Dignity, Autonomy and Human Rights
How we should act when defending human dignity in human rights issues
Author: Angel J. Gómez Montoro | Source: University of Navarra
The opening lecture of the 2017 course at the University of the Isthmus, Guatemala
Dignity, Autonomy and Human Rights
How we should act when defending human dignity in human rights issues
1. – Approach
Manuel Wackenheim, a French citizen, afflicted with dwarfism, was acting since July 1991 in shows called "Dwarfs Launch", which were usually developed in nightclubs. The show was the dwarf, with the proper protections, was thrown by the customers, at a short distance, on a pneumatic mattress.
In the application of an order of the Minister of the Interior, the town’s mayor dictated one side, on October 25, 1991, by which it became prohibited such a peculiar entertainment, this was contested before the courts by Mr. Wackenheim. The Administrative Tribunal of Versailles, which knew the case, annulled the prohibition alleging that: "from the documents of the file, it does not come off that the spectacle which was banned could threaten the good order, the tranquility or the public health in the city.”
The municipality took the case before the Council of State that annulled the sentence adducing that, on the one hand, the "dwarfs launch" is an attraction that represents an attack against the dignity of the human person, whose respect is one of the elements of the public order, of which the authority with municipal police faculties is guarantor; and, on the other hand, that respect for the principle of freedom of work and trade is not an obstacle for this authority to prohibit an activity which, while lawful, may disturb public order.
Mr. Wackenheim did not give up and went to the Human Rights Committee established at the United Nations ambit by the International Covenant on Civil and Political Rights of New York. He argued that the prohibition of exercising his work had had negative consequences for his life and represented an attack on his dignity. He declared himself a victim of a violation by France to his rights to freedom, work, respect for private life and a sufficient standard of living, as well as being subject to discrimination. He pointed, on one side, that in France there is no employment for the dwarfs and, on the other, that their work was not an attack on human dignity, because the dignity is to have employment.
The Committee rejected Mr. Wackenheim's request for considering that the prohibition on the launching of dwarfs, as it was practiced, was not an abusive measure. It understands that it is rather a necessary measure to protect the public order, in which they intervene in particular considerations of human dignity, which are compatible with the objectives of the aforementioned New York pact, without, on the other hand, the fact that the prohibition would affect only the dwarfs could be considered a discrimination it was rather because they are susceptible to be launched.
As seen, the matter is certainly singular, and it is very possible that, as it happened to me, you have gone from the initial smile of such peculiar circumstances of the case to a certain distress when considering the hardness of the life of the people who are born with those difficulties and that lead them to accept – and even to defend in the courts a job – if it can be called like this as the ultimately banned. But beyond the specific circumstances of the case, if I bring it today to this distinguished auditorium is because it raises some powerful issues about human rights, its relevance in the world today, the limits of the autonomy of the will or the meaning of human dignity, the foundation of rights. It does not cease to produce some perplexity that dignity is the value to which the French Council of State appeals to prohibit the dwarfs launching; and that Mr. Wackenheim sees precisely an attack on his dignity in that prohibition which, -in his consideration-, limits his freedom, his right to work and his right to private life.
But, as I have already said, it is a debate that goes way beyond the concrete case. The dignity of the embryo is invoked by those who oppose its destruction and the subsequent instrumental use of its cells for research; while the dignity of the patient who could be cured with the supposed advances of science is invoked by the supporters of embryonic cell research. The dignity of women is appealed by those who want to limit prostitution and for those who consider it should be treated as another job. The dignity of the person in terminal situation is invoked by those who propose the deepening in the palliative care and to the pretended right to a dignified death come the partisans of the euthanasia, to the point that Dignitas is the name chosen by a Swiss group that helps people with terminal illnesses or serious physical and mental illnesses to die and that promotes the assisted suicide also between healthy people but tired of living.
Behind these radical discrepancies is a distinct understanding of dignity and human rights that are based on it, as I will try to expose here.
2. The birth of human rights
It is generally admitted that, despite the existence of important antecedents, fundamental rights – or natural rights, as they were called then – are born as an essentially new category, in the Constitutionalist movement that takes place in France and The United States in the last decades of the eighteenth and early nineteenth century.
Their budget will be the contractual ideas and the theory of natural rights. Immediate antecedents can be found in the theologists and jurists of the Spanish School of the 17th and 18th centuries, who will take to the subjective terrain the postulates of the natural law, highlighting authors such as Vitoria and Las Casas or Vázquez de Menchaca, which will extend the term Jura naturalia; as well as in the rationalist is naturalism of Grotius and Puffendorf. Particular relevance will have, however, the thought of John Locke, collected fundamentally in his Two Treatises on the Civil Government (1689). For Locke, freedom and property of man are natural rights, unavailable to the man himself and to those who, consequently, cannot renounce nor informing society nor in deciding to live in a political community and submit to power.
These principles would inspire the first declarations of rights. Thus, according to the first article of the Virginia Declaration of Rights, of 1776, "All men are by nature equally free and independent and have certain rights of those who, when they enter in a state of society, cannot be deprived or stripped in their posterity by any kind of covenant. " And in similar terms, it was pronounced the famous Declaration of the Rights of Man and the Citizen, approved in France in 1789.
These are principles that were assumed without a great theoretical debate; we faced self-evident truths, in the terms of the Declaration of Independence of 1776, and those who then defended the existence of rights and its incorporation into the Constitution were more concerned to provide them with effectiveness, as a way of limiting political power, that for its theoretical foundation. However, at this moment – and despite the historical contradictions: because the French Revolution was especially bloody and American constitutionalism was compatible with the maintenance of slavery for almost a century- the notes of the new rights will be perfectly profiled: they are inherent to the human being, previous and therefore superior, to the political power, unavailable for its holder and the state. From the positive law, the rights are incorporated into the Constitution – supreme Law of the Land-and thus, they become the limit of the constituted power, including the legislator (they are also rights against the majority), being possible their defense in court.
As you may have appreciated, there is no mention of dignity as the value and support of rights at this time. However, the values behind these statements are not very far from that concept. Thus, the preamble to the Declaration of Independence, of 1776, opens with the affirmation: "We hold as self-evident these truths: that all men are created equal; that they are endowed by their Creator of certain inalienable rights; that among these are life, liberty and the pursuit of happiness." And according to the first article of the French Declaration of 1789, "men are born and remain free and equal in rights." This freedom and essential equality in rights explain why everyone has the same dignity for the mere fact of being people and, it might be said, as creatures made in the image and likeness of God (Gn 1, 26).
On the other hand, despite the strong individualism that inspires the constitutional movement and the great weight that the freedom value will have on the parents of the American Constitution, the declarations do not protect a general freedom to do what is wanted – a general principle of self-determination, we would say today-but those manifestations of it that are considered especially relevant to the human being and that, as the history credits, have been especially in danger: life, religious freedom, freedom of expression, the prohibition of arbitrary arrests, the right to a fair trial, etc. (in addition to the controversial right to carry weapons of the Second Amendment, but in which fortunately we do not need to stop).
3. Dignity as the foundation of Rights
The true golden age of rights – the era of rights, in the terminology of Louis Henkin – begins after the Second World War. The rights become the nucleus of the European constitutions and, also, they are intended to occupy the centrality of the international order, which definitively contributed the approval in 1948 of the Universal Declaration of Human Rights. The aim of the new texts, both national and international, is clear and explicit: to do everything possible to prevent the reoccurrence of events in the world like those that had just been lived. And perhaps this explains the protagonism that the concept of dignity assumes.
Of course, there have been those who have been extremely critical of it. Thus, Schopenhauer considered it, with especially harsh words, "the shibboleth of all the perplexed moralists and hollow heads (empty-headed) that hide behind that expression the lack of a real base of morality, or, in any case, of one that has meaning." And in later times, and especially in the field of bioethics, they have been very critical of the concept of dignity authors such as Ruth Macklin, who published in 2003 an editorial of the British Medical Journal entitled Dignity Is a Useless Concept; or Steven Pinker, who in 2008 published a work with the no less significant title of The Stupidity of Dignity. Both criticize what they consider the attempt to use dignity as the limit of scientific progress.
But like it or not, the idea of dignity has been imposed in both constitutional law and international human rights law, to the point that Michael Rosen, a Harvard professor who has devoted important studies to the subject, believes that we are facing a "central concept for human rights discourse". This centrality seems to be credited by the proliferation of work on the concept, especially in the Anglo-Saxon world. Therefore, today, rather than questioning the use of the concept of dignity itself, what is perceived is an intense debate-not exempt from ideological dyes-for fixing their profiles.
It can be said that there is a widespread general agreement in which the concept of dignity to which the declarations of the modern rights appeal connects with a double tradition which also has common roots. On one side, the Kantian philosophy; on the other, the Christian Social thought. The development of this point would require much more time and possibly more philosophical knowledge than I have. I will confine myself, appealing to the understanding of the philosophers presented here, to some general ideas.
Kant uses infrequently the term dignity (Würde), but it is central in his Foundation of the metaphysics of the customs, key work to understand his ethics. In a well-known passage of his work, he states: "In the kingdom of the purposes everything has either a price or a dignity. What is priced can be replaced by something equivalent; instead, what is above all price and therefore does not admit anything equivalent has a dignity. "The only man has dignity; only he has an irreplaceable value and therefore must always be treated as an end and not as a medium. Hence the celebrated Kantian phrase: "Act in a way that treats humanity, either in your personal or in others, always and at the same time as an end, never merely as a mean."
But the concept of dignity has its roots before Kantian philosophy, which certainly inspires, and has to look for in Christianity. Both the notion of dignity and the person, with which it is intrinsically united, are of Christian matrix. Dignity points to the essential equality of men by sharing the same value that derives, fundamentally, from the fact that all have been created in the image and likeness of God (Gn 1, 27). To the concept of dignity, Saint Thomas Aquinas dedicates some important pages and previously Saint Buenaventura spoke of dignity as the "distinctive range of the person." But it will be at the end of the nineteenth century and in the first decades of the twentieth century when the concept takes a special role in the field of Christian Social thought, the fact that it is essential to understand its incorporation into the declarations of Second post-war rights.
Important references to dignity appear in the encyclical Rerum Novarum of Leo XIII of 1891, which proclaims the obligation of the patrons to respect in the workers "the dignity of the person" (No. 15); a dignity based on virtue and that is "common heritage of all mortals, affordable equally to high and low, to rich and poor"(No. 19)."Nobody is allowed to violate human dignity with impunity, of which God himself has great reverence; or put obstacles in the way to perfection.” (No. 30)
If these references, that as I said before would require further development, are relevant, is because today it seems out of doubt that this vision of dignity is what has inspired the main declarations of rights of the twentieth century. This has been generally accepted about article 1 of the Bonn Basic Law and so it seems to be accredited also in the most recent work on the origin of the Universal Declaration of Human Rights. I am referring in particular to the works of Samuel Moyn. This Harvard professor recalls that – as we have already seen – the term dignity does not appear either in the Declaration of Virginia of 1776 nor in the French of 1789, nor is it mentioned in the French Constitution of 1946. To emphasize the influx of Christianity and in a kind of provocative way, Moyn considers that neither the authors of the German constitution of 1949 were still concerned about the Jewish tragedy, nor the disciples of Kant – if at that time there were any--had dedicated attention to that concept. And remember that the first text that invokes the concept of dignity is the Irish constitution of 1937 which, in his opinion, would become part of a constitutional alternative, which he is allowed to call "the new constitutionalism" of Christian Democracy, understood as a current of thought and not as the parties that with that name would arise in some countries after the Second World War.
That current pretended to respond to the shortcomings of liberal individualism; it is a "constitutionalism of Dignity" (dignitarian constitutionalism) which, at the same time, supposed a major change towards the perception of rights and more generally of liberalism, by some Catholic-inspired authors. Faced with the dominant corporatist vision in the Thirties, very particularly in France, it starts to put the focus on the human person, as a dignity carrier, like an intermediate way between the secular liberalism and the corporatist reaction that will prosper, for example, in Spain and Portugal.
This concept of dignity will be assumed by Pope Pius XI in the encyclical Divini Redemptoris and will become an essential element in the face of totalitarianism, both communist as nazi. As Moyn points out, "dignity brings an individualism that, far from atomizing humanity, offers the principle true of community and society."
It will be that movement which explains its incorporation into the Irish Constitution of 1937, a markedly Catholic constitution, whose preamble opens with an invocation to the "Holy Trinity, from which all authority proceeds and to which, as the ultimate goal, must be all the actions of both men and the State.”
But the Irish case does not cease to have a certain exceptional character. The decisive step will come with the German constitution of 1949, whose article 1.1 proclaims that "human dignity is intangible. Respecting and protecting it is the duty of all public power”. To Moyn this step was possible for the public use that was made during the years 1942 to 1945 of the concept of dignity, especially by Pope Pius XII; in his opinion, that invocation during the war "brought the bridge between what could otherwise have been a transitory peculiarity of a few theorists along with the Irish Constitution, and the trajectory of the concept after the war." This would explain its use in the Fundamental Law of Bonn, linked to the invocation of God and, previously, in the Constitution of Bavaria of 1946.
But now I am interested in noting that the presence of the new concept was not limited to countries of Judeo Christian tradition such as Ireland or Germany but reached the Universal Declaration of Human Rights of 1948 which, without doubt, had a greater influence for its subsequent extension to other texts, both national and international. His explanation is, in part, in the figure of Jacques Maritain, who had an active role in the elaboration of the Declaration. In particular, he was elected by the UNESCO for the Committee to develop theoretical bases on human rights. His key concept will be that of the person, as a counterposed to the individual and from the same will make a rapprochement to human rights that were reinforced by his trips to the United States and by the emphasis that the messages of the Pope during the war put in the concept of person’s dignity. In Moyn's opinion, Maritain will become the philosopher of fundamental rights that had not been before, without abandoning the rejection of individualistic liberalism but without falling into the corporatist vision that had prevailed in other Catholic thinkers.
At the time when the Universal declaration is being debated, this view of rights offers a third way in the face of the materialism of individualistic liberalism and Communist totalitarianism and will allow an agreement between ideological positions and states to be reached with strongly confounded interests, which seemed little less than unviable. It is possible that as Maritain, himself warned: "Yes, we agreed on the rights, but on the condition that no one asks us why." At the same time, the UNESCO-nominated Committee considered it possible to reach an agreement between the various cultures concerning certain rights which "were to be considered as inherent to human nature, both individually and as a member of society and followed by the fundamental right to life.” And, as Mary Ann Glendon has highlighted, the notions of person and dignity, more typical of continental Europe and Latin America, were more easily assumed by Asian and African countries than the individualistic view of the Anglo-Saxon world.
Benedict XVI referred to this coalescer value of the concept of dignity in his transcendental speech on April 18, 2008, in the General Assembly of the United Nations, commemorating the sixty years of the declaration: "The document - the today Emeritus Pope claimed - was the result of a convergence of religious and cultural traditions, all of them motivated by the common desire to put the human person at the heart of the institutions, laws and actions of society, and to consider the essential human person for the world of culture, religion and science. Human rights – he continues- are increasingly presented as the common language and the ethical substrate of international relations. At the same time, the universality, indivisibility, and interdependence of human rights serve as a guarantee for the safeguarding of human dignity. "
The fact is that, from that moment on, the term dignity will proliferate in human rights documents, both national and international. To cite the most forthcoming examples, article 4 of the Guatemalan Constitution proclaims that "in Guatemala, all men are free and equal in dignity and rights"; and the Inter-American Convention on Human Rights refers to dignity in its articles 5, 6 and 11.
The dignity thus is linked with freedom but it is not reduced to it. It is, if I may be allowed the expression, an ontological dignity, which we all have equally for our condition of human beings, regardless of our birth, rank, and position; regardless also of their ability of self-determination. The same dignity has the adult person, the child and even the conceived and not yet born; the man and the woman, the same person and the terminally ill. Dignity becomes the foundation of rights and these are, at the same time, its guarantee.
4. Attempts to redirect dignity to individual autonomy
This understanding of rights, founded on an ontological conception of the dignity of the person, is being questioned as a result of a process that begins in the United States in the last century sixties and it has spread throughout much of the World. It is a process in which emphasis is placed not on dignity but on personal autonomy and the right to self-determination. Although with some precedents, the leading case in the United States was Griswold v. Connecticut (1965) in which the Supreme Court annulled the laws of the state that penalized providing married persons with information and medical advice to prevent conception. Beyond the concrete decision, little questioned, what is relevant is the construction of the court, which finds in the Bill of Rights a new right to privacy, not expressly recognized in the Constitution or in its amendments but is contained in the shadows of several rights expressly recognized and that comes to protect from the intrusions of the Government. This protection does not refer only to certain spaces, which would respond to the traditional view of privacy, but also personal decisions.
As it is known, that would be the construction to which the Supreme Court came to a few years later to dictate which is, without doubt, the most controversial decision that has aroused and continues to arouse in the United States, to condition – as we are seeing again these days the Presidential proposals to cover the vacancies of Supreme Court magistrates. I mean Roe v. Wade (1973), in which the court understood that the right to privacy is broad enough as to cover the decision of the woman to continue or not with the pregnancy so that during the first three months, the decision to abort should be left to the woman and the doctor.
The theoretical weakness of the construction of a right to privacy not foreseen in the Bill of Rights and of such wide contours, and the concrete application to the assumptions of abortion, which can hardly be considered a private matter because a human life is at stake and interests of third parties, has made it the subject of frequent criticism, even among the supporters of abortion. It also explains that the Court has made little use of it in subsequent sentences (with the exception of Lawrence v. Texas, of 2003, on the rights of homosexuals), and has preferred to put the emphasis on freedom, as a particularly relevant value in the American tradition and that would have very broad contours: "In the heart of freedom, will say the majority in Lawrence, is the right to define the own concept of existence, of meaning, of universe and the mystery of human life." Freedom, understood as privacy that, as M. A. Glendon points, comes out of the hat of the property and shows its push towards the absolute character that the property had in preterite times.
It has not ceased to be underlined by some that this protagonism of freedom is, in any case, more typical of American constitutionalism than of European, more concerned as has been seen by the value of dignity and to emphasize that there are no absolute rights. However, in recent years, the European Court of Human Rights has set up-with support in article 8 of the European Convention-a right to privacy in even wider terms than the Supreme Court of the United States, both for the variety of assumptions on which it is projected as by the intensity of the protection it offers.
From early dates, the court in Strasbourg pointed out that the right to life of article 8 is not limited to an intimate circle but is a broad notion; and over the years it has been identifying – always in a casuistic and reiterating way that it is not an exhaustive list – different areas protected by the right. Among them has included the physical and moral integrity of the person (X. E. and C. Netherlands, 1985); aspects of the physical and social identity of an individual (Mikulic C. Croatia, 2002); elements such as the name (Burghartz C. Switzerland,1994), sexual identification, sexual orientation and sexual life (Dudgeon c. United Kingdom, 1981; Sentences B. Against France of 25 1992; Burghartz C. Switzerland, 1994 and Laskey, Jaggard and Brown c. United Kingdom, 1997), the right to respect the decision to have or not to have a child (Evans c. United Kingdom, 2007). Even more generic also includes the court in private life the right to personal development (Bensaïd c. United Kingdom, 2001), as well as the right to establish and maintain relations with other human beings and the outside world (Niemietz c. Germany, 1992, Burghartz C. Switzerland, 1994 or Friedl C. Austria): and in more recent times it has linked the right to private life with the decision on the time and way of ending one's life (Haas C. Switzerland, 2012 and Gross c. Switzerland, 2013).
As can be seen, this is a very broad relationship of behaviors which, in turn, are defined in generic terms enough to include a multitude of manifestations of personal freedom all of which would be conductible, one way or another, to the article 8 ECHR.
Such a broad definition of the right to private life seems to adventure a high number of demands with support in the eight articles of the ECHR and also in very diverse areas because many are the decisions that can be considered relevant to personal development and, even more, for relations with others. However, and although it is possible, effectively, to find sentences on very different issues, the main projection of this right has been made on areas relating to identity and sex life, the decision to have or not a child and, in recent times, decisions about death itself. In particular, and without the intention of being exhaustive, the Tribunal has included in the area protected by the right the homosexual relations, the rights of transsexuals, including the right so that the authority changes the public records reflecting the new sex, the practice of abortions or euthanasia. And it would also include decisions on artificial insemination.
To make less arid this exposure and to understand better the scope of the right defined in these terms let me tell you one of the cases, Dickson c. United Kingdom (2007). The plaintiff had been sentenced to life imprisonment in 1994, for a crime of murder, with a minimum time in prison of fifteen years. In 1999 he met on a social network who would later be his wife, who at that time was also in prison. She was released and in 2001 they got married. The plaintiff had three children of previous relationships and, as they wished to have a child in common and because her age made pregnancy unlikely, they requested to be authorized to appeal to artificial insemination. The Secretary of State rejected their request; he explained in his resolution that the requests for artificial insemination of the interns are carefully studied case-by-case basis and admitted only in exceptional circumstances, provided special attention to questions as if resorting to artificial insemination is the only means by which conception can occur, the expected date of release, the stability of the couple before incarceration, if there is evidence to suggest that the situation of the couple and the preparations for the child's well-being are satisfactory, particularly in terms of the time in which the child can be expected to be without his father or her mother. It was also argued by the administration that their relationship began when both were in prison and has not been tested in a normal environment of everyday life. It was thus impossible to assess rationally and objectively whether their relationship would last after their liberty. It must also, be considered, the violence of the crime for which they were condemned.
Well, despite these dismissed explanations, which certainly cannot be dismissed as unfounded, the Court of Strasbourg understands the violation of article 8 ECHR. Affirms that, "when a particularly important aspect of a person's existence or identity (such as the choice to be a genetic parent), the margin of appreciation of the State is generally restricted (AP. 78) and that, in the present case, the policy of the government, "has imposed on the claimants an exorbitant burden with regard to the proof of " exceptional character "of their cause when submitting their request for artificial insemination" (AP. 82). As you can see, it is more important for the Tribunal the desire of parents to have a child, despite their peculiar circumstances and the biological impossibility by the age of the mother, that all the weighted reasons that the British administration had pointed out, including the one that seems to prevail in these cases: the well-being of that future child.
Of what we have exposed, it seems easy to conclude that private life is identified with a capacity for self-determination that is imposed on any other type of considerations, including the common good, the security, the value of life or the interests of minors. In substance, what is appreciated in this jurisprudence in this case-law is not the expansion of the contours of an existing right, and not even the creation of a new right, but a paradigm shift in the understanding of human rights that are no longer considered at the service of dignity as of an almost absolute freedom.
This new vision has been imposed, especially, in the United States and Europe, but decisions in this same sense can already be found in the constitutional courts of some Latin American states and begin to appear, likewise, in the Inter-American Court of Human rights. A clear example is the debated case Artavia Murillo v. Costa Rica, in which the court holds, with abundant quotation from the jurisprudence of the Court of Strasbourg, that the right to privacy is related to – I quote literally: "i) reproductive autonomy and ii) the access to reproductive health services, which involves the right to access to the necessary medical technology to exercise that right "(No. 146); and that "the decision to have biological children through access to assisted reproduction techniques is part of the rights to personal integrity, personal freedom and private and family life" (No. 272).
5. The risks of an overly individualistic view of human rights
I would like to dedicate this last part of my intervention to highlight some of the risks of this tendency to replace the dignity of the person as the basis of the rights and the legal order for personal autonomy. It is true that autonomy and dignity are closely linked and that the dignity of the person is seriously affected when oneself is not allowed to make important decisions about his life, such as what ideology and religion to adopt, what to study and what profession to devote to, with who to marry and, in general, with whom to live, with whom to associate, etc. But this does not mean that dignity is reduced to autonomy or that any manifestation of such self-determination capacity should have the consideration of a human right. On the other hand, the rights-at least the human rights as they were understood in their origin and at that refounding moment that is the constitutionalism of postwar-, are not oriented to the satisfaction of any desires of the people or to guarantee a search of the happiness without limits, but to something more concrete and at the same time more relevant: the guardianship of those values that are inherent in their dignity.
Such a large protagonism of the autonomy of will could perhaps be understood in American constitutionalism, where freedom has been the central value. But even in that tradition there are those who have pointed out the risk of an individualism that is presented as the "quintessence of individual autonomy and isolation" and have denounced of putting the emphasis on the individual, as far as being isolated, rather than in the person with his social dimension and, with that, barely leaves room for the common good and even less for morality.
This is clearly seen in the case-law of the European Court of Human Rights to which I have referred: the life of the embryo, the good of the child, the interests of the children of the person who decides to change sex, the security problems that may pose a change of identity in public records, the value of life in its initial and terminal phases, etc. always yield at the will-or the simple desire-of those who want to have a child by artificial insemination, whatever their circumstances, change of sex or get a lethal injection because they are tired of life.
It also produces a phenomenon that does not cease to be paradoxical and is that, who defends the extreme his autonomy, does not stop demanding that others renounce theirs to please their desires: and thus, it is not strange that the defenders of this vision of the rights require that the state finance abortion, sex change treatment or artificial insemination, provide lethal injection that will end your life and do not accept – or do reluctantly – that professionals can object in conscience, in exercise of their decisions also free and supported by their ideological or religious freedom, to carry out these behaviors. However, as Pope Francis pointed out in his allocation to the European Parliament, the rights of the person should be understood in the context of a culture that "can wisely unite the individual dimension, or better, personal, with the common good", which does not look at man "as an absolute, but as a relational being" (Speech to the European Parliament, November 25th, 2014).
On the other hand, a markedly individualistic understanding of rights seems to lead to the only limit of the individual will be the detriment of third parties, an approach that seems to be going in our societies. And the rights of others are indeed a limit to the exercise of liberty itself, but it is not the only one. Otherwise, it would be impossible to prohibit voluntary behaviors, of adult persons in full use of their mental and volitional faculties, in which such injury does not occur; among them, the dwarfs launching, but also the sale of organs or the resignation of rights in the field of labor relations. The prohibition of these behaviors, which certainly should not be relaxed, can only be explained by values of other nature such as the dignity of the person, the common good, the public order and the moral; these have traditionally been limits to the autonomy of the will and, although it should be made a reading of them according to the constitutional values prevailing in open societies, it does not seem that their suppression is a convenient or advantageous alternative.
Finally, such an expansive view of freedom has the risk – real, as is often seen – of converting everything that cannot or should be banned in a human right when this is not and should not be so. Here are some examples that can help to understand what I mean: That suicide is not fully punished (the attempt) does not imply that it can be set up as a right, much less as a human right. Similarly, many countries have opted not to penalize prostitution cannot mean that their exercise should be considered protected by a fundamental right and the examples could multiply. Not everything not punished is a right and, much less, a manifestation of a human right, especially linked to the dignity of the person. In any case, we will be in the face of manifestations of the general freedom to act — of the Agere License as the Spanish Constitutional Court sometimes reminds, but not before fundamental rights that enjoy the reinforced protection that the constitutions and International declarations of rights recognize only some of the particularly valuable and transcendent manifestations of that freedom.
Indeed, this view is not currently accepted by everyone. But it should reflect calmly before continuing to advance in an exaltation of autonomy that ends up turning into fundamental rights, opposable in front of the legislator and even against third parties, many desires that may be legitimate but little or nothing have to do with the rights collected in our statements.
On the other hand, and reasoning in strictly legal terms, if this broad understanding of personal autonomy were accepted, all other human rights would be leftover. This idea is at the bottom of the criticism of L. Henkin's to the identification of a right to autonomy by the American Supreme Court.
I finish, going back to the example with which I opened my speech. Mr. Wackenheim was experiencing a possibly dramatic situation in which, his physical limitations, added with the difficulty of finding a job; I think the easy solution for a society would be to let him make a living by being thrown by drunken clients, but that can hardly be called dignity. Of course, it is not respectful to forbid that activity and leave him without resources to live. But delving into the first way leads to disinterest and disregard for others. And the same can be said of others of the situations to which I have referred in my speech: we can not ignore that behind the one who asks for death there is a dramatic personal situation; but it is also demonstrated that, in these situations, those who feel cared for and loved do not ask for euthanasia. The woman who considers aborting does so often because of a personal drama and also because of the absence of help to continue with her motherhood. Faced with these dilemmas we can lean towards one of these two options. The first, to opt (perhaps under the clothing of the preservation of the autonomy of the people), for a pretended respect to those decisions that, many times will be nothing but disinterest. The second is to adopt a position that is undoubtedly more expensive but more in line with what the value of every person demands: take charge of their difficulties and help them find alternatives. I believe that the latter is what the dignity of every person demands.