Human Dignity in Norwegian Law

Dina Townsend

“‘Prinsipper’, ‘alminnelige rettsgrunnsetninger’, ‘grunnleggende krav til rettssik-

kerhet’. Lenge nærmest tabubelagt – nå ord som spiller en økende rolle i rettsut-

viklingen. Enkelte fremhever den økende betydning av rettsprinsipper som ‘et av

de væsentligste elementer i den senere tids udvikling inden for både retsteori og

retspraksis’. Studier av norsk høyesterettspraksis etterlater det inntrykk at «al-

minnelige rettsgrunnsetninger» mv. er kommet til heder og verdighet igjen.»

- Hans Petter Graver, “I prinsippet prinsipiell – Om rettsprinsipper”, Tids-

skrift for Rettsvitenskap, vol. 119, 2/3, 2006, side 189–221.(Graver, 2006)

(Translation: ‘Principles’, ‘general principles of law’, ‘basic requirements of due

process’. Long almost taboo - now these words play an increasing role in the de-

velopment of law. Some highlight the growing importance of legal principles as

"one of the significant elements in the recent development of both legal theory and

legal practice." Studies of the Norwegian Supreme Court practice leaves the im-

pression that "general principles of law", are coming to honour and dignity

again.)

Historically, Norwegian jurisprudence has been characterised by a strong legal

positivist approach. Some scholars have argued that this has amounted to a rejec-

tion of anything that could not be positively verified, including notions of human

rights, duties and values.(Stang, 2013) It is perhaps unsurprising then that Norwe-

gian law, both legislation and case law, has historically made only very few refer-

ences to the notion of human dignity. Human dignity is a concept that plays a

much more limited role in Norwegian judicial reasoning than it does in other Eu-

ropean countries. This animosity to rights discourse and value-based reasoning is

dissipating, however, and this change is most evident in the recent 2015 amend-

ments to the Norwegian Constitution. Among other significant changes, the Nor-

wegian Constitution now includes a single reference to human dignity in relation

to the rights of children.1 This may mean that the concept of human dignity will

come to play a much more significant role in Norwegian law in the coming years.

1 Article 104, Kongeriket Norges Grunnlov Lov 17 May 1814.

2

1 Introduction

McCrudden has argued that one of the key challenges of undertaking a compara-

tive legal analysis of the concept of human dignity is the problem of how to “deal

with the concept of dignity in different languages.”(McCrudden, 2008, p. 712) In

Norwegian legislation and case law we find two words, both of which are com-

monly translated to human dignity – verdighet and menneskeverd. The concept

most commonly found in Norwegian legislation and case law is ‘verdighet’. Like

dignity, verdighet is a word with a number of different meanings, connoting wor-

thiness, honour, and high rank. Like dignity, it is also associated with behaviour,

and in particular with restraint.(Guttu, 1998) ‘Verdighet’ is used both in an institu-

tional context - in references to the dignity of the Court or of the church – and it is

used to refer to the dignity that belongs to humans - in official translations of ‘dig-

nity’ in texts such as the European Convention for the Protection of Human Rights

and Fundamental Freedoms. In political discourse, verdighet is often used in the

negative, to describe some state of affairs as ‘uverdig’ or unworthy.

‘Menneskeverd’ is perhaps most directly translated as human worth. Mennes-

keverd has a stronger collective connotation – closer to the idea of the dignity of

humanity as a group – and it is associated with respect. While verdighet is a

quality associated with institutions, holidays, buildings and graves, menneskeverd

is the worth of humans only. Although verdighet is much more common, mennes-

keverd is consistently used in two important contexts. Firstly, the word is consist-

ently used in reference to the dignity of children wherever that idea arises, both in

original Norwegian legal texts and in translations from English international hu-

man rights texts (such as in the United Nations Convention on the Rights of the

Child of 1989). The sole reference to human dignity in the recently amended

Norwegian Constitution is in Article 104 which states “Barn har krav respect for

sitt menneskeverd” (Children have the right to respect for their human dignity).

Secondly, menneskeverd is consistently used in the context of health law, in re-

gard to the rights of patients and in the regulation of biotechnology. These are not

the only contexts in which menneskeverd is used, but it is nevertheless important

to note that the concept is prevalent in these contexts.

It might be useful to think of the distinction between ‘verdighet’ and ‘mennes-

keverd’ as similar to the distinction between dignity simpliciter and human digni-

ty, but it must be borne in mind that these translations do not line up precisely. In

many ways ‘menneskeverd’, with its concern for humanity and its close associa-

tion with respect, is the idea that most closely resembles ‘human dignity’ as it ap-

pears in judicial reasoning in other parts of the world.(Daly, 2013) In practice,

however, verdighet is more commonly used, particularly in so far as the concept

arises in everyday speech, and in political discourse.

3

2 Human Dignity and the Norwegian Constitution

To coincide with the bicentennial anniversary of the Norwegian Constitution in

May of 2014, the Constitution underwent a significant amendment and modernisa-

tion. One of the important ways in which the Constitution was amended was

through the inclusion of a ‘Bill of Rights’ (in Section E ‘Menneskerettigheter’)

and the addition of a number of new human rights provisions. In their report on

human rights, the Constitutional Committee made the following argument for the

inclusion of human dignity in a new provision securing the rights of the child:

A provision on children's rights in particular expressing

their equality will underpin the relationship that all other

human rights actually also apply to children, unless oth-

erwise specified. … [The inclusion of a provision on]

children's equality or dignity emphasizes that children

have the same human dignity as adults and that they are

entitled to be treated accordingly. The Finnish Constitu-

tion emphasises that children must be treated as equal in-

dividuals. Such a formulation emphasises children's

equality and individuality. The individual aspect shows

that children should not be treated as a group, but as indi-

vidual persons with their own personality, abilities, feel-

ings and needs. A similar formulation in the Norwegian

Constitution could be: "Children must be treated as equal

human beings." Another possible formulation is: "Chil-

dren should be treated with respect" or "Children are enti-

tled to respect for their human dignity." In the Commit-

tee's view, a constitutional provision on children's rights

should contain such an initial formulation, and the Com-

mittee finds the last of these options to be preferable. The

formulation "Children are entitled to respect for their hu-

man dignity" goes the core of that which such an initial

formulation is intended to signal, namely that children are

of no less value than adults.2

Notably, the Committee emphasised dignity as a concept aligned with individuali-

ty. While this is not an uncommon interpretation of the concept of human dignity,

and human rights more broadly, the practice of a number of constitutional and

2 Menneskerettighetsutvalget om menneskerettigheter i Grunnloven, ‘Dokument 16: Rapport Til

Stortingets Presidentskap Fra Menneskerettighetsutvalget Om Menneskerettigheter I Grunnlo-

ven’ (2011) https://www.stortinget.no/Global/pdf/Dokumentserien/2011-2012/dok16-

201112.pdf. My translation.

4

human rights courts have emphasised dignity’s social and collective attrib-

utes.(Waldron, 2009; Werner, 2014) Something to watch out for in the future jurispru-

dence of the Norwegian courts, is whether the idea of menneskeverd will be inter-

preted in an individualistic or more collective manner.

One of the things that is interesting about the Committee’s recommendation to use

‘human dignity’ in the formulation of the rights of the child, is that it brings with it

an assumption that the human dignity of adults is recognised in the provision of

their human rights. Children must be seen to be equal in their human dignity to

adults and thus entitled to the same human rights as adults. While this is the only

provision in the Constitution that refers to human dignity, in its justification by the

Committee we see the implication that human dignity underlies all the rights in the

new Bill of Rights.

Indeed, human dignity comes up repeatedly in the reasoning and explanations that

the Committee offers in its report and recommendations in regard to what was

then the proposed new Bill of Rights. The Committee argues for the inclusion of

key human rights in the Norwegian Constitution, finding that “human rights pri-

marily function to safeguard individual freedom, equality and human dignity”.3

The Committee notes that throughout the course of history we find countless ex-

amples of the gravest neglect and violations of human dignity, and that the consti-

tutional protection of human rights is necessary to secure against such abuses.4

The Committee argues that the constitutional provision of human rights is “of

great importance to preserving and positively developing the society we have to-

day, where respect for the individual and for the individual's dignity is strong.”5

The Committee considered at length a number of theoretical and historical expla-

nations for the nature of and need for human rights. In particular, it considered dif-

ferent arguments about the source or foundation of human rights, including argu-

ments that human rights are founded on the inherent dignity of humanity. Having

concluded its purview of different theories, the Commission offered its own un-

derstanding of human rights, the starting point of which is that “human rights

spring from the belief that all humans are born free and equal, and with the same

human dignity”.6 With reference to the Universal Declaration of Human Rights,

and the Covenant on Civil and Political Rights and the Covenant on Economic,

3 Menneskerettighetsutvalget om menneskerettigheter i Grunnloven, ‘Dokument 16: Rapport Til

Stortingets Presidentskap Fra Menneskerettighetsutvalget Om Menneskerettigheter I Grunnlo-

ven’ (2011), 12. 4 ibid. 5 ibid 49. 6 ibid 47.

5

Social and Cultural Rights, the Committee found that humans have rights by vir-

tue of their human dignity.7

The Committee undertook an investigation of rights provisions in the Constitu-

tions of a number of other States, and took cognisance of the important role that

human dignity often plays in the Constitutional formulation of rights, and in inter-

national rights texts. The Committee also noted the importance of certain kinds or

classes or rights to securing human dignity. It finds, for example, that a life of dig-

nity (‘liv i verdighet’) necessitates constitutional provisions securing certain socio-

economic rights, and in particular securing access to food, water, clothing, hous-

ing and health care.8 In the Committee’s discussion of social welfare and the pro-

vision of security benefits, it noted that the determination of the amount of support

that should be provided to beneficiaries is a political decision, provided that the

amount of support to be granted does not infringe individual dignity.9

In its explanation of the nature and point of human rights, both generally and in re-

lation to specific rights, and its fervent arguments for the inclusion of such rights

in the amended Norwegian Constitution, the Committee repeatedly and emphati-

cally returned to the concept of human dignity, and the importance of respect for

human dignity, both for the individual, and for the securing of democracy. As a

result, while human dignity does not appear in the founding provisions of the Con-

stitution, and while human dignity appears only once in the ‘Bill of Rights’ in the

amended constitutional text, it is a concept that has been deeply influential in the

formulation of that text.

Article 2 of the Norwegian Constitution provides: Verdigrunnlaget forblir vår

kristne og humanistiske arv. This translates to “Our values will remain our Chris-

tian and humanist heritage.”10 The most recent amendment added ‘humanist val-

ues’ to the existing constitutional recognition of Norwegian Christian values. In at

least one legislative provision, the State has recognised respect for human dignity

as one of the fundamental values of the Norwegian Christian and humanist tradi-

tion.11 As a result, human dignity might be read into the founding provisions of the

Constitution, even though it is not explicitly included there.

It is unclear at this stage whether the influence of human dignity in the thinking of

the Committee in their drafting of the recent human rights amendments to the

Constitution will mean that human dignity will start to appear more frequently in

7 ibid. 8 ibid 238. 9 ibid 240. 10 Official English translation of the Norwegian Constitution as laid down on 17 May 1814 by

the Constituent Assembly at Eidsvoll and subsequently amended, most recently in June 2015. 11 The Education Act, Lov July 1998 no. 61, section 1-1.

6

either legislation or judicial reasoning in the Norwegian legal system. The new

Bill of Rights may mark a significant shift in the judicial culture, and if it does,

human dignity may well play an important role in that revolution.

3 ‘Dignity’ and ‘Human Dignity’ in Norwegian Legislation

3.1 Verdighet

There are only eleven, currently valid, pieces of legislation that use of the word

‘verdighet’ in their legislative texts. Three of them incorporate international

agreements or conventions that make use of the phrase ‘human dignity’. The re-

maining 8 are set out below (in each case an English translation can be found in

brackets):

1. LOV 24 June 1994 nr. 39 Sjøloven [Maritime Code]

§135: I den utstrekning det kan skje uten særlig fare for skipet eller dets

ombordværende, plikter skipsføreren å yte all mulig og nødvendig hjelp

til enhver som befinner seg i havsnød eller trues av fare til sjøs. I

havsnød etter første punktum regnes også enhver person som har søkt til-

flukt ved kysten og ikke kan nås av annen redningstjeneste enn etter den

internasjonale konvensjon 27. apr 1979 om ettersøkning og redning til

sjøs. Skipsføreren skal behandle personer som er tatt om bord etter første

og annet punktum, med verdighet og omsorg, innenfor de rammer som

skipets muligheter og begrensninger setter.»

[As far as possible without serious risk to the ship or those on board, the

master is duty bound to give all possible and necessary assistance to any

person in distress at sea or threatened by danger at sea. In distress accord-

ing to the first sentence is any person who has taken refuge along the

coast and cannot be reached by any other rescue service than stated in the

International Convention of 27 April 1979 on Maritime Search and Res-

cue. The master must treat persons who have been brought on-board pur-

suant to first and second sentences with dignity and care, within the

frames set by the ship's possibilities and limitations.12]

2. LOV 24 February 1995 no.12 – Lov om helligdager og helligdagsfred

(Holiday law)

12 English Translation of the Norwegian Maritime Code, translated by Alla Pozdnakova, 2010.

7

§1: For å verne om det gudstjenestelige liv og den alminnelige fred på

helligdager og for å gi høytiden ro og verdighet, skal det være hellig-

dagsfred i samsvar med reglene i denne lov.»

[To protect worship and the general peace of public holidays and to give

the religious holidays peace and dignity, there will be public holiday

peace in accordance with this Act.]

3. LOV 7 June 1996 nr. 32 Lov om gravplasser, kremasjon og gravferd

[Funeral Act]

§3: Kirkelig fellesråd har ansvaret for at gravplasser og bygninger på

gravplasser forvaltes med orden og verdighet og i samsvar med gjelden-

de bestemmelser.

§23: «Graver for utenlandske soldater og krigsfanger (krigsgraver) fra

første og andre verdenskrig skal være fredet uten tidsbegrensning, holdes

i hevd og forvaltes med den verdighet som deres egenart tilsier.

[§3: The Joint Council of Churches is responsible for burial sites and

buildings in cemeteries which must be managed with order and dignity

and in accordance with applicable regulations.]

[§23: Graves for foreign soldiers and prisoners of war (war graves) from

the First and Second World Wars shall be protected indefinitely, and

must be maintained and managed with the dignity their unique character

warrants.]

4. LOV 17 June 2005 nr. 62 Lov om arbeidsmiljø, arbeidstid og

stillingsvern mv [Work place law] §4-3 (1): Arbeidet skal legges til rette

slik at arbeidstakers integritet og verdighet ivaretas.

[The work shall be arranged so as to preserve the employees’ integrity

and dignity.]13

5. LOV 22 May 1902 nr. 10 Lov om straff [The Criminal Code]:

§103(j): Krigsforbrytelse mot person - For krigsforbrytelse straffes den

som i forbindelse med en væpnet konflikt grovt krenker en beskyttet per-

sons verdighet ved ydmykende eller nedverdigende behandling

[War crimes against a person – Punishable as war crimes are actions in

conjunction with an armed conflict that grossly violates a protected per-

son’s dignity through humiliation or degrading treatment.]

6. LOV 25 June 2011 nr. 30 Lov om kommunale helse- og omsorgstjenester

[Law on Public Health Services ]

§1.1: Lovens formål er særlig å: sikre at tjenestetilbudet tilrettelegges

med respekt for den enkeltes integritet og verdighet.

13 Official English translation, found at

http://www.arbeidstilsynet.no/binfil/download2.php?tid=92156.

8

[The purpose of the Act is to ensure that the service is organised with re-

spect for individual integrity and dignity.]

7. LOV 27 January 2012 nr.9 Lov om arbeidstvister [Law on Labour Dis-

putes]

§60: Den som i et møte for Arbeidsretten fornærmer retten eller noen

som møter for den, forstyrrer møtet, krenker rettensverdighet eller ikke

lyder påbud fra retten eller fagdommeren som styrer saken, kan utvises

og ilegges bøter.

[Whoever in a meeting of the Labour Court insults the court, violates the

court's dignity or fails to obey orders from the court or the judge presid-

ing over the matter, may be expelled and fined.]

8. LOV 2 July 2004 nr. 64 Lov om ordning med lokaler for injeksjon av

narkotika [Injection Rooms Act]

§1: Sprøyteromsordningen skal bidra til økt verdighet for mennesker med

langvarig narkotikaavhengighet ved å tilby hygieniske rammer for injise-

ring.

[The injection room scheme will help enhance the dignity of people with

long term drug addiction by providing hygienic options for injection.]

3.2 Menneskeverd

‘Menneskeverd’ appears in a number of Norwegian translations of regional or in-

ternational legal texts to which Norway is a party (such as the International Con-

vention on the Elimination of All Forms of Racial Discrimination14). Here I list

only Norwegian legislation that incorporates the term:

1. LOV 17 May 1814 Kongeriket Norges Grunnlov [The Norwegian Con-

stitution]

§ 104: Barn har krav på respekt for sitt menneskeverd.

[Children are entitled to respect for their human dignity.]

2. LOV 2 July 1999 nr. 63 Lov om pasient- og brukerrettigheter [Law on

Patient’s Rights]

§ 1-1: Lovens bestemmelser skal bidra til å fremme tillitsforholdet mel-

lom pasient og bruker og helse- og omsorgstjenesten, fremme sosial

14 See LOV 21 June 2013 nr. 60 Lov om forbud mot diskriminering på grunn av etnisitet, reli-

gion og livssyn (diskrimineringsloven om etnisitet) [Law prohibiting discrimination based on

ethnicity, religion or belief].

9

trygghet og ivareta respekten for den enkelte pasients og brukers liv, in-

tegritet og menneskeverd.

[The purpose of this Act is to promote trust between the patient and

health care provider, promoting social security and respect for each pa-

tient’s life, integrity and human dignity.]

3. LOV 17 July 1998 nr. 61 Lov om grunnskolen og den vidaregåande op-

plæringa (opplæringslova) [The Education Act] (Almost identical word-

ing is found in the purpose provision of Lov 17 June 2005 nr. 64 – Kin-

dergarten Act)

§ 1-1. Formålet med opplæringa

Opplæringa skal byggje på grunnleggjande verdiar i kristen og humanis-

tisk arv og tradisjon, slik som respekt for menneskeverdet og naturen, på

åndsfridom, nestekjærleik, tilgjeving, likeverd og solidaritet, verdiar som

òg kjem til uttrykk i ulike religionar og livssyn og som er forankra i men-

neskerettane.

[The purpose of education: Education shall be built on foundational val-

ues in the Christian and humanist heritage and tradition, such as respect

for human dignity and nature, freedom of belief, charity, forgiveness,

equality and solidarity, values that are found in different religions and be-

liefs and are rooted in human rights.]

4. LOV 2 July 1999 nr. 62 Lov om etablering og gjennormføring av psykisk

helsevern (psykisk helsevernloven) [Mental Health Act]

§ 1-1.Formål

Formålet med loven her er å sikre at etablering og gjennomføring av

psykisk helsevern skjer på en forsvarlig måte og i samsvar med grunn-

leggende rettssikkerhetsprinsipper. Formålet er videre å sikre at de tilta-

kene som er beskrevet i loven, tar utgangspunkt i pasientens behov og re-

spekten for menneskeverdet.

[Purpose: The purpose of this Act is to ensure the establishment and im-

plementation of mental health care that takes place in a proper manner

and in accordance with fundamental legal principles. The objective is to

ensure that the measures set out in the law are based on the needs of the

patient and respect for human dignity.]

5. Lov 5 December 2003 nr. 100 Lov on humanmedisinsk bruk av biotekno-

logi m.m. (bioteknologiloven) [Medical Use of Biotechnology Act]

§ 1-1.Lovens formål

Formålet med denne loven er å sikre at medisinsk bruk av bioteknologi

utnyttes til beste for mennesker i et samfunn der det er plass til alle. Dette

skal skje i samsvar med prinsipper om respekt for menneskeverd, men-

neskelige rettigheter og personlig integritet og uten diskriminering på

10

grunnlag av arveanlegg basert på de etiske normer nedfelt i vår vestlige

kulturarv.

[The purpose of this Act is to ensure that medical applications of bio-

technology are utilised for the benefit of everyone in an inclusive society.

This shall be done in accordance with the principles of respect for human

dignity, human rights and personal integrity and without any discrimina-

tion on the basis of genetic constitution, on the basis of the ethical norms

that form part of our Western cultural heritage.15]

6. Lov 21 February 2003 n. 12 Lov om behandlingsbiobanker (behan-

dlingsbiobankloven) [Biobanks Act]

§ 1.Formål

Lovens formål er å sikre at innsamling, oppbevaring, behandling og

destruksjon av materiale som inngår i en biobank foretas på en etisk for-

svarlig måte, og at biobanker utnyttes til individets og samfunnets beste.

Dette skal skje i samsvar med grunnleggende personvernhensyn, prinsip-

per om respekt for menneskeverd, menneskerettigheter og personlig inte-

gritet, og uten diskriminering av mennesker som det biologiske materialet

stammer fra.

[The purpose of this Act is to ensure that the collection, storage, pro-

cessing and destruction of material that forms part of a biobank are car-

ried out in an ethically sound manner, and that biobanks are used for the

benefit of individual people and of society as a whole. These activities

shall take place in accordance with fundamental respect for the right to

privacy and the principles of respect for human dignity, human rights and

personal integrity, and without any discrimination of individuals from

whom the biological material originates.16]

7. Lov 20 June 2008 nr. 44 Lov om medisinsk og helsefaglig forskning

[Health Research Act]

§ 5.Forsvarlighet

Medisinsk og helsefaglig forskning skal organiseres og utøves forsvarlig.

Forskningen skal være basert på respekt for forskningsdeltakernes men-

neskerettigheter og menneskeverd. Hensynet til deltakernes velferd og in-

tegritet skal gå foran vitenskapens og samfunnets interesser.

[Responsible conduct: Medical and health research must be organised

and carried out in a responsible manner. Research must be based on re-

15 From the official translation, accessed at

https://www.regjeringen.no/globalassets/upload/kilde/hod/red/2005/0081/ddd/pdfv/242718-

biotechnology_act_master.pdf. 16 Translation from https://ec.europa.eu/research/biosociety/pdf/norwegian_act_biobanks.pdf.

11

spect for the research participants’ human rights and human dignity. The

participants’ welfare and integrity shall have priority over scientific and

social interests.]

It is clear from the legal provisions set out above,17 that ‘dignity’ appears only oc-

casionally in Norwegian legislation and ‘human dignity’ even less frequently.

Where the concept is used, references to dignity or human dignity are brief and

undefined. The significant majority of legislative references to ‘menneskeverd’

appear in the purpose provisions, and do not appear again in the body of the text.

While this suggests that dignity may have a role in the interpretation of the legisla-

tion, it does not play a significant or substantial role in the primary legal mecha-

nisms.

These provisions suggest, however, that while dignity does feature in Norwegian

law, there is no single, coherent conception of dignity that has been adopted.

While many of the legislative references above refer to an idea of the dignity of

the person or the necessity of treating people with dignity (to human dignity), the

law on labour disputes refers only to the dignity of the court and the Holiday Act

refers to the dignity of the holiday season. In these instances, Norwegian law

seems to adopt an idea of dignity wholly different from the idea of “human digni-

ty”.

4 Dignity in Norwegian judicial reasoning

This section looks briefly at the practice of the Norwegian Supreme Court.

In the jurisprudence of the Norwegian Supreme Court, we see limited reference to

notions of dignity or human dignity. In the first decade of the 20th

century, the Su-

preme Court of Norway adopted a legal rhetoric that Graver describes as purged

of moral elements in favour of a more scientific approach to social thinking.(Graver,

2006, p. 190) Scholars note a shift in this trend, however, and an increasing reliance

on the language of principles and “non-positive” sources in the reasoning of the

courts. To what extent is this trend reflected in the courts’ reliance on the concept

of dignity (in one sense or another) in their judicial reasoning?

4.1 Verdighet

17 All translations are my own unless indicated to the contrary.

12

In a number of cases, the Supreme Court of Norway has relied on the notion of the

dignity of the court (“rettens verdighet”).18 This idea of the dignity of the courts is

extended to judges, who in their official capacity have dignity and whose conduct

must be characterised by dignity.19 Judicial dignity is emphasised and protected in

a number of cases (including one in which it was found that the ban on photog-

raphy in court protected not only the accused but also judicial dignity and reputa-

tion).20

In a criminal case in 2004, the Supreme Court ruled on the basis of the fundamen-

tal belief that the dead must be treated with dignity and respect.21 The case con-

cerned four men accused of aggravated theft, vandalism and abusing a corpse (in-

cluding the severing and theft of a head). In considering the appropriate sentence

for those found guilty of the offences, the court reasoned:.

There is little case law with respect to punishment in these

types of cases. The punishment must be meted out by the in-

terests the provision [of the Penal Code] is intended to protect,

first and foremost our common interest in that dead people are

treated with dignity and respect. This must be seen as a fun-

damental belief in our culture.22

The idea of the dignity of the dead is interesting for a number of reasons. It is an

interesting case as the Court relies on a fundamental cultural belief in determining

a legal requirement – an unusual approach for the Norwegian Supreme Court. It is

also interesting when considering whether a common, global legal conception of

dignity can be identified. The idea that the dead have dignity challenges the idea

of dignity as associated with autonomy (seen in both the Norwegian case law and

in the case law of many courts around the world), but it is an idea that has been

applied in a number of jurisdictions.23

18 See for example HR 2013-1454 U - Rt 2013-1045 in which the Court of Appeal found that an

attempt by a shareholder to use the courts to attempt to acquire control of a company was

“against the purpose of the provision on the court’s involvement … and also the Court’s digni-

ty.” My translation. 19 This comes from the Commentary on Act of 15 June 2001 which stipulates that a judge must

be independent in his judicial activity. See also the Supreme Court ruling in HR 2012-1312-A -

Rt 2012-1035. 20 See HR 2004-586-A - Rt 2004-510. 21 See HR 2004-666-A - Rt 2004-610. 22 Id, paragraph 12. 23 See, for example, BVerfGE 30, 173 Federal Constitutional Court of Germany (First Division)

(1971).

13

In a case relating to the requirements for compulsory mental health care in terms

of the Mental Health Act (1961), the Supreme Court refers to the idea of individu-

al human dignity. In that case, the court found that the Mental Health Act’s re-

quirement that patients should be given an opportunity to undertake voluntary

treatment before resorting to involuntary commitment, recognised the principle of

patient autonomy and respect for individual human dignity.24 The Supreme Court

also refers to “individual integrity and human dignity” when considering the limits

of free expression and the law of defamation.25 Here human dignity is associated

with the notion of reputation.

4.2 Menneskeverd

In 2007, the Supreme Court considered whether a newspaper’s reporting of anti-

Semitic comments, stated in an interview with the reporter, constituted a violation

under the Penal Code.26 In finding that it did, the Supreme Court argued that the

comments published constituted a “gross disparagement of a group’s dignity.”27

The Court found that over a number of cases on the Penal Code provision in ques-

tion, the Court had established certain criteria for determining a contravention, in-

cluding that such statements disparage the dignity of a group.28 The Court found

that the statement printed, in particular references to Jews as parasites and the

statement that Jews are not human, constituted a degradation of the dignity of

Jews as a group, and thus a contravention of the Penal Code’s prohibition of hate

speech.29

24 See HR 2001-621 - Rt-2001-1481 (270-2001). See also HR-1993-1959-B - Rt-1993-537. 25 See HR-1994-39-A- Rt-1994-506. 26 See HR-2007-2150-A - Rt-2007-1807. 27 Ibid, paragraph 13. 28 Ibid, paragraph 33. 29 Lov 22 May 1902 nr.10 Penal Code

§ 135 a.1 Den som forsettlig eller grovt uaktsomt offentlig setter frem en diskriminerende eller

hatefull ytring, straffes med bøter eller fengsel inntil 3 år. Som ytring regnes også bruk av sym-

boler. Medvirkning straffes på samme måte. Med diskriminerende eller hatefull ytring menes det

å true eller forhåne noen, eller fremme hat, forfølgelse eller ringeakt overfor noen på grunn av

deres

a) hudfarge eller nasjonale eller etniske opprinnelse,

b) religion eller livssyn,

c) homofile legning, leveform eller orientering, eller

d) nedsatte funksjonsevne.

[Any person who wilfully or through gross negligence publically utters a discriminatory or hate-

ful expression shall be liable to fines or imprisonment for a term not exceeding three years. The

use of symbols shall also be deemed to be an expression. Any person who aids and abets such an

14

This case, and the cases it cites30, are interesting because of their recognition of

dignity as something that can belong to a group or that can be of importance in the

context of group identity. While no individual was targeted in the quoted state-

ments, these statements affected all Jews by virtue of their membership in a group,

and their group identity. In an earlier case, the Court had found that anti-Semitic

statements by the leader of the Bootboys, a neo-Nazi group, made during a

demonstration were not prohibited by the penal code.31 The Court recognised dis-

paragement of a group’s dignity as a factor in determining whether the Penal Code

prohibition applies, but in that case found that the speech was derogatory and of-

fensive but did not incite violence, and was thus protected by the free speech pro-

vision in the Constitution.

The Supreme Court has already made reference to the new Article 104 of the Con-

stitution in a few recent cases, but it has, so far, failed to consider in any detail

what the particular wording of the provision demands or what the concept of hu-

man dignity contributes to the provision’s meaning. In a recent case on whether to

extradite a Rwandan man accused of genocidal acts, who had had three children

while living as a refugee in Norway, the Supreme Court noted the new Constitu-

tional Article 104.32 The Court declined to interpret the provision, however, find-

ing that there is (unsurprisingly) little judicial practice interpreting the provision,

and choosing instead to consider whether the extradition was in contravention of

the Norwegian Human Rights Act (and specifically, international human rights

law incorporated under that Act)33 and the UN Convention on the Rights of the

Child.

offence shall be liable to the same penalty. A discriminatory or hateful expression means here

means threatening or insulting anyone, or inciting hatred or persecution of or contempt for any-

one because of his or her:

a) skin colour or national or ethnic origin,

b) religion or life stance or,

c) homosexuality, life style or orientation

d) disability.] 30 See HR-1997-75-B - Rt-1997-1821 and HR-2001-1428 - Rt-2002-1618 (361-2002). Although

note cited in this judgement, another case that looks at whether disparaging group dignity should

determine a violation of the penal code is HR-2012-689-A - Rt-2012-536. In that case the Judge

questions whether disparagement of the victim’s dignity should constitute a tool for determining

the threshold of the offence. See paragraph 31. 31 See HR-2001-1428 - Rt-2002-1618 (361-2002). 32 HR-2015-289-A - Rt-2015-155. 33 Lov 21 May 1999 nr. 30 Lov om styrking av menneskerettighetenes stilling i norsk rett

(menneskerettsloven). §2 lists the Conventions which shall apply as Norwegian Law, including

the UN Convention of the Rights of the Child.

15

The Supreme Court noted but also failed to define Article 104 in a subsequent

case on an asylum application by an Afghan family living in Norway with six

children.34 In this case, an appeal that had worked its way up the judicial system

from a decision of the Immigration Appeals Board, the Supreme Court declined to

consider Article 104 as it had not yet been adopted at the point when the Immigra-

tion Appeals Board had first heard the matter.35 Again, the Supreme Court gave

detailed consideration to the Convention on the Right of the Child, noting a simi-

larity in wording between Article 12 of the UN Convention and Article 104 of the

Norwegian Constitution, but declining to interpret or elaborate on the implications

of such similarity.

Importantly, while there are a number of references to human dignity in the UN

Convention on the Rights of the Child, dignity does not appear in Article 12 of

that Convention. While it might be too soon to expect the Supreme Court to have

interpreted Article 104 of the Constitution, for a number of sound reasons, it will

be interesting to see in the future whether the Supreme Court recognises the refer-

ence to human dignity as significant.

4.3 In sum: dignity in the reasoning of the Supreme Court

This brief overview of the dignity reasoning of the Norwegian Supreme Court,

suggests that there are a number of different conceptions of dignity being invoked.

A common idea of dignity that can be found in the Court’s jurisprudence is an in-

stitutional idea of the dignity of the court and the judiciary. The Supreme Court

has a long practice of referring to the dignity of the court (including the dignity of

judges, lawyers and the practice of law) dating back to the early 1930s. The Su-

preme Court has recognised both the dignity of the dead and the dignity of groups,

giving group dignity a central role in its analysis of hate speech. The Court’s ju-

risprudence on the individual dignity of the living is still fairly limited, although

this may change in the future, particularly in cases concerning the rights of chil-

dren and family rights.

Although there is currently fairly limited case law on human dignity, the new Bill

of Rights in the amended Norwegian Constitution may mean a significant shift in

this practice over the course of the new few years. This is particularly likely given

the Supreme Court’s assertion that the “the new constitutional rights and freedoms

are to be understood in light of their international background”(Bårdsen, 2015)

and that the case law of international courts and tribunals may be taken into ac-

34 See HR-2015-2524-P - Rt-2015-1388. 35 Ibid, paragraph 162.

16

count in judicial interpretation of the new provisions. “Although not formally

bound by the international case law when interpreting the Norwegian Constitution,

the Supreme Court is not supposed to deviate from it without good

cause.”(Bårdsen, 2015) In light of the significant role that dignity has played in

the judicial reasoning of the European Court of Human Rights, as well as in the

reasoning of a number of European constitutional courts in their interpretation and

application of human rights provisions,36 it seems possible that the Norwegian

courts may follow suit.

5 Conclusion

Human dignity currently plays a relatively small role in Norwegian law, but with

the recent amendment of the Constitution, this may change in the course of the

next few years. To date, the Supreme Court has referred to dignity in only a very

limited number of cases. In those limited cases where the court does refer to digni-

ty, these reference are usually extremely brief and contain little analyse or investi-

gation of what dignity might mean in the context of the case of Norwegian law

more broadly. Despite Norway’s adopting a number of international agreements

that incorporate the idea of human dignity, this does not appear to have had a very

significant effect on the application of dignity in Norway’s domestic law.

The recent amendments to the Constitution, and the reasons provided by the

Committee in their formulation of the new ‘Bill of Rights’ suggests, however, that

international interest in the concept of human dignity, and its popularity in humans

rights law in Europe, has had an influence on Norwegian lawyers and legislators.

In addition, scholars note a slow shift in Norwegian law away from a ‘scientific’

approach to one that is beginning to incorporate principles and values into judicial

reasoning. The recent amendment of Article 2 of the Norwegian Constitution to

include humanist values and the aim of ensuring democracy, rule of law and hu-

man rights, is a possible indication of a more value orientated approach, as is the

reference to menneskeverd in article 104. Whether this will mean a greater adop-

tion of the concept of human dignity, in one form or another, into Norwegian law

or an increase in dignity references in judicial reasoning is yet to be seen.

Acknowledgement With thanks to Hans Christian Bugge and Bård Sverre Tuseth. All errors are

my own.

36 (Dupré, 2016) For a broader analysis of dignity’s use in global constitutional jurisprudence,

see (Addis, 2015; Barak, 2013; Daly, 2013)

17

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