legal pragmatics of human dignity in social rights issues to make an argument for upholding the use
of HD, at least in specific issues involving social policy. This is why we confine our assumptions to
the assessment of sanction regimes in unemployment benefit schemes
2
. Section 6 concludes.
Our argument suggests that in supporting social rights-based claims, HD can effectively work
only if applied to specific policies and measures affecting the provision of welfare rights and
provided that the broader issue of the protection of socio-economic rights is not at stake.
3
In
particular, the courts - given their subjection to democratic constraints - should resort to HD to
set a threshold regarding the power of the duty bearer (the state) to set up conditions, especially in
relation to sanctions, for the enjoyment of welfare benefits. We adopt the pragmatic view that
dignity nowadays appears to be the most engaging value that people refer to in ethically driven
practices and discourse. This move may look perplexing, as we appeal to a highly ranked moral
value by apparently employing a sort of utilitarian argument. However, first, we subscribe to a
general understanding of HD as a political-institutional concept rather than a metaphysical one
1. Shulztiner and Carmi (2014) find that while only five countries mentioned ‘‘human dignity’’in their constitutions before
1945, 162 countries did so at the close of 2012.
2. By unemployment benefits we mean, following Adler and Terum (2017: 152), unemployment insurance, unemployment
assistance, and social assistance.
3. Our view is that the idea of an egalitarian or redistributive project through judicial enforcement of socio-economic rights
is not only unlikely given the sway of the political project of neoliberal entrenchment (O’Connell, 2011), but is also
fundamentally flawed (Atria, 2015; Christodoulidis, 2017; Moyn, 2018b).
Civitarese and Repetto 121
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