O Tempora! O Mores! The Place of Boni Mores in Dignity Discourse

Abstract

In an earlier article, I had argued that Common lawyers and bioethicists may find the Romanistic notion of the actio iniuriarum, and the conception of ‘dignity’ which is central to this legal mechanism, instructive in complex medico-legal cases. Professor Foster wrote a critical response to that piece, however – in recognition of Foster’s own claim that ‘to give an account of rights and respect, one necessarily has to resort to the principles on which those ideas are based… one is likely to get more satisfactory answers if one starts from the parent principle, this article submits that – insofar as ‘dignity’ is employed in any meaningful sense in moral and ethical debate – the principles of this philosophical notion are ultimately derived from the historic operation of that principle within the specific sub-discipline of legal philosophy. As legal philosophy differs significantly between the Common and Civilian traditions, this article suggests that if ‘dignity’ is to be afforded any place of prominence as a moral guide, it follows that the scope of the legal conception of dignity – between legal traditions – ought to be examined in full. Given the recognised differences between the two major legal families, oxymoronic comparative legal scholarship must be regarded as a necessary part of this process. This article purports to act as a primer for Common lawyers who are unfamiliar with Romanistic concepts such as existimatio and dignitas, as well as acting as a more direct response to Foster’s own article.