Dignity, body parts and the actio iniuriarum: a novel solution to a common (law) problem?

Brown, Jonathan

Abstract

The importance of human 'dignity' in disputes concerning biological material has been recognised, but the term 'dignity' itself is oft decried as a 'hopelessly amorphous', 'vacuous concept' which should be 'discarded as a potential foundation for rights claims'. Although individuals may have a 'sense' of occasions in which dignity has been affronted, the term itself is said to be too broad to be of any meaningful use as a legal category, since infringements of dignity are easier to detect than to define. These definitional difficulties have not, however, prevented legal claims which are predicated on the occurrence of some insult to dignity from being raised, pressed, and vindicated by the courts in Civil law influenced jurisdictions such as Scotland and South Africa. Such claims have relied upon these jurisdictions' recognition of the actio iniuriarum, a Romanistic legal device. Though there is no equivalent of the actio iniuriarum in the Common law, it is nevertheless submitted that a consideration of this concept would be fruitful in the field of medical law, since it provides a ready framework in which the language of 'dignity' has been able to form the basis of legal decisions in this area.

Citation

BROWN, J. 2019. Dignity, body parts and the actio iniuriarum: a novel solution to a common (law) problem? Cambridge quarterly of healthcare ethics [online], 28(3), pages 522-533. Available from: https://doi.org/10.1017/S0963180119000446

• Journal Article Type: Article
• Acceptance Date: Jul 31, 2018
• Online Publication Date: Jul 12, 2019
• Publication Date: Jul 31, 2019
• Deposit Date: Jul 31, 2018
• Publicly Available Date: Jan 13, 2020
• Journal: Cambridge quarterly of healthcare ethics
• Print ISSN: 0963-1801
• Electronic ISSN: 1469-2147
• Publisher: Cambridge University Press (CUP)
• Peer Reviewed: Peer Reviewed
• Volume: 28
• Issue: 3
• Pages: 522-533
• DOI: https://doi.org/10.1017/S0963180119000446
• Keywords: Body parts; Human dignity; Legal system; Scotland; South Africa; Roman law
• Public URL: http://hdl.handle.net/10059/3035