The Use of Human Dignity in Legal Argumentation: An Analysis of the Case Law of the Supreme Courts of Finland

ABSTRACT

The concept of human dignity is increasingly used in legal reasoning, albeit that we still lack a clear understanding of its function in that sphere. In European countries, its use is influenced by varying national and regional European applications in courts. This article conducts a theoretically oriented empirical analysis of the case law of the two supreme courts of Finland to canvass the use of human dignity in the argumentation of these courts. The analysis is based on 92 cases from the Supreme Administrative Court and 36 from the Supreme Court that refer to human dignity in the reasoning part of the judgement. Three different uses of human dignity in legal argumentation are recognised and defined: restrictive, enabling and compensatory. These uses are arguably also recognisable in other jurisdictions. However, the compensatory use of human dignity, in the context of tort law – in the form of damages for emotional suffering – in particular, appears not to have been extensively discussed before. The article argues that the different uses of human dignity in legal argumentation reflect many ideas traditionally connected with the concept. For example, the close connections between dignity and autonomy, and dignity and vulnerability, emerge from the case law.

KEYWORDS:

• Human dignity
• Finland
• empirical case law analysis
• legal argumentation
• inhuman and degrading treatment
• autonomy
• vulnerability
• damages for emotional suffering

1. Introduction

Nowadays several legal scenes entail reasoning with the concept of human dignity. However, we still lack clear understanding of how this concept functions in courts’ reasoning. This is unsurprising, considering the peculiar nature of the concept, ably described by Catherine Dupré:

 …  it was not obvious that such an abstract concept, which crystallised so many and often inconsistent dreams, aspirations and values, could be used by judges at all, especially considering that its legal nature (neither clearly a subjective right, nor a clear-cut value or principle) did not facilitate their task.¹

Different views exist regarding the meaning and usefulness of the concept of human dignity in adjudication. Some consider reasoning with the concept as being so discretional and varied in nature that it represents no more than an empty shell.² The concept can also be regarded as altogether useless.³ Others acknowledge that it acquires different meanings in different contexts, but see patterns emerging from the developing case law. From this perspective, the concept of dignity is sufficiently coherent and substantive to be capable of guiding the courts.⁴ Some also find a theoretical multidimensional narrative that reveals the concept as having a rich and distinctive constitutional meaning.⁵

This article aims to increase understanding about the use of the concept of human dignity in legal argumentation. It provides a theoretically oriented empirical analysis on the use of the concept in the case law of the Finnish supreme courts. In other words, it is studied how the notion human dignity (Finnish: ihmisarvo) is actually used in case law, and how these uses relate to some more theoretical accounts on human dignity. On the one hand, the analysis seeks to fill the clear void in the Finnish legal scholarship regarding the study of human dignity. On the other hand, the aim is to contribute to the general understanding concerning human dignity by distinguishing different ways of using the concept. The overall approach of the article is more empirical than theoretical. However, exploring the current practical application of the concept will hopefully also enrich deeper theoretical discussions about human dignity.

Besides the varied uses of the concept in the legal praxis which cause challenges in understanding the meaning and scope of human dignity, the concept also has a theoretically controversial nature. It is not for example clear from the outset if we talk of a right, a principle, or a foundational or some other type of defining value. The premise in this article is that we can nevertheless discern some general patterns in the ways that courts use human dignity, without first defining its precise conceptual or legal nature or meaning.⁶ The concept can accommodate different types of recourses to it.

It would clearly be overly optimistic to expect to find a single definitive meaning of the concept of human dignity. However, knowing the patterns of its use offers insight into it, boosts the legal system’s self-knowledge and helps in systematising the legal praxis concerning dignity. After all, notwithstanding its elusive nature, the concept is nowadays used in solving a wide range of questions in many jurisdictions.⁷ Based on an empirical analysis of case law, this article distinguishes three uses of human dignity in Finland. Although the article aims to gain a better understanding of human dignity in the Finnish legal context, the analysis is also of general interest. The empirical approach of the article presents one way of analysing the use of human dignity and could encourage similar analyses in other jurisdictions. Also, the applicability of the three uses identified in this article can be tested in other contexts.

The three distinct uses of human dignity that are distinguished in the Finnish supreme courts’ argumentation are restrictive use, enabling use and compensatory use. The terminology concerning the labelling is my own. The first two of these uses clearly connect with traditional accounts of human dignity that conceive it as a safeguard of autonomy and personal liberty: either from a generally accepted individualistic perspective with characteristically negative state obligations (restrictive use); or from a more controversial social perspective including greater positive obligations (enabling use). The third use is harder to connect with the existing human dignity scholarship and defining this use is the most interesting finding of my analysis. The compensatory use emerges in tort law matters in relation to damages for emotional suffering. However, the cases also include interesting public perspectives. For future study of human dignity, it would be especially interesting to explore more this issue of compensating harms caused to human dignity of individuals.

Since this article addresses the use of human dignity in Finnish case law, a few words about the Finnish legal system and its handling of cases are in order. Finland is often mentioned in academic discussion on human dignity, which features in four different sections in the Finnish Constitution (731/1999). In some ways Finland offers a textbook example in including modern human dignity based human rights thinking both in its Constitution, which is relatively new, and in its overall legal system,⁸ as the concept features in more than 20 Acts of Parliament.⁹

Section 1(2) of the Constitution protects the general principle of the inviolability of human dignity: ‘The constitution shall guarantee the inviolability of human dignity and the freedom and rights of the individual and promote justice in society.’ Section 7(2) lays down a right against violations of human dignity in terms of undignified treatment: ‘No one shall be sentenced to death, tortured or otherwise treated in a manner violating human dignity.’ Section 9(4) establishes a similar right in connection with the principle of non-refoulement: ‘A foreigner shall not be deported, extradited or returned to another country, if in consequence he or she is in danger of a death sentence, torture or other treatment violating human dignity.’ Section 19(1) establishes a social right referring to human dignity: ‘Those who cannot obtain the means necessary for a life of dignity have the right to receive indispensable subsistence and care.’

Although the legislator has established the general requirements as to the inviolability of human dignity, the courts need to resolve how to secure this in specific disputes. It has been argued that relatively few cases where the Constitutional Law Committee or the courts have meaningfully utilised the concept of human dignity while defining rights or reconciling disputes have arisen in Finland.¹⁰ It is certainly true that the concept of dignity has not taken a very perspicuous role in Finnish cases. And, as Ojanen points out, human dignity has not received much attention in Finnish legal literature, which is another reason why its definition and scope of use remain indeterminate.¹¹

The highest judicial power in Finland is divided between the Supreme Administrative Court (korkein hallinto-oikeus, KHO), which handles administrative matters; and the Supreme Court (korkein oikeus, KKO), which handles civil and criminal matters. Both these courts are here referred to as simply ‘supreme courts’. Human dignity belongs to the vocabulary of both courts and thus both courts’ case law is analysed. The Finnish legal system lacks a constitutional court, thus the most influential court rulings concerning human dignity come from these two courts.¹²

The analysis is based on a reading of all precedents of the two supreme courts that mention human dignity, covering the period from 2000 to the end of 2020 for the Supreme Administrative Court and from 1993 to the end of 2020 for the Supreme Court. In relation to the Supreme Administrative Court, the search produced 120 cases, of which 92 included the term in the reasoning; while in relation to the Supreme Court, the figures were 41 and 36 respectively. The analysis is based on these 128 judgements in which the reasoning part includes the concept.¹³ Because the courts typically cite relevant provisions in a relatively lengthy manner, many of the references to dignity are simply reiterations of the relevant legal provisions. These explicit references are easily spotted and there is usually little to analyse: the reference to human dignity is not further elaborated in the reasoning.¹⁴ The Finnish legal culture is also reflected in the close connection established between the courts’ use of ‘human dignity’ and an existing legal source of some type, in the form of an act, the travaux préparatoires for an act or European legislation or case law. In its strict adherence to legal sources where human dignity is discussed, the Finnish approach departs from the international practice where judges have a more active role in constructing human dignity.¹⁵ However, European influences will probably gradually change the Finnish courts’ argumentation approach too.¹⁶

In view of the above, my analysis focuses on cases in which the concept of human dignity was explicitly utilised, and which reveal something essential about its use. The cases that most clearly exemplify patterns in the judicial use of human dignity revolve around three different substantive themes: law on aliens, guardianship services, and liability for damages for emotional suffering. The article leans strongly on cases selected from these substantive areas – focusing, however, on the theoretical content of the concept as exemplified in the cases rather than on their factual particularities. There are other cases concerning different themes, such as freedom of religion for example, that contain explicit human dignity argumentation. In addition, many cases show a subtle recourse to human dignity especially in the enabling sense. For the sake of clarity, the article is structured around the specific case groups mentioned above. Once the modes of uses are outlined with the help of this grouping, it becomes easier to recognise the mode of use as well as the possible interplay between the uses also in other contexts.

The sections that follow present the three uses, while section 5 contains concluding remarks.

2. The Restrictive Use

2.1. The nature of the arguments

The first distinctive use of human dignity in legal argumentation can be labelled restrictive and may also be described as negative in nature.¹⁷ The idea is to impose restrictions on the treatment of human beings on the grounds of human dignity. The distinction between the restrictive and the enabling use thus corresponds to the common theoretical approach to human rights that differentiates between positive and negative state obligations.¹⁸ From the individual’s perspective, this negative side reflects ‘ … horror at the violation of human dignity’.¹⁹

Since the first references to human dignity in the human rights context came after the world wars, its function has been understood to guard against depriving acts. The political core of human dignity is most obviously connected with the absolute prohibitions on killing, torture and the infliction of inhuman and degrading treatment or punishment, as well as bans on slavery and servitude.²⁰ These prohibitions are clearly visible in all the most important human rights treaties including the European Convention of Human Rights (ECHR) and the Charter of Fundamental Rights of the European Union (the Charter).²¹ Prohibitions of the most blatant affronts to humanity do not allow for limitation or derogation. The restrictive use of human dignity typically reflects these types of considerations. When human dignity is used in the absolute restrictive sense (as outlined below), the central question is whether the conditions of the prohibition are met. The absolute form of restrictions and the undisputable normative consequences thus rise from the commitment to avoid the ‘unspeakable evil’.²²

While ‘absolute prohibitions’ may be the most well-known use of human dignity in legal argumentation, the restrictive use is not limited to this. As the analysis of the case law reveals, human dignity is also used in a balancing manner in restrictive arguments. In other words, the recourses to human dignity are not limited to avoiding the most unspeakable evils, although, to be sure, these are the most essential requirements of the inviolability of human dignity. Instead, there are also other, to some extent normatively less demanding, objectives that are pursued by invoking a restrictive human dignity argument. The restrictive recourses to human dignity form a type of continuum from absolute basic requirements to essential but more flexible and advanced demands.²³ These observations about the use of the concept fit together with the general doctrine of human rights and constitutional rights that conceives these rights as having an essential inviolable core on the one hand, and a broader area of application which allows restrictions and balancing, on the other. The core can thus be described to function like a rule and the broader right like a principle.²⁴

2.2. Absolute prohibitions

Restrictive use in the sense of absolute prohibitions can clearly be seen in cases dealing with law on aliens. This is to be expected since the relevant national legislation recognises the rule of non-refoulement and contains additional references to human dignity. The European influence is strong here due to the harmonising effect of EU legislation on the treatment of asylum-seekers. Both the CJEU and the ECtHR have also given important judgments concerning human dignity in this field.²⁵

The right to asylum and prohibitions concerning, for instance, deportation and extradition are tightly connected with the absolute prohibitions on treating people in an undignified manner. These prohibitions restrict the state’s autonomy to decide on the conditions concerning movement on and residence in its territory. In this context, references to human dignity indicate the minimum protection that everybody is entitled to. We must speak of a minimum since, as regards absolute prohibitions, the scope of a norm cannot be wide. If there is an absolute norm, it needs to be very strictly defined so that it can be reconciled with other rights – a ‘ …  narrow scope is the price of the elevation to an absolute rank’.²⁶ Practically speaking, even the achievement of these minimums alone has been questioned – the vulnerable status of refugees is particularly well known.²⁷

The use of an absolute prohibition also means that there is no room for deliberation if the preconditions for applying the norm are met.²⁸ Thus, the first observation when studying judgments regarding a threat of degrading or inhuman treatment is their highly casuistic nature. The particularities of situations are presented to decide the nature of the threat: aside from the legal issues involved, the rulings are strongly tied to the facts of the case. The concept of human dignity is not explicitly used in evaluating the facts, rather whether the threat to it is substantiated or not is simply stated. To some extent, it seems that the courts use an interpretative strategy that entails describing practices that constitute violations of human dignity and then use these descriptions in subsequent cases. This might originate from the ECtHR’s strong influence and style of reasoning: its Article 3 jurisprudence has a significant impact on these types of judgment.²⁹ The method of creating and following descriptions of practices does not, however, suffice to explain the Finnish case law, which does not simply offer lists of conditions that constitute a violation of human dignity. Instead, these descriptions are used only to help identify relevant themes for this evaluation.

The most obvious themes in considering risks to human dignity concern threats of violence or loss of personal safety.³⁰ The protection of personal vulnerabilities, most clearly those related to the health of the person, including mental health, are also central. However, in the context of restrictive use, health is considered from the perspective of active impairment or inadequate concern. The arguments in this connection do not demand the improvement of a person’s health, although where sick people are concerned the issue of minimally adequate healthcare may be one of the yardsticks used in evaluating whether there has been a failure to prevent violations of human dignity.³¹ Negative and positive health concerns naturally have some themes in common and both also have a close connection with, for example, the human right to life.³² The difference to ‘the human right to health’, or more precisely to the enjoyment of the highest attainable standard of health, is however apparent.

It is not always easy to infer from the case law which attributes are decisive in a given case. It is, for example, stated that age and ‘other factors’ can cause special vulnerability, but that reveals little as to the reasoning in a specific case.³³ On the other hand, sometimes quite detailed accounts of vulnerable situations are given: concerning victims of human trafficking, the risk of re-victimisation when they are returned to their home countries is assessed in detail.³⁴ Falls in personal living standards is mentioned as a factor that does not as such constitute a violation of human dignity. Nevertheless there is a minimum standard that must be met.³⁵ There is also a relatively strict understanding about the amount of personal space that is required for a dignified life in prison conditions.³⁶ In addition, it seems that support from social groups is a part of assessing the possibilities of achieving living conditions that reflect human dignity or capability to avoid severe threats.³⁷ However, the situation under assessment has to be very severe in order to meet the criteria for a violation of human dignity.³⁸ Therefore, the legal concept of human dignity is not necessarily strongly linked with moral intuitions about dignified life. In this context, the restrictions are designed to offer protection only against the most depriving conditions, not against any kind of bad treatment. It is a ‘particular sort of badness’ that is forbidden regarding human dignity.³⁹

Thus, the ‘never again’ spirit as ‘a worst-case scenario’ as well as the social climate have tended to keep the threshold of severity at a high level. The strict restrictive use of the concept does not, however, require that the prohibitions or their required intensity stay the same over the course of time. For example, ECtHR rulings are seen to reflect ‘ …  a particular construction of time, which aims to increase the distance between the past and the present, by lowering the threshold of severity, and to pave the way towards a better future’.⁴⁰ The limited Finnish court practice does not in itself offer a description of progress as to the content of these prohibitions. However, the European courts guide these interpretations. Since the prohibitive use addresses the common core of humanity and brings about the most absolute and non-negotiable effects, it is natural that this use is the most tightly connected to European practice and shared values.

At the very least, the concept of human dignity provides guidance for assessing different situations. The courts know that they must pay attention to specific features of the case and conduct detailed factual reasoning. Both the rule of law and respect for human dignity require that any person who claims that their dignity has been violated must have the opportunity to have their case evaluated.⁴¹

2.3. The restrictive use and balancing

The judgment of the Supreme Administrative Court 2018:52 offers a clear illustration of restrictive use of human dignity that entails balancing rights against each other. Human dignity was addressed in that case in the context of establishing requirements on procedures regarding the evaluation of the right to asylum. The case deals with an application for international protection on the ground of sexual orientation. The main aspect concerning human dignity dealt with the acceptance and value of evidence submitted by the applicant to support his application. These materials contained a visual presentation of the applicant in an intimate situation.

The argumentation regarding human dignity focuses on balancing protection of human dignity (and privacy) against protection of the applicant’s procedural rights, i.e. the principle of free presentation of evidence. The recourse to human dignity in the Finnish court’s reasoning originates from the Court of Justice of the European Union (CJEU). In its judgment in A and Others⁴² the CJEU considered the limits that the national authorities must observe in assessing asylum applications based on fear of persecution on the grounds of sexual orientation. It ruled that Article 1 of the Charter, which protects the inviolability of human dignity, impacts on these procedures to the extent that the authorities cannot accept evidence entailing, for example, performance of ‘homosexual acts’, ‘ …  submission to “tests” with a view to establishing his homosexuality’ or ‘ …  the production by him of films of such acts’.⁴³

The national court followed the CJEU’s lead in stating that submission of this type of evidence could be problematic. Even if the filming were voluntary, it would be likely to violate the applicant’s human dignity if such evidence were to be required. However, when the national court reflected on the possibilities of totally declining to accept the evidence delivered on the applicant’s own initiative to support his claim, it departed from the CJEU’s approach. The Supreme Administrative Court concluded that it could not decline to accept this type of material, while emphasising its irrelevance to the outcome of the case. In taking this line, the Court was probably pursuing the same objective as the CJEU, namely seeking to avoid encouraging other applicants to offer such evidence, leading to a de facto impression that it was required.⁴⁴

While the case also contains casuistic elements, the argumentation concerning human dignity seems to establish a type of precedent norm regarding the balance between human dignity and the principle of free presentation of evidence.⁴⁵ The use of human dignity as an argument was restrictive in nature, but the claim was not given absolute weight. It was presented as a pro-restrictions argument but was outweighed by others in this situation. The requiring of similar material would have shifted the balance in favour of the human dignity argument. In short, when the restrictive arguments do not reach the threshold of absolute prohibitions, the argumentation can take a proportionate form in which dignity can be weighed against other important considerations.

The national court gave primary weight to individual consent, and the constraining function of human dignity was not emphasised to the same extent as in the CJEU’s judgment. When human dignity acts as a constraint, it can limit the individual’s freedom to decide for herself in order to protect her humanity at a different level.⁴⁶ In the majority of cases human dignity is used in such a way as to get the applicant’s claim heard and rights secured. Sometimes, however, the use can be criticised from the applicant’s point of view. If the constraining use of human dignity is given too much space, the individual’s other rights may be jeopardised. These problems connected with the concept of human dignity are well known at least in exceptional cases, yet more attention needs to be paid to them, especially in routine cases.⁴⁷ A and Others, which concerned sexual orientation, involved such elements. It seems that human dignity is used to prohibit opportunities to reveal matters commonly seen as extremely intimate and private. In this context, the concept’s content accordingly comes close to the right to privacy, as well as to dignity in the sense of a person’s honour or reputation rather than their inherent value.⁴⁸ It may even have a conservative tinge, in terms of aiming to protect public decency. Against this backdrop, we might question the use of ‘human dignity’ altogether and suggest that the more specific concepts outlined above be used instead. However, I regard the use of ‘human dignity’ argumentation justifiable. It functions to prevent the subordination of people for administrative causes – in the case at hand, to prevent a situation where government officials require the submission of videos and photos.⁴⁹

We can identify arguments in the case law in which human dignity functions as a value concept expressing ethical perspectives on humanity and human worth. Each of the three categories of argumentative use of human dignity here identified contain cases that reveal the close relationship between the legal concept of human dignity and some type of social morality or ‘common’ sense of justice. The tendency to rely on different types of theoretical assumptions when using the concept of human dignity thus transpires from the case law. Human dignity can be described as an essentially contested concept (along for example with democracy and equality) and thus there might be irresolvable conflicts about its meaning. These types of concepts presuppose theories to give them content.⁵⁰ It is of course difficult to pinpoint the exact role of these theoretical perspectives or the connection between law and morality in general. Nevertheless, as a legal concept human dignity is clearly intertwined with social morality.⁵¹ This does not imply any particular moral theory, but it does imply the recognition of non-legal obligations that connect with legal ones. For instance, Daly describes how Article 1 of the Universal Declaration of Human Rights, which encourages human beings to ‘ …  act towards one another in a spirit of brotherhood’, imposes a moral obligation on everybody to recognise the dignity of everyone else.⁵² In the context of inhuman and degrading treatment, Waldron suggests a ‘moral reading’ that includes some ‘shared sense among us’ on how humans should ‘respond’ to other humans, ‘ …  what humans should be expected to endure’ and ‘ …  what it is to respond appropriately to the elementary exigencies of human life’.⁵³ In the category of restrictive use, human dignity conceived as this type of value concept played a distinct argumentative role in judgment KKO 2012:66.

This case dealt with the abuse of a victim of sex trafficking. In assessing the level of intent as a condition for this crime, the court referred to human dignity. The argumentation starts by acknowledging that the instrumental use of a human being as a commodity in a manner characteristic of human trafficking and pandering is clearly a violation of human dignity. Therefore, the protection of people trafficked for sex is important as a matter of principle.⁵⁴ The penalty provision for the abuse of a victim of sex trafficking is in part based on this need to protect people from becoming victims of crimes that deeply violate their dignity. The underlying objective of the penalty provision is indicative of a low intervention threshold and thus justify a lower condition of intention in relation to this type of crime.⁵⁵ The court weighed the need to protect human dignity against the requirements of the principles of legality and legal certainty. It concluded that there was no reason to deviate from the well-established definition of intent in the case law, meaning that the human dignity argument put forward did not prevail.⁵⁶ The case has, however, incentivised legislative change.⁵⁷ Currently the Criminal Code of Finland (39/1889) provides that a person who has cause to suspect that the person is the victim of pandering or human trafficking is also guilty of the offence of abuse of a victim of sex trafficking.

In summary, this analysis shows that in its restrictive use, human dignity is a useful and weighty but not automatically conclusive argument. Its precise content, weight and function is context-dependent. The typical features of human dignity arguments in the restrictive sense are concreteness and factuality of argumentation, a high level of severity regarding absolute prohibitions and a move towards principle-natured reasoning in relation to multidimensional issues.

3. The Enabling Use

3.1. The rationale of protection

In its second distinctive sense, human dignity functions in an enabling manner in legal argumentation. This could also be called the positive use of human dignity.⁵⁸ From an individual’s perspective, this positive sense describes ‘ …  something that virtually all people want’.⁵⁹ The aim is to empower people and promote conditions for autonomous life. As Dupré clarifies:

 …  power relationship between individuals and the state, and its (re)balancing in favour of human beings, [is] a recurring issue in dignity case law. This is particularly clear in relation to people who are vulnerable for a range of reasons, such as terminal illness, mental or physical disability, or inability to earn a living. In all these cases, it is suggested that the dignity argument was raised in an attempt to foster a greater level of autonomy and quality of life for the applicants.⁶⁰

In line with these observations, the clearest examples of the enabling use can be found in judgments regarding guardianship services.⁶¹

The rationale of this use is to respect the rights that people have and not restrict them unnecessarily, even if the individual has for some reason a limited capacity to act. The objective is to guarantee people the means to set their own ends in life. Both the enabling use and the restrictive use can be seen to argue for protection against totalitarian destructive influences, but by different means. The enabling use is not typically connected with evaluation of severity; instead, the operation can be quite subtle, and the effects proportionate. The aim is to respect and enable people to act as autonomous rights-holding agents.

3.2. Human dignity in cases concerning guardianship services

Human dignity explicitly features in the supreme court’s argumentation in judgments regarding guardianship services. Section 1(1) of the Guardianship Services Act (442/1999) provides that the objective of guardianship services is to look after the rights and interests of persons who cannot themselves take care of their financial affairs owing to incompetency, illness, absence or another reason. In this area of law, each of the three cases referring to human dignity address questions concerning a person’s capacity for self-determination. Consequently, it is natural to refer to human dignity, which is traditionally strongly connected to respect for individual autonomy and the capacity to make meaningful life choices.

The reference to human dignity in these cases arises from the basic principle of guardianship law and is further described in the travaux préparatoires, which the court utilised in its reasoning. The first observation to be made here is that relationship between human dignity and international human rights law and its value basis is clear in this context. The second concerns the formulation of the principle of respect for human dignity, which is framed as including the principles of necessity and proportionality in the organisation of guardianship services, the primary nature of the interests of the person under guardianship, and safeguarding the possibilities to participate in decision-making concerning oneself as well as decreasing stigmatising concepts in guardianship legislation. The principle of proportionality is also further defined: the rights of a person as a fully competent individual should not be limited more than is necessary in order to safeguard the person’s interests.⁶² These points also feature in the case law in relation to the substance of human dignity.

The Court referred to the requirements originating from the legislative materials in applying the Guardianship Services Act. It also elaborated upon how those elements are to be evaluated in concrete cases. For example, in judgment KKO 2005:2 the court stated that the principle of respect for human dignity must be considered when assessing whether the prerequisites for declaring a person to lack legal capacity have been satisfied. In assessing the requirements for incompetency, the court argued that human dignity requires that a threat to a person’s interests must be assessed from exactly that person’s point of view and not, for example, from the point of view of the flexibility or ease of the authority’s operations. In addition, the risk to these interests must be specific and specifically concern the interests of the client.⁶³ In case KKO 2009:7, the court emphasised that a person’s interests must be safeguarded against demands made by his/her children. This judgment also made clear the need to state specific facts to support claims being made. The requirement of acting only on necessity when restricting a person’s legal capacity leads to the requirement that the measures that the person has taken to arrange his/her affairs must be evaluated in a detailed manner. Specificity is also required in assessing whether the arrangements endanger the interests of the person in question.⁶⁴

Thus, general level statements about a person’s disadvantageous transactions are not sufficiently concrete to evidence risk to important interests. This requirement for specificity is common in relation to both the restrictive and enabling use of dignity in argumentation and in this context it is the restricting acts or conditions that must be justified. Dignity operates as a kind of opposite pole against which the evaluation must be measured. There may be valid reasons for restricting legal capacity but the need to respect human dignity imposes strict conditions upon so doing. In its enabling role, human dignity is used to empower the individual in question as far as possible.

The principle of respect for human dignity also demands that the perspective of the person whose rights are in question is considered in the court’s reasoning. This is a classical effect of human dignity: it emphasises individual rights in comparison with the public good.⁶⁵ Thus, it is not enough to declare a person incompetent because she/he is difficult to deal with and matters could be better taken care of in this way. Instead, it should be precisely shown how these problems in cooperation endanger the person’s interests. The courts have typically rejected applications for a declaration of incompetency if the reports submitted lack concreteness. Human dignity had a clear weight in these cases.⁶⁶

In KKO 2015:31, the dignity argumentation revolved around dismissing a guardian from his/her position on grounds concerning the organisation of guardianship services. It had been proposed that a new guardian from a different agency be appointed, but this was against the client’s wishes. Apart from the bureaucratic issues, the question was whether there was a specific reason for the guardian’s dismissal and whether the client’s opinion needed to be considered. The principle of respect for human dignity formed part of the arguments against the guardian’s dismissal. The court stated that although the client has no right to dictate who is appointed as guardian, their opinion must be given weight. This demand is based on the ability to participate in decision-making concerning oneself, which is a defining element of the principle of respect for human dignity. All the counterarguments, human dignity among them, had clear weight in the outcome of this case.⁶⁷

Dignity played a central role in these cases. The reasoning is also of good quality, in the sense that it is based on a substantively defined interpretation of human dignity. It is also of note that some more subtle impacts of the value of human dignity permeate the case law. The influence is not as visible as in the arguments in the case about sexual abuse, but in fact indiscernible at first sight. I refer here to the effects that legislative choices concerning phrasing and concepts used in statutes have on reasoning. The vocabulary utilised has subtle but meaningful consequences which the court enforces by adopting the same less stigmatising concepts: it is certainly not irrelevant, for example, that the court used the term ‘client’ instead of the outdated ‘ward of court’ in its reasoning. In this way, the court also respected human dignity in its word choices.

At a more theoretical level, these cases indicate that human dignity is understood in a very traditional sense, i.e. as having strong links with autonomy and participation. However, it should be noted that legal competence is not an either/or concept. Full legal capacity is not always required: competency can be supported and restricted at different levels, at all of which the principle of respect for human dignity must be considered. The autonomy that is protected is not conceived of as absolute, as the vulnerability of human functioning is recognised. Human vulnerability is also present in the third distinctive use of human dignity. The difference is that there the damage to human dignity has already occurred and must now be recognised and compensated.

4. The Compensatory Use

4.1. The rationale of the arguments

So far, we have identified two different types of use of human dignity, which reflect familiar theoretical aspects of the concept. The third type is less familiar in dignity scholarship: these arguments are compensatory in nature. Judgments concerning the award of damages for emotional suffering frame this use. In the two previous uses, the international influence has been clear. In this last category, the influence is less clear, and this use is also relatively novel in Finland. Similar types of argumentation also seem to exist elsewhere but have remained in the margins of the study of human dignity.⁶⁸ This use also reveals how private law and human rights interconnect and share the aim of protecting vulnerable individuals.⁶⁹ As discussed below, many of the familiar theoretical ideas about human dignity as a legal concept are also clearly embedded in compensatory arguments.

The rationale of these arguments is to show respect for the human dignity of the victim of a certain kind of violation through compensation and recognition of this violation. Because the infringements have already taken place when the compensation is considered, the function of human dignity is not primarily protective but rather restorative. The focus in this use is on the ‘inner world’ of the injured person – in the form of emotional suffering.⁷⁰ Human dignity cannot thus be defined only by recourse to autonomy or human beings’ rational qualities: the emotional side must also be considered. However, the focus is not on individual experiences as such. Instead the objective side of experiences is central.

The compensatory use operates in two forms. The first form is devoted to measuring the harm caused to the victim’s human dignity. This task relates both to the awarding of damages and to the amount paid, which are interlinked but separate issues. The second takes dignity as the explicit object of protection in terms of violations that give rise to liability for damages. Here the compensatory scheme is defined by the vocabulary of human dignity – from the objective of the offence to the assessment of damages.

4.2. The background to the use

Cases on liability in damages for emotional suffering (Finnish: kärsimys) include several references to human dignity. Before 2006 liability in damages for this kind of emotional distress concerned only offences against liberty, honour or domestic peace or another comparable offence. Thus victims of abuse, for example, were not entitled to damages on this account. In 2006 the Tort Liability Act (412/1974) was revised and Chapter 5, Section 6 (509/2004) now contains four paragraphs for ruling compensation for emotional suffering. Section 6(1) provides that compensation is to be awarded to those

1. whose freedom, peace, honour or private life has been violated by a punishable act;

2. who has been discriminated against by a punishable act;

3. whose personal integrity has been intentionally or through gross negligence seriously violated;

4. whose human dignity has been intentionally or through gross negligence seriously violated in another manner comparable to the violations referred to in paragraphs (1)–(3).

Section 6(2) provides that compensation is to be assessed on the basis of the emotional suffering the infringement is likely to cause, taking into account in particular the nature of the infringement, the position of the injured party, the relationship between the injuring party and the injured party and the publicity of the infringement.

As we can see, the fourth paragraph of the provision explicitly mentions human dignity. However, it is the entire provision, not only this direct reference, that is important in the case law. The concept of human dignity is built into the overall system governing the award of damages for emotional suffering: the provision’s general aim is to provide recompense in respect of harm done to the individuals’ human dignity and self-esteem.⁷¹ Examples of emotional suffering include feelings of fear, humiliation, shame or grief.⁷²

The court has stated that improving the situation of victims of gross violent crimes was a key reason for extending liability in the 2006 reform. However, the legislator also intended the extension to have a limited impact. This comes out clearly in the case law. The court concludes that the revision did not aim to ensure that victims of abuse are awarded compensation for emotional suffering as a rule.⁷³ This seems to be in line with the requirement of severity that is typical in finding a violation of human dignity, as was shown in the discussion of restrictive use above. Nevertheless, the extension improves law’s ability to recognise and redress the emotional suffering of victims and thus better align it with human experience and social reality. For our purposes, it is key that the concept used in this task is ‘human dignity’.

Until the revision, the nearest counterpart for the compensation of emotional suffering regarding personal integrity was entitlement to damages to cover pain and suffering (Finnish: kipu ja särky) which are classified as personal injuries and are thus of a different nature. Only the victim of an unusually violent assault was entitled to damages for emotional suffering that was comparable to pain and suffering as personal injuries or included in those categories.⁷⁴ The Supreme Court mentions as an example of this tactic its own judgment 1994:62. The change in the doctrine reflects some relevant aspects of the use of human dignity in the context of tort law. The 1994 case addressed an assault where the victim was, among other things, set on fire. Apart from other damages, such as those based on medical costs, the victim was compensated for physical pain and suffering – which connects with the court’s early versions of dignity argumentation. The court also indicated that it was acceptable to use the norms and guidelines of the Traffic Accident Board (Liikennevahinkolautakunta) when awarding damages in intentional crimes, adding, however, that in the case at hand there were reasons to depart from the schematic solution these provided. The court reasoned that because the act that caused the victim’s injuries displayed such cruelty and disregard for the human dignity of the victim that it was likely to increase the emotional suffering connected with the physical pain and suffering.⁷⁵ In other words, the physical injuries did not tell the whole story. It was this increased suffering as well as the social and ethical values of the society that led the court to raise the amount of damages that were awarded.

The adopted doctrine resembles a view, also formulated in legal literature, of human dignity as an expressive norm: ‘ …  whether an act disrespects someone’s dignity depends on the meaning that such act expresses.’⁷⁶ There seems to be an intuitive need for a concept of this kind that encompasses the full spectrum of human experience of injuries. The background to it again emphasises the dual nature of human dignity as both a legal and a value concept. Human dignity seems to communicate ‘a sense of justice’ or the most fundamental moral requirements into the legal sphere.⁷⁷

4.3. The twofold measuring function

Human dignity is utilised in a specific way in disputes about liability. First, it relates to the seriousness of the violations in the two latter grounds for awarding damages, namely violations of personal integrity and human dignity (paragraphs 3 and 4). The right to damages for emotional suffering on these grounds only exists when the violation has been severe. Regarding violation of personal integrity, the court has for example stated that awards of damages under this head require that the act includes ‘ …  special characteristics that seriously violate the human dignity of the victim’.⁷⁸ So the severity is defined by how essentially or fundamentally the act violates the victim’s human dignity. Thus, there is a circularity in the reasoning process: the violation of integrity or dignity must be severe, but severity is determined by reference to the seriousness of the violation of dignity.

Examples of seriousness include especially harsh, cruel or humiliating ways of committing the acts.⁷⁹ Furthermore the unpredictability and randomness of violence has been viewed as increasing the seriousness of already harsh and cruel acts.⁸⁰ However, when the violent act under scrutiny constitutes excessive self-defence, this motive affects the ruling: the court has not viewed an act as being harsh, cruel or humiliating, even though it was life-threatening, when its cause lay in the victim’s own threatening behaviour.⁸¹ The court has held that the degree of severity of physical injuries does not in itself trigger a right to damages. Even if the violence causes only minor injuries, it may include elements that show special cruelty, or are subordinating and demeaning. The court also mentions the recurrence of the acts, the mental violence involved, and the atmosphere of fear they perpetuate. Especially in family relations and other close relationships these features may constitute a serious violation of the victim’s human dignity.⁸² It nevertheless seems clear that the bar for the seriousness of violation is high. Even if the act was clearly intended to intimidate and humiliate the victim, it may not be serious enough to exceed the threshold. For example, in one case the victim’s being fed with soap and sprayed with water in connection with an assault did not suffice to fulfil the requirements of paragraph 3 or 4.⁸³

These examples from the case law reveal how human dignity functions as a measuring device when the seriousness of the infringing acts is considered. It is a factor in deciding whether to award damages. The measuring function also comes into play in deciding on the amount of damages to be awarded. The court has stated that compensation for emotional suffering is based on and aims to recompense the violation that has occurred in respect of the injured party’s human dignity and self-esteem. Thus, the amount of compensation must be assessed in relation to that objective. Because the amount or the degree of intensity of the emotional reaction of distress cannot be observed or measured in financial terms, it suffices to conclude that typically the act would cause such suffering.⁸⁴ This resembles Khaitan’s account of human dignity as an expressive norm:

Expressive norms presuppose that (at least some) actions express meanings which are determinable with an acceptable measure of objectivity; and that meanings expressed by actions matter morally qua such expression, i.e. independently of their consequences or other (non-expressive) characteristics.⁸⁵

The court notes that damages for emotional suffering should be based on factors capable of objective assessment, such as the nature of the infringed legal interest and the manner in which the infringement was committed. In this phase, the evaluation also focuses on the nature of the act and not exactly on the suffering as an experienced emotion.⁸⁶ The court has indicated that the normal amount of compensation can be increased if the violation involved a particularly crude, cruel or humiliating act. Furthermore, the subordinated, defenceless, or dependent situation of the victim in relation to the injuring party may increase the level of damages awarded. Even though the decision-making is highly discretional in these matters, the objective must be to establish a practice that is as uniform as possible.⁸⁷

In the Finnish model, the general guidelines of the Advisory Board on Personal Injury Matters (Henkilövahinkoasiain neuvottelukunta) are intended to help achieve a uniform compensation practice. However, the court must always base its assessment on the distinctive features of the case, for which reason evaluation of the cruelty involved in infringements of dignity will remain highly discretional notwithstanding the guidelines. Human dignity operates again as a measuring device concerning the ‘amount’ of injury to be compensated – and thus also of the sum that represents suitable compensation.

The way in which the reasoning described above combines value judgements with assessment of the nature of each act, factual features and general guidelines is intriguing. The court practice offers an informative picture of the matters taken into consideration in this context. However, the case law also includes a number of dissenting opinions, which reflects the challenges in applying this still quite discretional concept.

4.4. Human dignity as the object of legal protection

Paragraph 4 of Chapter 5, Section 6 of the revised Tort Liability Act is included in the provision concerning emotional suffering and provides that compensation for the suffering caused by infringement is awarded to those whose human dignity has been intentionally or through gross negligence seriously violated in a manner comparable to the violations referred to in paragraphs (1)–(3). In this context human dignity not only has a measuring function but is also the direct object of legal protection that grounds the claim for damages. The case law indicates that the scope of application of paragraph 4 is intended to be narrow and the applicability of other grounds for damages should be assessed first.⁸⁸ The Supreme Court has not yet awarded any damages based solely on violation of human dignity. Therefore, it is unclear what infringements will fall under this category.⁸⁹

Lack of clarity as to the applicability of human dignity as the basis of violation may obscure the paragraph’s purpose. However, it becomes clearer if we consider that the concept of human dignity has the merit of being able to react to new threats to fundamental rights. The substance of ‘human dignity’ is open to interpretation, and thus applicable to novel situations.⁹⁰ Its adoption as a separate ground for awarding damages can be seen as preparatory for violations of rights that cannot yet be known. This idea is further elaborated in the travaux préparatoires for reform of the Tort Liability Act. The flexibility of this conceptual approach and sound legal development are background reasons for recourse to human dignity. Various concrete examples of situations where violation of human dignity could function as a basis for awarding damages are given. Technical developments might enable new types of violations of privacy. Scientific developments may generate unforeseen threats directed at the person, for example discrimination on the grounds of genetic signature. In addition, societal change or change in social values may reveal cases in relation to which the penal provisions are outdated. Thus, the concept of human dignity serves here as a dynamic concept that can help in responding to future issues that call for a legal response, but do not yet have a clear legal solution.⁹¹

5. Conclusions

This article has analysed the current use of the concept of human dignity in the argumentation of the two Finnish supreme courts. Three distinct categories of use are identified in the case law. It can be concluded that despite variation in respect of references to human dignity, distinct useful common approaches can be discerned.

The content of the concept does not seem hopelessly indeterminate. It also seems clear that human dignity has a strong normative meaning in many cases. In addition, elements of reasoning exist – such as the need for specificity and adopting the perspective of the individual whose rights are at stake – that guide the use of human dignity. Moreover, in relation to the concern that human dignity will present an excessively weighty argument that will prevent progress, it can be said that the weight of human dignity arguments does not seem to form any insurmountable obstacle for forward-looking reasoning. Instead, in many cases human dignity is used in a similar proportionate way as other principle-based legal concepts or norms, and the threshold of severity limits the possibilities to apply human dignity in arguments.

However, the use of human dignity as a legal concept includes a backup plan to address serious future challenges. In the Finnish context this function of human dignity is clearest in legal reform concerning liability for damages. However, dignity had also played an important, dynamic role in relation to the protection of victims of sexual trafficking and in the vocabulary and spirit of guardianship law. The same ability to adjust to future cases characterises the concept of human dignity in general. Its use can be seen to reflect deep cultural and moral values which can themselves gradually adjust to answer new situations and thus guide legal interpretation. That said, although human dignity can be balanced in changing situations, it still has an absolute core in protecting individuals’ most important rights. This flexible combination of aspirational and minimal requirements constitutes the appeal and value of dignity arguments. However, human dignity cannot offer a general response to all threats without losing its meaning. Instead, many different and more precisely formulated concepts and principles are needed to uphold predictable and efficient legal argumentation. Therefore, conditions such as the severity of situations, the ‘particular sort of badness’ involved, and a narrow scope of interpretation are present in the case law. Dignity nonetheless offers the ability to take a nuanced perspective on individuals’ varying rights or needs in different contexts and includes a perception of human vulnerability and the multifaceted nature of human experience.

Despite the empirical approach to the case law referring to the concept of human dignity, this study has also exposed different types of theoretical issues in need of elaboration. It is reassuring to notice that the theory and legal praxis reflect each other at least to some extent. Analysing the case law showed for example that same substantive ideas, such as vulnerability and autonomy, occur in both. On the other hand, considering the predominant theoretical accounts on human dignity, it was somewhat surprising to discover how advanced the case law was especially in its handling of injuries concerning human dignity. These findings could be useful also for the theoretical accounts of human dignity. In addition, theoretical study still seems to be needed to elaborate conceptual issues such as is there one or many concepts of dignity at play in the adjudication. Similarly, while the way in which the concept of human dignity is used in the case law seems to reflect the general doctrine of human rights about core obligations, more research is needed about the correspondence between theory and legal praxis from this perspective. In view of the peculiar role of human dignity in the system of human rights, the theory would benefit from elaborating not only the core requirements concerning human dignity but also the relationship between human dignity and the essential core areas of other human rights.

Acknowledgements

I would like to thank Senior lecturer Maija Aalto-Heinilä and Professor Toomas Kotkas as well as two anonymous reviewers for their valuable comments.

Notes

1 Catherine Dupré, The Age of Dignity: Human Rights and Constitutionalism in Europe (Hart Publishing 2015) 85.

2 Christopher McCrudden, ‘Human Dignity and Judicial Interpretation of Human Rights’ (2008) 19(4) European Journal of International Law 655.

3 Ruth Macklin, ‘Human Dignity is a Useless Concept’ (2003) 327(7429) British Medical Journal 1419.

4 Erin Daly, Dignity Rights: Courts, Constitutions, and the Worth of the Human Person (University of Pennsylvania Press 2012) (ProQuest Ebook Central: updated edition).

5 Dupré, The Age of Dignity (n 1) esp 17.

6 The question whether human dignity should be understood for example as a single concept or many different concepts or as an ‘organising idea’ is left aside. See for example Mary Neal, ‘“Not Gods But Animals”: Human Dignity and Vulnerable Subjecthood’ (2012) 33 Liverpool Law Review 177. Nevertheless, the patterns found in the use of human dignity in the case law could also be further analysed from this perspective.

7 It is this mismatch between the indeterminacy/essentially contested nature of the concept and its constant use in judicial reasoning that makes the study of this use especially intriguing. See also Jorge Silva Sampaio, ‘Human Dignity’s Contestedness. Analytical Reconstruction of a Prohibition of Instrumentalization and a Reassessment of the Aviation Security Act Case’ in Miguel Nogueira de Brito and others (eds), The Role of Legal Argumentation and Human Dignity in Constitutional Courts: Proceedings of the Special Workshops Held at the 28th World Congress of the International Association for Philosophy of Law and Social Philosophy in Lisbon, 2017 (Franz Steiner Verlag 2019) 173–212.

8 The reform of fundamental rights was conducted in 1995, with the reformed provisions being later incorporated into the new constitution, which entered into force in 2000.

9 See also Tuomas Ojanen, ‘Human Dignity in Finland’ in Paolo Becchi and Klaus Mathis (eds), Handbook of Human Dignity in Europe (Springer 2019) 245–58.

10 Ibid. 255.

11 Ibid. 255–56.

12 For further insight into the Finnish system, see e.g. Jaakko Husa, ‘Panorama of World’s Legal Systems: Focusing on Finland’ in Kimmo Nuotio, Sakari Melander and Merita Huomo-Kettunen (eds), Introduction to Finnish Law and Legal Culture (Unigrafia 2012) 5–18; Jaakko Husa, The Constitution of Finland: A Contextual Analysis (Hart Publishing 2011); Juha Lavapuro, Tuomas Ojanen and Martin Scheinin ‘Intermediate Constitutionalism: Promising in Theory, Problematic in Practice’ in M-L Paris and J Bell (eds), Rights-based Constitutional Review: Constitutional Courts in a Changing Landscape (Edward Elgar 2016) 218–43.

13 The Finlex database (https://finlex.fi/fi/oikeus/) was used to find the precedents that mention human dignity using the relevant Finnish term ihmisarv*. These cases were further studied to find the context of the reference to human dignity and only those in which it formed part of the reasoning (perustelut) of the highest instance were analysed.

14 See also Ojanen (n 9) 251–52.

15 For the international practice, see Daly (n 4) 6–7; Dupré, The Age of Dignity (n 1) 84, 91; Paolo G Carozza, ‘Human Dignity in Constitutional Adjudication’ in Tom Ginsburg and Rosalind Dixon (eds), Research Handbook in Comparative Constitutional Law (Edward Elgar 2011) 459–72, 466.

16 Ojanen (n 9) 256; Lavapuro and others (n 12) 231; Husa, ‘Panorama’ (n 12) 14–15.

17 Similar terminology can be found in Daly (n 4) 127: ‘[the] state’s obligation is a negative one: to refrain from actions that would impair people’s capacity for reason or distort their equality toward one another … [t]he state must refrain from interfering with those natural affinities (by segregation, restrictions on family groupings, unlawful deportations, evictions, or displacements, and the like)’ ; Paolo Becchi, ‘Human Dignity in Europe: Introduction’ in Handbook of Human Dignity in Europe (Springer 2019) 1–36, 9: ‘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.’

18 See e.g. Dinah Shelton and Ariel Gould, ‘Positive and Negative Obligations’ in Dinah Shelton (ed), The Oxford Handbook of International Human Rights Law (OUP 2013) 562–83. Even though this classification has its critics and all rights typically need both types of obligations, it still illustrates some key aspects of the theory of human rights. In respect to the use of the concept of human dignity, this discussion is part of the legal theoretical background that is important to acknowledge.

19 Neal (n 6) 177.

20 Dupré, The Age of Dignity (n 1) 68. On the consensus on certain prohibitions, see also e.g. Carozza (n 15) 460.

21 Charter of Fundamental Rights of the European Union (2012/C 326/02).

22 Miguel Nogueira de Brito, ‘Is there Any Absolute Concept of Dignity?’ in Miguel Nogueira de Brito and others (eds), The Role of Legal Argumentation and Human Dignity in Constitutional Courts: Proceedings of the Special Workshops Held at the 28th World Congress of the International Association for Philosophy of Law and Social Philosophy in Lisbon, 2017 (Franz Steiner Verlag 2019) 129–41, 136–37.

23 There is a continuing debate whether human dignity can be called absolute or not, especially if it is considered to be a principle since characteristically principles can be balanced. This discussion about genuine or just apparent absoluteness is left aside in this article. It suffices to notice that human dignity is in the case law used in both an absolute and a balanced form. For a discussion about absoluteness and defeasibility see for example Sampaio (n 7).

24 For this doctrine see Martin Scheinin, ‘Core Rights and Obligations’ in Dinah Shelton (ed), The Oxford Handbook of International Human Rights Law (OUP 2013) 527–40, 532–35.

25 Dupré, The Age of Dignity (n 1). Examples of these cases include from the CJEU: C-411/10, NS v Secretary for the Home Department and C-493/10, ME and Others v Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform, ECLI:EU:C:2011:865; C-79/13, Federaal agentschap voor de opvang van asielzoekers v Selver Saciri and Others, EC LI: EU: C: 2014: 103; C-148/13 to C-150/13, A and Others v Staatssecretaris van Veiligheid en Justitie, ECLI:EU:C: 2014:2406; from the ECtHR: MSS v Belgium and Greece, Application no 30696/09, Grand Chamber, 21 January 2011; Khlaifia and Other v Italy, Application no 16483/12, Grand Chamber, 15 December 2016; Ilias and Ahmed v Hungary, Application no 47287/15, Grand Chamber, 21 November 2019.

26 Dieter Grimm, ‘Dignity in a Legal Context: Dignity as an Absolute Right’ in Christopher McCrudden (ed), Understanding Human Dignity (OUP 2013) 381–91, 389.

27 e.g. Nicola Braganza, ‘Human Dignity: A Lesser Right for Refugees?’ (2019) 2 European Human Rights Law Review 144.

28 Grimm (n 26) 388.

29 See Jeremy Waldron, ‘The Inhuman and Degrading Treatment: The Words Themselves’ (2010) 23 Canadian Journal of Law and Jurisprudence 269–86, 272.

30 e.g. KHO 2020:88, KHO 2018:94, KHO 2017:148, KHO 2017:99.

31 e.g. KHO 2017:189, KHO 2017:42.

32 The clearest similarities to these rights are the ‘freedoms’ contained in the right to health. See General Comment 14, Section 8 of the Committee on Economic, Social and Cultural Rights’: ‘The right to health contains both freedoms and entitlements. The freedoms include the right to control one’s health and body, including sexual and reproductive freedom, and the right to be free from interference, such as the right to be free from torture, non-consensual medical treatment and experimentation.’

33 e.g. KKO 2019:26 and KHO 2018:94, KHO 2017:42, KHO 2016:53, KHO 2015:100.

34 KHO 2014:112, KHO 2017:42, KHO 2017:43.

35 KHO 2016:53, KHO 2015:100.

36 KKO 2020:25, KKO 2019:26, KKO 2017:11.

37 e.g. KHO 2017:42, KHO 2016:194, KHO 2008:91, KHO 2008:90.

38 e.g. KHO 2017:42, KHO 2016:194, KHO 2015:111, KHO 2015:100, KHO 2008:91, KHO 2008:90.

39 Compare Waldron (n 29) 276.

40 Dupré, The Age of Dignity (n 1) 65.

41 e.g. KHO 2019:161, 2018:169, 2016:53. See Jeremy Waldron, ‘How Law Protects Dignity’ (2012) 1 Cambridge Law Journal 200.

42 C-148/13 to C-150/13, A and Others v Staatssecretaris van Veiligheid en Justitie, ECLI:EU:C: 2014:2406.

43 Ibid. para 72. Privacy protection, in turn, had the effect that the applicant could not be questioned in detail about his sexual habits.

44 KHO 2018:52; A and Others para 66.

45 The court has followed this line in KHO 2018:90.

46 On dignity as constraint and empowerment, see Deryck Beyleveld and Roger Brownsword, Human Dignity in Bioethics and Biolaw (OUP 2001); Stéphanie Hennette-Vauchez, ‘A Human Dignitas? Remnants of the Ancient Legal Concept in Contemporary Dignity Jurisprudence’ (2011) 9(1) ICON 32; Carozza (n 15) 464–65.

47 e.g. Tarunabh Khaitan explains that some see human dignity as performing ‘ …  a quasi-religious role in human rights law, often used to justify legal moralism and paternalism’: see Tarunabh Khaitan, ‘Dignity as an Expressive Norm: Neither Vacuous Nor a Panacea’ (2012) 32(1) Oxford Journal of Legal Studies 1, 3.

48 Compare Hennette-Vauchez (n 46).

49 About human dignity and totalitarianism that subordinates the individuals, see Dupré, The Age of Dignity (n 1) 59.

50 Sampaio (n 7) 176–78.

51 Within the limits of this article, it is impossible to reflect in depth the impact or nature of the theoretical underpinnings. The topic is discussed from different perspectives for instance in Miguel Nogueira de Brito and others (eds), The Role of Legal Argumentation and Human Dignity in Constitutional Courts: Proceedings of the Special Workshops Held at the 28th World Congress of the International Association for Philosophy of Law and Social Philosophy in Lisbon, 2017 (Franz Steiner Verlag 2019). See e.g. (chapters) Sampaio (n 7); Pedro Moniz Lopes, ‘Interpretative and Normative Ambivalences of Human Dignity: Rights, Dignity and Morality in Fleming v Ireland’ 143–72. See also Aharon Barak, Human Dignity: The Constitutional Value and the Constitutional Right (Cambridge University Press 2015).

52 Daly (n 4) 14; McCrudden 2008 includes this recognition as part of the minimal core of human dignity.

53 Waldron (n 29) 284.

54 KKO 2012:66, para 5. The court referred to the drafting material in respect of this fundamental value basis (Report 10/2006 of the Law Committee 4–5.).

55 KKO 2012:66 para 13.

56 KKO 2012:66 paras 14–16.

57 Government Proposal 229/2014, 5.

58 e.g. Daly (n 4) 127: ‘various aspects of human dignity are consistent with a more nuanced and more robust understanding of state obligations. There may be a limited positive claim to education, to enhance people’s capacity for rational decision-making, and a somewhat more robust positive claim to government actions that ensure equality or overcome difficult conditions, whatever their causes.’

59 Neal (n 6) 177.

60 Dupré, The Age of Dignity (n 1) 268.

61 More subtle examples of the use can be found in cases concerning social services, such as KHO 2018:8 where human dignity related to the arrangement of institutional care in ways that take into account the hopes, opinions and needs of the person in care. It is also emphasised that institutional care is not in itself a reason to restrict fundamental rights. Human dignity also legitimises the arguments for indispensable care and subsistence, even though the concept is not really utilised in the argumentation. See e.g. KHO 2016:65, KHO 2013:73, KHO 2011:69, KHO 2000:16.

62 Report 20/1998 of the Law Committee, p 3 (LaVM 20/1998 vp).

63 KKO 2005:2, para 4.

64 KKO 2009:7 paras 6, 8, and 9.

65 The traditional Kantian conception of human dignity concerns the connection of human rights understood as precluding instrumentalisation of human beings for greater ideals. See e.g. Nikolaus Knoepffler and Martin O’Malley, ‘Human Dignity: Regulative Principle and Absolute Value’ (2010) 21(3) Journal international de bioethique 63, 65–67; Catherine Dupré, ‘Dignity, Democracy, Civilisation’ (2012) 33 Liverpool Law Review 263, 268.

66 KKO 2009:7 paras 6, 8 and 9.

67 It is also interesting that the case was decided by vote and the dissenting opinion did not include dignity argumentation. However, it is hard to draw conclusions about the weight of the dignity argument alone because the effect of other counterarguments was also assessed differently.

68 Paolo Becchi and Klaus Mathis (eds), Handbook of Human Dignity in Europe (Springer 2019). Human dignity features in some form in the reasoning concerning the award of damages in several countries. See e.g. the following chapters: Charis Papacharalambous, ‘Human Dignity in Cyprus’ 173–196; Daniel Bedford, ‘Human Dignity in Great Britain and Northern Ireland’ 319–62; David Edward Zammit and Mary Muscat, ‘Human Dignity in Malta’ 573–604; Dita Plepa and Jānis Pleps, ‘Human Dignity in Latvia’ 479–504; Darijus Beinoravičius and Milda Vainiute, ‘Human Dignity in Lithuania’ 525–37; Sebastian Nerad, ‘Human Dignity in Slovenia’, 817–50; Duška Franeta, ‘Human Dignity in Serbia’, 779–98.

69 On this interplay see Michelle Flaherty, ‘Private Law and Its Normative Influence on Human Rights’ in Kit Barker and Darryn Jensen (eds), Private Law: Key Encounters with Public Law (Cambridge University Press 2013) 207–30, 209.

70 On this interiority see e.g. Clemens Sedmak, ‘Human Dignity, Interiority, and Poverty’ in Christopher McCrudden (ed), Understanding Human Dignity (OUP 2013) 559–71, 562.

71 KKO 2009:82, para 9.

72 KKO 2020:97, para 8.

73 KKO 2009:46, paras 3 and 6.

74 KKO 2009:46, para 4.

75 KKO 1994:62.

76 Khaitan (n 47) 4. On focus on the meaning that the treatment expresses rather than material effects, see also Daniel Bedford’s analysis of Bouyid v Belgium: Daniel Bedford, ‘Key Cases on Human Dignity under Article 3 of the ECHR’ (2019) 2 European Human Rights Law Review 185.

77 See Mika Viljanen, ‘Henkilövahinkoasiain neuvottelukunnan haastava tehtävä’, 6/2006 Lakimies 1006, 1018. Viljanen regards the issues surrounding assessment of the amount of compensation for emotional suffering as being primarily ethical, relating to human dignity and the ethical order of society. See also Mika Viljanen, ‘Vahingon korvauksen määrä’ (2008) Suomalainen Lakimiesyhdistys, Chapter 8 (the Study includes a brief English summary at 569–78).

78 KKO 2009:46, para 7.

79 KKO 2009:46, para 6.

80 KKO 2009:82, para 18.

81 KKO 2019:48, para 9.

82 KKO 2009:46, para 8.

83 KKO 2012:74, para 10.

84 KKO 2009:82, paras 9 and 10.

85 Khaitan (n 47) 19.

86 See also Viljanen, ‘Henkilövahinkoasiain neuvottelukunnan haastava tehtävä’ (n 77).

87 KKO 2009:82, paras 12 and 11; KKO 2012:100, paras 4, 5, 22 and 23.

88 KKO 2012:74; KKO 2011:11.

89 There are however some cases where the court has referred to this basis for damages. KKO 2014:44 paras 58–60; KKO 2012:81, 9.

90 e.g. Dupré, The Age of Dignity (n 1) 157–60; Dupré, Dignity, Democracy, Civilisation (n 65) 271–72; Carozza (n 15) 466.

91 Government Proposal 167/2003vp, 59.