Dignity, Body Parts and the Actio Iniuriarum - A Novel Solution to a Common (Law) Problem?

Abstract

In issue 4 of the 23rd volume of this journal, Charles Foster published a critical piece on the topic of "Dignity and the Ownership and Use of Body Parts", arguing that property-based models of the ownership of human body parts are as ubiquitous as they are inadequate. The notion of 'human dignity', Foster argues (therein and in some of his earlier work), serves as a better candidate than its competitors for the role of moral guide in disputes pertaining to body parts which have been severed from their original subject. This argument is posited notwithstanding the fact (that Foster himself recognizes) that dignity is often seen as a "hopelessly amorphous", "vacuous concept" which should be "discarded as a potential foundation for rights claims, unless and until its source, nature, relevance and meaning are determined". The present piece does not purport to definitively determine the source, nature, relevant and meaning of the broad concept of 'dignity' as it exists in legal or ethical thought. Rather, it sets out simply to illustrate that in the mixed legal systems of Scotland and South Africa, legal claims which are predicated on the occurrence of some infringement of human dignity have been raised (and have the potential to be raised), pressed, and ultimately vindicated by the courts in those jurisdictions.