Handbook of Human Dignity in Europe

Paolo Becchi
Visit to download the full and correct content document:
https://textbookfull.com/product/handbook-of-human-dignity-in-europe-paolo-becchi/
More products digital (pdf, epub, mobi) instant
download maybe you interests ...

Justice for Victims of Crime Human Dignity as the

Foundation of Criminal Justice in Europe 1st Edition
Albin Dearing (Auth.)

https://textbookfull.com/product/justice-for-victims-of-crime-
human-dignity-as-the-foundation-of-criminal-justice-in-
europe-1st-edition-albin-dearing-auth/

Human Rights in Turkey: Assaults on Human Dignity Hasan

Aydin

https://textbookfull.com/product/human-rights-in-turkey-assaults-
on-human-dignity-hasan-aydin/

Interdisciplinary Perspectives On Human Dignity And

Human Rights Hoda Mahmoudi

https://textbookfull.com/product/interdisciplinary-perspectives-
on-human-dignity-and-human-rights-hoda-mahmoudi/

ERS Handbook of Respiratory Medicine Paolo Palange

https://textbookfull.com/product/ers-handbook-of-respiratory-
medicine-paolo-palange/
Routledge Handbook of Sustainable and Resilient
Infrastructure Paolo Gardoni

https://textbookfull.com/product/routledge-handbook-of-
sustainable-and-resilient-infrastructure-paolo-gardoni/

Uncertain Bioethics Moral Risk and Human Dignity 1st

Edition Stephen Napier

https://textbookfull.com/product/uncertain-bioethics-moral-risk-
and-human-dignity-1st-edition-stephen-napier/

Handbook of X-ray Imaging: Physics and Technology 1st

Edition Paolo Russo

https://textbookfull.com/product/handbook-of-x-ray-imaging-
physics-and-technology-1st-edition-paolo-russo/

Handbook of X-ray Imaging: Physics and Technology 1st

Edition Paolo Russo (Editor)

https://textbookfull.com/product/handbook-of-x-ray-imaging-
physics-and-technology-1st-edition-paolo-russo-editor/

The Palgrave Handbook of Public Administration and

Management in Europe 1st Edition Edoardo Ongaro

https://textbookfull.com/product/the-palgrave-handbook-of-public-
administration-and-management-in-europe-1st-edition-edoardo-
ongaro/
Paolo Becchi
Klaus Mathis
Editors

Handbook of
Human
Dignity in
Europe
Handbook of Human Dignity in Europe
Paolo Becchi • Klaus Mathis
Editors

Handbook of Human
Dignity in Europe

With 2 Tables
Editors
Paolo Becchi Klaus Mathis
Faculty of Law Faculty of Law
University of Genoa University of Lucerne
Genoa, Italy Lucerne, Switzerland

ISBN 978-3-319-28081-3 ISBN 978-3-319-28082-0 (eBook)

ISBN 978-3-319-28083-7 (print and electronic bundle)
https://doi.org/10.1007/978-3-319-28082-0
Library of Congress Control Number: 2019932839

© Springer Nature Switzerland AG 2019

This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the
material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation,
broadcasting, reproduction on microfilms or in any other physical way, and transmission or information
storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology
now known or hereafter developed.
The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication
does not imply, even in the absence of a specific statement, that such names are exempt from the relevant
protective laws and regulations and therefore free for general use.
The publisher, the authors, and the editors are safe to assume that the advice and information in this book
are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the
editors give a warranty, express or implied, with respect to the material contained herein or for any errors
or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims
in published maps and institutional affiliations.

This Springer imprint is published by the registered company Springer Nature Switzerland AG
The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland
Preface

Human dignity can lay claim to a long tradition as a religious and philosophical
concept, but only in recent times has it taken shape as a legal concept. The arrival of
dignitas in international law was incited by the atrocities of the Second World War. It
was in response to these that the United Nations, in 1948, proclaimed the Universal
Declaration of Human Rights, which states in its first Article that “all human beings
are born free and equal in dignity and rights”. In 1949, the concept was anchored on
the national level for the first time in Article 1 Section 1 of the German Basic Law
and, as that example was followed, gradually gained prevalence in other European
countries.
Much has already been written about human dignity, but what has been missing
until now is a systematic work which sets out to analyse this concept in the law of the
individual countries of Europe. The present volume attempts to fill this gap by taking
a detailed look at each country’s constitution, legislation and jurisprudence. In
addition, it also examines the significance of human dignity in the law of the
European Union and in the European Convention on Human Rights (ECHR). The
chapters are preceded by an extensive introduction which brings to the fore the
essential aspects of human dignity.
We are grateful to all those who played a part in the realization of this volume.
First and foremost we thank the authors for contributing their chapters. Special
thanks are also due to Mike Bacher, Steven Gründel, Lynn Gummow, Gareth
Hunt, Niels Röthlin, Roman Schmid and Julia Wetzel for the copy-editing and
formatting of the texts. Finally, we would like to express our gratitude to Daniela
Heller, Kate Emery and Rebecca Urban of Springer publishing house for their
support during the publication process.

Genoa and Lucerne Paolo Becchi

2019 Klaus Mathis

v
Contents

Human Dignity in Europe: Introduction . . . . . . . . . . . . . . . . . . . . . . . . 1

Paolo Becchi
Human Dignity in Albania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Arta Vorpsi
Human Dignity in Andorra .................................. 63
Paolo Becchi
Human Dignity in Austria ................................... 71
Anna Gamper
Human Dignity in Belgium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Koen Lemmens
Human Dignity in Bosnia and Herzegovina . . . . . . . . . . . . . . . . . . . . . . 113
Damir Banović
Human Dignity in Bulgaria .................................. 129
Martin Belov
Human Dignity in Croatia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
Biljana Kostadinov
Human Dignity in Cyprus ................................... 173
Charis Papacharalambous
Human Dignity in the Czech Republic . . . . . . . . . . . . . . . . . . . . . . . . . . 197
Jaroslav Benák, Ladislav Vyhnánek, and David Zahumenský
Human Dignity in Denmark . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
Antoni Abat Ninet
Human Dignity in Estonia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229
Tanel Kerikmäe and Kristi Joamets
Human Dignity in Finland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245
Tuomas Ojanen

vii
viii Contents

Human Dignity in France . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259

Régis Lanneau
Human Dignity in Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281
Christoph Enders
Human Dignity in Great Britain and Northern Ireland ............ 319
Daniel Bedford
Human Dignity in Greece . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 363
Ioannis A. Tassopoulos
Human Dignity in Hungary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 393
Gergely Deli and István Kukorelli
Human Dignity in Iceland ................................... 415
Ragnhildur Helgadóttir
Human Dignity in Ireland ................................... 431
Elaine Dewhurst
Human Dignity in Italy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 453
Paolo Becchi
Human Dignity in Kosovo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 471
Qerim Qerimi and Ilir Dugolli
Human Dignity in Latvia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 479
Dita Plepa and Jānis Pleps
Human Dignity in Liechtenstein . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 505
Cyrus Beck
Human Dignity in Lithuania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 525
Darijus Beinoravičius and Milda Vainiut_e
Human Dignity in Luxembourg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 539
Jörg Gerkrath and Maria Pichou
Human Dignity in Malta . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 573
David Edward Zammit and Mary Muscat
Human Dignity in Monaco . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 605
Régis Lanneau
Human Dignity in Montenegro . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 617
Duška Franeta
Human Dignity in the Netherlands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 643
Jan-Peter Loof
Human Dignity in North Macedonia . . . . . . . . . . . . . . . . . . . . . . . . . . . 667
Renata Treneska-Deskoska
Contents ix

Human Dignity in Norway . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 683

Dina Lupin Townsend
Human Dignity in Poland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 697
Marta Soniewicka and Justyna Holocher
Human Dignity in Portugal .................................. 719
João Carlos Loureiro
Human Dignity in Romania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 745
Maria Lia Pop
Human Dignity in San Marino . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 771
Tania Cucè
Human Dignity in Serbia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 779
Duška Franeta
Human Dignity in Slovakia .................................. 799
Tomáš Ľalík
Human Dignity in Slovenia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 817
Sebastian Nerad
Human Dignity in Spain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 851
Alberto Oehling
Human Dignity in Sweden . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 869
Mona Haghgou Strindberg
Human Dignity in Switzerland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 883
Klaus Mathis and Balz Hammer
Human Dignity in the Vatican City . . . . . . . . . . . . . . . . . . . . . . . . . . . . 933
Vincenzo Pacillo and Emilia Lazzarini
Human Dignity in the EU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 943
Sebastian Heselhaus
Human Dignity and the European Convention on Human Rights .... 969
Sebastian Heselhaus and Ralph Hemsley
Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 993
About the Editors

Paolo Becchi is full professor of Philosophy of Law at

the University of Genoa (Italy), where he teaches Prac-
tical Philosophy and Biolaw. For several years he taught
Philosophy of Law and Political Philosophy at the Uni-
versity of Lucerne (Switzerland). He was awarded an
honorary degree (Doctor honoris causa in Law) by the
Eötvös Loránd University of Budapest. His particular
fields of expertise are Philosophy of Law, History of
Law, Political Philosophy, and Bioethics.

Klaus Mathis is full professor of Public Law, Law of

the Sustainable Economy, and Philosophy of Law at the
University of Lucerne. He is the co-founder of the
Center for Law and Sustainability (CLS) and Director
of the Institute for Research in the Fundaments of Law –
lucernaiuris. His particular fields of expertise are Con-
stitutional Law, Law and Economics, Law of Sustain-
able Development, and Philosophy of Law.

xi
Contributors

Damir Banović Department for State and International Public Law, University of
Sarajevo (Law Faculty), Sarajevo, Canton Sarajevo, Bosnia and Herzegovina
Paolo Becchi Faculty of Law, University of Genoa, Genoa, Italy
Cyrus Beck Triesenberg, Liechtenstein
Daniel Bedford University of Portsmouth, Portsmouth, UK
Darijus Beinoravičius Faculty of Law, Mykolas Romeris University, Vilnius,
Lithuania
Martin Belov Faculty of Law, University of Sofia St. Kliment Ohridski, Sofia,
Bulgaria
Jaroslav Benák Department of Constitutional Law and Political Science/Faculty of
Law, Masaryk University, Brno, Czech Republic
Tania Cucè University of Lucerne, Lucerne, Switzerland
Gergely Deli Széchenyi István University, Győr, Hungary
Elaine Dewhurst School of Law, University of Manchester, Manchester, UK
Ilir Dugolli Embassy of the Republic of Kosovo in Stockholm, Stockholm, Sweden
Christoph Enders Faculty of Law, Leipzig University, Leipzig, Germany
Duška Franeta Faculty of Law and Business Studies Dr Lazar Vrkatić, Union
University, Novi Sad, Serbia
Anna Gamper Institut für Öffentliches Recht, Staats- und Verwaltungslehre,
Universität Innsbruck, Innsbruck, Austria
Jörg Gerkrath Faculty of Law, Economics and Finance, University of Luxem-
bourg, Luxembourg, Luxembourg
Mona Haghgou Strindberg Prio Advokatbyrå, Stockholm, Sweden

xiii
xiv Contributors

Balz Hammer Federal Department of Defence, Civil Protection and Sport, Swiss
Federal Administration, Bern, Switzerland
Ragnhildur Helgadóttir School of Law, Reykjavík University, Reykjavík, Iceland
Ralph Hemsley Faculty of Law, University of Lucerne, Lucerne, Switzerland
Sebastian Heselhaus International Law, European Law, Public Law and Compar-
ative Law, Rechtswissenschaftliche Fakultät, University of Lucerne, Luzern,
Switzerland
Justyna Holocher Institute of Political Science, Pedagogical University of
Krakow, Krakow, Poland
Kristi Joamets Department of Law, School of Business and Governance, Tallinn
University of Technology, Tallinn, Estonia
Tanel Kerikmäe Department of Law, School of Business and Governance, Tallinn
University of Technology, Tallinn, Estonia
Biljana Kostadinov Department of Constitutional Law, University of Zagreb,
Zagreb, Croatia
István Kukorelli Department for Constitutional Law, Eötvös Loránt Science
University, Budapest, Hungary
Tomáš Ľalík Faculty of Law, Department of Constitutional Law, Comenius
University, Bratislava, Slovakia
Régis Lanneau CRDP, FIDES, University of Paris Nanterre, Nanterre, France
Emilia Lazzarini John XXIII Foundation for Religious Studies, Bologna, Italy
Koen Lemmens Leuven Centre for Public Law, KU Leuven, Leuven, Belgium
Press Law, VU Brussel, Ixelles, Belgium
Jan-Peter Loof Faculty of Law, Leiden University, Leiden, The Netherlands
João Carlos Loureiro Institute for Legal Research (UCILeR), Faculty of Law,
University of Coimbra, Coimbra, Portugal
Klaus Mathis Faculty of Law, University of Lucerne, Lucerne, Switzerland
Mary Muscat Department of Civil Law, Faculty of Laws, University of Malta,
Msida, Malta
Sebastian Nerad The Constitutional Court of the Republic of Slovenia, Ljubljana,
Slovenia
Antoni Abat Ninet Centre for European and Comparative Legal Studies, Faculty
of Law-University of Copenhagen, Copenhagen, Denmark
Alberto Oehling Facultad de Derecho, Dpto. Derecho Público, University of the
Balearic Islands, Palma (Illes Balears), Spain
Contributors xv

Tuomas Ojanen Faculty of Law, University of Helsinki, Helsinki, Finland

Vincenzo Pacillo Department of Law, University of Modena and Reggio Emilia,
Modena, Italy
Charis Papacharalambous Criminal Law and Law Theory, Law Department,
University of Cyprus, Nicosia, Aglantzia, Cyprus
Maria Pichou Faculty of Law, Economics and Finance, University of Luxem-
bourg, Luxembourg, Luxembourg
Dita Plepa Riga Stradiņš University, Riga, Latvia
Jānis Pleps University of Latvia, Riga, Latvia
Maria Lia Pop Department of Political Sciences, Research Center for Identity and
Migration Issues, University of Oradea, Oradea, Romania
Qerim Qerimi Department of International Law, Faculty of Law, University of
Prishtina, Pristina, Kosovo
Marta Soniewicka Department of Philosophy of Law and Legal Ethics, Faculty of
Law and Administration, Jagiellonian University, Krakow, Poland
Ioannis A. Tassopoulos Department of Political Science and Public Administra-
tion, National and Kapodistrian University of Athens, Athens, Greece
Dina Lupin Townsend Faculty of Law, Department of Public and International
Law, University of Oslo, Oslo, Norway
Renata Treneska-Deskoska Law Faculty “Iustinianus Primus”, Ss. Cyril and
Methodius University, Skopje, Macedonia
Milda Vainiut_e Faculty of Law, Mykolas Romeris University, Vilnius, Lithuania
Arta Vorpsi Public Law Department, University of Tirana, Constitutional Court of
Albania, Tirana, Albania
Ladislav Vyhnánek Department of Constitutional Law and Political
Science/Faculty of Law, Masaryk University, Brno, Czech Republic
David Zahumenský Brno, Czech Republic
David Edward Zammit Department of Civil Law, Faculty of Laws, University of
Malta, Msida, Malta
Human Dignity in Europe: Introduction

Paolo Becchi

Contents
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2 The Dual Face of Human Dignity (A Historical and Conceptual Reconstruction) . . . . . . . . . 2
3 The Long Wave of the Post-war Debate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4 New Approaches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5 From the European Convention on Human Rights to the Charter of Fundamental
Rights of the European Union, Passing Through the Oviedo Convention . . . . . . . . . . . . . . . . . . 16
6 Autonomy and Its Limits (Safeguarding the Image of Man) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
7 Crucial Issues Within Medical Ethics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
8 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
9 Cross-References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Abstract
This contribution gives an overview of the introduction and development of the
idea of human dignity by means of historical and conceptual reconstruction. The
development of the term began in antiquity (Cicero) and Christianity as an
incentive for asserting the universalist dimension to human dignity, particularly
with regard to the listing in the USA and France in the eighteenth century. There
is also a focus on the post-Second World War debate, where the human dignity
was developed into a kind of basic norm known primarily through the German
definition of the inviolability of dignity. This is compared with the alternative
concept in the Italian Constitution. Afterwards the new approaches from the
second half of the twentieth century are discussed and combined with names

This paper is a modified version of Paolo Becchi’s “Il principio dignità umana”, Morcelliana,
Brescia 2013
P. Becchi (*)
Faculty of Law, University of Genoa, Genoa, Italy
e-mail: paolo.becchi@unige.it; becchip@gmail.com

© Springer Nature Switzerland AG 2019 1

P. Becchi, K. Mathis (eds.), Handbook of Human Dignity in Europe,
https://doi.org/10.1007/978-3-319-28082-0_45
2 P. Becchi

like Bloch, Maihofer or Luhmann. An interim result determines the new opinion
that arose. Special emphasis will be placed on the emergence of human dignity
in the various conventions and charters in the twentieth century from the European
Convention on Human Rights to the Charter of Fundamental Rights of the
European Union, passing through the Oviedo Convention. Subsequently, ques-
tions regarding the autonomy and its limits, especially under the perspective of
safeguarding the image of man, for example, with regard to other species and the
question of ‘speciesism’ will be discussed. Finally the question of crucial issues
within medical ethics, especially the example of euthanasia, will be discussed.

Keywords
Introduction of the human dignity · Historical and conceptual reconstruction ·
Ancient roman world · Christianity · Universalist dimension · Enlightenment ·
Post-war debate · New approaches · New meanings · Conventions and charters ·
Autonomy and its limits · Medical ethics · Euthanasia · Prenatal human life

1 Introduction

Following Bloch’s ‘principle of hope’ and the ‘principle of responsibility’ of Hans

Jonas, a third principle was introduced around the turn of the millennium into the
heart of philosophical debate: that of ‘human dignity’.
In truth, it was more of a rediscovery rather than something genuinely new. As we shall
see in fact, the issue enjoyed great success in the immediate aftermath of the Second World
War, whilst there is no doubt that an even more consolidated revival is underway today.
After setting out with broad brushstrokes the philosophical path along which the
idea of human dignity has travelled (for an initial summary in Italian, see Viola
2006), this study will attempt to highlight its most important ramifications within the
legal field, interweaving the analysis of certain legal documents (which will however
be limited to the essential aspects) with the philosophical debate, through to the more
recent debates on applications from biology and medicine.

2 The Dual Face of Human Dignity (A Historical

and Conceptual Reconstruction)

Ever since the word ‘dignity’ acquired philosophical relevance within the ancient Roman
world (Pöschl 1989, pp. 33–59, 1992, pp. 637–645; see also Maganzani 2011,
pp. 521–543), it has been used with two different meanings which, notwithstanding
that they have developed over time, have continued to be used through to the present day.
On the one hand, ‘dignity’ refers to the special position of man1 within the
cosmos and on the other to the position occupied by him within public life. In the

1
When referring to “man” the author includes all genders, but for the sake of readability uses only
the masculin gender.
Human Dignity in Europe: Introduction 3

former sense it has ontological depth, whilst the latter indicates a value. ‘Dignity’ is
therefore related to the fact that man stands out from the rest of nature as the only animal
rationale and the fact that each man stands out from his fellow men due to the active
role played in public life, which gives him a particular value. In the former sense, it is
man as such that is endowed with the dignity which results from his location at the
pinnacle of the hierarchy of nature, whilst in the latter his dignity depends upon the
position that he occupies within the social hierarchy. For Cicero – the first to draw out
both facets – this means that should man abandon himself to sensory pleasure this
would violate his rational nature, whilst his personal dignity stems from the actions
carried out by him for the common good (Cicero 44 BC; Cancik 2002, pp. 19–39).
The first meaning of dignity takes on a universalist connotation in the sense that,
at least as a matter of principle, human beings possess it as a natural endowment; the
second on the other hand is particular in the sense that it results from services
performed by certain individuals, but not by others (see Hofmann 1993,
pp. 620–650). Whilst dignity is absolute under the first meaning, in the sense that
it cannot either be enhanced or reduced, it is conversely relative under the second in
the sense that it can both be acquired and lost. Subsequently, this second sense would
come to indicate high public office as such and no longer the person who holds it,
and later still the title held by virtue of membership of a particular class – but not by
virtue of merits earned – and finally as any activity or function by which man
contributes to the material or spiritual progress of society.
It is first and foremost this first meaning that must be considered in greater depth.
Indeed, it offers fertile ground for the Christian message. Christianity offers
a powerful incentive for asserting the universalist dimension to human dignity (see
in this regard Löwith 1941). However, it must not be forgotten that the legal
institution of slavery persisted for a long time into the Christian era and that the
freedom of every believer thanks to their faith only applied within the religious
sphere. There is no doubt that the doctrine of the Fathers of the Church extended the
Old Testament notion of man as the ‘image of God’ from the chosen people to all
men (for a significant commentary, see Westermann 1976, p. 218). It was precisely
the similarity between man and God that now explained the entirely special position
of the former in nature: God created us all in his image, thus honouring us with
transcendent dignity. The status of God as an ‘icon’ does not annul the ‘ontological
difference’ between the finite and the infinite but establishes a difference between
man and other living beings. In other words, being human has an entirely special
position within the world precisely thanks to this similarity with the creator. It is this
‘essentialist’, ontological conception of dignity which in turn presupposes a static
and invariant conception of man and his nature. Dignity need not be realized, but
must be respected as something that has always existed wherever there is a human
being: it is vested in man by virtue of his peculiar anthropological status. It is an
endowment. The idea thus emerges that for any member of the human race, he or she
must under all circumstances be respected unconditionally and may not be subject to
any other purpose whatsoever: one is essentially confronted with something sacred.
It is only for the being that we are, amongst all entities, that dignity is predicated
because man is inseparably linked to the transcendent, albeit within his concrete and
4 P. Becchi

existentially finite nature and with all his vulnerability. Man is not God, but has been
touched by God. As will be seen below, a reinforced idea of God’s manifestation as
man through Jesus Christ still today continues to exercise a surprising force, even
though within the modern era, due to the process of secularization, the fact of
revelation no longer constitutes the point of departure.
In fact, secularization has implied an unprecedented challenge of this idea of
human dignity. The manifesto of Italian Humanism, De hominis dignitate (1486)
written by Giovanni Pico della Mirandola, expressed ante litteram the notion of man
as the architect of his own destiny. The ontological depth of dignity moves into the
background and turns into a specific value, i.e. something which a rational entity
such as man must conquer. This leads to the idea that the being that we are is
incomplete, an open and as yet incomplete reality: ‘in order that as a free, extraor-
dinary shaper of yourself, you may fashion yourself according to your chosen form’
(Bori 2000; also Manetti 1532; on Manetti see Thumfart 2008, pp. 73–92). It is thus
not surprising that for Bacon the worthy man is first and foremost the scientist, who
procures happiness for men through his research and discoveries (Bacon 1620,
pp. 102–103). The gains of the scientific resolution and its ramifications in the
area of theology provide recognition of the absolute superiority of man over all
other creatures and hence the full extent of his mastery over nature. This new
humanistic vision conceives the dignity of man as a task and as a conquest: a
conquest of new lands and of new knowledge. Man’s vocation becomes an active
life: it is the start of the triumph of the homo faber who, now mindful of his full force,
no longer needs God in order to understand himself. The man who is asserted is
proud of himself, whilst his dignity progressively establishes its immanence. Again,
whilst for Grotius it is respect for the corpse that vests human beings with dignity
(Grotius 1625, book 2, chapter 19,2 (5)), for Hobbes ‘[t]he public worth of a man,
which is the value set on him by the Commonwealth, is that which men commonly
call dignity. And this value of him by the Commonwealth is understood by offices of
command, judicature, public employment; or by names and titles introduced for
distinction of such value’ (Hobbes 1651). Dignity is no longer posited in relation to a
natural base (human nature) and not even according to its transcendence: it becomes
something that is achieved through mutual recognition between human beings. It
may thus be acquired as easily as it may be lost. The value of a man is therefore given
by his price and, as for all other matters, this is determined not by the seller but by the
buyer. The value of every man, which constitutes his dignity, is thus that which
others socially recognize in him: ‘[t]he value or worth of a man is, as of all other
things, his price; that is to say, so much as would be given for the use of his power,
and therefore is not absolute, but a thing dependent on the need and judgement of
another’ (Hobbes 1651).
However, a different conception of dignity is already apparent within Pufendorf.
He does not start from any natural quality of man (the possession of reason) and/or
any quality relating to his social status, nor does he rely (at least directly) on the
Christian tradition, but refers to the idea of freedom as the distinguishing hallmark of
human beings. This freedom is the prerequisite for the existence of a moral order
which Pufendorf, arguing on the basis of a distinction between entia physica and
Human Dignity in Europe: Introduction 5

entia moralia, clearly separates from the natural order. It is the idea of the moral
freedom of man, and not his nature as such, which vests him with dignity (See
Becchi 2006; Pufendorf 1672, I,I,5). Man is in fact the only being capable of
imposing autonomous limits on his actions and of submitting to laws which he
himself has posited. He is not vested with dignity due to the special position that he
occupies in nature, but because he is a moral agent.
In order to stress the importance of this approach, it is sufficient to compare it with
that of a contemporary thinker (from whom his position differs) and with that of
a later thinker (for whom he is by contrast a precursor). For Pascal the full dignity
of man lies in his thought (Pascal 1669). Pufendorf does not dispute that that man
within the natural world is characterized by his capacity for thought; however, his
dignity does not lie in this feature, but rather in his moral faculty, which alone reveals
his essence.
There is no doubt that this Pufendorfian idea is a precursor for that – more
renowned and fortunate – which culminated in the European Enlightenment of
Kant. The Pufendorfian distinction between entia physica and entia moralia corre-
sponds to the Kantian distinction between the realm of nature and the realm of ends:
human dignity is not vested in man due to the position occupied by him at the
pinnacle of the realm of nature, but rather due to his belonging to a realm of ends.
For Kant, as previously for Pufendorf, dignity means that man is a being capable
of moral action, i.e. of following the dictates of universally valid reason. God still
acts as a guarantor of the capacity of the supreme good to be implemented, although
for Kant religion remains confined within the bounds of reason alone, and may at
most act as an aid for moral conversion. Man possesses an intrinsic absolute value as
the subject of an unconditional moral imperative (‘We know our freedom (from
which all moral laws and consequently all rights as well as all duties arise) only
through the moral imperative, which is a principle that lays down duties and which
may subsequently result in the ability to oblige others, i.e. the concept of right’ (Kant
1797; see also Cattaneo 1981; Sciacca 2000; Becchi 2011a, pp. 81–109)). It is not
the fact of his biological existence that constitutes the basis for his dignity, but rather
the ‘fact of reason’ of moral law, a reason which is thus ‘morally practical’ and
requires that we treat humanity, ‘as much in your own person as in the person of
every other’, ‘always at the same time as end and never merely as means’ (Chiodi
2013, p. 88). This obviously does not prevent man from acting also as a means for
the realization of goals that are extrinsic to him (as in fact occurs time after time
in social life), but rather dictates that he must never be reduced solely to a means.
It is his merely instrumental use, his reduction from a person to a thing – as already
intuited, albeit incidentally, by Beccaria (Beccaria 1764) 20 years earlier than Kant –
that harms his dignity. Contrary to Hobbes’ view, for Kant all things have a price, but
man has an inestimable value (Kant 1785).
Although in Hume and the Scottish Enlightenment – it is sufficient to consider
Adam Smith – a different vision of human nature emerges compared to the
Hobbesian view, their attention focused on the notion of sympathy as a faculty of
every man to participate in the sentiments of others, whilst the recognition of human
dignity achieved through actual interaction is not premised by these writers (Hume
6 P. Becchi

1741). The dignity of a man must be recognized by others, and this occurs when his
behaviour arouses adequate sentiments of recognition in others.
It is only with Kant that the recognition of the other is based on the moral value of
the person understood as an end in itself. At the time when it was developed, this
idea provided a solid contribution to the abolition of torture and the end to humil-
iating and cruel punishments, even though Kant’s excessive rigour at times led him
to blatantly contradict his very own arguments.
This humanitarian petition is certainly in keeping with the renowned eighteenth-
century declarations of the rights of man and the citizen, even though the concept of
human dignity does not feature either in the Déclaration des droits de l’homme et du
citoyen of 26 August 1789 (In the Déclaration the term ‘dignity’ only appears in
order to indicate the position which an individual may occupy within society. In fact,
Article 6(2) provides that: ‘Law is the expression of the general will. [. . .] All
citizens, being equal in the eyes of the law, are equally eligible to all dignities and
to all public positions and occupations, according to their abilities, and without
distinction except that of their virtues and talents’.), nor in the Declaration of
Independence adopted by the USA around 10 years before (on 4 July 1776), nor
even in the Declaration of Rights which, starting in Virginia, were proclaimed
throughout North America during that period (for a comprehensive analysis, see
Tarello 1976, pp. 559–620). In historical terms, the first document is in fact the
Virginia Declaration of Rights (12 June 1776), which starts with the assertion of
‘inherent rights’. When entering into society, men ‘cannot, by any compact, deprive
or divest their posterity; namely, the enjoyment of life and liberty, with the means of
acquiring and possessing property, and pursuing and obtaining happiness and
safety’. Even though the idea is already present, as will be noted the adjective
‘unalienable’ does not yet appear, which is on the other hand found at the start of
the Declaration of Independence:
‘We hold these truths to be self-evident, that all men are created equal, that they
are endowed by their Creator with certain unalienable Rights, that among these are
Life, Liberty and the pursuit of Happiness’. Shortly afterwards, on 28 September
1776, the Constitution of Pennsylvania also added the adjective ‘natural’. The
Déclaration des droits de l’homme et du citoyen consolidated the phrase ‘natural
and imprescriptible rights of man’ (droits naturels et imprescriptibles de l’homme).
These rights were now regarded as ‘freedom’, ‘property’, ‘security’ and ‘resistance
to opposition’, whilst the ‘pursuit of happiness’ is not mentioned.
The ‘German Jacobin’ Georg Forster used this as a starting point for asserting,
following Kant, the need to knock ‘happiness’ off its pedestal and to replace it with
dignity as the ‘true signpost of life’ (echte Wegweiser des Lebens) (Forster 1958,
p. 223). Moreover, also those – such as Schiller in Anmut und Würde (1793) – who
criticized Kantian moral rigour during the same period were forced to acknowl-
edge the danger inherent in happiness as the natural gift of grace: ‘Dignity alone is
his guarantee, that it was not desire which compelled the object of his
passion toward him, rather, that it was freedom which chose him-that he is not
desired as a thing, rather esteemed highly as a person’ (Schiller 1793,
pp. 382–424).
Human Dignity in Europe: Introduction 7

Whilst the concept of dignity had thus now penetrated into German culture and
literature, it had difficulty in emerging within the legal sphere. And although Hegel,
conceiving of the duty to respect men as a legal imperative (Hegel 1820; on the
Hegelian concept of dignity, see Seelmann 2000, pp. 125–145), already laid the basis
for its revelation, it would in fact be necessary to await the end of the Second World
War in order to achieve full legal legitimation.

3 The Long Wave of the Post-war Debate

Although, as noted above, the philosophical roots of ‘dignity’ have remote origins,
it would be necessary to await the end of the Second World War – despite several
sporadic references encountered in prior legislative documents – for that moral
principle to be fully legalized. It has only been since then that it can be said that it
has been legally necessary for all men to be treated in the manner considered morally
necessary by virtue of his status as such (Ripepe 2008, pp. 11–38). Starting from the
Charter of the United Nations (1945), the Universal Declaration of Human Rights
(1948) and the Grundgesetz of the Federal Republic of Germany (1949), various
legal documents contain a reference to human dignity (Rolla 2008, pp. 57–78).
Following the scourge of the two world wars, the Charter reaffirmed ‘faith in
fundamental human rights, in the dignity and worth of the human person’ whilst the
Declaration started with the ‘recognition of the inherent dignity and of the equal and
inalienable rights of all members of the human family’. In her book The Origins of
Totalitarianism, Hannah Arendt wrote: ‘[w]e became aware of the existence of
a right to have rights [. . .] only when millions of people emerged who had lost
and could not regain these rights’ (Arendt 1951, p. 296). Thus, dignity is precisely
this ‘right to have rights’ which – Arendt writes in the preface to the first edition of
her book (in the summer of 1950) – ‘needs a new guarantee which can be found only
in a new political principle, in a new law on earth, whose validity this time must
comprehend the whole of humanity’ (Arendt 1951, p. LIII).
As is demonstrated by the documents cited above, the new international order is
testament to this will to start again precisely from the recognition of human dignity
as an absolute and unconditional principle. To be treated as persons and to recognize
that each human being – irrespective of sex, race, language, religion, political
opinions, birth and economic and social circumstances – has the right to be treated
equally means to recover that concept of humanitas which Nazi ideology combated
through the introduction of the class of Untermensch (subhuman) and the mythology
of the Aryan race.
It is not by chance that precisely the German Basic Law – i.e. the Constitution of a
country that had seen the systematic humiliation and persecution of men due to their
religious faith, political opinions and even on the grounds that they suffered from
incurable mental illness – was one of the first documents in which the reference to
human dignity took on absolute predominance as a reaction to the crimes committed
by the National Socialist regime (for a more general overview, see Ridola 2010,
8 P. Becchi

pp. 78–138; see also Di Ciommo 2010; for a comparison between European and US
constitutional culture, see Bognetti 2005, pp. 95–108 and especially Enders 1997).
Recognition of human dignity becomes a kind of Kelsenian Grundnorm posited
at the pinnacle of the entire legal order. It is an objective legal norm, is not
a fundamental individual right and, precisely for this reason, is unconditional,
i.e. – in contrast to fundamental rights – cannot be weighed against other rights
and is not subject to limitations (see Maunz et al. 1958; Amirante 1971).
In fact, Article 1(1) of the German Basic Law provides that: ‘Human dignity shall
be inviolable. To respect (zu achten) and protect (zu schützen) it shall be the duty of
all state authority’ (it is important to stress that the provision did not limit itself to
proclaiming the intangibility of the normative principle, but also from the outset
directed attention towards the fact that it must be respected during the exercise of any
state power. It is the state which must act in accordance with the requirements of
human dignity and which is called upon to protect it against possible aggression.),
whilst paragraph 2 adds that: ‘[t]he German people therefore acknowledge inviolable
and inalienable human rights as the basis of every community, of peace and of justice
in the world’.
A new adjective is now introduced to classify human dignity. Compared to
fundamental rights that are ‘inviolable and inalienable’, dignity is ‘intangible’
(unantastbar). Moreover, the derivation under the German Constitution of funda-
mental rights from human dignity is evident from the combined provisions of the
two paragraphs. It is precisely the fact that man possesses dignity that sets it apart
from any other living being: he is vested with human rights. Seeking to establish the
reference to human dignity as immutable over time, Article 79(3) of the Basic Law
also provides that it is not amenable to amendment (known as the Ewigkeits-
garantie), thereby confirming the absolute status of that principle and the prohibition
on any amendment. Article 1 thus imposes a limit on constitutional amendment.
All of the elements which have emerged within modern natural law literature, and
which have now been vested with positive law status, reappear in the German
Constitution along with the other international law instruments cited above. It will
thus come as no surprise that the issue of respect for human dignity is related to the
resurgence of natural law and that the debate in relation to both was particularly
fruitful precisely in post-war Germany (Maihofer 1962; for an account from a legal
philosophical viewpoint, see Kaufmann 1991, p. 105). Indeed, the leitmotif of that
period was the option that every human being must first and foremost be recognized
as having equal value with any other person.
This interpretation was formulated within the context of constitutional law in
particular by Günter Dürig in a renowned commentary on Article 1 of the Basic Law
(see Dürig 1956). For him, the recourse by the constituent authority to the concept of
dignity entailed the adoption within positive law of a ‘prepositive’ ethic, which takes
precedence over any law and which stands at the pinnacle of the entire legal order,
with the result that it itself turned into a positive legal precept. But how does this
principle manifest itself? It essentially emerges through the recognition of
the specificity of human beings: that of being an ‘end in itself’. The so-called
Objektformel (‘formula of the object’) inevitably drew directly on the Kantian
Human Dignity in Europe: Introduction 9

concept of dignity as a prohibition on the use of humans as a means to an end.

A legal system is perverted where man stops being a legal subject and is debased to
an ‘object, a mere means, an interchangeable entity’ (Dürig 1956, pp. 117–175).
In this sense, it is clear that the concept of dignity acquires a predominantly
‘negative’ meaning, as a defence against actions which seek to disavow the status
as a person of each human being. It is therefore each individual who is to be
protected against the actions of other individuals capable of harming his or her
dignity or against the actions of governmental authorities. Moreover, dignity is not to
be vested in one single person only, but in man as such by virtue of his membership
of the human race. This therefore exists as a potential, irrespective of whether it is
actually realized. For this reason, it can be violated even if the person is still unborn
or is even already dead. Dignity is therefore an endowment which is vested in
humans as such: ‘[a]ny person who has been procreated and any person who has
been a human participates in human dignity’ (Dürig 1956, p. 126; on the controver-
sial issue of dignity after death, see Becchi 2010b, pp. 127–142).
The influence which this interpretation has exercised on German literature and
case law can be confirmed by the fact that the entry Dignity, written for one of the
most widespread commentaries on the Constitution, remained unchanged until 2003
when it was finally replaced with a very different entry by Matthias Herdegen (2003;
Böckenförde 2006, pp. 379–388).
However, this was not in actual fact the only meaning of dignity to establish itself:
in fact, another meaning was already emerging which, whilst presenting itself less
emphatically and whilst receiving less attention, was clearly highlighted in the
Italian Constitution. In fact, the Italian Constitution, which entered into force on
1 January 1948, contains references to dignity, although these do not take on the
pre-eminent status which sets apart the German Constitution, but rather bring out
a different meaning.
Italy is a Republic ‘founded on work’ (Article 1) and not on the ‘intangibility’
of human dignity (for more details, see Becchi 2012a, pp. 25–43). However, human
dignity is referred to specifically at three precise points. Article 3(1) recognizes the
‘equal social dignity’ of all citizens, Article 36(1) asserts that a worker has the right
to remuneration capable of ‘guaranteeing a free and dignified existence to himself
and to his family’, whist Article 41(2) asserts that private economic activity may
not be conducted ‘in such a manner as to cause harm to safety, freedom or human
dignity’. Although the provisions apply to three different classes of persons (citizens,
workers and entrepreneurs), in all three cases the accent falls on the social dimension
to dignity.
Under Article 3, ‘dignity’ entails not only the abolition of all privilege whatsoever
but also – in accordance with paragraph 2 of the same Article – that all citizens
should be assured the ‘full development’ of their personality, irrespective of the
positions which they occupy within society. Thus, formal equality before the law is
supplemented by substantive equality: ‘equal dignity’ is not something that is given,
but an objective to be achieved. Therefore, the Italian Constitution stresses the
tangible difficulties which stand in opposition to the achievement of equal social
dignity and also requires the institutions to remove those obstacles. Equal dignity is
10 P. Becchi

recognized for all citizens by virtue of their membership of a political community

(Ferrara 1974, pp. 1089–1105; Marella 2007, pp. 67–103). The central element
in the other two cases is the reference to work. Work must enable those who provide
it and their families to lead a dignified life and must also be performed in dignified
conditions (Cataudella 1989).
There is a close relationship between the three articles of the Constitution
mentioned above. All three deal with the notion of work; also for Article 3 in fact,
it is precisely work that is decisive in the recognition of equal social dignity: it is
work that enables the citizen to realize his or her personality to the full and thus
also his or her dignity. The right to work enshrined in Article 4 also implies that
each citizen is under ‘duty to carry on an activity or function, according to his
ability and choice, which contributes to the material or spiritual progress of society’
(Article 4(2)).
The principle of dignity is thus linked both with the role that each citizen is called
upon to play within society and with the fact that the state must guarantee to all the
possibility to pursue such a role in a dignified manner. Dignity must not only
be defended but also promoted, as social growth is measured with reference to
it. To summarize: whilst under the German Constitution ‘dignity’ is an absolute
value applicable in abstract terms to the person in and for himself, under the Italian
Constitution it is a relative value relating to his actual position within the fabric of
society (even though society should in any case guarantee each individual minimum
conditions of survival below which no person should fall) (Ridola 2006, 2010).
The former meaning of dignity owes a cultural debt to natural law, whilst the latter
draws on the ancient notion of dignity within the Roman world. However nowadays,
following the indispensable addition of the principle of equality, dignity no longer
applies – as in Ancient Rome – to men who have achieved distinction by the public
office they held but to all citizens vested with that ‘equal social dignity’ resulting
from their (duty to provide a) contribution to the advancement of society through
work. And it is ultimately that very same idea of human dignity as being related
to the social role that resurges forcefully within the Italian Constitution.
However, it must be conceded that the Italian Constitution too acknowledges an
absolute dimension to dignity. In recognizing and guaranteeing the ‘inviolable rights
of man’ not only by virtue of his membership of a social community ‘where his
personality is expressed’ but also ‘as an individual’, Article 2 implicitly refers to
Article 32(2) where it is asserted that ‘no one may be obliged to undergo any health
treatment except under the provisions of law’ and even that ‘the law may not under
any circumstances violate the limits imposed by respect for the human person’.
Although the term ‘dignity’ does not arise in this context, the Italian Constitution
is thus found to contain a reference to the absolute value of dignity (alongside
Article 32 of the Constitution cited in the text, we may also recall Articles
13 and 27. Article 13 on the inviolability of personal freedom punishes, in paragraph
4, ‘any act of physical and moral violence against a person subjected to restriction
of personal liberty’. Article 27(3) provides that ‘punishments may not be inhuman’,
and goes on to state that they ‘shall aim at re-educating the convicted’. Thus, whilst
recognizing through the doctrine of criminal humanitarianism the principle that no
Human Dignity in Europe: Introduction 11

convicted person may be treated in an inhuman manner, the focus is placed once
again on the social dimension, stressing that the purpose of the penalty must be
aimed at the re-education of the prisoner); however, there is no doubt that it is the
relative value that is explicitly stressed in the manner highlighted above.
It is interesting to observe how these two different linguistic uses also arise within
the case law of both countries. This study will limit itself to providing a few
summary references. In the immediate aftermath of the Second World War, German
constitutional case law conceptualized the protection of human dignity as protection
against humiliation, persecution, proscription and so on, whilst the case law of the
ordinary courts focused in parallel on the defence of man against discrimination
(Geddert-Steinacher 1990; from the more recent legal philosophical literature, see
Teifke 2011; in Italian see Panebianco 2002, pp. 151–242 and Schefold 2008,
pp. 113–136). In Italy on the other hand, dignity did not take on any particular
significance during the years running up to the adoption of the Constitution, and
even subsequently the case law of the Constitutional Court was quite frugal in using
the principle of human dignity as a self-standing concept. However, within the case
law of the ordinary courts, many judgements handed down contained references to
dignity, most of which – significantly – pursued the objective of safeguarding the
dignity of the worker within the workplace (Pirozzoli 2007; Di Ciommo 2010;
Monaco 2010, pp. 167–196; Alpa 1997, pp. 416–426; Gambini 2005,
pp. 231–242; Becchi 2009, pp. 23–49).
There is no doubt that case law trends shift over time and, whilst in Germany the
focus has moved from the protection of dignity in a negative sense to its positive
protection, in Italy on the other hand – as a consequence above all of certain
controversial cases (such as those involving Piergiorgio Welby, who suffered from
muscular dystrophy, and Eluana Englaro, who lived in a persistent vegetative state)
(Becchi 2012b) – attention has been drawn to respect for the dignity inherent within
each individual human being. However, whilst interest in dignity within the litera-
ture in Germany has remained constant, in Italy it has only recently regained the
significance it deserves (Resta 2010, pp. 259–296; Lombardi 2011, pp. 265–283).

4 New Approaches

The long after-effect of the post-war debate on human dignity reached through to the
end of the 1960s. Whilst three extensive works appeared in German in the 1960s,
nothing comparable in the field either of law or philosophy was published in Italy
(in France on the other hand, reference should be made within Existentialist milieu to
the volume by Marcel 1964). The issue of human dignity was addressed during that
period by a philosopher with the standing of Ernst Bloch, a lawyer and philosopher
with the stature of Werner Maihofer and one of the most important sociologists of the
twentieth century, Niklas Luhmann.
For both Bloch and Maihofer, the idea of human dignity is once again linked to
the universalist message originating from modern natural law, whilst Luhmann raises
the first radical critique of that approach, which at the time was still broadly
12 P. Becchi

dominant. Moreover, natural law doctrines were no longer invoked within the classic
liberal perspective, which is negative and defensive and characteristic of the imme-
diate post-war period, but rather from a positive and propositive angle. The emphasis
moved from zu achten (to respect) to zu schützen (to protect), which was achieved
through the adoption of welfare policies.
Whilst for Bloch ‘human dignity is impossible without the end of need, just as
happiness as commensurate for human beings is impossible without the end of
subjection, whether old or new’, (Bloch 1983), for Maihofer the protection of
human dignity extended beyond the ‘personality of man’, implying ‘solidarity
between men’, that is, the surmounting of socio-economic relations which hinder
its fulfilment (Maihofer 1968, pp. 40–41). For both thinkers, human dignity cannot
be protected in isolation from the satisfaction of concrete human needs, which the
welfare state is called upon to shoulder. The previous argumentative structure was
not overturned; rather if anything its scope was simply extended.
Luhmann on the other hand was the first to subject to critical inquiry the line
of thinking which, with Günter Dürig, paved the way for future thinkers. He opposed
this conception of dignity, which he defined as ‘static’, with a ‘dynamic’ one. Far
from being a natural endowment possessed by men due to the sole fact of being
human, dignity is claimed to be a sociocultural variable which must be constructed.
Dignity is by no means ‘intangible’ as it may be acquired and lost by man when self-
representing as a partner to social interaction. It is not a natural endowment which
man takes everywhere he goes but ‘the result of performances of representations’
which may be jeopardized at any time. At times it is sufficient to undermine it
through one single act of indiscretion. Indeed, if self-representation is unsuccessful
or even becomes inadequate, the loss of dignity will be an inevitable consequence
(Luhmann 1965). Interpreted in these terms, dignity takes on a dynamic dimension:
it engages with the process of identifying self-representation through which, by
communicating with other men, man acquires awareness of himself, becomes
a person and thereby constitutes himself within his human dimension. This reading
was undoubtedly original and went against the general trend at the time when it was
formulated, so much so that initially it did not arouse the interest it deserved (the
reference to Luhmann has only become relevant within the more recent debate both
in ethical-philosophical terms and legal-philosophical terms because on the one
hand, in criticizing the modern natural law approach (albeit unintentionally), it
latched on to the ancient meaning of dignity as being associated with the role played
by the individual within society and on the other hand it discerned a fundamental
aspect of human dignity within the concept of ‘representation’. The former aspect
has been well highlighted by Stoecker 2002, pp. 53–71 and the latter by Seelmann
2004, pp. 141–158).
From the start of the 1970s, however, attention moved in another direction. The
philosophical debate (both legal and political) was dominated by a work which
would exert great influence – that of John Rawls which stressed the need to construct
a fair society that was in this sense ‘well ordered’. The leitmotiv is that the right
should take priority over the good (Rawls 1971). However, from its small beginnings
at the start of the 1990s, and since then with ever increasing insistency, the issue of
Human Dignity in Europe: Introduction 13

human dignity has once against taken centre stage, first and foremost precisely in
Germany where two authoritative philosophers of law, Hasso Hofmann and Ulfrid
Neumann, have shown how the way in which dignity is understood is changing in
their country too compared to the immediate post-war period. For Neumann, whose
first writings date back to the end of the 1980s, it is necessary to avoid the ‘tyranny
of dignity’, i.e. its perception as a ‘burden’ liable to close down discussion of
‘ethically sensitive’ issues (Neumann 1988, pp. 153–166; 2008, pp. 35–55). Whilst
there is no doubt that new problems such as genetic engineering or artificial
insemination call for new solutions, must this nevertheless require us to cast aside
the old ‘ontological’ vision of dignity in order to free up space for ‘liberal eugenics’?
For Hofmann on the other hand, it is necessary to move beyond the theory
of natural endowment (Mitgifttheorie) and beyond the theory of perfor-
mance (Leistungstheorie) towards a theory of dignity founded on social recognition
(Hofmann 1993, pp. 353–377; 2008, pp. 47–79). This is an undoubtedly interesting
attempt, which however does not appear to have achieved the success of a concep-
tion of dignity that is capable of incorporating different elements. In fact, recognition
presupposes the existence of members of a community who reciprocally recognize
one another, although in this sense the theory does not appear to be too distant from
the theory of performance. Dignity in fact is vested only in those who have achieved
that recognition within society.
It is not possible to follow the German legal philosophical debate any further here,
having found – as noted above – a secure mooring in the new commentary by
Matthias Herdegen on Article 1 of the Basic Law at the start of one of the classic
German textbooks on constitutional law. However, it must at the very least be
recalled that ‘human dignity’ has been incorporated as ‘a new key concept’ since
the third edition of a widely used textbook on philosophy of law, which has in the
meantime also been translated into Italian (Seelmann 2006).
However, it would be entirely mistaken to conclude that the debate is centred only
on the German-speaking world. The most interesting aspect is undoubtedly that
with the fading away of discussion surrounding Rawls’ Theory of Justice, both the
ethical-philosophical and the legal-philosophical debates have also developed within
the English-speaking world.
Two figures appear to me to enjoy particular prominence in this respect: Martha
Nussbaum and Ronald Dworkin. Nussbaum’s conceptualization appears to be in
keeping with that already present in Bloch and Maihofer, according to whom dignity
cannot relate only to the person in abstract terms as a legal subject but calls into
question the actual individual as a person subject to socio-economic relations, which
may not even guarantee him that minimum level of subsistence indispensable in
order to lead a dignified life. When man is forced to live below that threshold and
falls into extreme poverty, then one may speak of the violation of human dignity.
Thus the link between dignity and need becomes central (examples of this are
contained in three papers collected by Chiara Saraceno in the volume: Nussbaum
2001, 2006; Carusi 2003, pp. 103–113). Man is not first and foremost an animal
rationale and not even an animal morale but an ‘animal with needs’, and the more
society is able to satisfy them, the greater the extent to which human dignity will be
14 P. Becchi

realized within it. Dignity is lacking not only when there is no food to eat but also
when the practical exercise of one’s own ‘capacities’ (and this is now the keyword) is
stifled by social conditions of exploitation. Dignity is something that attaches to all
men; however, an effort needs to be made in order to establish the conditions under
which it may actually be realized. The state should guarantee to each individual
the concrete realization of his ‘blossoming’, i.e. the opportunity to exploit
his own capacities.
It is not by chance that the reference to Marx, contained both in Bloch and in
Maihofer, re-emerges in this regard also within the neo-Aristotelian Nussbaum.
Here, the discourse of dignity is loaded with a heavily emancipatory content.
It is no longer rational, aware and autonomous subjects that are vested with dignity
but children, women and the elderly, people who not only live in degrading condi-
tions but who are not put in a position to be able to express their own capacities.
However, the risk that is run precisely by insisting on capacities is that a rather
problematic distinction may be introduced between life worthy of being lived and
that which is not.
Whilst the focus in this regard has fallen above all on the social dimension to
dignity, within the US political debate Ronald Dworkin has insisted above all on the
individual dimension, stressing two fundamental aspects of dignity which he also
calls ‘principles’.
The first principle asserts that ‘every human life has its own objective value’, ‘an
inherent value’ which man has as a ‘potential’ and, once his life his started, it is
important that he be put in a condition to be able to realize it. The second principle
asserts ‘that every person is responsible for the success of his life’, which means that
each individual must take seriously the realization of the value which his life represents.
In some senses at least, these two definitions of dignity do not appear to be very
different from that of dignity as an endowment and as a performance which have been
seen to emerge within European culture. For Dworkin, these two principles ‘together
define the basis and conditions for human dignity’ (Dworkin 2006, 2011, pp. 203–204).
There is however within the current debate a further aspect which needs to be
considered, concerning a work which, within the German-speaking area, has taken
on a position of undisputed importance: The Decent Society by Avishai Margalit. For
this original Israeli philosopher, the decisive point is no longer the ‘well-ordered
society’ on which Rawls focused his attention but the ‘decent society’ which he by
contrast left in the background. Moreover, a society is decent when it does not
humiliate people, which is when its constituent institutions do not offend the respect
that each individual must have for himself. If a person has been humiliated, this will
provide solid grounds to conclude that his self-respect has been humiliated, and
dignity – according to Margalit – is nothing other than ‘the representation of respect
for oneself’ (Margalit 1996; Schaber 2004, pp. 93–106).
However, the link between human dignity and self-respect is far from inevitable
(Stoecker 2003, pp. 133–151, 2004a, pp. 107–119; Seelmann 2012, pp. 45–59).
This is not only because a person may not be capable of establishing whether or not
he has been humiliated – a person may have been objectively humiliated by
particular conduct without feeling himself to have been so in psychological terms
Human Dignity in Europe: Introduction 15

– but also and above all because a person may continue to have self-respect even if
he is subject to degrading conditions and may conversely lose that respect even if he
is not subject to such conditions. A woman who has been raped will certainly have
suffered a violation of her dignity, although will not necessarily for this reason have
lost the respect she has for herself. Vice versa, a man who drinks himself into
a drunken stupor every evening in order to banish his demons has lost his self-
respect, even though this does not mean that anybody has violated his dignity. Whilst
I do not in any way want to assert here that humiliation does not play a role in the
violation of dignity, nevertheless it does not amount to a violation of self-respect but
rather a violation of the respect that others have of oneself.
Thus, once again dignity has to engage with social interaction (Falcioni 2004,
pp. 45–46). I lose dignity when I lose face and am no longer able to bear the stares of
others. Understood in this way, humiliation implies a disruption to one’s self-
representation or harm to the image which the individual wishes to give of himself
to the outside world. Dignity is violated where there is an encroachment on the
entirely private sphere of self-representation. Within this sphere the individual is
absolutely dominant – it is he who decides what image of himself (= representation)
to render public – and this sphere may only be legitimately violated in exceptional
circumstances. Every person not only has the right to positive respect for his own
representation of himself within society but also negative respect for the parts of his
life that he does not wish to disclose to others and which he wishes to remain
confidential. Moreover, the more we become publicly transparent, the greater the
need to defend that deep core of intimacy which should remain inviolate.
It is here that the recognition of one’s own intimate, private sphere finds its
philosophical foundation (Mathieu 2004; Niger 2006) and the problem of all those
cases in which the private sphere is encroached upon (consider the use of phone
tapping and bugging, the unauthorized publication of the conversations thereby
recorded or of other letters or personal documents and pictures or the use of lie
detectors in trials) results from the fact that they conflict with the monopoly on self-
representation granted to each individual.
There is no doubt that all of this entails a significant expansion of the scope of
human dignity to a whole new range of conduct (on the other hand, as will be noted
below, this way of understanding dignity could also entail a restriction of that field).
In fact, the dignity of a person may be violated not only by torturing him or
subjecting him to degrading conditions but also by discrediting him in public,
perhaps by revealing particularly sensitive situations within his private life or by
publishing compromising pictures or again by rendering public assertions which are
incompatible with the institutional office held. In all of these cases, the representa-
tion of the person which he wished to give in public has been violated: he has no
option other than to find other opportunities to represent himself, otherwise his
reputation will be ruined.
However, this idea too of dignity is also open to an objection. Not all forms of
humiliation are always deplorable and, in certain circumstances, it may be right to
reveal what is hidden behind the image that a person has constructed of himself for
society. This therefore leaves the complex task of establishing which forms of
16 P. Becchi

humiliation offend human dignity, and it cannot be denied that, from a legal point of
view, it is much easier to protect dignity from discrimination and exploitation than
from humiliation.
In conclusion, the ‘old’ idea of human dignity must not be forgotten in the wake
of this roundup of new tendencies. The ethnic cleansing which soaked the former
Yugoslavia in blood, the Rwandan genocide, the cases of torture and humiliation to
which certain Iraqi prisoners were subjected by US soldiers in the Abu Ghraib prison
and the inhuman conditions in which supposed Afghan terrorists are still held in
Guantanamo prison – to cite only a few of the most recent cases – demonstrate that it
is still important to defend human dignity during armed conflicts (However, all of
these cases have focused above all on the ‘violation of human rights’, whilst the
reference to human dignity has remained in the background. One of the few Italian
publications containing a reference to human dignity in this context is Amnesty
International 1998. However, for the ‘old’ and ‘new’ forms of slavery, see Caruso
2004, No. 228.). The most disturbing aspect is not the fact that torture is still practised
today but that it is even justified as a weapon in the fight against terrorism. The idea
that torture may once again be used on security grounds as a means of conducting
police inquiries represents a dangerous step backwards, which we must absolutely
refrain from taking in order to avoid reverting to barbarism (torture returned to the
forefront following the attacks of 11 September 2001. The reasons used in order to
justify its use in moral and legal terms are exemplified by the ‘ticking bomb’ scenario,
according to which a terrorist is captured who is aware of the location of an explosive
device which could cause a considerable number of victims. The question that arises is
whether it is lawful, in ‘exceptional’ circumstances such as those of this scenario, to
torture the terrorist in order to locate the bomb, thereby avoiding the death of innocent
victims. An effective description of the case along with detailed references to the
literature is provided by Belvisi 2007, pp. 399–411; Sonderegger 2012). The reference
within this context to human dignity as a shield for defending any person whatsoever
(including those who have committed the most heinous crimes) does justice to the
fundamental, unconditional status of that principle.
However, it is indisputable that the concept of dignity has taken on new meanings
today. The modern idea of human dignity, which essentially prohibits us from reducing
the person to a thing, in other words does not prevent us from understanding situations
in which the violation of dignity results from the disruption to the victim’s image – as
the representation which he himself wishes to give of himself to the outside world – and
hence from his humiliation.

5 From the European Convention on Human Rights

to the Charter of Fundamental Rights of the European
Union, Passing Through the Oviedo Convention

During the second half of the twentieth century, human dignity was subject to
a broadly similar dynamic to human rights. Initially they applied to man in abstract
terms, independently of any concrete markers (sex, colour, language, etc.),
Human Dignity in Europe: Introduction 17

guaranteeing to each person the right to be treated in the same way as any other. The
fundamental aspiration of man was not to be deprived of his freedom and rights on
the basis of his particular condition. Subsequently, opinion shifted towards consid-
ering man in concrete terms, through the specific manifestations of his differing
status, which vary according to sex, age, physical circumstances or social context.
And just as the former process stresses the need for equal treatment of all human
beings, the latter states the need for different treatment: women are to be treated
differently from men, children from adults, adults from the elderly, the healthy from
the sick and so on according to further increasingly specific levels of differentiation.
It is sufficient to glance at the charters of rights which have been promulgated
over the course of the years in order to appreciate immediately this development.
This process involving the proliferation of human rights has affected economic and
social rights (such as, e.g. the right to work, the right to health, education or
a minimum level of vital sustenance), rights vested in individuals considered not
as such but as members of groups (ethnic groups, religious communities, peoples,
etc.) and finally rights vested in man over the various stages of his lifetime or owing
to his particular physical circumstances. This process has caused the emphasis to
shift from man considered in abstract terms as equal to any other man to man
considered in concrete terms, along with the full diversity resulting from his mem-
bership or one group rather than another or the fact of being in one stage of his life
rather than another (Bobbio 1992, pp. 68–70).
This accounts for women’s rights, the rights of blacks and minorities in general,
humanitarian interventions in favour of people reduced to a state of extreme poverty
and, with reference to the different stages of the individual’s lifetime, the rights of
the child, of the elderly, of the sick (including specifically the mentally ill) and of the
disabled.
More recently, the emphasis has moved to the different stages of the life of the
unborn (in relation to medically assisted procreative techniques and genetic engi-
neering) and the different stages on the road towards death, which are increasingly
subject to technological control. The rights of the embryo and/or of the foetus and
the rights of the terminally ill are currently at the forefront of public debate.
However, we shall return to these issues below (see section 6). There has been a
move from the protection of specific individuals to the protection of future genera-
tions (also in relation to genetic engineering), the protection of non-human species
such as animals and, as a consequence of the ecological crisis, even the protection of
flora.
Something similar has also been happening in relation to dignity, which no
longer relates to the individual understood in abstract terms, and not even the
individual within social relations, but the specific individual through the different
stages of life from conception through to natural death, and even beyond. Just as
the gauntlet has been well and truly thrown down for equality (in the form of
differences which call for individuals to be treated differently due to their particular
circumstances), so too human dignity has been faced with a similar challenge of
establishing what it actually means to protect it within the various situations in
which it may be violated.
Another random document with
no related content on Scribd:
 That is, as I say, the most characteristic and the most significant
episode, as it is the most amazing, of the defence. Paris was not to
fall, was not even to be attacked. Attila was surfeited with destruction
and loot, he was forced now to concentrate his attention upon the
attack on the Visigoths of the south lest Rome and Aetius should
stand in his way and imperil his whole campaign. His plan must be to
defeat the Visigoths before he was forced to face Aetius coming up
out of Italy, and with this on his mind he set out from Metz with his
main army, passed through Toul and Rheims, which were gutted,
through Troyes and Sens, which he was in too great haste to
destroy, and over the Sologne, held then by his ally the King of the
Alans, Sangibanus, and marched directly upon Orleans. That march
represented the work of a whole month. He left Metz in the early
days of April, he arrived before Orleans in the early days of May.
Orleans stands upon the most northern point of the Loire, the
great river which divides Gaul east and west into a northern and a
southern country. It has been the point around which the destinies of
the Gauls have so often been decided—one has only to recall the
most famous instance of all, the deliverance under Joan of Arc—that
it is without surprise we see it fulfilling its rôle in the time of Attila
also. From time immemorial, before the beginning of history, it had
been an important commercial city, for it stood not only on one of the
greatest and most fruitful rivers of western Europe, but, as I have
said, upon the marches of the north and south, whose gate it was.
No one could pass without its leave, at least in safety. Anciently it
was known as Genabum and there had been planned and conceived
the great revolt which so nearly engulfed Julius Cæsar, who burnt it
to the ground. It stood then, as later when it rose again, upon the
northern bank of the river and was joined with the south by a great
bridge. The resurrection after that burning was not long delayed, but
it seems to have been less magnificent than might have been
expected and it certainly suffered much from war, so that in 272, in
the time of Aurelian, it was rebuilt with a wall about it, and for this
cause took the name of the Emperor. Times, however, were sadly
changed with the great city when Attila came into Gaul. Much
certainly was in ruin, the municipal government in full decadence or
transition and it was therefore with a dreadful fear in her heart that
Orleans watched the oncoming of the Huns. Nevertheless the city
put herself into a state of defence. The first direct assault upon her
was made by that Sangibanus, King of the Alans, and Attila’s ally,
who requested to be allowed to garrison it. Orleans refused and
closed her gates. At the same time she sent forth her bishop (and
this is as significant of the true state of affairs of government in Gaul
as the facts about Tongres, Rheims and Paris) into the south, still
Roman, to Arles to learn when Aetius might be expected in relief and
how far the Visigoths would move, not for their own defence only, but
against the common enemy.
Anianus, for such was the bishop’s name, thus appears as the
representative, the ambassador and the governor of the city. In
Arles, to his delight, he found not only a secure and even splendid
Roman government, but the great general himself, Aetius, who
received him with impress. Anianus urged the necessity of an
immediate assistance. He reckoned that it would be possible to hold
out till the middle of June, but no longer. Aetius heard him patiently
and promised that by then he would relieve the city. Anianus was not
too soon, he had scarce returned to Orleans when Attila began the
siege.
It will be asked, and with reason, why it was that Rome had waited
so long before interfering to defend her great western province
against this “wild beast”? Why had Aetius not marched out of Italy at
the head of his armies months before? why had he waited till all the
North was a ruin before he carried the eagles over the Alps and
confronted this savage and his hordes with the ordered ranks of the
army of civilisation? The answer may be found in the war we are
fighting to-day against a similar foe. The French failed to defend the
North against the modern Attila because they were too long
uncertain which way he would come and where he would strike
hardest. They could not be sure which was the decisive point of the
German attack. This it was that kept so great a proportion of their
armies in Alsace and upon that frontier. They credited the German
with more subtlety than he possessed. They failed to grasp the
gigantic simplicity of the Barbarian plan; the mighty hammer-stroke
that shattered Belgium and plunged in to destroy all the North of
France. They looked for something less blindly brutal and more wise.
They could not believe that the German would destroy his whole
case and outrage the moral consciousness of the world by violating
the neutrality of Belgium. They failed to comprehend the essential
stupidity of the Barbarian. They were wrong.
Aetius was wrong also, but with perhaps more excuse. He could
not make up his mind where the real attack of Attila upon the Empire
was to be delivered. What if the descent upon Gaul were but a feint
and Italy were the real objective, Lombardy the true battlefield?
There was this also; in Africa, Genseric, Attila’s ally, waited and
threatened to descend upon the coast. Aetius overrated the
intelligence of his enemy as much as did Joffre. Neither understood
the force which opposed him, which it was to be their business and
their glory to meet and to break.
Like Joffre, too, when Aetius at last found himself face to face with
the reality of the situation he must have dared only not to despair.
The successes of the Huns had decided the Visigoths to remain on
the defence within their own confines; they refused to attack.
Everywhere the Roman delay had discovered treason among the
tribes who should have been their allies against a common foe.
Aetius could only not despair. He addressed the Visigoths, though
perhaps with more right, much as we might address to-day the
Americans. “If we are beaten you will be the next to be destroyed;
while if you help us to win yours will be the glory.” The Visigoths
replied as America is doing to-day: “It is not our business; see you to
it.”
They were wrong, the victory of Rome was as necessary for the
future as our victory is to-day.
Much indeed was already achieved to that end by the mere
presence of Aetius in Gaul. Suddenly the whole country was
changed, everywhere the peoples sprang to arms, the noble and the
peasant, the bourgeois of the cities, the bond and the free. From
Armorica came an heroic company, the Ripuarian Franks and the
Salian Franks having seen the ruin of the Roman cities of the
country they had been permitted to occupy, the Burgundians also
returned to, if they had indeed ever left, their old allegiance. So
successful at last was the diplomacy of Rome that when even
Sangibanus appeared Aetius feigned to be ignorant of his treason.
The great general prepared with a good heart for the attack, but was
determined to do everything possible to mobilise the Visigoths with
his other forces. It was with this object that at last he sought the aid
of Avitus, the senator, a very great Gaulish nobleman who lived in
the city of Clermont, the chief town of the Auvergne.
In Avitus we have a figure which at once arrests our attention amid
all the welter of Barbarians of which even Gaul was full. In him we
see, and are assured, that the civilisation of Rome was still a living
thing in the West, that it had not been overwhelmed by savages or
lost in a mist of superstition. Avitus indeed seems to have stepped
suddenly out of the great Roman time, he reminds us of what we
have learned to expect a Roman noble of the time of Marcus
Aurelius, or for that matter of St. Ambrose, to be. In him we see one
we can greet as a brother; we should have been able to discuss with
him the decline of the Empire. A rich man, coming of a noble family
which for long had enjoyed the highest honour and the heaviest
official responsibility, a scholar, a connoisseur, above all a somewhat
bored patriot, he was also a soldier distinguished for his personal
courage. He had already in 439 been successful in arranging a
treaty for Rome with the Visigoths, and it was to him in this hour of
enormous peril that Aetius turned again. He found him in his
beautiful, peaceful and luxurious villa of Avitacum amid the foothills
of the mountains of Auvergne, living as so many of our great nobles
of the eighteenth century lived, half a farmer, half a scholar, wholly
epicurean and full of the most noble self-indulgence, surrounded by
his family, his son and daughter, and his friends, poets and scholars
and delightful women. His son Ecdicius was the heir both of his
wealth and his responsibilities, his daughter Papianella had married
Sidonius Apollinaris of Lyons, a man already famous as a poet and
coming of a distinguished Gallo-Roman family. It was this man who
in the moment of crisis appeared on behalf of civilisation at the
Visigoths’ Court—we could not have had a more noble
representative.
 His mission was wholly successful; but the time spent in showing
the Visigoths where their interests lay was to cost Orleans dear. The
devoted city wholly surrounded and every day submitted to the
assaults and the clouds of arrows of the Huns, hearing no news of
any relief, was in despair. In vain the Bishop Anianus went in
procession through the streets, and even among the troops on the
ramparts, bearing the relics of his church; they called him traitor. Still
firm in his faith in God and in the promise of Aetius, daily he made
men climb the last high tower in expectation of deliverance. None
came, no sign of the armies of Aetius could be discerned. Day after
day the mighty roads southward lay in the sun white and empty of all
life. At last he sent by stealth a messenger to Aetius with this
message: “My son, if you come not to-day it will be too late.” That
messenger never returned. Anianus himself began to doubt and at
last heard counsels of surrender almost without a protest; indeed
consented himself to treat with the Huns. But Attila was beside
himself at the length of the resistance, he would grant no terms.
Nothing remained but death or worse than death.
Upon the following morning, the week having been full of thunder,
the first rude cavalry of the Huns began to enter the city through the
broken gates. The pillage and massacre and rape began, and, as to-
day in Belgium, we read with a certain order and system. Nothing
was spared, neither the houses of the citizens, nor their holy places,
neither age nor sex. It seemed as though all would perish in a vast
and systematic vandalism and murder.
Suddenly a cry rose over the noise of the butchery and
destruction. The Eagles! The Eagles! And over the mighty bridge
that spans the Loire thundered the cavalry of Rome, and the
tumultuous standards of the Goths. They came on; nothing might
stop them. Step by step they won the bridge head, they fought upon
the shore, in the water, through the gates. Street by street, fighting
every yard, the Imperial troops pushed on, the glistening eagles high
overhead. House by house, alley by alleyway was won and filled with
the dead; the Huns broke and fled, the horses stamped out their
faces in the byways, in the thoroughfares there was no going, the
Barbarian carrion was piled so high; Attila himself was afraid. He
sounded the retreat.
That famous and everlasting day was the 14th of June, for Aetius
had kept his word. Orleans had begun the deliverance of Gaul and of
the West.
 VII
THE RETREAT OF ATTILA AND THE BATTLE OF
THE CATALAUNIAN PLAINS

The retreat of Attila from Orleans would seem to have been one of
the most terrible of which we have any record. The Gothic chronicler
Jornandes, writing a hundred years after the events he describes,
wholly or almost wholly at the mercy of a Gothic and so a Barbarian
legend, would seem, though poorly informed as to facts and details,
to be fully justified in the general impression he gives of the horror
and disaster which befell the Hunnish host. It is certain that Attila’s
withdrawal of his army must have been not only difficult but
impossible without disaster: too many and too brutal crimes had
been committed for the ruined population of northern Gaul to permit
it an easy passage in retreat. The devastated country could no
longer supply its needs, everywhere ruined men awaited revenge: it
can have been little less than a confused flight that Attila made with
his thousands towards the Rhine, with Aetius and Theodoric ever
upon his flanks.
Nor was he to escape without battle. The Imperial armies pressing
on behind him gained upon him daily, a sufficient comment upon his
state, and it was really in despair that he reached at last the city of
Troyes, more than a hundred miles from Orleans, an open city which
there might, he hoped, be time to loot, and so to restore to some
extent the confidence and the condition of his people. That he was
not able to loot Troyes is the best evidence we could have of the
energy of the Imperial pursuit; but here again we meet with one of
those almost incredible interpositions of the spiritual power that we
have already seen at Tongres, at Rheims, at Paris, and not least at
Orleans. It must have meant almost everything to Attila on his
hurried and harassed road north-east out of Gaul to be able to feed
and to rest his army at Troyes, where the great road by which he had
come crossed the Seine. That he was not able to do this was
doubtless due fundamentally to the pressure of Aetius upon his
flanks, but there was something more, we are told. Just as Anianus
of Orleans had by his prayers saved his city, so Lupus of Troyes
defended his town in the same way. He, the Bishop, and now
perhaps the governor, of Troyes went forth to Attila, faced and
outfaced him, and indeed so impressed and even terrified the
superstitious Barbarian that he left Troyes alone and passed on,
taking only the Bishop himself with him a prisoner in his train. “For,”
said he, mocking him even in his fear, “if I take a man so holy as you
with me I cannot fail of good luck even to the Rhine.”
Attila passed on; he had crossed the Seine; before him lay the
passage of the Aube, and it was here that the advance guard of the
Imperial armies first got into touch with their quarry. It was night.
Attila had left the Gepidae to hold the crossing, and it was they who
felt the first blows of Aetius whose advance guard was composed of
Franks; the fight endured all night and at dawn the passage was won
and some 15,000[12] dead and wounded lay upon the field. Attila had
crossed into Champagne, but the Imperial army was already at his
heels; he would have to fight. The battle which followed, one of the
most famous as it is one of the most important in the history of
Europe, whose future was there saved and decided, would seem to
have been fought all over that wide and bare country of Champagne
between the Aube and the Marne, and to have been finally focussed
about the great earthwork still called the Camp of Attila by Châlons;
it is known to history as the battle of the Catalaunian plains.
It may well be that the fight at the passage of the Aube had given
Attila time to reach that great earthwork, one of the most gigantic
and impressive things in Europe, which rises out of that lost and
barren country of Champagne like something not wholly the work of
man. There he halted; convinced at last that he could not escape
without battle, he encamped his army and made ready for the
conflict.
In this terrible and tragic place he held council, and superstitious
as ever in the supreme moment of his career, began to consult an
endless procession of soothsayers, augurs and prophets upon the
coming battle. From the entrails of birds, or the veins upon the bones
of sheep, or the dying gestures of some animal, his sorcerers at last
dared to proclaim to him his coming defeat, but to save their heads,
perhaps, they added that the general of his enemies would perish in
the conflict. It is sufficient witness to the genius of Aetius, to the fear
he inspired in the Hun, and should be a complete answer to his
enemies and traducers, that Attila, when he heard this, from despair
passed immediately to complete joy and contentment. If after all
Aetius defeated him at the price of his life, what might he not recover
when his great adversary was no more! He therefore made ready
with a cheerful heart for the conflict. Jornandes, whom we are bound
to follow, for he is our chief, if not quite our only authority for all this
vast onslaught of the Hun upon the Gaul, describes for us, though
far from clearly, the configuration and the development of the battle.
In following this writer, however, it is necessary to remember that he
was a Goth, and relied for the most part upon Gothic traditions; also,
above all, it is necessary not to abandon our common sense, protest
he never so insistently.
Jornandes tells us that Attila put off the fight as long as possible
and at last attacked, or so I read him, not without fear and
trepidation, about three o’clock in the afternoon, so that if fortune
went against him the oncoming of night might assist him to escape.
He then sketches the field. Between the two armies, if I read him
aright, was a rising ground which offered so much advantage to him
who should occupy it that both advanced towards it, the Huns
occupying it with their right and the Imperialists with their right,
composed of auxiliaries.
On the right wing of the Romans Theodoric and his Visigoths held
the field, on the left wing Aetius and the Romans; between them
holding the centre and himself held by Aetius and Theodoric was the
uncertain Alan Sangiban.
The Huns were differently arranged. In the midst, surrounded by
his hardest and best warriors, stood Attila considering as ever his
personal safety. His wings were wholly composed of auxiliaries,
among them being the Ostrogoths with their chiefs; the Gepidae with
their King; and Walamir the Ostrogoth; and Ardaric, King of the
Gepidae, whom Attila trusted and loved more than all others. The
rest, a crowd of kings and leaders of countless races, waited the
word of Attila. For Attila, king of all kings, was alone in command and
on him alone depended the battle.
The fight began, as Jornandes insists, with a struggle for the rising
ground between the two armies. The advantage in which seems to
have rested with the Visigoths, under Thorismund, who thrust back
the Huns in confusion. Upon this Attila drew off, and seeing his men
discouraged, seized this moment to harangue them, according to
Jornandes, somewhat as follows:
“After such victories over so many nations, after the whole world
has been almost conquered, I should think it ridiculous to rouse you
with words as though you did not know how to fight. I leave such
means to a new general, or to one dealing with raw soldiers. They
are not worthy of us. For what are you if not soldiers, and what are
you accustomed to if not to fight; and what then can be sweeter to
you than vengeance and that won by your own hand? Let us then go
forward joyfully to attack the enemy, since it is always the bravest
who attack. Break in sunder this alliance of nations which have
nothing in common but fear of us. Even before they have met you
fear has taught them to seek the higher ground and they are eager
for ramparts on these wide plains.
“We all know how feebly the Romans bear their weight of arms; it
is not at the first wound, but at the first dust of battle they lose heart.
While they are forming, before they have locked their shields into the
testudo, charge and strike, advance upon the Alans and press back
the Visigoths. Here it is we should look for speedy victory. If the
nerves are cut the members fail and a body cannot support itself
upright when the bones are dragged out of it. Lift up your hearts and
show your wonted courage, quit you like Huns and prove the valour
of your arms, let the wounded not rest till he has killed his enemy, let
him who remains untouched steep himself in slaughter. It is certain
that nothing can touch him who is fated to live, while he will die even
without war who will surely die. And wherefore should fortune have
made the Huns the vanquishers of so many nations if it were not to
prepare them for this supreme battle? Why should she have opened
to our ancestors a way through the marshes of Azov unknown till
then if it were not to bring us even to this field? The event does not
deceive me; here is the field to which so much good fortune has led
us, and this multitude brought together by chance will not look into
the eyes of the Huns. I myself will be the first to hurl my spear
against the enemy, and if any remain slothful when Attila fights, he is
but dead and should be buried.”
These words, says Jornandes, warmed the hearts of the Huns so
that they all rushed headlong into battle.
We know really nothing of the tremendous encounter which
followed, the result of which saved the Western world. It is true that
Jornandes gives us a long account of it, but we are ignorant how far
it is likely to be true, whence he got it, and how much was his own
invention. That the battle was immense, we know; Jornandes asserts
that it had no parallel and that it was such that, if unseen, no other
marvel in the world could make up for such a loss. He tells us that
there was a tradition that a stream that passed over the plain was
swollen with blood into a torrent: “they who drank of it in their thirst
drank murder.” It was by this stream, according to Jornandes, that
Theodoric, King of the Visigoths, was thrown from his horse and
trampled under foot and slain, and so fulfilled the prophecy which
Attila’s sorcerers had declared to him. The fall of the King appears
so to have enraged the Visigoths—and here we must go warily with
Jornandes—that they engaged the enemy more closely and almost
slew Attila himself in their fury. Indeed, it was their great charge
which flung him and his guard, the Hunnish centre, back into the
mighty earthwork which before them seemed but a frail barrier so
enormous was their rage. Night fell upon the foe beleaguered and
blockaded within that mighty defence.
In that night Thorismund, the son of Theodoric, was lost and found
again. Aetius, too, separated in the confusion of the night from his
armies, found himself, as Thorismund had done, among the
waggons of the enemy, but like Thorismund again found his way
back at last and spent the rest of the night among the Goths.
 When day dawned, what a sight met the eyes of the allies. The
vast plains were strewn with the dying and the dead, 160,000 men
had fallen in that encounter, and within that terrible earthwork lay
what was left of the Huns, wounded and furious, trapped as Alfred
trapped Guthrum later upon the Wiltshire downs.
The battle had cost the Imperialists dear enough. Nor was their
loss all. The death of Theodoric brought with it a greater anxiety and
eventually cost Aetius his Gothic allies. A council of war was called.
It was determined there to hold Attila and starve him within his
earthwork. In the meantime search was made for the body of
Theodoric. After a long time this was found, “where the dead lay
thickest,” and was borne out of the sight of the enemy, the Goths
“lifting their harsh voices in a wild lament.” It is to be supposed that
there Theodoric was buried. And it is probable that the bones and
swords and golden ornaments and jewels which were found near the
village of Pouan by the Aube in 1842 may well have been the
remains of Theodoric and his funeral, for the fight doubtless raged
over a great territory, and it is certain that the king would be buried
out of sight of the foe. On the other hand, these bones may have
belonged to a Frankish chief who had fallen in the fight for the
passage of the Aube.
But it is in his account of the events that followed the burial of
Theodoric that we most doubt our guide Jornandes. He declares that
Thorismund, Theodoric’s son and successor, wished to attack the
Hun and avenge his father’s death; but that he consulted Aetius as
the chief commander, who “fearing if the Huns were destroyed, the
Goths might still more hardly oppress the Empire, advised him to
return to Toulouse and make sure of his kingdom lest his brothers
should seize it. This advice Thorismund followed without seeing the
duplicity of Aetius.” Such an explanation of the treason of the Goths
was doubtless accepted by the Gothic traditions and especially
comfortable to Jornandes. It is incredible, because any observer
could see that Attila was not so badly beaten that he was not a far
greater danger to the Empire than ever the Visigoths could be. To let
him escape, and that is what the departure of Thorismund meant,
was treason, not to the Goths, but to the Empire. It served the cause
not of Aetius but of Thorismund, not of Rome but of the Goths,
whose loyalty was never above suspicion and whose slow adhesion
to the Imperial cause had been the talk of Gaul and the scandal of
every chancellery.
But Aetius could not have been much astonished by the desertion,
and it was no less, of Thorismund. Rome was used to the instability
of her Barbarian allies who if they really could have been depended
upon, if they had really possessed the quality of decision, and known
their own minds would no longer have been Barbarians. It was Attila
who was amazed. He had given himself up for lost when looking out
from that dark earthwork at dawn he saw the Visigothic camp empty
and deserted, and at the sight “his soul returned into his body.”
Without a moment’s hesitation, broken as he was, he began a retreat
that Aetius was not able to prevent or to turn into a rout, which he
could only ensure and emphasise. Upon that long march to the
Rhine all the roads were strewn with the Hunnish sick and wounded
and dead, but the main army, what was left of the half-million that
had made the invasion, escaped back into the forests of Germany.
Gaul was saved, and with Gaul the future of the West and of
civilisation. But Attila was not destroyed.

FOOTNOTES:
[12] Jornandes, R. Get., 41. According to the Abbe Dubos the
“XC millibus” which appears in the text of Jornandes is the
mistake of a copyist for “XV millibus.”
 VIII
ATTILA’S ATTACK UPON AND RETREAT FROM
ITALY

It might seem to be a hard question to answer whether Attila was

really beaten or not in Gaul. This at least is certain, the retreat from
Orleans to the Camp by Châlons was a disaster for him, and the
great battle which followed was only not annihilating because of the
desertion of the Visigoths. Attila saved what that retreat and battle
had left of his army, and without delay, for necessity pushed him on,
turned to prove upon the body of Italy itself that he was still the
“universal tyrant” and the “scourge of God.”
Historians of the decline and fall of the Empire, of the invasions of
the Barbarians, have consistently expressed surprise, often not
unmixed with contempt and derision, that Attila was allowed to
escape. But it must be remembered that it is the almost unbroken
characteristic of the Barbarian wars that the invaders did escape; so
Alaric continually avoided destruction at the hands of Stilicho; and if
the Visigoths were thus able to save themselves how much more
was Attila whose armies were so largely composed of mounted men.
It might seem that the superiority of the Barbarian lay in just that,
mobility; the rude and savage men that composed their armies were
content and able to live upon the country they ravaged, they were
not dependent as were the Imperial armies upon their bases and
their supply; they were always a bolt shot at a venture. Their success
is paralleled in our own day by that of the Boers in South Africa. We
do not blame Roberts and Kitchener that they allowed De Wet to
escape them for so long; we understand that it was inevitable it
should be so. Not thus argued the Romans. Full of discontent, rotten
with intrigue and corruption as the Imperial Government was, there
were many who from personal hatred and ambition, or mere treason,
blamed and traduced Aetius for the escape of Attila which they had
planned and prayed for in their hearts. Any weapon was good
enough to use against the great general who apparently suffered
neither fools nor traitors gladly, and was as ambitious if as able as
Stilicho. Every sort of calumny was used against him. It was recalled
that he had had intimate relations with Roua, the uncle of Attila, it
was suggested that he had purposely spared the Huns.
To all this bitterness much was added by the acts of Aetius
himself. Immeasurably proud, like Stilicho, he pretended to claim the
hand of the Princess Eudoxia, the daughter of the Emperor
Valentinian, for his son; moreover, among his other preparations
against a new attack of Attila was a plan to remove the Emperor into
Gaul; that he might replace him himself, his enemies declared. So
violent grew the opposition to this last project that it had to be
abandoned. Aetius was content to send Valentinian to Rome, while
he himself, with his army, held Ravenna and the line of the Po.
In the first chapter of this book I have briefly explained the Imperial
theory of the defence of Italy; that theory I have at greater length,
and I think for the first time, set forth in a previous work.[13] Here I
must very briefly recapitulate in saying that the valley of the Po, the
whole Cisalpine Plain between the Alps and the Apennines, was in
the Imperial theory, and rightly, the defence of Italy. That defence
was barred again upon the inward or southern side by the barren
and therefore impassable range of the Apennines,—impassable, that
is, save at the eastern extremity, where the Via Emilia ran between
the mountains and the sea into the city of Rimini. That narrow pass
was commanded and held not by Rimini, which was indefensible, but
by Ravenna which, on account of its position in the marshes, could
not be taken and scarcely attacked. It was the due and wise
recognition of these facts that caused the Emperor Honorius to take
up his residence in Ravenna when Alaric crossed the Alps. That city
had been the key to the defence of Italy ever since; it remained so
now, therefore Aetius went thither gathering his army along the Via
Emilia behind the line of the Po to await the final adventure of Attila.
Having failed to destroy the Eastern Empire, having failed in his
attack upon the western provinces, the only thing that remained for
Attila to attempt was the destruction and rape of the soul of all, the
citadel of civilisation, Italy and Rome. It was the hardest task of all,
therefore in his prudence, and he was always prudent, he had not
tried it till now. It was his last throw. It was to fail, and that so
contemptibly that his campaigns East and West in comparison seem
like triumphs. Like Kaiser Wilhelm II., what Attila lacked in real force
he strove to supply with blasphemy and boasting. He was as ill-
informed and as ignorant of the real nature and strength of the forces
opposed to him as the German statesmen of our day; he
exaggerated and relied upon the corruption of the Empire; above all,
like the Kaiser, he failed to see that the future frowned against him
dark and enormous as the Alps.

CISALPINE GAUL AND THE DEFENCE OF ITALY

Tradition rightly imposed upon Aetius the defence of Italy at the
expense as it were of Cisalpine Gaul; it insisted that Cisalpine Gaul
was to be the scene of the encounter. He determined to hold the line
of the Po as he had held the line of the Loire; there was no need to
be doubtful of his success. Already so many Barbarian invaders had
found destruction in the immensity of that great plain. Nevertheless
Aetius reinsured himself and Rome; he reinsured himself with
Constantinople. It was no longer Theodosius the Calligrapher who
sat on the Eastern throne, but Marcian the soldier. To him Valentinian
sent ambassadors; Marcian heard them and promised an army. If,
then, Aetius could lure Attila on far enough, but not too far for the
safety of Italy, if he could hold him in the Cisalpine Plain, Marcian
coming into Pannonia would be in time to cut off his retreat, and so
at last the Hun would be utterly destroyed, and the bones of his great
host might bleach beside the rivers of Lombardy. There at any rate
we have the best explanation of what followed.
Before the winter was over, the winter of 451-452, Attila was
already moving south-west out of Barbary over the Danube, and at
last by the great Roman road through Pannonia, crossing the Julian
Alps as Alaric had done before him to cross the Isonzo, to lay siege
to the first great Italian fortress, then perhaps, save Ravenna, the
strongest place in all Italy, Aquileia, the capital of the province of
Venetia. The walls of this mighty stronghold which was some sixty
stadia from the sea were washed by the rivers Natiso and Turrus. I
say it was, save Ravenna, the strongest place in Italy. It had been
made so about the end of the fourth century, but it had much longer
ranked third among Italian fortresses, only outstripped by Milan and
Capua. Though set in the plain it was so strongly held with walls and
towers that it enjoyed the reputation of being impregnable. Both
Alaric and Radagaisus had passed it by; in the early spring of 452
Attila laid siege to it. For three months he laboured in vain; no engine
he possessed, no contrivance he could command, no labour he
could compel, were enough to break those Roman walls and to
batter down the gates of this virgin fortress. He hoped to starve it
out, but in three months the number of his armies, their depredations
and ravages of the countryside began to tell far more against him
than against the beleaguered city. Living on the country as he must
do he was himself like to go hungry; moreover the spring heats in the
marshy plains were already due, his hosts were discontented, they
expected the loot of Italy, they began to remember the siege of
Orleans and the battle of Châlons.
Furious at being denied, enraged with his people, and perhaps
most of all with himself, the Hun was about to pass on as Alaric had
done in spite of the danger which was greater far now than in the
time of the Goth, when one evening, so it is said, as he moodily rode
within sight of the walls and towers of his inaccessible prey after the
heat of the day he saw by chance a stork preparing to leave her nest
on one of the towers of the great city, and to fly with her young into
the country. In this he saw an assurance of victory. On the morrow
once more he hounded his Huns to the assault: and no man since
that day has found even the ruins of Aquileia.[14] It was not defeat, it
was extermination, complete pillage, and fire. So horrible were the
cruelties there committed that they can only be compared with what
the Germans have done, and in our day, in Belgium. History records
the fate of a young and beautiful woman, Dougna by name, who,
pursued by a band of Huns, wrapped her head in her veil and flung
herself from the walls into the Natiso.
The fall of Aquileia, the extermination of its inhabitants and the
horrors that were committed terrorised all Venetia. It was the
Prussian doctrine of “frightfulness” carried out with as little scruple
as, though more excuse than, that we have seen at work with so
great an amazement, and rage, and disgust here in the West upon
the body of our Godchild Belgium. Attila marched on; Altinum and
Concordia suffered the same fate; they too disappear from the pages
of history; Padua and Modena were ravaged and burnt. Vicenza,
Verona, Brescia, Bergamo, Milan and Pavia opened their gates, they
were but spoiled, their inhabitants exchanged death for slavery. In
that long night such as might flee fled away doubtless demanding of
God whither they should go. God led them to the lagoons.
That Attila thought he was already victorious when he looked on
his ruins as Kaiser Wilhelm did when his “heart bled for Louvain”
(blood from a stone indeed!) an incident twice recorded by Suidas
bears witness. It seems that in Milan, among the mural decorations
of the palace, was one representing two Roman Emperors
enthroned and clothed in the purple with certain Barbarians, Huns or
Scythians, prostrate, demanding mercy at their feet. This work Attila
ordered to be effaced and in its stead to be painted one in which he
himself sat enthroned, while before him the two Roman Emperors
poured gold from great sacks which they bore on their backs. A witty,
if brutal jest; futile, too, since along the Po still flashed the eagles of
Aetius and already over the Alps came the rumour of the armies of
Byzantium.
And, indeed, in the heart of Attila there was more fear than hope,
fear of the gods of this strange and lovely country he had ruined, of
the gods of the marshes and the heats that were already devastating
his armies with fever, of those gods Peter and Paul whom he had
already learnt to dread in Gaul and whose City, the most ancient and
the most holy in the world, it was in his heart next to ravage and to
sack; fear of his own armies now heavy with loot and riches, anxious
for home and already on the verge of starvation in a country they
had made utterly barren; fear most of all, perhaps, of his own
destiny. “What,” he asked himself, “if I conquer like Alaric only to die
as he did?”
That the very name of Rome was still terrible to the Barbarians is
certain. They feared her name. Nevertheless the pride of Attila and
his ambition conquered his fear of his army, of his destiny, of the
name of Rome. He was determined to go on, and with this intention
he ordered his troops to concentrate from Padua, Vicenza, Verona,
Brescia, Bergamo, Milan and Pavia upon Mantua, whence he
proposed to cross the Po, probably at Hostilia, and so to descend
upon the Via Emilia at Bologna.
This move seems to have disturbed Rome profoundly. The
enemies of Aetius were there in the ascendant with the Emperor,
and their influence with the government was enough to cause a deep
disquietude with regard to the strategy of the great general. They
remembered Alaric; they remembered Radagaisus; they recalled the
fate of Orleans, and the escape after the battle of Châlons, above all
they whispered of Aquileia, Altinum and Concordia which were no
more. In this state of panic they left Aetius out of account, they forgot
the army of Marcian already on the move, they repudiated the whole
strategy of their general and with it their own traditions. They decided
to send an especial and unprecedented embassy to Attila, to offer a
price for the safety of Italy. The ambassador they chose was the
Pope.
 Perhaps this amazing act ought not to astonish us, for we have
seen the like so often in Gaul. The acts of Anianus of Orleans, of
Lupus of Troyes, should have prepared us for the supreme act of S.
Leo the Great. That they have not done so is sufficient to prove to us
that we have failed to understand the time. Moreover, this great
embassy was not the first Leo had undertaken on behalf of the
Imperial Court. During the pontificate of Sixtus III (432-40), when Leo
was Roman Deacon, Valentinian III had sent him to Gaul to settle a
dispute and bring about a reconciliation between Aetius their chief
military commander in that province and Albinus the chief
magistrate. Sixtus III died on August 19, 440, while Leo was in Gaul,
and the ambassador was chosen as his successor.
The great Pope did not go alone upon this his last great mission,
with him were two illustrious nobles, the Consul Gennadius Avienus,
who after the Emperor was the greatest noble in the West, and the
Prefect Trigetius. They set out from Rome by the Via Flaminia and
met Attila as they had intended before he crossed the Po, on the
Mincio near Mantua—in a place called the Campus Ambuleius. It
was there one of the most grave and famous conferences that have
ever been held in Europe met.
The ambassadors were all in official dress, Leo wore his pontifical
vestments, the golden mitre, a chasuble of purple with the pallium. It
was he who dealt with Attila, in what manner we know not, but with
complete success. It was not the armies of Aetius after all that saved
Italy, and with Italy all that was worth having in the world, but an old
and unarmed man, Leo our Pope, for above him in the sky the Hun
perceived, so he declared, the mighty figures of S. Peter and S.
Paul; his eyes dazzled, he bowed his head. Yielding, he consented
to retreat and evacuate Italy and the Empire. It is as though the new
head and champion of civilisation, of Christendom, had declared
himself. It was the Pope.
The terms of the treaty then made were doubtless shameful
enough to old Roman ideas, for they certainly involved an annual
tribute to the Hun, from whom, moreover, no indemnity was exacted
for the ruin of the Transpadana. But the great fact of the situation
created by Leo overshadowed all this; Italy, the soul of the West, was