Human Dignity in Italy

Human Dignity in Italy Paolo Becchi Contents 1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 The Use of the Concept of Dignity in the Constitution and Legislation . . . . . . . . . . . . . . . . . . . 2.1 Dignity in the Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Dignity in Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Use of the Concept of Dignity in Constitutional and Ordinary Jurisdictions . . . . . . . . . . . . . . 3.1 Dignity in Constitutional Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Dignity in Ordinary Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Cross-References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 454 454 454 458 462 462 463 466 468 468 Abstract This contribution analyses how the principle of human dignity is defined in the Italian Constitution and case law of the Constitutional Court. In this context, it is noteworthy that the Italian Constitution heavily focuses on the social dimension of human dignity. However, the developments in legislation and case law have let the concept of human dignity in Italy become more and more complex. It is used in different situations – for the right of the worker to receive a salary and for the fight against euthanasia as well. This discrepancy has resulted in a lively debate in Italy. Keywords Introduction of human dignity · Historical and conceptual reconstruction · Ancient roman world · Christianity · Universalist dimension · Enlightenment · P. Becchi (*) Faculty of Law, University of Genoa, Genoa, Italy e-mail: paolo.becchi@unige.it # Springer Nature Switzerland AG 2019 P. Becchi, K. Mathis (eds.), Handbook of Human Dignity in Europe, https://doi.org/10.1007/978-3-319-28082-0_20 453 454 P. Becchi Post-war debate · New approaches · New meanings · Conventions and charters · Autonomy and its limits · Medical ethics · Euthanasia · Pre-natal human life 1 Introduction Surely one of the first issues to strike non-native legal scholars as they approach an analysis of the Italian legal order is the employment of the concept of dignity as it is framed in the Constitution. Put into force on 1 January 1948, and thus prior to the adoption of the Universal Declaration of Human Rights, the Constitution makes explicit reference to the concept of dignity three times: Art. 3, § 1 states that all citizens have “equal social dignity” (“pari dignità sociale”); Art. 36, § 1 establishes the right of all workers to remuneration that guarantees “a free and dignified existence” (“un’esistenza libera e dignitosa”) for themselves and their families; while Art. 4, § 2 stipulates that private economic activity cannot be conducted in a way that might “jeopardize human safety, freedom and dignity” (“in modo da recar danno alla sicurezza, alla libertà, alla dignità umana”). This chapter first analyses the use of the concept of dignity in the Constitution and legislation in Italy (1). Then it establishes how Italian courts handle the concept of human dignity at both the constitutional and lower court levels (2). Finally, a conclusion is drawn (3). 2 The Use of the Concept of Dignity in the Constitution and Legislation 2.1 Dignity in the Constitution Whilst the German concept of dignity is generally understood in an abstract and general manner, as if it were a latent human capacity, there is barely any sense of this notion in the constitutional provisions just cited (for a comparison of the Italian and German Constitutions – with a particular focus on the question of dignity – see Becchi (2008) and, more extensively, Becchi (2012a)). The Italian Republic was not founded on the recognition of an absolute and unconditional principle such as human dignity, but rather “on labour”, as Art. 1 of the Constitution provides (“L’Italia è una Repubblica democratica, fondata sul lavoro”). Thus, the subject which is explicitly associated with the concept of dignity is not the human being in its essence but rather in its quality as citizen and employee or employer. Even in Art. 41, where explicit reference is – uniquely – made to “human dignity”, the concept relates to the sphere of economic activities, which may not exert a degrading or humiliating effect upon the workers responsible for their execution. Particular attention ought to be drawn to the formulation “equal social dignity”, which to my knowledge is not to be found in any other constitution. As was noted in one of the few extant essays dedicated to a consideration of the term, it “unambiguously refers not to an absolute, but rather a relative concept” (see Ferrara (1974); the Human Dignity in Italy 455 same interpretational approach, adapted to the modern context of the welfare crisis, can be found in Marella (2007); see further Grossi (2008); the issue is also addressed in Vincenti (2009)). In contrast to Art. 1 of the German Grundgesetz (Basic Law), which was created almost contemporaneously, there is no glimpse here of an absolute and unconditional, extra positive principle; rather one finds a provision of positive law that explicitly benefits the general citizenry as a whole. Even if the three articles of the Italian Constitution which draw on the term “dignity” do refer to three distinct groups of persons (general citizenry, employees, employers), the emphasis rests on the social dimension of the concept. In the first case, this is revealed by the fact that the principle of the general equality of all citizens also entails the discontinuation of any and all privileges which may previously have arisen from noble titles or from affiliation to a particular social class. Following the abolition of noble privilege, individual labour (here understood in the broadest sense of any productive effort) – as a contribution to the development of society – represents the only point upon which the Italian Constitution refers to dignity. Formal equality “before the law” is augmented by social equality. Art. 3, § 2 expresses this in its provision for the participation of all citizens – particularly those whose personal circumstances might otherwise inhibit it – in public life: “Dignity” is thus not something which is gifted by nature and requires protection, but rather a concept which must be fostered and formed, namely via the removal of all obstacles which “prevent the full development of the human personality and the effective participation by all workers in the political, economic and social organization of the country” (Art. 3, § 2). In the two other cases, this socially connoted concept of dignity demands that the employee and his family be guaranteed a minimum material standard of living (Art. 36) and stipulates that the actions of the employer, while free, may not adversely affect the dignity of the jobholder. Labour must permit the employee to enjoy a dignified lifestyle (Art. 41). At the same time, dignified working conditions must also be provided. It ought to be noted that the Italian Constitution also recognizes the “inviolable human rights” which accrue from mere existence as a human being and which thus claim validity not only in the context of the social framework in which the personality develops, but also in the context of existence as an individual person. That said, however, there is no trace of an origination of human rights derived from the moral sources of human dignity. While the concept of dignity is traditionally associated with the adjective “human”, the Italian Constitution, inasmuch as it deploys in this context the two adjectives “equal” and “social”, follows a different approach. There is a close correlation between the three articles of the Constitution which refer to dignity in the sense that each of them is founded on the concept of work (see Cataudella (1989) and, more recently, Politi (2011a, b)), explicitly in the case of Art. 36, § 1 and Art. 41, § 2, implicitly in that of Art. 3, § 1. The former two ought to be read in conjunction with Art. 2099 ff. and 2087 of the Italian Civil Code, which state that working conditions must “guarantee the physical and psychological integrity of the worker”. 456 P. Becchi Art. 3, § 1, which recognizes the equal dignity of all citizens, can also be related to work – whether it be with respect to Art. 3, § 2 and the guarantee of the effective participation of all workers in the organization of the country contained therein, or with regard to Art. 4, § 1, which posits the “right to work” (“The Republic recognizes the right of all citizens to work and promotes those conditions which render this right effective”). Art. 4, § 2, meanwhile, establishes the duty of the citizen “to carry out an activity which contributes to the material or spiritual progress of society according to one’s personal aptitude and individual choice”. The leading idea here is that the individual can only achieve full development of his or her personality – and, by extension, dignity – via labour. Dignity is linked to both the duty of the citizen to social involvement and to the demand that the state must provide for all the opportunity to enact such engagement in a dignified fashion. Much as labour is a right as well as a duty, dignity is something which must be earned through the citizen’s contribution to society. In one specific regard, dignity is even a condition for the exercise of an important civil right: Art. 48, § 3 provides that the right to vote can be restricted in “cases of moral ‘undignity’ established by law” (“casi di indegnità morale indicati dalla legge”) (Grossi 2008). The loss of active voting rights is foreseen in other legal orders, probably only in Italy, however, on the grounds of “moral indignity”. The Italian legal order does not, in any event, automatically confer dignity upon every individual, but rather expects it from each citizen, to the extent that, should it not be forthcoming, he or she loses the active right to vote. What circumstances, then, could lead to a loss of voting rights? In principle, legal sanctions might, for instance – in accordance with the Constitution – be brought against persons who do not exercise their right to vote without due justification or even against those who do not perform their duty to contribute to the progress of society (Art. 4, § 2) sufficiently (e.g. Mortati 1991). Such laws have not yet been established. It would have been possible, meanwhile, to deny, on the grounds of the Twelfth Transitional Provision of the Constitution, voting rights to the “responsible leaders of the fascist regime,” much as was the case with brothel owners, gambling operators and bankrupt business owners. Since the brothels and their operations have been outlawed, the two remaining possible cases of “moral indignity” no longer lead to the loss of voting rights (see the legal revisions of 16 January 1992, No. 15 and 9 January 2006, No. 5, Art. 52). While “indignity” thus no longer plays a role in voting rights, it does nonetheless come into play in other contexts: most recently in the case in which the president, in the course of the Parmalat scandal, revoked Calisto Tanzi’s title of “Cavaliere” (Order of Merit of the Italian Republic) by decree (D.P.R. – Decreto del Presidente della Repubblica of 17 September 2010 in Gazzetta Ufficiale, Serie Generale, No. 223 of 23 September 2010) – which had been granted to him in 1984. On this point let just the following final comments be made. There may be cases in which the restriction of voting rights is justified. Explicit reference to “moral indignity” is in this regard an idiosyncrasy of the Italian Constitution. Significant for the purposes of our discussion here is the consideration that dignity does not emerge as something to be protected or fostered by the state, but rather as a civic duty whose non-observance is sanctioned. Human Dignity in Italy 457 Viewed in this context, the constitutional provision of Art. 22, according to which “[n]o person may be deprived of legal capacity, citizenship, or name for political reasons”, appears to be worded in an unfortunate way. On the one hand, the provision creates a clear limit: the sanctioning of political convictions. On the other hand, a literal interpretation could lead to the conclusion that the revocation of one of the listed statutory laws on other grounds – namely for reasons of “moral indignity” – would not amount to a violation of personal dignity, at least not in the context of its formulation in the Constitution. This provides further evidence that the Italian Constitution does not unconditionally attribute dignity to every person, to the extent that even the gravest criminal offender cannot forfeit it. Even if the Constitution deploys the concept of dignity in various ways, it appears at all times as something that the citizen can both acquire and lose, depending upon his or her social conduct. In my opinion, Paolo Ridola gets to the crux of the matter when he writes that, in the Italian Constitution, “the reference to dignity is striking in that it connects to concrete living conditions (see ‘social dignity’ in Art. 3, § 1). Thus dignity has here neither the same cultural anchoring nor the same almost universal validity that Menschenwürde has in the German Basic Law. It cannot content itself with the allocation of rights as it is committed to an ‘image of man’, the social conditioning of which it cannot renounce” (Ridola 2006, p. 128). It should be made clear at this juncture that I do not mean to draw from the preceding discussion the conclusion that the Italian Constitution offers no latitude for a wider use of the concept of dignity. What cannot be denied, however, is that the word “dignity” does not explicitly appear in any further-reaching context. Witness, for example, Art. 13 on personal liberty, the fourth paragraph of which prohibits “any act of physical and psychological violence against persons whose freedom is subjected to state restrictions”. The reference to dignity is also implicit in Art. 27, § 3, which – first negatively – affirms, that punishments “may not contradict humanity” and – then positively – holds that they “must aim at the (social) re-education of the convicted” (on this point see Ruotolo (2002, 2005, 2011)). Thus, in the context of the criminal law protection of human rights, the principle that no convicted person may be treated in a degrading or humiliating fashion is recognized. At the same time, however, the social dimension holding that the purpose of the punishment is to further the social reintegration of the convicted is also reinforced. In light of all this, it comes as little surprise to note that even Art. 32, § 2 – an article which today stands at the centre of numerous bioethical debates – one need only think here of the Welby and Englaro cases (see infra) – and affirms that “nobody may be forcefully submitted to medical treatment except as regulated by law” (and that the latter “may in no case violate the limits imposed by respect for the human being”) – does not make explicit reference to the concept of dignity (for the beginning of life, see Marzocco (2018)). It is true that in the constitutional draft of the “Commission of 75” an Art. 26 was foreseen whose § 2 sought to prohibit “medical treatments, which violate human dignity”. That this formulation was not ultimately taken up in the Constitution provides further evidence of how the stress lay less on human dignity and more on social dignity. 458 P. Becchi It is hardly astounding, therefore, that the Italian Constitutional Court, in the first year following the entry into force of the Constitution, made only “extremely careful and restrained” use of the concept of dignity (for an in-depth discussion see Ruggeri and Spadaro (1991) and, more recently, Gambini (2005) and Pirozzoli (2007, pp. 103–137) (there one finds the most extensive overview of constitutional jurisdiction); see further Di Ciommo (2010, pp. 158–175), and Monaco (2010)). And if the administrative jurisdiction has made more frequent reference to dignity, it is the dignity of the worker which represents far and away the most common example in relevant judgements (for a more detailed analysis see Alpa (1997) and, further, Cataudella (1989) and Gambini (2005)). A more extensive analysis of the text of the Constitution would necessarily entail close engagement with the individual provisions. Such an enquiry cannot and will not be provided in the context of the present discussion. More important here is the following observation: that explicit use of the term “dignity” in the Italian Constitution is limited to its social dimension – that is to say, to a notion of dignity which presupposes the fundamental equality of all citizens. Further, there exists a second mode of usage, whereby “dignity” is understood as an extra positive principle, albeit only implicitly. The somewhat peculiar sounding phrasing “equal social dignity” used by the constitutional legislator has not – the few noted examples excepted – found much traction in the doctrine. Evidence in support of this can be gleaned from the two monographs that address the issue of dignity in the constitutional context, in which the term “equal social dignity” appears only cursorily (see Bartolomei (1987, pp. 20–21), and Pirozzoli (2007, pp. 125–126)). In Fabrizio Politi’s recent volume, one also finds only laconic comments such as “the discussion regarding the question of whether social dignity might be equated to human dignity tout-court is ongoing” (Politi 2011a, p. 151). A glance at the mainstream constitutional commentaries (the most important of these are listed under the short entry for “pari dignità sociale” in the Commentario alla Costituzione; see Celotto (2006)) and legal lexika suffices to uphold this assessment. Only the Enciclopedia giuridica Treccani includes an entry on dignity; even there the reference is, however, restricted to the dignity of the worker (Cataudella 1989). Interest in the subject is, however, on the rise, as the entries on “dignity” in the Trattato di Biodiritto (see Resta (2010), which provides the best extant Italian language overview of bioethics, and Resta (2014)) and in the recently published fourth volume of the Enciclopedia di Bioetica e di Scienza Giuridica (Mastro Pietro et al. 2012) indicate. Notably, the meaning of the concept of dignity now stands at the centre of numerous discussions within the field of bioethics, whether it be in relation to the beginning (artificial conception) or end (termination of treatment, euthanasia) of life. We shall return to this point in fuller detail later. 2.2 Dignity in Legislation Prior to considering more closely certain interesting pronouncements in the jurisdiction, it is appropriate to first cast a glance at ordinary legislation. Although the Human Dignity in Italy 459 term “dignity” appears neither in the Italian Civil Code nor the Criminal Code, it is nonetheless used repeatedly in legislation (for a more detailed discussion see Becchi (2009)). It is against the backdrop of the paramount importance attached to the person of the worker in the Italian Constitution that one must, for instance, consider regulation of the position of the worker, enshrined in Law No. 300 of 20 May 1970, in which reference to dignity is of central significance. Insofar as the legislation embellishes the protection of the employee with certain control mechanisms (which remain the responsibility of the employer) concerning both working operations and personality, he can be seen to implement current constitutional law. In recent years, this protection has been continually extended – with regard to instances of bullying, for example (see Decree Law of 11 April 2006, Equality Act), and sexual harassment, which often goes hand in hand with the former and is seen as equally discriminatory (see in general Ballestrero and De Simone (2003) and, specifically, Barbera (1992)). Departing from the person of the worker, the protection of dignity has, moreover, been extended to other groups whose members also require protection in their respective living conditions – examples include prisoners, women, the infirm or disabled, foreign nationals, consumers, even the dead and – further, ever more specific differentiations – drug addicts and the dying. In contrast to this, no relevant reference to the concept of dignity in relation to human embryos has found its way into legislation. The much disputed Law No. 40 from 2004 does not refer directly to dignity, even though its first article holds that the rights of all affected persons, “including those of unborn children”, should be protected (noteworthy amongst the recent literature are the conference reports included in Carusi and Castignone (2011)). Certain laws do, however, appeal to the concept of dignity, and it is to those which we shall now turn. With regard to the treatment of prisoners, for instance, Law No. 354 of 26 July 1975 already implements the constitutional provisions in holding that “penitentiary treatment must be consistent with the humanity of and must ensure respect of the dignity of the person” (for additional information, see Gonnella (2014)). Regarding the protection of women we might recall Law No. 194 from 22 May 1978 on abortion, in which it is provided that legally mandated treatment must be undertaken “while protecting the dignity and privacy of the woman” (Art. 5). With regard to the treatment of the sick, Law No. 833 from 23 December 1978, which established the “Servizio Sanitario Nazionale” and refers to Art. 32 of the Italian Constitution, can be seen to be path-breaking in that it holds that even court-ordered medical treatment must be carried out so as to “protect the dignity of the human person” (Art. 33). Oriented particularly to the case of drug addicts, the law governed by Presidential Decree No. 309 of 9 October 1990 (the later modifications brought forth in Law No. 49/2006 are not relevant to the present discussion) similarly prescribes that resocialization therapy must be designed so as to “protect the dignity of the human person”. The dignity of dying persons is mentioned in the recent, controversial draft law on “the patient–doctor relationship, patient information and patient decrees”, albeit only in a declaratory reference: although the law “recognizes and protects the dignity of 460 P. Becchi all persons and places this above the interests of society and scientific and technological applications”, it nonetheless does not shy away from violating precisely this sense of dignity in further substantiating articles (e.g. when it is not possible, in the context of the patient decree, to supply artificial nourishment, or in emergency situations in which the treatment of a patient can be undertaken without consent, even in cases where he or she is capable of making a judgement) (see further Becchi (2011b, 2012c)). In the context of legislation on foreign nationals, Law No. 40 of 6 May 1998 affirms in Art. 12 that in cases where the deportation of sans-papiers is not possible, “the foreign national is to be accommodated in a transit centre in such a way as to ensure the availability of medical attention and the protection of his or her dignity” (this stipulation remains unchanged in the more recent Law No. 125 of 24 July 2008 – with the exception that “transit centre” has now been replaced by “personal identification and removal centre”). In a presidential decree of 30 March 2001 note is made of the necessity to monitor “the degree of discriminatory treatment [. . .], which may violate the dignity of the foreign national”. With regard to persons with disabilities, Framework Law No. 104 of 5 February 1992 on the assistance, social integration and rights of disabled persons is of particular significance, guaranteeing as it does in Art. 1 “the full protection of human dignity, together with the rights to freedom and self-determination, of disabled persons”, as well as support for his or her “complete integration in the family, school, work and society”. A newer law (Law No. 7 of 9 January 2006) provides for specific protection of disabled persons from discrimination, here understood as “harassment or unwanted conduct which relates to the disability and violates the dignity and freedom of the disabled person, or creates a climate of intimidation, humiliation or animosity towards him or her” (Art. 2, § 4). In the context of consumer protection, though the immediately relevant law (Law No. 281 of 30 May 1998) makes no explicit reference to dignity, the concept does appear in Law No. 39 of 1 March 2002, which prescribes in Art. 52 a ban on “teleshopping, insofar as it degrades human dignity” (the Italian text uses the term “vilipendio”). The use of “vilipendio” is striking here – the term is otherwise only found in Italian legislation with regard to elements of criminal norms which punish violations against legally protected institutions, artefacts and symbols; the only reference to a “vilipendio” of a person comes in the context of questions of confession and the exercise of personal faith or in relation to the desecration of graves. In the previously cited context, the legislation clearly uses the term in a different sense. As a final point on consumer protection, we might consider Decree No. 206 of 6 September 2005, which enacted the “Codice del Consumo”: according to Art. 27 bis, the protection of human dignity must be safeguarded in the codes of conduct of producer organizations, while Art. 30, § 1 provides that “teleshopping, insofar as it violates human dignity, is prohibited”. With regard to the deceased, references to dignity appear in several regional laws which regulate burial and funeral processes and which, in more or less explicit terms, affirm the necessary protection of the “dignity of the deceased” (e.g. Art. 1 of the Law of the Umbrian Region of 21 July 2004, No. 12). One of the – ever more specific – areas in which the protection of dignity has acquired particular significance is that of membership of non-profit-making Human Dignity in Italy 461 associations. Art. 2 of Law No. 383 of 7 December 2000, for example, makes reference to the “dignity of association members”. To underscore this aspect of the dignity which relates to a person’s role in social entities, we might also consider the codes of practice of several professional associations, in which the term “dignity” is used to characterize their own profession. Thus, the concept of dignity, which was originally applied to the labour force, has been extended to the liberal professions such as those of journalists, lawyers, doctors and pharmacists. Until recently, attention was primarily – if not exclusively – paid to the social dimension of dignity and to the ways in which it might be violated in different social contexts. Today, however, dignity is also threatened by society at large, specifically when the latter seeks to rob the individual of the core of his privacy, which ought to remain protected from the indiscrete glare of the public. Each person not only has the – positive – claim to be protected in his or her social position but also a – negative – claim to the protection of that which he or she does not wish to be disclosed publicly. In this context, dignity is not assigned to the worker, the woman, the disabled person, but rather to all individuals, each of whom has the right to protection against an invasion of privacy. In this sense, the concept of confidentiality, of privacy, represents the flipside of social dignity. The relevant legislation in the area of data protection (Legal Decree No. 196/2003) takes account of the aforementioned claims. Revealingly, the data protection law did not limit itself to a general abstract listing of definitions of offences under which the courts ought to subsume specific cases but rather made provision for the appointment of a data protection commissioner charged with the task of judging any and all violations of privacy. Two applicable laws are of particular interest in this context: in the first (of 9 November 2005) regarding data processing in the health care sector, it is stipulated that such actions must be undertaken “with total respect for the dignity of the person in question” and that “the protection of the personal dignity of all persons who undergo medical treatment must be guaranteed, especially with regard to vulnerable groups such as those who are physically and psychologically disadvantaged, minors, the elderly and those in need or poverty” (Data Protection Commissioner, Healthcare Facilities: Respect of Human Dignity, Advisor: Pizzetti). Thus, although “personal dignity” is granted to all, vulnerable persons receive special protection in this regard. The second applicable law pertains to an area which legislation has not yet regulated in detail: the bugging of private telephone conversations. Following the repeated publication in the press of transcripts of recorded telephone conversations, the data protection commissioner issued on 21 June 2006 a decision in which it was affirmed that the right to freedom of information and the related freedom of the press exist only insofar as they do not compromise the “total respect of personal dignity”. Finally, we might also mention here an international legal document: the Convention on the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine (Convention on Human Rights and Biomedicine), which was drafted by the Council of Europe on 19 November 1996 and signed in Oviedo on 4 April 1997. The convention makes repeated reference to dignity and has also been ratified by the Italian government (Law 462 P. Becchi No. 145/2001). However, because the convention has not been ratified – as provided for in Art. 33 – it has yet to enter into force (see further Becchi (2007)). In summary: ordinary legislation has permitted the emergence of a differentiated protection of dignity, which has developed in scope from the original social dimension with its notion of material equality, as envisaged in the Constitution, into entirely new areas. All of this is reflected, as shall be shown in what follows, in both the constitutional and ordinary jurisdictions. 3 Use of the Concept of Dignity in Constitutional and Ordinary Jurisdictions 3.1 Dignity in Constitutional Jurisdiction Within the scope of this chapter, it is not possible to present a fully detailed analysis of the relevant jurisdiction. For a more in-depth discussion see Ruggeri and Spadaro (1991) and, more recently, Gambini (2005) and, above all, Pirozzoli (2007, pp. 103–137), where one will find the most extensive overview of constitutional jurisdiction. See also Di Ciommo (2010, pp. 158–175), Monaco (2010) and Turco (2017). Instead, we shall limit ourselves to locating certain fundamental trends. Firstly, let us consider the case law of the Constitutional Court. Overall, the court has made careful use of the concept of dignity. Judgement 3 from 1957 attempts to define “equal social dignity” in the following terms: “Every citizen, irrespective of all differences in standing and profession – and any corresponding differences in social conditions – must be granted equal dignity.” The concept of dignity is thus outlined in a sense in accordance with the Italian Constitutio, which prohibits all forms of discrimination; at the same time, it is also regarded as a means of reinforcement and support in relation to the inviolable human rights protected in Art. 2. Certain – mainly recent – judgements even go so far as to characterize human dignity as being open to a balancing of interests (e.g. Judgement No. 196 from 2004). In comparison, only a few judgements grant dignity an autonomous significance – whether it be to create the foundation for a new constitutionally protected right or to delineate a limit which cannot be transgressed, even by other constitutional rights. In the first of these contexts, the court, in its Judgement No. 37 of February 1985 – and albeit only for this individual case – drew from the concept of dignity a “constitutional right to alimony payments”; it characterized the duty to pay alimony as being “directed towards the protection of existential needs and human dignity” (Tarantino 2018). In the second context, the court considered dignity – beyond all trade-offs – as an absolute boundary value to which all other constitutionally protected rights must give way. In Judgement No. 293 of July 2000, the Constitutional Court sat in judgement on the culpability of the mass media publication of real but offensive pictorial material and footage and recognized in the concept of dignity an impassable boundary, to which freedom of expression must yield – “the dignity of the person” is, Human Dignity in Italy 463 according to the finding, “a constitutional value which cuts through all positive law”. Thus, there exists in the view of the Constitutional Court a “minimum content” of the respect of the human being which goes beyond the (legitimate) plurality of ethical attitudes at large in society. This minimum content is located in the principle of dignity, which emerges, as such, as a key norm of the entire legal order. The view of dignity as an “inviolable core” or “impassable boundary” also comes to the fore in certain judgements on medical treatment (e.g. Judgement No. 509 of 13 November 2002, cited in Judgement No. 11 of 2005 and Judgement No. 282 of 19 June 2002). Also relevant in this regard is the recent Judgement No. 151 of 8 May 2009, which – via reference to Art. 3 and Art. 32 of the Italian Constitution – characterized a provision of the law on artificial procreation as unconstitutional (albeit without explicit reference to “dignity”). As already mentioned, the examples of the judgements cited, in which dignity as such is protected in terms of its autonomous significance, represent specific cases. More frequently, the concept of dignity is not applied to human persons as such, but rather to a particular characteristic which inheres in the personal or professional situation of the individual. Thus, the following characteristics are granted protection: the dignity of army servicemen in general (Judgement No. 189/1976) and the dignity of hierarchically lower-ranked servicemen in particular (Judgement No. 45/1992); the dignity of the housewife as a worker (Judgement No. 85/1985); the dignity of persons subjected to forensic examination (Judgement No. 54/1986); the dignity of minors made available for adoption (Judgement No. 303/1996); the dignity of prisoners in general (Judgement No. 526/2000) and of prisoners in particular (Judgement No. 158/2001); the dignity of disabled children (Judgement No. 465/2002); the dignity of a judge (Judgement No. 204/2004); the dignity of Sicilians (Judgement No. 283/2002); the dignity of homosexuals (Decree No. 129/2005); the dignity of Jewish persons (Judgement No. 268/1998); and above all – and repeatedly – the dignity of the worker. It is this focused concentration on the part of the Constitutional Court on concrete individuals – primarily those “weaker members of society”, who may be made easy targets for discrimination – rather than on abstract persons which brings to the fore the unique character of the concept of dignity within the Italian constitutional order. 3.2 Dignity in Ordinary Jurisdiction This unique character also comes to light, however, in the ordinary jurisdiction (for a deeper analysis see Alpa (1997) and, further, Cataudella (1989) and Gambini (2005)). In view of what was said earlier, it should hardly come as a surprise that the dignity of the worker is the example which occurs most frequently in the relevant judgements. We might here consider the following quotation from an important decision of the Court of Cassation (No. 5977 of 29 November 1985): The dignity of the worker is an expression of the human person who, with regard to both a common goal – the development of the economic, social and spiritual community in which he 464 P. Becchi lives – and the advancement of his own personality, strives to fulfil his activities to the highest degree. Any working duty which is degrading or degrades the person charged with its execution, or which is conducted under duress in an undignified manner, is thus not permissible. The manner in which the court here emphasizes the significance of labour and the dignity of the person charged with its performance is matched by the constitutional provisions and provides evidence of the central importance ascribed to labour (and the worker) in Italian social and economic life. Recently, the concept of dignity in the sphere of work and labour has been linked to new phenomena such as bullying and harassment, particularly of a sexual nature. As in the constitutional jurisdiction, there emerges in the ordinary jurisdiction, moreover, the same previously noted tendency to grant the protection of dignity to specific categories of persons: minors (Court of Cassation, Department of Criminal Law, Judgement No. 39927 of 17 November 2005), disabled persons (Court of Rome, 26 May 1997), drug addicts (Court of Ivrea, 14 November 1996), prisoners (Court of Cassation, Department of Criminal Law, No. 8411 of 3 February 2004), non-EU citizens (Court of Cassation, Department of Criminal Law, No. 26783 of 5 December 2005) or the deceased (Court Of Cassation, Department of Criminal Law, No. 23356 of 27 April 2001). Here, too, a detailed analysis would go beyond the scope of our discussion. One particular case shall, however, be considered more closely, as it clearly exemplifies the development of the jurisdiction. The judgement in question concerns the conviction (which was confirmed by the Court of Second Instance) of a frigate commander for the verbal abuse of a subordinate. The commander justified his appeal to the highest court with the claim that no account had been taken in previous proceedings of the statement of the subordinate, who acknowledged that, in his opinion, the commander had not meant the vulgar comments in question maliciously but rather jocularly. The Supreme Court rejected the appeal, however, on the grounds that it is irrelevant “that the addressee did not feel attacked by the insults, as the object of criminal protection is to be recognized in a much wider context, namely in the value of human dignity as such” (Court of Cassation, Department of Criminal Law, Judgement No. 15503 of 1 April 2004). It is clear that dignity is here elevated to an objective value that is removed from subjective assessments, including those of the affected parties. Thus, we have found our way from the protection of the social dignity of the worker to the protection of a notion of dignity as a value which is both sacrosanct and inalienable, even by its bearer. Most judicial references to the concept of dignity are to be found, however (and particularly since a famous judgement passed by a jury trial in Florence on 18 November 1990), in connection with medical treatment. To avoid going beyond the scope of this chapter, we shall limit ourselves to a few further comments on two difficult cases which have triggered widespread debate in Italy: the tragic fates of Piergiorgio Welby and Eluana Englaro respectively (for a more detailed description of the two cases see Becchi (2011a, 2012b)). In the Welby case, the legal representatives of the patient, who was suffering from progressive muscular dystrophy, made recourse to the concept of dignity to justify Human Dignity in Italy 465 their demands for the cessation of artificial ventilation. They submitted that, although the life of the patient could have been extended, this could only have been accomplished under conditions which Welby himself considered humiliating and degrading. The respect for dignity was thus linked to the right to selfdetermination, which accords patients the right to forego any medical treatment which they do not wish to receive. Although this right is – as we have seen – protected by the Italian Constitution, its enforcement was, in this particular case, more difficult than one might suppose. The doctor who – after assuring himself of the patient’s will in the matter – turned off the ventilator was prosecuted for killing on request; he was, however, subsequently acquitted by the judge in charge of conducting the proceedings, who qualified his actions as a justifiable performance of duty. In her explanatory memorandum, the judge described Welby as a patient “who was already thoroughly aware that he had given up all hope of a life which could be characterized as such and which would uphold the necessary dignity that attends human existence” (Court of Rome, Judgement No. 2049 of 23 July/ 17 October 2007). Although this reference to dignity is of only secondary significance, it is notable that the judge recognized – if only implicitly – that the continuation of the life of the patient was not, under the given conditions, compatible with his understanding of human dignity. It is precisely in regard to this aspect that the second case – that of Eluana Englaro, a patient who was involved in a car accident which left her in a permanent vegetative state – is interesting . Even if we can only sketch here the most important waystations in the lengthy process, this will nonetheless suffice to shed a clear light on the shift in meaning which the concept of dignity thereby underwent. In its judgement of 1 March 1999, the first instance Court of Lecco reached the conclusion that the artificial feeding of the patient, who had already been in a permanent vegetative state for some years, was to be continued: “Art. 2 of the Italian Constitution protects the right to life as the most important of all inalienable rights of the individual, whose dignity arises from the absolute value of the person and is not dependent upon the conditions of life, even should they be so bleak.” Dignity is thus understood in the judgement as an absolute and unconditional value. A quite different argument was put forth by the appeal instance: “The life of the person is not construed biologically [. . .], but rather in terms of the possibility of social relationships and self-realization, in accordance with the personality and sovereignty of the individual. Thus, the irreversible loss of consciousness must set a limit to all medical treatment, as it destroys any chance of a dignified existence” (Appeals Court of Milan, 26 November 1999). Where the first instance sought to protect life always and everywhere, the second distinguished between biological and biographical life and granted dignity only to the latter. A dangerous boundary was thereby drawn between a life worth living and one that is not but rather is marked by the irreversible loss of consciousness. The absolute value of dignity thus appears to be relativized. The third and final act in the process came with the famous judgement of the Court of Cassation (No. 21748 of 16 October 2007), which acceded to the cessation of life-prolonging measures. This judgement attempted to create a synthesis – 466 P. Becchi equally interesting and problematic – of an abstract and a relative understanding of dignity. On the one hand, the court upheld the notion of human dignity in its general applicability and abstractness, while on the other – and at the same time – recognizing the right to experience the final phase of existence according to subjective understandings of dignity: “One ought certainly not to differentiate between a life which is worth living and one which is not. This does not, however, preclude the possibility of there being cases of artificial life-extension, in which the only goal is the victory of medical science over the natural process of dying [. . .]. Life as such – as a gift – can never become unworthy, only the artificial extension of life [. . .].” The argument put forward by the Supreme Court can be summarized thusly: an individual who finds him- or herself in a permanent vegetative state is legally still considered a person with all attendant rights and duties and must be protected in his or her constitutional rights, beginning with the right to life and medical provision – all the more so as the severely weakened physical condition of the patient renders him/her incapable of a personal assertion of those rights. And yet alongside those who consider the longest possible artificial prolongation of life to serve the interests of the patient (even if he or she is unconscious), there are also other opinions to be heard; those who regard personal dignity to be inextricably connected to the experiential world, and who link the latter to consciousness, view the indefinite extension of life in a condition without perception of the external world to be entirely incompatible with their convictions. A state like Italy, which is constitutionally committed to a plurality of values and which places the principle of self-determination and freedom of choice at the centre of the patient-doctor relationship, has no choice, according to the Court of Cassation, but to also respect this latter decision. This argument is interesting insofar as – without speaking of “a life which is worth living and one which is not” – it permits the individual to place his or her dignity above the right to life, which in turn makes dignity a potential barrier to the most important fundamental right. At any rate, the issue of the finis vitae opens a new horizon of interest and raises the question whether dignity is a principle which stands above even life as such. 4 Conclusions There remains a fundamental question: Is there any connection linking the varied usages of the concept of dignity in the Constitution, legislation and jurisdiction, or does dignity rather prove to be a suggestive and stimulating – as well as vague and indeterminate – notion? What ties, for example, the protection of the dignity of prisoners to the protection of the dignity of workers? Or the dignity of the latter to that of the terminally ill? It is clear that “dignity” in each of these situations takes on a different meaning. A prisoner is entitled to a clean cell and has the right not to be mistreated or tortured and the right to a minimum measure of privacy. A worker has – first and foremost – the right to employment and a working environment which is not degrading. Even should one Human Dignity in Italy 467 consider paid employment to be a form of materialist exploitation, no one – not even the most orthodox Marxist – would characterize it as a form of torture. The situation becomes even more complex when one switches attention from socially connoted conditions to individual circumstances: of what relevance is the dignity of the worker, which centres upon the right to the complete development of the personality and to effective participation in social life, to that of the terminally ill patient who – with recourse to the same concept of dignity – rejects the postponement of death? Even the same expression of “dignified life” takes on two distinct meanings, depending upon whether it refers to the right of the worker to a salary which covers the needs of his or her family or to the right of the dying person to reject the extension of a life which he or she considers no longer worth living. It is noteworthy that, precisely in this latter context, the dignity argument is put forward both by those who fight against euthanasia on the grounds of the sanctity of life and by its opponents, who adduce from the principle of self-determination a right to death. Thus, one might be tempted, at first glance, to conclude that the concept of dignity is not suited to the resolution of the concrete problems posed. Recourse to the concept appears to be motivated by its inherent indeterminacy, which allows for its “instrumentalization” to quite different ends; the elasticity of the term permits its application in a vast range of circumstances. This does not, however, lend itself to the solving of problems. Yet such a perspective does not stand the test of closer scrutiny. It is no surprise that the term “dignity” is used in different senses. Language has an open structure – why should this apply any less to the word “dignity”, which, like all others, is ambiguous and, above all, indeterminate? This is reflected in the different usages of the term which we have considered in this chapter. To be sure, one can discuss whether certain applications of the term might deviate too far from the “usual” meaning ascribed to it; the true problem, however, is a different one: Assuming that it exists, what is the core of certainty that allows us to determine the concept of dignity? This question cannot be answered in an abstract mode. The foregoing considerations on the use of the term reveal that the main emphasis lies, in the first decades following the issuance of the Italian Constitution, on the notion of “social dignity” and its close connection to material equality (Art. 3). In recent times, this understanding has – without losing its significance – been opposed by a different notion – one that is founded on Art. 32, which aims to guarantee that “respect for the human person” is never violated in the course of medical treatment and so establishes an impassable borderline for legislation. It may appear paradoxical that dignity thus acquires an absolute and unconditional character at a point in the text of the Constitution at which it does not explicitly appear – even if the dominant modern legal opinion and jurisdiction interpret the article from the perspective of the principle of dignity (Turco 2017). Stefano Rodotà has made the following pointed observation on Art. 32 of the Constitution: In setting an insurmountable limit on the legislator, the article represents one of the strongest provisions of our Constitution; more forceful still than the regulations on personal freedom 468 P. Becchi provided by Art. 13, which allows it to be limited by restrictions based on legislation and judicial decisions. Art. 32 goes further. As we approach the hard core of existence – the necessity to respect the human person as such – we find ourselves confronted by the undecidable (Rodotà 2015). Here, too, the principle of dignity stands in close relation to a fundamental right: that to physical health. The legal debate on the concept of dignity in Italy would thus appear to be characterized by the point that the principle of dignity almost never appears as an absolute, unconditional foundation of human rights but rather accompanies the latter. With regard to the debate in Italy, significance might be granted to the – somewhat generalizing – comments of Eugenio Ripepe (one of the few legal philosophers to address the issue): namely, that dignity, rather than itself substantiating something, is rather no more than the “outcome of a wide range of values” (Ripepe 2008; Becchi 2016), continually variable and dependent upon the development of prevailing opinions. Similarly, the well-known civil law expert Paolo Zatti has recently put forward the suggestion that the term “constellation” (traceable to Carl Gustav Jung) might be productively applied for a clarification of the concept of dignity: dignity “constellates” itself, it interacts with life, with integrity and, thus, with freedom, without losing the social dimension which has distinguished it in the Italian context from the beginning. On the other hand, it would, however, be risky to “renounce the fundament of dignity” (Zatti 2009). Yet this fundament only represents a hard core which is doubtlessly less flexible but therefore more consistent than a general clause which would not diminish all the characteristics derived from the varied use of the term; it would, rather, exceed them. This core cannot, however, be linked to the adjective “social” but rather only to the adjective “human”, which is no mere addition to dignity but rather an essential component of it, to the extent that in German, the two terms conjoin to form a single word: Menschenwürde (human dignity). The inviolable core of dignity is thus the human person as such. Ultimately, the ontological conception of human nature is sacrosanct and insurmountable. In the modern world, this conception finds itself confronted, above all, with the problems of genetic manipulation, which continue to provoke a wide range of anxieties. 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