Dignity Is Not a Blank Cheque

Why we chose concrete prohibitions for the Libertaria constitutional draft.

“Human dignity shall be inviolable.” It is a sentence worth defending. It is also a sentence whose practical meaning someone must decide.

Put a person in a cell. The institution controls the door, the food, the toilet, the medical appointment and the record of what happened. A declaration of dignity tells us that this person matters. The next question is what the guard is forbidden to do, what the institution must explain, and where the prisoner can challenge its answer.

That is where a constitution earns its paper.

The Libertaria Federation Network is working on a constitution grounded in Fractalism, developed through the Sovereign Society. Its communities retain the freedom to organise themselves. The constitutional floor binds them all. Joining a Chapter, receiving care, facing an accusation or serving a sentence must never turn a person into material an institution can handle at its pleasure.

We have therefore added explicit prohibitions to the German reading draft, version 0.4. The decision follows a problem that reaches beyond any one country: broad moral language gives interpreters room to settle the very political disputes the constitution was supposed to constrain.

Who controls the meaning?

A constitutional principle can command broad agreement because people read different commitments into it. They agree on the sentence and disagree on the conduct it permits. The disagreement returns when a court must decide a case.

Christopher McCrudden examined this directly in Human Dignity and Judicial Interpretation of Human Rights. Beyond a basic minimum, he found substantial differences in what dignity requires across jurisdictions and over time. His argument identifies room for judicial manipulation and increased discretion. He also explains the concept’s contribution to human-rights reasoning. The paper gives us grounds to scrutinise the interpreter’s power without throwing away the protective ambition. McCrudden, 2008

Abortion exposes the difficulty. One argument invokes the dignity and life of the unborn. Another invokes the pregnant woman’s dignity, bodily integrity and freedom. In its 1993 judgment, the German Federal Constitutional Court addressed both the protection of unborn life and the rights of the pregnant woman. The disagreement concerns who holds which rights and what obligations those rights impose on another person. Replacing “dignity” with “bodily integrity” does not settle those questions. Judgment of 28 May 1993

This matters for constitutional drafting. A precise prohibition can settle a specific question of institutional treatment. It cannot quietly resolve every dispute over the beginning of legal personhood. Those questions require their own arguments. Hiding them inside an attractive word gives the interpreter more power than the reader sees.

Elections end. Appointments continue.

Interpretation becomes a structural problem when the institutions choosing the interpreters also benefit from their decisions. A government can lose an election while the people selected under its influence remain in office. Long terms provide independence from immediate pressure; they also extend the consequences of appointment choices beyond the political moment that produced them.

Ran Hirschl’s Towards Juristocracy examines this through the thesis of hegemonic preservation: political and economic elites can support the transfer of authority to courts to protect their interests against future democratic change. It is a theory of power preservation, supported through comparative study. It is not proof that every judge obeys the party associated with an appointment. Hirschl, 2004

Germany illustrates why the distinction matters. Half of the Federal Constitutional Court’s judges are elected by the Bundestag and half by the Bundesrat. Terms last twelve years, subject to the age limit, and re-election is excluded. Election in the Bundestag requires a two-thirds majority of votes cast and at least a majority of all its members. Judges are legally independent. These safeguards constrain appointment power; they do not erase the importance of selection or the political consequences of constitutional interpretation. Article 93 of the Basic Law, Section 6 BVerfGG, Article 97

Prosecutorial authority is a separate issue. German prosecutors are subject to official instructions; the statutory chain places ministerial supervision with the justice administration. That is a different mechanism from the selection of independent judges. Conflating them conceals the actual points where influence enters. Sections 146 and 147 GVG

Jeremy Waldron addresses another part of the problem: why judges should have the final authority to resolve disagreements about rights by striking down legislation. His argument against strong judicial review assumes functioning democratic institutions and a society that takes rights seriously. We do not adopt his institutional conclusion wholesale. His challenge forces us to justify the authority of a reviewing body instead of treating its title as the justification. Waldron, 2006

For a voluntary federation, replacing judicial supremacy with unrestricted majority power would leave the same person exposed to a different decision-maker. Neither a vote nor a judicial robe creates a right to override the constitutional floor.

Name the forbidden acts

Our amendment begins with continued protection. Accusation, conviction, detention and dependency do not erase a person’s protected status. The provision then prohibits torture, physical and psychological abuse, and degrading treatment, including during emergencies, investigations and punishment.

It names conduct an institution must not hide behind its procedures: insults, public humiliation, compelled confessions and threats of prohibited treatment. Intrusions into private space or forced exposure cannot exceed a demonstrated legitimate purpose. Necessary care cannot be withheld as punishment or leverage.

The German draft states:

Du bleibst ein Wesen mit eigenen Rechten. Auch eine Beschuldigung, Verurteilung, Freiheitsentziehung oder Abhängigkeit hebt deinen geschützten Status nicht auf.

And:

Niemand darf dich foltern, körperlich oder seelisch misshandeln oder erniedrigender Behandlung aussetzen. Diese Verbote gelten auch bei Gefahrenabwehr, Ermittlungen, Strafe und Notfällen.

These clauses belong to the protective core. They bind Chapters, unions and federal institutions. They do not prescribe a prison administration, police organisation or central court.

The choice has an existing legal precedent. Article 104 of Germany’s Basic Law expressly prohibits physical and mental mistreatment of detained people. Concrete prohibitions already coexist with the general dignity guarantee. Our task is to carry that clarity through the federation’s own structure. Article 104

We also reject personal preference as the standard. “Treat someone as you would want to be treated” leaves protection dependent on the official’s tastes. The person who tolerates cruelty cannot use that tolerance to authorise cruelty against someone else.

Make the institution show its grounds

Every institutional restriction must identify its authority and a verifiable reason. It may reach no further and last no longer than that reason justifies. The least intrusive effective means applies. A justified restriction permits that restriction; it does not transfer control over the person’s remaining rights.

This separates necessary restraint from abuse. Stopping an immediate attack can require force. A conviction can justify a defined sanction under a rights-compatible order. Neither grants permission to torment, humiliate or deny necessary care.

It also separates stopping a violation from proving personal guilt. Someone subjected to unlawful treatment must not first prove what the official privately intended. The institution must justify its conduct. Personal culpability and sanctions receive their own examination, with evidence and defence rights intact.

An official cannot keep an unjustified restriction in place by pointing out that nobody has yet proved a crime.

The reviewer has limits too

“Degrading” and “necessary” still require judgment. No drafting technique makes language incapable of interpretation. We therefore bind interpretation to stated provisions, decisive facts and demonstrably conferred powers. Appeals to dignity, security or the common good alone do not create authority. They cannot override an express prohibition.

The reviewing institution must also be answerable. Selection rules, jurisdiction and relevant conflicts of interest must be traceable. An institution, client or political association involved in a dispute must not instruct the reviewer on its outcome. Anyone involved in the challenged conduct, or holding a personal interest in the result, cannot provide its independent review. The composition of the reviewing body must itself be challengeable.

Chapters and voluntary unions choose how to meet these requirements. Fractalism protects diversity of organisation while carrying the same limits on power through every level. A federation does not acquire powers that its members had no right to confer.

Exit remains essential. It also remains insufficient on its own. A person must be able to challenge mistreatment while still belonging to a community. “Leave if you dislike it” cannot justify a violation, and a prisoner cannot be told that protection depends on finding the exit.

The Sovereign Society develops the school; the constitutional draft gives these arguments a form that institutions can be held to. Our wording names conduct, keeps the burden of justification with the actor exercising power, and subjects the interpreter to review. Each part addresses a different route around protection.

A guard reading the constitution should know what he must never do. The person behind the locked door should be able to point to the same sentence.