The expressive function of human dignity: A pragmatic approach to social rights claims

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.