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«Conference 16–18 Nov 2011 Wissenschaftskolleg zu Berlin The Concept of Human Dignity in a Transatlantic Perspective. Foundations and Variations A ...»

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Human dignity and the anti-utilitarian telos of human rights: Assessing categorical styles of reasoning in international human rights adjudication The contribution interprets references to human dignity in constitutional and international human rights adjudication as a particular form of categorical reasoning (as opposed to ad-hoc balancing approaches) in the area of intensive restrictions on individual liberties. This particular method insists on the protection of a human dignity— “core” of particular human rights as an absolute limit to public restrictions on individual liberties. Unlike ad hoc balancing, this style of reasoning is better equipped to respect the anti-utilitarian telos of human rights norms. At the same time, human dignity is a vague, very broad and contested concept, which puts strong judicial institutions in a position to impose their own interpretation of dignity on the legislature in a non-predictable fashion. As the German experience shows, human dignity-reasoning can further amplify the counter-majoritarian difficulty of human rights adjudication.

My assessment of international human rights jurisprudence starts from the observation that this way of reasoning, which was invented by the German Bundesverfassungsgericht, is largely absent in international human rights jurisprudence dealing with intensive restrictions on civil liberties. Where categorical styles of reasoning can be observed in international human rights jurisprudence, they rely on other forms of reasoning. The contribution compares the jurisprudence of the European Court of Human Rights and the UN Human Rights Committee in the area of intensive restrictions on individual liberties imposed by public organs of the member states.

The main finding is that the two judicial institutions follow diametrically opposed methodological approaches in dealing with these restrictions in their case law.

While the European Court of Human Rights relies mainly on ad hoc balancing and the 13 Recht im Kontext Conference Nov 2011 The Concept of Human Dignity in a Transatlantic Perspective margin of appreciation to resolve such cases, the UN-Human Rights Committee uses a more categorical way of reasoning. The ECHR’s reliance on ad-hoc balancing and margin of appreciation leads to inconsistency and arbitrariness in its case law on intensive restrictions on civil liberties.

In contrast, the UN Human Rights Committee’s categorical style of reasoning focuses on the first two stages of the proportionality test (suitability and necessity). In addition, this method insists on the protection of the “essence” of each right as an absolute limit to public restrictions on individual liberties; but in contrast to the German approach it refrains from fully equating the “essence” or “substance” with the broad human dignity term. Like the human dignity-approach this style of reasoning thus respects the anti-utilitarian telos of human rights as legal rules, without however overexploiting the dignity-term. It can give reliable guidance to national legislatures on limits to rights restrictions without substituting their political discretion in coordinating colliding spheres of individual freedoms.

14 Recht im Kontext Conference Nov 2011 The Concept of Human Dignity in a Transatlantic Perspective heIner bIelefeldt (*1958) has been Full Professor of Human Rights and Human Rights Politics at the University of Erlangen-Nuremberg since October 2009. Before taking the newly established chair for Human Rights, he was Director of the German Institute for Human Rights (based in Berlin) which is the officially accredited national human rights institution of Germany. Bielefeldt’s research interests, above all, include different interdisciplinary facets of human rights theory and practice. Since August 2010 he also serves as the United Nations Special Rapporteur on freedom of religion or belief.

— Philosophie der Menschenrechte (Darmstadt: Wiss. BG, 1998) — Symbolic Representation in Kant’s Practical Philosophy (Cambridge: Cambridge Univ. Press, 2003) — Auslaufmodell Menschenwürde? Warum sie in Frage steht und warum wir sie verteidigen müssen (Freiburg: Herder, 2011) 15 Recht im Kontext Conference Nov 2011 The Concept of Human Dignity in a Transatlantic Perspective roger brownsword is a graduate of the London School of Economics. He is Professor of Law at King’s College London, where he was the founding director of TELOS (a research centre that focuses on technology, ethics, law and society); he is an honorary Professor in Law at the University of Sheffield; and he is a visiting professor at Singapore Management University.

His interests span legal theory, regulation and technology, and the common law.

His more recent books include (with Deryck Beyleveld) Human Dignity in Bioethics and Biolaw (2001) and Consent in the Law (2007); Contract Law: Themes for the Twenty-First Century (2006); and Rights, Regulation and the Technological Revolution (2008). In total, he has published some 200 papers. He is a member of the editorial board of the Modern Law Review; he is the general editor of the Understanding Law series of books (in which he has co-authored with John Adams both Understanding Law and Understanding Contract Law);

and he is the founding general editor, with Han Somsen, of the journal Law, Innovation and Technology.

Professor Brownsword has acted as a specialist adviser to parliamentary committees dealing with stems cells and hybrid embryos. From 2004-2010, he was a member of the Nuffield Council on Bioethics, during which time he was a member of the working party on public health. Currently, he is a member of the UK NHS Screening Committee, he is a member of the Royal Society’s working party on Brain Science, Law and Responsibility, and he is Chair of the Ethics and Governance Council of UK Biobank.





Some relevant publications:

— Deryck Beyleveld and Roger Brownsword, Human Dignity in Bioethics and Biolaw (Oxford: OUP, 2001) — Roger Brownsword, “What the World Needs Now: Techno-Regulation, Human Rights and Human Dignity” in Roger Brownsword (ed) Human Rights (Volume IV of Global Governance and the Quest for Justice (four volumes) (Oxford: Hart, 2004) 203-234 — Roger Brownsword, Rights, Regulation and the Technological Revolution (Oxford:

OUP, 2008) — Roger Brownsword, “Human Dignity, Ethical Pluralism, and the Regulation of Modern Biotechnologies” in Thérèse Murphy (ed), New Technologies and Human Rights (Oxford: OUP, 2009) 19-84 — Roger Brownsword, “Bioethics Today, Bioethics Tomorrow: Stem Cell 16 Recht im Kontext Conference Nov 2011 The Concept of Human Dignity in a Transatlantic Perspective Research and the ‘Dignitarian Alliance’” (2003) 17 University of Notre Dame Journal of Law, Ethics and Public Policy 15-51 — Tim Caulfield and Roger Brownsword, “Human Dignity: A Guide to Policy Making in the Biotechnology Era” (2006) 7 Nature Reviews Genetics 72-76 — Roger Brownsword, “Human Dignity, Biolaw, and the Basis of Moral Community” (2010) 21 Journal International de Bioethique 21-40 — Roger Brownsword, “Human Dignity and Nanotechnologies: Two Frames, Many Ethics” (2011) 19 Jahrbuch für Recht und Ethik (forthcoming) — Marcus Düwell, Jens Braavig, Roger Brownsword, and Dietmar Mieth (eds), Cambridge Handbook of Human Dignity (Cambridge: Cambridge University Press, 2012) (forthcoming)

Regulatory Content and Regulatory Complexion:

Two Sets of Questions for Dignitarians In a community with moral aspirations, it will be judged to be important that agents try to do the right thing for the right reason. For those whose fundamental moral principle is that human dignity should not be violated or compromised, the development of modern technologies raises many troubling questions, sometimes eliciting regulatory responses that are not compatible with doing the right (dignitarian) thing and sometimes corroding the conditions in which humans can express their dignity by acting for the right (moral) reason.

One set of questions focuses on the content of the regulatory environment. For example, where regulation takes a permissive (even supportive) approach to technological innovation, there will be questions about the compatibility of particular permissions with human dignity. Here, we encounter a number of familiar, and deeply contested, questions—for example, questions about the use of human embryos for research, about the patentability of stem cell lines, about social sex selection, about germ-line genetic modification, about technologies for human enhancement, and so on.

Another set of questions, relating to the complexion of the regulatory environment, focuses on the kinds of signals that regulators use. With the use of new technologies (such as CCTV, DNA profiling, RFID, and the like) as part of the regulatory repertoire, the complexion of the regulatory environment can change: first, moral signals can be pushed into the background as prudential signals are amplified; and then both moral 17 Recht im Kontext Conference Nov 2011 The Concept of Human Dignity in a Transatlantic Perspective and prudential signals can be displaced by regulatory signals that speak (through design, architecture, and coding) to what is practicable or possible.

Whereas the bearing of the first set of questions is on whether agents are doing the right thing, the bearing of the second is on whether, even if they are doing the right thing, they are doing so for the right reason. Whereas, in divided moral communities, there is no easy resolution of the first kind of question, the second set of questions is of concern to all moralists (and even to some pure prudentialists). Nevertheless, the second set of questions is rarely raised or debated.

In a context of rapidly emerging new technologies, I will suggest that, even if pluralistic communities cannot find acceptable regulatory responses to those content questions that dominate discussion and that divide moralists, they should nevertheless attend to the questions of regulatory complexion that are of common concern—for new technological instruments can change the regulatory environment in ways that insidiously undermine the aspirations of all moral agents.

18 Recht im Kontext Conference Nov 2011 The Concept of Human Dignity in a Transatlantic Perspective Ingolf u. dAlferth (born 1948) has studied theology, philosophy, linguistics and English literature in Tübingen, Edinburgh, Vienna and Cambridge/GB. He got his doctorate in systematic theology (Dr. theol.) from Tübingen in 1977, followed by the habilitation in systematic theology (Dr. theol. habil.) in 1982. He has received honorary doctorates from Uppsala University in 2005, and from Copenhagen University in 2006.

He held teaching positions in systematic theology and philosophy of religion in Tübingen (1974-1990), Durham (1981-1982), Cambridge (1987-1989) and Frankfurt am Main (1990-1995), and was a guest professor at Uppsala (1988), Manchester (1995), Fribourg (1997), Utrecht (1998), Copenhagen (2004) and Aarhus (2006).

Since 1995 he has held the chair of systematic theology, symbolics (ecumenical theology) and philosophy of religion in Zurich. Since 1998 he has been Director of the Institute of Hermeneutics and Philosophy of Religion in Zurich. In 2008 he also became Danforth Professor of Philosophy of Religion at Claremont Graduate University in California.

From 2004–2009 he was a research fellow at the Collegium Helveticum in Zurich; in 2005–2006 he was fellow at the Institute for Advanced Study at Berlin; in 2008 he was the Bapsybanoo Marchioness of Winchester lecturer at Oxford University.

He is member of numerous academic societies in Germany, Switzerland, Great Britain, Italy, Scandinavia, and the United States of America; a former president of the European Society of Philosophy of Religion (1988–1990; 1996–1998; 2004–2006); the founding president of the Deutsche Gesellschaft für Religionsphilosophie (1999–2009);

chief editor of the Theologische Literaturzeitung (Leipzig), the Hermeneutische Untersuchungen zur Theologie (Tübingen) and Religion in Philosophy and Theology (Tübingen), and the Neue Grundrisse der Theologie (Tübingen).

His major areas of research and teaching are philosophical and theological hermeneutics in the 20th century; systematic theology in the 19th and 20th century;

ecumenical theology (Lutheranism and Anglicanism); analytical and phenomenological philosophy of religion in the 20th century; religion and emotion; altruism; trust; and evil. Currently he leads a transdisciplinary research group of 17 researchers in neuroeconomics, history, sociology, psychology, philosophy, religious studies, and theology) on Understanding Trust. Foundations, Forms and Limits of Trust at the University of Zurich.

His books include:

— Die Wirklichkeit des Möglichen. Hermeneutische Religionsphilosophie (Tübingen 2003) 19 Recht im Kontext Conference Nov 2011 The Concept of Human Dignity in a Transatlantic Perspective — Becoming Present. An Inquiry into the Christian Sense of the Presence of God, (Leuven/Paris/Dudley 2006) — Das Böse. Essay über die kulturelle Denkform des Unbegreiflichen (Tübingen 2006) — Malum. Theologische Hermeneutik des Bösen (Tübingen 2008; 2010) — Naturrecht in protestantischer Perspektive (Würzburg 2008) — Umsonst. Eine Erinnerung an die kreative Passivität des Menschen (Tübingen 2011) 20 Recht im Kontext Conference Nov 2011 The Concept of Human Dignity in a Transatlantic Perspective dAvId dyzenhAus is a professor of Law and Philosophy at the University of Toronto, and a Fellow of the Royal Society of Canada.  He has taught in South Africa, England, Canada, Singapore, New Zealand, Hungary, and the USA. He holds a doctorate from Oxford University and law and undergraduate degrees from the University of the Witwatersrand, South Africa. In 2002, he was the Law Foundation Visiting Fellow in the Faculty of Law, University of Auckland. In 2005-06 he was Herbert Smith Visiting Professor in the Cambridge Law Faculty and a Senior Scholar of Pembroke College, Cambridge. In 2014-15, he will be the Arthur Goodhart Visiting Professor in Legal Science in Cambridge.



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