RESEARCH
LPL EDITIONS
RESEARCH ACADEMY
HAPPENING
RESEARCH
Constitutional Law and Political Science
Dignity of the Human Person between Individual Autonomy and Constitutional Paternalism
Responsible Researchers:
Jorge Reis Novais
Jorge Reis Novais
Financing:
UIDB/04310/2020
UIDB/04310/2020
Project Status:
Closed
Closed
Summary
The project's object is the constitutional principle of human dignity, a specific constitutional norm, in force in Portuguese law and other legal systems. As is the case with any legal norm, its scientific study is related to the determination of its content, the analysis of its normative behavior as a norm and the establishment of its normative relations with other legal norms, namely in conflictual relations internal to the Constitution and on the legislative norms. The principle of human dignity is currently a central norm in the normative structuring of catalogs of fundamental rights, including that contained in the Portuguese Constitution. The respective centrality does not correspond, however, to a precise definition of its normative content, constituting an opening door to a very relevant extra-legal indetermination, in a transversality in which contributions from the most distinct sectors and areas of thought are played out, with significant capacity for ideological influence on normative content. In its role as an open protagonist of fundamental rights norms, the principle of human dignity has received the most diverse implementations, appearing in the strictly normative context of “constitutionality” as a relevant part of a process of politicization of constitutional norms. At the same time, and to the strict extent that it is normatively reflected in new areas of knowledge and science that challenge current law, such as genetic identity, bioethics and scientific research and experimentation, the principle of human dignity is lacking a definition of limits that clarify its regulatory capacity in these areas, which, strictly speaking, refers once again to the central problem of its organization as a rule of law. It is in this context that the project has an obvious scientific relevance and public relevance: not only is the work to be carried out in defining the principle as a norm, not only of the greatest scientific interest, so that one understands what one is talking about when one speaks normatively dignity of the human person, but it also has a real and effective impact on determining the current law – and conditioning of legislative activity – whose interest also seems to be undeniable.
Objectives
The following points illustrate the objectives to be achieved with the research:
1) Understanding the principle of human dignity as a principle in modern and contemporary philosophical, political and moral thought;
2) Comparative analysis of the principle, particularly in other normative experiences, such as that of South Africa, Brazil, Germany and the European Convention on Human Rights.
3) Assessment of the positiveness of the principle of human dignity in the Constitution of the Portuguese Republic;
4) Analysis of Portuguese constitutional jurisprudence;
5) The determination of an operative legal content such as:
(i) Permissive norm and the ability to self-determinely define the dignity of the entitled subject;
(ii) Imposing standard:
i. Duty to protect the subject’s self-determination;
ii. Positive content of social benefits;
(iii) Prohibitive rule:
iii. Relevance as a negative limit for compressing the effects of social rights standards;
iv. System exhaust valve as a reaction to particularly evident degradation situations.
6) Gauging the projection of the principle in its fields of application: right to life and physical integrity, genetic identity, bioethics and scientific research and experimentation, processing of personal data, for example;
7) Defining the function of the principle, in particular the function it performs as a standard for closing fundamental rights systems.
