Dignity and the Actio Iniuriarum

In the words of Professor Laurie, “a dictionary description [of dignity] is as good as any other because dignity has eluded successful description since its proliferation in legal instruments and declarations on human rights in the post-Second World War Era.”^{Footnote 14} Nevertheless, the mercurial nature of the term ‘dignity’ has not prevented the actio iniuriarum from operating as an effective and sophisticated legal mechanism which expressly affords remedy to those claiming affront to dignity in Romanistic legal systems.^{Footnote 15}

‘Dignity’ does not simply exist as an unexpressed undercurrent which silently informs the operation of the actio iniuriarum; in addition to existing at the core of the action itself,^{Footnote 16} one’s interest in one’s dignity is manifestly recognized as an essential personality right which is worthy of protection. The Roman jurist Ulpian identified three interests against which the delict of iniuria could be committed—corpus (the body), fama (reputation) and dignitas (dignity).^{Footnote 17} This triad of nonpatrimonial interests was adopted and popularized by the work of the Dutch jurist Voet,^{Footnote 18} which greatly informed the development of jurisprudence in Scotland and South Africa, as well as the Civil law tradition more widely. The influence of this work in the Common law tradition, however, was more limited. Anglo-American law recognizes only the first and second of the trio as meriting legal protection, offering protection in respect of corpus by way of torts such as assault and battery, and protection to fama by way of the torts of slander and libel.^{Footnote 19} Dignitas is not expressly afforded protection.^{Footnote 20} In Civilian and Civilian-influenced legal thought, however, the term is now understood to exist as a nomen collectivum; a general clause:

Dignitas, within the context of the actio iniuriarum, can consequently be described as “an all-embracing interest, capable of extending so as to protect a wide range of rights.”^{Footnote 22} Thus, though it can certainly be said that dignitas is “the most problematic” of the trio, it also remains “at once the most interesting” of the three protected interests.^{Footnote 23} In modern South African law, it has been determined that dignity—and infringements thereof—is to be both objectively and subjective assessed; the concept consequently encompasses both an individual’s own subjective feelings of self-worth along with objectively determined features such as their freedom, autonomy and equality with other legal subjects.^{Footnote 24} The recognition of dignity as a protected legal interest is the recognition of “the intrinsic worth of human beings” which necessitates that such subjects are regarded, by law, as “entitled to be treated as worthy of respect or concern.”^{Footnote 25} Such is consistent with Laurie’s chosen dictionary definition of the term, which describes ‘dignity’ as “the state or quality of being worthy of respect.”^{Footnote 26}

In a sense which remains general, yet is still specific enough to permit the pursuit of remedies in respect of infringement of dignity in the courts, ‘dignity’ may therefore be understood as a nonpatrimonial interest entitling all legal persons to be treated, in all circumstances, with respect. This interest is inviolable, but with that said all persons may nevertheless waive their right to raise an action in respect of a breach of their dignity by plain exercise of their basic autonomy.^{Footnote 27} This conception of dignity, therefore, treats the concept of autonomy as a partner, rather than a competitor.

From the above definition, it follows that “infringing a person’s dignity means insulting that person.”^{Footnote 28} To do such is to commit the delict of iniuria. As shall be demonstrated in the next section, as at the core of each of Foster’s three presented scenarios is some insult or affront effected against either a specific human being, or humanity in general. On this basis, it can be empirically demonstrated that Foster’s assertion that the language of dignity could better serve to describe the nature of the wrongdoing, where the language of ‘property’ could not, is essentially correct.

Foster’s Three Scenarios

In his piece for this journal, Foster set out three examples of occasions in which a legal model which conceptualizes human biological material as ‘property’ would either do only a “workmanlike job” at best, or fail utterly to capture the essence of the issue at hand at worst.^{Footnote 29} Foster had previously espoused the three scenarios in his earlier work published in the Journal of Medical Ethics (JME);^{Footnote 30} the issues at hand are identical in the scenarios presented in both publications, but the text from the CQHE publication is reproduced below:

1. 1. A child’s heart, retained for the purposes of medical research: The child died of a disease being studied at the institute that has retained it. Its heart, which is particularly useful to the researchers, was removed at post-mortem without the knowledge of the parents. The rest of the body was returned and buried. The researchers say that they did not seek the parents’ permission because they knew that it would have been refused. They are unrepentant, asserting that the value of their research to future children trumps any ethical quibbles about parental consent.

2. 2. A human ear ashtray: Medical students steal an ear from the cadaver they are dissecting. Back at their student squat, they use it as an ashtray. The cadaver was donated for the purposes of medical education, and the donor (the person whose body it is) would have been outraged at this misuse.

3. 3. A human head football: Children play football in the street with the head of an unknown person, with no living relatives, dug out by a dog from a mediaeval cemetery.^{Footnote 31}

Foster is right to note that a property-based legal model may potentially offer some remedy in respect of the wrongdoing which occurred in some of these hypothetical situations, but that equally the language of property seems utterly inappropriate in each of these scenarios. The actions of the purported wrongdoers in each of the three fictitious cases cannot be regarded as morally equivalent to plain theft or trespass. Indeed, even if they were so, Common law jurisdictions would find it difficult to offer remedy under the heading of ‘property’ in each of these circumstances, given the longstanding rule precluding “property in a corpse”^{Footnote 32} (which has, itself, been extended to cover all human biological material more widely).^{Footnote 33}

Having made his case that the language of property is inadequate to describe the problems raised in each of the three scenarios, Foster goes on to make a strong case that, in each of the three cases, the language of ‘dignity’ ought to be preferred as a means of describing each of these wrongs, though he concedes that “dignity is easier to recognise than define.”^{Footnote 34} This statement is true not only in respect of the philosophical notion, which has attracted a copious amount of comment from ethical thinkers and philosophers,^{Footnote 35} but also of the legal conception of ‘dignity’ within the context of the actio iniuriarum. Since the core of ‘dignity’, as a specific personality interest, is the right to be treated with respect, and there are a potentially infinite number of ways in which disrespect may be manifested,^{Footnote 36} it should follow that an infringement of dignity should be easier to detect than to define. Such difficulty has not^{Footnote 37} and should not present difficulties to those who wish to seek remedy in respect of infringement of dignity.

Accordingly, in spite of the difficulties in defining and delimiting ‘dignity’ within the law, it can be shown that each of the three scenarios set out by Foster would give rise to actionable iniuriae in any jurisdiction which recognizes the existence of such a concept. Indeed, as is elucidated below, there is (comparatively) recent Scottish case law which demonstrates that the first of the three scenarios represents a clear case of iniuria and there exists South African jurisprudence which indicates that the third, though dealt with in terms of the criminal, rather than Civil, law, may also amount to an illegal infringement of dignity.

The second of the three scenarios may also be conceptualized as an instance of iniuria. In Pitmedden’s 17^th century treatise on “Mutilation and Demembration,” there is reference to a debate amongst the Civilian ius commune scholars as to whether or not the severing of a limb from a dead body ought to be categorized as ‘demembration’ (a specific subcategory of iniuria).^{Footnote 38} Thus, it is possible to make the case that Foster is right to suggest that the language of dignity is instructive in dealing with all three hypothetical cases.

Considering each of Foster’s scenarios in turn, it is plain that the first of the three is analogous to AB v. Leeds Teaching Hospital. ^{Footnote 39} This case concerned the removal of organs from deceased children without parental authorization. In response to this, the parents raised a group action in respect of psychiatric injury. The claim was based on the grounds that the organs of the children were removed from their bodies, retained by the hospital and subsequently disposed of by the hospital with neither the knowledge nor consent of the parents, as ss.1–2 of the Human Tissue Act 1961 (the Human Tissue Act 2004 having not yet been enacted) required.

In this case, it was ultimately held that since “to dissect and fix an organ from a child’s body requires work and a great deal of skill, the more so in the case of a very small baby,” and since there exists, in English law, an exception to the ‘no property rule’ whereby if, by exercise of ‘human work or skill’, the biological material could be said to have taken on the character of ‘property,’^{Footnote 40} it necessarily followed that the organs of the children were to be considered ‘property’ for the purposes of law. This did not allow the parents of the deceased children to claim any legal remedy, however. By operation of the ‘human work or skill rule’, the individual who carries out the necessary act of human work or skill acquires ownership of the nova species—the body or body part that is ‘worked’ on. Accordingly, it was held that the hospital were to be regarded, in law, as the ‘owners’ of the organs once its employees conducted the necessary ‘work’ on the bodies. The plaintiffs in AB were thus unable claim remedy in either property law or in tort law. Indeed, it was because they lacked ownership of their children’s organs, combined with the absence of any nominate tort concerned with wrongful interference with the body, that the plaintiffs had no remedy in law at all. This state of affairs solidly demonstrates the veracity of Foster’s averment that property law is inadequate in cases of this kind. Even in instances in which human biological material is recognized as property, there is no guarantee that the individuals who have the closest emotional connection to the material could claim ownership of it.

In Scotland, the outcome of a case which turned on similar facts to AB was decidedly different. As a result of Scotland’s institutional connection to the actio iniuriarum, it was decided, in Stevens v. Yorkhill NHS Trust,^{Footnote 41} that the actions of a group of medical professionals who retained the brain of a stillborn infant without parental authorization were wrongful as they amounted to the delict of iniuria. Accordingly, compensation was payable to the parents of the deceased child by means of the actio iniuriarum. In the words of Temporary Judge Macaulay QC, “Scots law recognises as a legal wrong for which damages by way of solatium can be claimed the unauthorised removal and retention of organs from a dead body. The Scottish cases suggest that the true juridical basis for this type of claim lies in the actio injuriarium. English law, with its different legal history may not recognise the existence of such a wrong, but that does not impact upon the position in Scotland.”

The Court of Session was able to wholly avoid the issue of ‘property’ in the body or organs of the child in Stevens since the true nature of the dispute was not regarded as proprietary at all. Following from three earlier cases concerning unauthorized post-mortems,^{Footnote 42} Macaulay noted that “the judges [in these cases] considered that, in the circumstances, the unauthorised post mortems and the unauthorised removal and retention of body parts, disclosed such an insensitivity to the feelings of near relatives following upon the death of a loved one, that such conduct constituted an affront to their dignity as relatives of the deceased so as to justify being classified as a Civil wrong in which damages by way of solatium could be claimed.”

The judgment of the court in Stevens was in line with the findings of the 2003 McLean report,^{Footnote 43} which found that the fundamental objection put forth by families in respect of post-mortem practice was the ‘insult’ effected by the retention of organs. Though the report did not deign to discuss the delict of iniuria, it nevertheless sought to “clarify and reinforce the very real interests that parents have in their children, even after their death.”^{Footnote 44} Like Foster,^{Footnote 45} it sought to utilize Article 8 of the European Convention on Human Rights to realize this purpose. In 2005, however, Professor Whitty noted that the “word ‘insult’ matches exactly the affront which triggers the actio iniuriarum.”^{Footnote 46} Consequently, it was suggested that if one were to substitute “the concept of ‘the dignity’ of the family unit” for that of ‘privacy’, then “one can see that the Report is striving to create, from the ECHR and non-legal materials, established legal principles which already do underlie the existing Scots private law right of action for solatium for wounded feelings arising from affront.”^{Footnote 47}

In holding that the conduct in Stevens amounted to iniuria, the Outer House ensured the provision of a simpler, and consequently more satisfactory, remedial approach to issues of this kind than that suggested in the McLean report. It was able to do so by dint of the existence of ‘dignity’ as a protected legal interest in Scots law. Accordingly, it can be demonstrated that Foster is not only right to suggest that the language of dignity would be best placed to describe the nature of the wrong which occurred in the first of his three examples, since the ‘insult’ impinging upon the parent’s dignity may be said to be the crux of the wrongdoing, but also that there exists a legal taxonomy which practically serves to not only offer remedy, but to do so in the terms which Foster describes.

As noted in regard to the second of the hypothetical scenarios, Lord Pitmedden specifically considered an example akin to that which Foster described. By the time of Pitmedden’s writing, iniuria existed within the taxonomy of Scots law as a high-level category which was itself divisible into ‘second-level’ and tertiary subcategories.^{Footnote 48} Among the second-level categories were the subdivisions iniuria realis—which pertained to iniuriae committed by way of physical acts—and iniuria verbalis—which pertained to iniuriae effected by way of words. These subcategories themselves could be subdivided into third-level (tertiary) categories; thus, mutilation (severing body parts from a person) and demembration (permanently crippling the limb(s) of a person)—the subjects which Pitmedden treated in his treatise—were taxonomically considered to be specific subcategories of iniuria realis.

In the course of his work, Pitmedden considered whether “a man may be punished as a demembrator who cuts off a member of a dead man out of a design to disgrace it.”^{Footnote 49} Pitmedden himself took the view that such a man could not be so regarded, drawing on the authority of the Italian jurist Prospero Farinacci, although it was nevertheless noted that the jurists of the ius commune were not of one mind in respect of this question. Pitmedden himself recognized that the Spaniard Francisco Suárez was of the view that such a man ought to be punished for demembration due to the malice demonstrated in the commission of such an act.

Whether or not one may say that the dignity of the corpse is infringed by the severing of a body part from it, it is clear that, from the logic presented by Macaulay in respect of the Scottish unauthorized post-mortem cases,^{Footnote 50} such an act could be regarded as displaying such insensitivity toward the family of the deceased that it ought to permit them remedy in respect of the affront to their dignity. This would be consistent with the position set out by Foster and such would provide remedy for the occurrence of an obvious—if nebulous and indefinable—act of wrongdoing.^{Footnote 51} The potential for the actio iniuriarum to remedy wrongs of this kind, in language which adequately captures the nature of the wrongdoing, is consequently apparent and is, indeed, confirmed by the Roman sources^{Footnote 52} and Scottish institutional writers.^{Footnote 53} In effect, though the dead may not be able to lay claim to any interest in dignity, the surviving heirs of a deceased person do retain an interest in protecting the dignity interests of their forbearers.

The benefit of the recognition of iniuria as a legal wrong—and thus, by association, of dignity as a legal interest—in cases of this kind can also be seen by contrasting the legal consequences of the mistreatment of the cadaver of Habiba Mohammed in England with the outcomes of the South African cases of R v Letoka ^{Footnote 54} and R v. Sephuma.^{Footnote 55} In 2003, the corpse of Ms. Mohammed was desecrated by an unknown individual or group. In obvious contempt of her Muslim faith, Ms. Mohammed’s body was covered in rashers of bacon as it lay in the morgue. In spite of the clear insult directed toward Ms. Mohammed’s family and the wider Muslim community, no Civil or criminal remedy was available under English law as the desecration “could not be ‘tied’ to any particular crime.”^{Footnote 56} By contrast, in Letoka and Sephuma, which each involved the mutilation of cadavers, the South African courts held that the violation of a corpse was an abomination which effects “a gross outrage to the feelings and sensibilities of the relatives of the child [i.e., the deceased].” ^{Footnote 57} Such outrage, as indicated above, could be remedied by means of a claim of iniuria and the provision of remedy in such circumstances could be justified by reference to the indignity inflicted on the family of the deceased.^{Footnote 58}

Turning to the third of Foster’s scenarios, it is submitted that the insensitivity displayed by the boys in this hypothetical is such that, if the deceased were to have any family, the actio iniuriarum could provide them with a remedy. In the absence of family, however, it would appear that there is no Civil remedy, though only because no one could be said to hold the requisite locus standi to raise an actio iniuriarum; the actions of the boys are still evidently wrongful. Thus, it is notable that in South Africa iniuria may amount to criminal conduct, as well as a Civil wrong.^{Footnote 59} The essence of crimen iniuria is practically analogous to the Civil conceptualization of iniuria within South African law,^{Footnote 60} although it has been said that the affront effected must be “serious” in order to merit criminal prosecution.^{Footnote 61}

In a 2007 article, Christison and Hoctor made the case that unwarranted interference with cadavers would amount to crimen iniuria.^{Footnote 62} Ultimately, they concluded that “although the dead are incapable of enforcing the right to dignity (and in a technical legal sense, of possessing it) it is submitted that society as a whole has an interest in the preservation of dead persons’ dignity and the state a role as the custodian of this right.”^{Footnote 63} Such is consistent with Foster’s claim that dignity serves as the best candidate to describe the wrongdoing present in the third scenario and such clearly illustrates a means by which the law may be used to protect societal interests in human dignity. The question for policy-makers is whether or not such conduct merits criminal sanction; whether or not it is appropriate to transplant the Civil law framework underpinning the actio iniuriarum to the criminal law is ultimately beyond the scope of this article.^{Footnote 64}

Though Scotland does not recognize the crimen iniuria, Scottish criminal law nevertheless provides a means of prosecuting conduct of the kind described in Foster’s third scenario. In 2004, a group of Edinburgh-based boys were convicted of the crime of violation of sepulchers after they broke into the tomb of the Scots jurist Sir George MacKenzie and thereafter severed and carried off his head before “playing” with it in the graveyard.^{Footnote 65} A consideration of the Roman crimen violati sepulcri (the ancestor of the modern Scottish crime) specifically illustrates that the rationale for the Scots crime is the affront to human dignity effected by the interference with a corpse which has been reverentially buried.^{Footnote 66}

Like its Scottish successor, the Roman crimen violati sepulcri was a penal action which could be raised in any instance in which a grave was disturbed in some manner or another. Significant for the purposes of the present discussion, the crimen violati sepulcri was an actio popularis, meaning that if an action in response to interference with a grave-site was not raised by one with an interest in the grave, then any Roman citizen could raise the action.^{Footnote 67} Violation of sepulcher was thus regarded by the Romans as so offensive to public mores that even in an age of primarily private penal actions, it was deemed to be a wrong committed against the public as a whole. The law relating to the crimen violati sepulcri is thus instructive in respect of the third of Foster’s posited scenarios; a flexible criminal law action grounded in the recognition of dignity has the potential to allow for specific criminal liability to attach in situations in which there is gross abuse of a previously interred cadaver.

From the above, it is clear that the legal recognition of iniuria, as it existed in Roman law and as it presently exists in Scotland and South Africa, has the potential to provide legal remedies to those who have been affronted by conduct such as that presented in Foster’s three scenarios, and to do so utilizing the language which Foster holds to be most appropriate in such cases. It has consequently been demonstrated that there exists a practical legal framework which can—and does—specifically serve to protect interests in human dignity. From this, though it has been argued that ‘dignity’ is an utterly useless concept, it can also be demonstrated that dignity is a useful construct which can be—and should be—used by lawyers and ethicists in novel or difficult cases concerning human biological material. This is so even in spite of the ultimately mercurial or nebulous nature of the word itself.

Lessons from the Actio Iniuriarum?

The salient point to be drawn from the above analysis is the fact that ‘dignity’ does not need to be burdened with a restrictive definition in order to act as an effective remedy in respect of wrongdoing. Indeed, the flexibility of the term is an asset. The law can serve to offer restitution to those who have been affronted by the actions of another, even if is difficult to describe the nature of the wrongdoing with absolute precision. By means of a mechanism such as the actio iniuriarum, any sufficiently disrespectful conduct which effects some affront to human dignity may grant remedy to the affronted party: Speaking of the actio iniuriarum as it existed in Roman law, Descheemaeker and Scott noted that “as long as the wrongdoer’s purpose was to bring his victim into disrepute, his conduct—whatever it was—was potentially actionable.”^{Footnote 68} Within the terms of the dual subjective/objective test for infringement of dignity, it would appear that this remains the case in Scots and South African law today.

Thus, accepting the premise that Foster’s thesis is correct and that certain circumstances—particularly those concerning the regulation of human tissue, but certainly other aspects of medical practice—give rise to ethical problems which are best described using the language of dignity, it can further be demonstrated that such circumstances can, in fact, be regulated by an action which makes open and unashamed use of the language of dignity, if the taxonomy of the actio iniuriarum is taken as a model. Indeed, it has been demonstrated that this has been the case within two mixed jurisdictions which have been heavily influenced by the Common law tradition, but only by dint of the Civilian roots of those jurisdictions. Consequently, the question of the extent to which the Scottish and South African experience may translate into the Common law remains open.

Iniuria: Instructive for Common Lawyers?

Nothing within the Common law tradition can be regarded as equivalent to the actio iniuriarum. The action is purely a product of Civilian jurisprudence. In spite of this, it is submitted that jurists and ethicists from the Common law world would do well to consider the nature and operation of the concept, as such a consideration could serve to provide answers to, among other things, many of the problems presently identified with Anglo-American law in respect of the ownership and use of body parts.

This submission is substantiated by two additional points: firstly, the actio iniuriarum now finds use not in purely Civilian legal systems, but rather in mixed jurisdictions which possess close ties to English law, and so, just as Scots and South African lawyers may occasionally look to England for guidance in dealing with ‘novel’ legal problems, so too should it be open for Common lawyers to look to these jurisdictions for guidance when they are faced with such issues.^{Footnote 69} Secondly it is noted that, as Descheemaeker and Scott persuasively argued in their collection on Iniuria and the Common Law, so-called “oxymoronic comparative law” can, “when the two terms of the oxymoron are properly chosen,” lead to a stimulating and fruitful outcome.^{Footnote 70} As those authors—and the collection of contributors to their text—establish in that study, and as they had previously established in the 2011 seminar on the subject held at All Souls College, Oxford, an oxymoronic comparison of the place of iniuria in systems which have allowed it to flourish, those which have neglected it and those which never recognized the concept to begin with can be very useful indeed.

Perhaps the strongest argument in favor of the importation, into the Common law, of some mechanism to protect dignity is the fact that an iniuria-like mechanism was already introduced into English law by way of the Protection from Harassment Act 1997.^{Footnote 71} Even in the complete absence of a Common law equivalent to the Roman conception of iniuria, it was evidently felt, by Parliament, that a specific tort akin to this delict was desirable within English law. In Scotland, wherein the actio iniuriarum has been badly mistreated, it has nevertheless been noted that “there will always be occasions when judges will seem to protect one party from being held up to hatred, contempt or ridicule by another, and that however much the actio iniuriarum may be suppressed, it is liable only to appear elsewhere in the law.”^{Footnote 72} The veracity of this statement may be inferred from the fact that the Civil element of the Protection from Harassment Act 1997 was extended to Scotland, functionally duplicating an action which was already available by way of the Common law. Likewise, in Germany, where the actio iniuriarum was thrown out “by the front door,” the action nevertheless “managed to sneak in through the back window” as a result of the recognition of an allgemeines Persönlichkeitsrecht—a general personality right introduced by the Basic Law and later expanded to functionally serve the same purposes as the actio iniuriarum.^{Footnote 73}

Accordingly, it is plainly demonstrable that a jurisdiction which enjoys no foundational connection to the action found it necessary to introduce an analogue to it by statute, a jurisdiction which neglected its institutional connection to the action saw fit to functionally duplicate it and a jurisdiction which, at one time, deigned to dispose of the action entirely nonetheless found it necessary to allow the action to recrudesce. This, it is submitted, illustrates both the underlying, yet fundamental, need for the law to recognize and protect human dignity in order to effect just judicial outcomes (broadly), as well as the desirability of a mechanism akin to the actio iniuriarum in any given legal system (specifically).