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Human dignity

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发表于 1/31/2018 19:39:06 | 显示全部楼层 |阅读模式
本帖最后由 郭国汀 于 2/3/2018 13:55 编辑

    Human dignity as a constitutional value, as an underlying value, is a core value underlying express and unenumerated constitutional rights and guarantees, is "the premier value underlying the last two centuries of moral and political thought."[1]
    Myrdal described the American Creed[2] as including dignity as an essential ideal: "These ideals of the essential dignity of the individual human being, of the fundamental equality of all men, and of certain inalienable rights to freedom, justice, and a fair opportunity represent to the American people the essential meaning of the nation's early struggle for independence."[3]
    President George W. Bush referred to "the non-negotiable demands of human dignity: the rule of law; limits on the power of the state; respect for women; private property; free speech; equal justice; and religious tolerance."[4]  
    Clinton referred to human dignity as a core American value: every person is treated with dignity and respect and all of our children have the chance to live their dreams."[5]
    From the mid-1940s to the present, the Court has treated human dignity as a constitutional value.Kant defined dignity as "a quality of intrinsic, absolute value, above any price, and thus excluding any equivalence."[6]Their dignity or worth is a kind of value that all human beings have equally and essentially."[7]
    Both the United Nations Charter and the Universal Declaration of Human Rights proclaim the equal dignity of all men and women. The first line of the Declaration's Preamble recognizes "the inherent dignity and.., the equal and inalienable rights of all members of the human family."[8]
    "Hence human worth or dignity is invariably described as 'intrinsic' or 'inherent,' to contrast it with value that is instrumental, contingent, extrinsic, or circumstantial." Next, human dignity arises from our autonomy and rationality. "[Human dignity is intimately related to human autonomy. An autonomous creature is a self-activating, self-directing, self-criticizing, self-correcting, self-understanding creature." Fourth, "our dignity is inseparably connected to our self-conscious rationality, our capacities to evaluate, calculate, organize, predict, explain, conjecture, justify and so forth." Finally, "human dignity provides the basis for equal human rights."[9]
    Human dignity is the "ultimate value" in these international legal texts.[10]
     Compares European and American notions of privacy and concludes that the American notion of privacy is not grounded in a concern for human dignity. According to Whitman, the American notion of privacy is more akin to a liberty interest[11] while the European notion is closer to a concern for dignity. Whitman defines the European concept of privacy as a right to one's image, name, and reputation


[1] . Hugo Adam Bedau, The Eighth Amendment, Human Dignity, and the Death Penalty, in THE CONSTITUTION OF RIGHTS, HUMAN DIGNITY AND AMERICAN VALUES 145-46 (Michael J. Meyer & William A. Parent eds., 1992). Bedau, at the time his article was published, was Austin Fletcher Professor of Philosophy at Tufts University.
[2] . Myrdal refers to the American Creed as a pattern of ideals providing a standard by which a democracy can be judged. See MYRDAL, supra note 30, at 23.
[3] . Id. at 4.
[4]  . President George W. Bush, State of the Union Address (Jan. 29, 2002)
[5]. President William J. Clinton, President's Radio Address (Feb. 19, 2000)
[6] See, Izhak Englard, Uri and Caroline Bauer Memorial Lecture: Human Dignity: From Antiquity to Modern Israel's Constitutional Framework, 21 CARDOZO L. REV. 1903, 1925 (2000).at 1918.
[7] Hugo Adam Bedau, The Eighth Amendment, Human Dignity, and the Death Penalty, in THE CONSTITUTION OF RIGHTS, HUMAN DIGNITY AND AMERICAN VALUES 145-46 (Michael J. Meyer & William A. Parent eds., 1992 at 153). Bedau, was Austin Fletcher Professor of Philosophy at Tufts University.
[8] Universal Declaration of Human Rights, G.A. Res. 217, at 71, U.N. Doc. A/810 (Dec. 12, 1948). The Preamble goes on to describe the inherent dignity and equal rights of all members of the human family as "the foundation of freedom, justice and peace in the world." Id.
[9] Id. at 154
[10] Common Article 3 of the Geneva Conventions (called "Common Article 3" because
      it is common to all four of the 1949 Geneva Conventions) provides that in the case
      of armed conflict, each Party to the conflict will apply certain provisions. These
      provisions include that persons taking no active part in the hostilities will be
      treated humanely. Specifically, "outrages upon personal dignity, in particular,
      humiliating and degrading treatment," are prohibited "at any time and in any
      place whatsoever." Geneva Convention Relative to the Protection of Civilian Per-
      son in Time of War, Aug. 12, 1949, art. 3, 75 U.N.T.S. 973, 288-90.
[11] James Q. Whitman, The Two Western Cultures of Privacy: Dignity Versus Liberty, 113 Yale L.J. at 1161 (2004).






 楼主| 发表于 1/31/2018 21:22:40 | 显示全部楼层
本帖最后由 郭国汀 于 2/3/2018 13:52 编辑

    Jordan Paust reported that from 1925 through 1982, the Supreme Court used the term human dignity or an equivalent phrase in one hundred eighty-seven opinions (often in dissenting opinions).[1]From 1980 until 2000, the Court included the word dignity, as it relates to human dignity or individual dignity, in ninety-one opinions (whether majority, concurring, or dissenting).[2]
    Human dignity is robust and well-developed in cases involving the right to privacy regarding marriage, contraception, and procreation.[3]
Justice Kennedy wrote: "It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons."【4
    The dissenting Justices described urination as "among the most private of activities," highlighting the humiliation at having to do so with a monitor listening at the door.[5]


[1] Paust, Jordan Paust, Human Dignity as a Constitutional Right: A Jurisprudentially Based Inquiry into Criteria and Content, 27 How. L.J. at 158 (1984). By equivalent phrase, Paust means terms such as "dignity of man," "dignity of the individual," and "personal dignity."
[2] A LEXIS database search revealed 143 cases in which the Court used the term
      "dignity" in an opinion. Often the term was used regarding the dignity of a state
      or cause of action. A LEXIS database search revealed that from January 1, 2000
      through October 15, 2005, the Court has used the term dignity, as it relates to the
      dignity of persons, in twelve opinions.
[3] . The Court often groups Carey v. Population Services International, 431 U.S. 678
      (1977), Griswold v. Connecticut, 381 U.S. 479 (1965), Eisenstadt v. Baird, 405
      U.S. 438 (1972), and Loving v. Virginia, 388 U.S. 1 (1967), into cases involving "a
      person's most basic decisions about family and parenthood." Planned Parenthood
      of Southeastern Pa. v. Casey, 505 U.S. 833, 848 (1992).
[4] Lawrence, 539 U.S. at 567.
[5]. 489 U.S. 602 (1988).. at 645. The dissent quoted Charles Fried's statement that "excretory functions are shielded by more or less absolute privacy, so much so that situations in  which this privacy is violated are experienced as extremely distressing, as detracting from one's dignity and self esteem." at 646 (quoting Charles Fried, Privacy, 77 YALE L.J. 475, 487 (1968)).
 楼主| 发表于 2/1/2018 02:36:25 | 显示全部楼层
BASIC LAW: HUMAN DIGNITY AND FREEDOM*[1]
Purpose: Safeguarding of Life, Body and Dignity. Protection of Property. Protection of Life, Body and Dignity. Personal Liberty. Exit from and Entry into Israel. Privacy and Personal Confidentiality.
1. The purpose of this Basic Law is to safeguard human dignity and freedom, in order to entrench in a Basic Law the values of the State of Israel as a Jewish and democratic state.
2. The life, body or dignity of any person shall not be violated.
3. A person's property shall not be infringed.
4. Every person is entitled to protection of his life, body and dignity.
5. The liberty of a person shall not be deprived or restricted through imprisonment, detention, extradition, or in any other manner.
6. (a) Every person is free to leave Israel.
     (b) Every Israeli citizen outside Israel is entitled to enter Israel.
7. (a) Every person is entitled to privacy and to the confidentiality of his life.
     (b) A person's private domain shall not be entered without his consent.
     (c) No search shall be carried out of a person's private domain, on his body, of his body, or of his personal effects.
     (d) The confidentiality of a person's conversations, writings and records shall not be infringed.
8. The rights according to this Basic Law shall not be infringed except by a statute that befits the values of the State of Israel and is directed towards a worthy purpose, and then only to an extent that does not exceed what is necessary.
9. The rights according to this Basic Law may not be restricted, qualified or waived for those serving in the Israel Defence Forces, the Israel Police, the Prison Service or in other security organizations of the State, except according to law and to an extent that does not exceed what is required by the nature and character of the service.
Conservation   
10. Nothing in this Basic Law affects the validity of law of Laws. that existed prior to the coming into force of this Basic Law.
Application.   
11. All governmental authorities are obligated to respect the rights under this Basic Law.
Stability      
12. Emergency regulations shall not have the power to of the Law to change this Basic Law, to suspend its force temporarily, or to set conditions upon it; however, when there exists a state of emergency in the State by virtue of a proclamation under section 9 of the Law and Administration Ordinance, 5708-1948,1 emergency regulations may be promulgated under the aforesaid section which deny or restrict rights according to this Basic Law, provided that the denial or the restriction are for a worthy purpose, and for a period and to an extent that shall not exceed what is necessary or Infringement of Rights.
Exception for Security Forces.
  


[1] 26 Isr. L. Rev. (1992) p, 248 to 249  
*   Enacted by the Knesset on 12th Adar B, 5752 (17 March 1992); the Bill and explanatory comments were published in H.H. 2086, of 6th Kislev 5752 (13 November 1991), p. 60.



 楼主| 发表于 2/3/2018 13:51:05 | 显示全部楼层
DEATH WITH DIGNITY LEGISLATION
Walter F. Sullivan[1]   
MOST REVEREND WALTER F. SULLIVAN BISHOP OF RICHMOND, VIRGINIA
     I welcome the opportunity, together with Mr. Nicholas Spinella, our diocesan attorney, to share with your reflections on the subject of death with dignity as it relates to ministry and legislation.
     For four years, I have had a personal interest in this subject; I have studied its ramifications and have taken a consistent public position in opposition to legislation in favor of "living wills" as being both unnecessary, as a direct interference in the doctor-patient relationship, and as being potentially dangerous in that it represents the first step towards legalized euthanasia.
     I became involved accidentally four years ago. A member of the Virginia State Legislature sought my support for his death with dignity bill. Because of some previous reading on the subject, I became immediately cautious and would not lend support until after further study. I quickly recognized what little knowledge I had about death with dignity. I sought professional guidance regarding the language of the proposed bill. I found that such a bill raised more questions than were answered. Thankfully, with the help of such people as Nick Spinella, representatives of the ecumenical and medical community, we have up to this date successfully opposed so-called death with dignity legislation. Incidentally, in the four years of opposition, four completely opposite bills have been proposed to the General Assembly of Virginia which indicates to me that the subject was being used more for political purposes rather than providing real help to people.
     In the past four years, I have accumulated a file over three inches thick. All of us should be aware that death with dignity is constantly being discussed and many articles written on the subject. It is important for each of us, both in the legal and pastoral field, to become better informed on the issues before taking a final position on the question.
     Three years ago, I wrote a pastoral letter entitled, Death with Dignity: Ministry not Legislation, in which I put together in nonlegal language a comprehensive overview of the question. Thankfully, the pastoral letter has had wide circulation and has done a great deal of good in apprising others of the issues. Just recently the Bishops' Committee on Pro-Life Activities has taken a public stand against this type of legislation and has published an excellent resource paper entitled, Death and Dying.
     Let me now give you an overview on the question of death with dignity. Nick Spinella will treat the legal aspects of the question. Let me first set the scene as to why death with dignity is so popular today. We hear a great deal about it simply because people are living longer. The population is growing older. People are asking what should we do with our elder citizens. We know that with increased technology, medical discoveries and miracle drugs, life can be prolonged either for the benefit or the detriment of the patient.
    People are concerned because we have read about inhuman situations where people are kept alive for long periods of time, where a great deal of money is spent to keep people in a vegetable state without any real benefit to the patient, but in reality in an inhuman situation.
     The issue became clearer to me when I recently attended a seminar in Washington, D.C. on the subject of health policy. One of the speakers gave a talk entitled, Suppose There is a Cure for Cancer? You and I are excited about the aspect that medical science might discover a cure for cancer. Millions of dollars are being spent for this purpose in what we might call preventative care. At the same time, what happens in society if cancer is no longer the number one killer. The next step, according to the speaker, might be mental deterioration or stroke which involves extensive medical care, prolonged life in a semi-vegetable state.
     I have already mentioned the possible inhuman situations whereby people are kept needlessly alive. In a death denying culture, we do not allow death to occur naturally. I am more concerned over what I might call the "playing God" by the medical profession, the present experimentation on people, the rush for transplants, etc. Experiments are not wrong in themselves unless they in turn deny the human rights of people.
     The push for death with dignity legislation is the result of rising medical costs. There is a real discussion today on the distribution of health dollars. What is being espoused is the life boat theory: if 15 to 20 people are drowning and there is only a life boat to hold 12 people, the question to be faced is over who gets priority into the life boat. No doubt, with rising medical costs, people should question expensive medical treatment just to keep people artificially alive or to prolong life.
     Another influence on this type of legislation is the secularism of our day which denies or qualifies the absolute dignity of human life. As Catholics and Christians we espouse the inherent value of all life and of all persons. That value comes from the individual himself rather than the worth placed on the individual by someone else. Today, worthwhileness is made dependent on a person's usefulness to society. A person's worth is judged by what that person has or owns. There is much discussion today on the quality of life which is a real value just as life itself is. At the same time, a person's meaningfulness should not be proportionate to the person's ability to enter into interpersonal relationships with others.
     You and I have had the experience, and a very depressing one at that, of visiting a nursing home. We find people there in practically vegetable states. Many today espouse that such a person is costing money, and is taking up space with health dollars being needlessly wasted. It is because of our faith and belief in resurrection that we place infinite value on the individual until the time of death which should and must only naturally occur.
     All of us should be aware of the anti-life forces of our day. In my judgment, abortion is only the beginning, euthanasia is just around the comer. The Euthanasia Society in our country is promoting legislation under such catchy phrases as "death with dignity," "right to privacy," and "right to die." The Natural Death Act in California is an unfortunate attempt to legalize the right of every individual to die. What does this phrase mean? Does it include the right to take one's own life, the right to suicide; does it give someone the right to take the life of another even with the permission of the individual?
     Just as life before birth has become expendable, so too life before death has been cheapened for a wide variety of reasons. Euthanasia, or the good death, is being widely proposed. California is only the beginning. "Living wills" or natural death acts are now being proposed in approximately 30 legislatures throughout the country. In fact, in a few states direct euthanasia has been approved.
     After setting the scene of today, let me briefly give some moral principles which should affect the judgments we make. We believe, in keeping with the extensively quoted statement of Pope Pius XII, that you do not have to use extraordinary means to preserve an individual's life, you do not have to keep a person artificially alive. In fact, by so doing, the rights of an individual might be denied because a person is now being treated inhumanly. As Christians, we believe that death has meaning-it is the gateway for entrance into eternal life. Therefore, while we try to save people through medical care, we should not deny death by keeping people artificially alive but rather let death occur naturally when meaningful existence is no longer possible.
     Perhaps some explanation should be given to the phrase "extraordinary means to preserve life." Extraordinary has many interpretations. Extraordinary for whom-the medical profession as far as costs of medical care, or for the patient himself-the cost of suffering, pain, and discomfort. Just as we espouse that extraordinary means are not necessary, we must proclaim the obligation to use ordinary means to preserve life. A person has a right to nourishment, food, water and ordinary sustenance. Mercy killing, allowing people to die by withdrawing care, is not acceptable. Withdrawing of medical treatment presents many difficulties or unanswered questions. What might be extraordinary today with medical discovery could be very ordinary treatment tomorrow. Who in this audience would consider insulin as extraordinary means to preserve life for a diabetic?
     In applying moral principles, we must consider first the right of the patient-the right of the patient to treatment, the right of the patient to be allowed to die with dignity. You and I must be on the side of life and must believe in death with dignity and ministry to the dying patient. Care for the sick and dying has always been considered a corporal work of mercy. It is in the field of legislation that the issues become muddled. Can we ever legislate the delicate relationship between the patient and the doctor or the relationship between the family and the doctor? My fear is that of the so-called "slippery slope principle." In trying to legislate, codify or protect the rights of the patient, we might at the same time through the use of the same language allow a third party, a hospital committee, or the state as big brother to come in and determine who should live and who should die.
     I am very opposed to the so-called "living will." The living will is a statement with legal consequences that a person makes at a rather young age to the effect that the individual does not wish to be kept artificially alive through the use of machines when the individual becomes comatose. The problem is one of language. What in fact is a terminal situation? What should be considered as extraordinary means? What happens if a person enters the hospital with a living will? Is that individual denied treatment?
      What happens in the absence of such a document? Is the individual given all possible treatment, even if such a treatment were not medically indicated? We must recognize that doctors are concerned over malpractice suits. Is the doctor more susceptible to legal suit with the presence or the absence of a legal will once the living will becomes codified in a state?
     Many unanswered questions center around the process needed to implement or revoke a living will. I recently testified before the Virginia General Assembly and stated facetiously that with the enforcement of the living will, one would need a lawyer to become a patient in the hospital, the doctor would need his lawyer to determine the legal effect of the living will and the hospital would also need legal representation to protect its own interests. It seems that because of a very valid and real human situation, such as the care of the dying and the prolongation of life, we are attempting to use legislation to solve human problems or to answer every possible situation. I liked very much a recent statement by a Protestant theologian who said, "What one thinks of death while he is healthy and very much alive is not what you are going to think about it when you are actually faced with death." Can a person have real informed consent in making a living will not knowing what medical situation he or she would have to face twenty years later in regard to proper treatment, care and preparation for death?
     Another concern I have over proposed legislation is the escape hatch that is used if the doctor or the patient's family cannot agree whether to continue or discontinue treatment. Such legislation provides for a hospital review committee; basically, the review committee then becomes the arbiter over life or death with both the right of the patient and the right of the doctor now being denied and given to a so-called committee.
     Another area of concern is the using of such terminology in discussion such as active or passive euthanasia. While ethical distinctions can be made, we should be aware that some are saying it is more human to practice active euthanasia than allowing someone to suffer and to go through the agonizing process of death. We believe that active euthanasia or the direct taking of life is always immoral. Passive euthanasia has been accepted by moral theologians but such terminology is open to wide criticism today. As some would say, is it not more human to give a shot of morphine than to pull the plug on the respirator and watch someone go through the final stages of death.
     Let me conclude these few remarks by reaffirming the need for a positive approach to life and our care for the sick and dying. Much confusion exists over such terminology as death with dignity. Everyone has his own interpretation. Instead of death with dignity, we should emphasize "dying with dignity." We must take a more positive stance and show greater concern over care for the dying patient. Hospice has such a program and emphasizes so beautifully as its philosophy-"We do not prepare you for death, but we teach you have to live until you die."
     Do we really need death with dignity legislation, or is this type of legislation even in its innocuous formulation but the beginning of accepted euthanasia practice in our country? I have yet to see proof that such legislation is necessary and is going to solve the very delicate balance in the doctor-patient relationship in the providing of health care. Doctors and other medical personnel are faced with life and death decisions on a daily basis. Hopefully, the doctor will always remain the agent or advocate for life; if death ever becomes easy or simply routine or becomes impersonal through legislation, then the role of the doctor changes. He quickly would become the advocate for death. Worse still, a third party, whoever that might be, would then be given the responsibility of determining who should live and who should die.
     Legislation can never solve the human dimensions of illness and suffering. Attempts to legislate have proved inadequate and have left more questions or problems than one hopes to solve. Such legislation will, of necessity, encourage additional legislation which in turn will reinforce the present climate in our country for legalized euthanasia.
     My plea with you today is to become better informed on the issues, to know what is being discussed and proposed, to have our Catholic hospitals establish policies on the care of the dying patient, to take positive action and respond to a real human need which is the basis for death with dignity legislation. Let us not simply be reactors to crises but give a positive response and Christian concern to the antilife forces of our day. We believe in the right of the patient to die with dignity; we believe that each patient should live meaningfully until death occurs naturally. We believe that care of the dying is the responsibility of each of us and will be faced by each of us at the appointed time in our own life. Hopefully, as we care for others in a Christian, loving way, those who care for us will believe in the value of all human life and that life cannot and must not be shortened because people have become a financial liability or simply a burden to society.


[1] 23 Cath. Law. At.187 (1977-1978)   to 191



 楼主| 发表于 2/3/2018 17:00:40 | 显示全部楼层
本帖最后由 郭国汀 于 2/3/2018 20:17 编辑

    Liberties consist in doing what one likes, or one dislikes[1]. We are especially focusing on civil liberties: the freedom of conscience (including the freedom of religion), freedom to travel and to settle down, the freedom to have a large family or not to have any child, the freedom to adopt a child, to choose your friends, the freedom of fashion, of diet; finally the freedom to arrange your funerals[2].
    The rights regarding physical appearance of the individual: the right of the individual on his/her body and the right of the individual to respect for his/her body and 2. the rights concerning the moral aspect of the individual including: the right to image and to respect for private life; the right to respect for the presumption of innocence; the right to inviolability of home; the right to confidential correspondence; the right to honour; the right of the author on his work[3].rights regarding physical integrity. the human body and life; rights concerning private life: the protection of private life, of image and voice.[4]
    The respect for private life, the right to one's own image, the right to one's own voice, the right to honour, the right to respect beliefs, the right to confidentiality[5].
    The right to moral integrity protects private life and at the same time gives birth to a bundle of prerogatives, first of all the right to honor and dignity to which we add the right to image and the right to privacy[6].Sometimes honor and reputation are synonymous; a violation of reputation means a violation of honor. Reputation means the way an individual is appreciated in society, as an accepted quality. The most beautiful patrimony of man is an untainted reputation.According to an ingenious definition, honor is outward consciousness and consciousness is inward honor[7]
    Honor as already noticed, is different from glory. Honor does not represent the opinion about some extraordinary qualities owned by a certain individual, but about common qualities people are endowed with, qualities that nobody should lack. If honor says that this individual makes no exception, glory states that he/she is an exception; glory must be first of all gained, honor on the contrary, must only not be lost. However, if lack of honor is shame, lack of glory is obscurity. Moreover: anyone aspires to honor, only exceptions to glory as the latter is acquired only through exceptional things"[8]. As difficult as it is to achieve glory, it is so easy to preserve it. On the contrary, honor is awarded to anyone, even on credit; anyway it is preserved with difficulty.
     A special honor is military honor that compels one to defend the homeland and implies fidelity, courage, bravery, strength and not even for the world to leave the flag one swore on[9].
    The duel was undoubtedly a barbarian form of justice, in the process of re-establishing honor", by means of a duel the strength and physical skill were put in the place of honor. The Greeks and Romans did not know the principle of chivalrous honor[10];honor, having a social aspect, extends through solidarity to family as well. Therefore the right to moral recovery would be available for closer inheritors.
    The Dignity is not only a constitutional principle but as well a universal one that implies protection of the individual against any form of subjugation, degradation and even humiliation[11].   
     Federal Constitution of Germany it is stipulated: Dignity of the human being is intangible. All public powers are compelled to respect it and to protect it"[12].
    Dignity is difficult to define but, anyway, implies honesty, goodwill and intact reputation. It is an immaterial good, of ethical nature and is inherent to the human being. dignity is an inborn quality, namely honor to which we add other characteristics of ethical nature acquired during the life of man that form altogether the reputation of an individual[13].dignity is a personal feeling of moral appreciation determined by self-esteem. honor and reputation are only parts ofdignity.
    Law protects dignity both as a moral good and as a social value. Criminal law protects also the feeling of dignity and condemns any other action that diminishes esteem, consideration and respect any individual should enjoy. For example art.205 Penal Code regulating insult stipulates: injury to honor or reputation of an individual through words, gestures or any other ways, or by exposure to insult is punished... (para.1); the same punishment is applied also in the cases when a flaw, a disease, an infirmity is attributed to a person, even if those are real, they should not be revealed."
    It may occur that an offence to private life could trigger an offence to honor, dignity or reputation. On the other hand, offence to the woman's dignity has lead to incrimination of sexual harassmen.Anyway dignity must be linked to the human body - the respect for the human body[14].
    The public's right to information derived from liberty of expression as well as from liberty of opinion raises the problem of the limits that can be imposed on personality's rights. Liberty of expression cannot be supreme. As a matter of fact, the constitutional dispositions - as demonstrated before - prohibit those expressions that cause prejudices to dignity, honor, to the person's private life and his/her right to his/her own image. public opinion has control over the politicians' private life and shows interest in celebrities; many times, their professional success depends on public opinion.
    There are private circumstances that by their nature can be disclosed only with the person's prior authorization; for example friendship and love relationships, family life, health, origin, dwelling or residence, religion and inaccuracy of a biography etc. Otherwise, these remarks may injure the right to honor, dignity or liberty of consciousness.
    The journalists and writers would not be able to exculpate themselves from legal liability except for cases when they acted in good will if they had the obligation to inform the public or made serious investigations and showed circumspection[15]. Good will implies: legitimacy of the intended purpose, lack of personal animosity, objectivity, calm and decency in expression, respect for the principle of innocence[16].
    Dignity is an universal value because it is an original human right coming from the natural rights; it is by far the form of those rights. Dignity is also in permanent change of semantics updating itself permanently with the events and the contemporary evolution of the society[17].


[1]Montchrestien, Paris, 2003, p.185.


[2] Ibidem.
[3] Ph. Malinvaud, Introduction a I'etude du droit, Litec, Paris, 1998, p.143.
[4] G. Cornu, op. cit., p.184.
[5] E. Deleury, D. Goubau, Les personnes physiques, 3rd edition, Yvon Blais, Quebec, 2002, p.97-214. Other authors classify the personality rights in rights regarding physical integrity, rights regarding moral integrity and rights concerning private life (Fr. Terre, D. Fenouillet, op. cit., p.50-103).
[6] In another record, the primordial manifestations of the human being have been enumarated as follows: dignity, consciousness, honor, innocence and affection (Fr. Terre, D. Fenouillet, op. cit., p.81)
[7] A. Schopenhauer, Aforisme asupra intelepciunii Fn viati [Aphorisms on the Life Wisdom], T. Maiorescu, Saeculum and Vestala, Bucuresti, 1999, p.50-51.
[8] These books are actions or works. The fundamental difference between them is that actions are temporary while works last; Alexander the Great lives only via his name and as a recollection while Plato and Aristotel live themselves, are present and actually work via their writings (A. Schopenhauer, op. cit., p.75).
[9] The coward who flees away from the battlefield saves what other sacrifice; his life; but he saves it at the cost of his life." (R. von Ihering, Lupta pentru drept [The Struggle for Right], Editura All Beck, Bucuresti, 2003, p.24).
[10] For example Euripides fighting with Temistocles raised the stick to hit him but the latter did not pull out the sword and only answered: ,hit me but listen to me"; or Socrates being kicked aside answered to somebody who was surprised that he had not retorted: If I had been kicked by an ass, would I complain?" (in A. Schopenhauer, op. cit., p.63).
[11] This indefinable notion that brings man to the lowest level" (J. Carbonnier, op. cit., p.150). It is true that there is a movement against the decadence of human being; improvement regarding the situation of those excluded, of the mentally ill, of the prisoners, of those without shelter etc.; for an analysis of horror and agony and also of the absurd comedy from ,,closed universes", see E. Goffman, Aziluri. Eseuri despre situatia socialA a pacientilor psihiatrici si a altor categorii de persoane institutionalizate [Asylums. Essays on the Social Situation of Psychiatric Patients and on Other Categories of Institutionalized Persons], Editura Polirom, lasi, 2004. On other level it is salutary that the legislator created new incriminations that guarantee the dignity of the person against discriminations, hate and violence toward an individual or a group of individuals on the account of affiliation to an ethnic group, a nation, race or religion.
[12] It is interesting that in France there is no constitutional reglementation regarding the human dignity.
[13] Dongoroz, et al., Explicatii teoretice ale Codului penal roman [Theoretical Explanations on the Romanian Criminal Code], vol.111, Editura Academiei, Bucuresti, 1971, p.403.
[14] By Law no.2/1998 regarding the sampling and transplant of human tissues and organs (published in Off. M. no.8/1998) it is established that sampling and transplant cannot make the object of a transaction and incriminates the individual's action to donate human tissues and/or organs in view of obtaining some profits (art.1 6 paragh. 1). A grievous deed that would injure the very nature of human dignity is incriminated by art.194 Penal Code (new version) The illegal creation of embryos and cloning."
[15] Information should be transmitted without any exterior intervention, either by public authorities or by private sector (point 8 from the Resolution of Parliamentary Assembley... extra quote).
[16] Although in this study our purpuse was not to analyse the principle of innocence in the criminal suit/trial, we wonder whether the right to honor and dignity could be injured or not, in case that before any final sentence form the judicial authorities, the press actually condemns (in unechivocal terms) certain persons thus puting some pressure and even having an influence on justice? Or on the contrary, it is believed that such an assault by the press is benefic precisely to take justice out of the slow-moving and inertness that it may embrace at a certain time? (for details see M. Dutu, Libertatea presei si respectarea prezumt, iei de nevinov~tie in cadrul procesului penal[Liberty of the Press and Respect for the Presumtion of Innocence in Criminal Suit], in Dreptul, no.1/2006, p.233-247.
[17] p. Mistretta, La protection de la dignite de la personne et les vicissitudes du droit penal, in La Semaine Juridique, no.1-2/12 ian. 2005, p.15-20; B. Mathieu, La dignite de la personne humain: quel droit, quel titulaire?, in R.D., 1996, chron., p.285.


 楼主| 发表于 2/3/2018 23:32:20 | 显示全部楼层
Prostitution, in short, becomes an activity that is degrading to the individual dignity of the prostitute and which is a vehicle for pimps and customers to exploit the disadvantaged position of women in our society."[1]

[1]  dignity-as-constraint was invoked by LamerJ. when considering prostitution in Reference Re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R, 4 W.W.R. at 1194.



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