The Old and the New Limits to Freedom of Contract in Europe

272 Maria Rosaria Marella
ERCL 2/2006
United Nations, claiming there was discrimination of his labour rights. 40 The
Human Rights Committee rejected his claim assuming the violation of human
dignity and denying any discrimination against him. 41
Both the German and the French decisions raise the following questions.
Whose dignity has been violated? For whom is the show or the performance
degrading? In the name of dignity Mr Wackenheim’s freedom has been severely
restricted; moreover he claims that that the job had enhanced his social
dignity by granting good incomes, notoriety and his whole self-realisation.
Who is the true recipient of human dignity protection then? Women performing
peep shows would probably not prefer a job as cashiers in a supermarket:
who is harmed by their performances? For all these questions ‘the
community’ or ‘the group’ seems to be the right answer. Women’s dignity
is offended by other women’s sex-work, dwarves’ dignity is offended by
Mr Wackenheim’s unusual job, and the (willing) viewers’ dignity is offended
by undignifying shows. The interpretation of human dignity that German
and French case law embraces introduces a strong opposition between the
community/individual into the rights rhetoric with the effect of reinforcing
the group or minority identity against individual choice. This dignity clashes
with the individual’s own sense of dignity and prevails over one’s own freedom;
42 it protects the individual against the individual him/herself.
To be sure, this use of dignity is a reaction against what has been perceived as
an overflow of the market rhetoric, as an abuse of (self-determination and)
freedom of contract, as a sort of tyranny of the self.
IV. Back to the Social (or Social Dignity versus Human Dignity)
The definition of the limits to freedom of contract in line with the perfectionist
model shapes the relation between the individual and the (state) community
in its own way. After the individualism of the first model, after the
solidarity paradigm of the second model, we confront now a different idea:
according to which the community’s dominant values are potentially hurt by
the individual’s free choice, which needs to be restricted in the name of those
values.
40 The application to the ECtHR (no 29961/1996) was judged inadmissible on the 16 October
1996.
41 M. Levinet, ‘Dignité contre dignité. L’épilogue de l’affaire du “lancer de nains” devant
le Comité des droits de l’homme des Nations Unies’ (2003) 55 Revue Trimestrielle des
Droits de l’Homme 1024.
42 S. G. Resta, ‘La disponibilità dei diritti fondamentali e i limiti della dignità (note a margine
della Carta dei Diritti)’ (2002) XLVIII Rivista di diritto civile II, 801.