Dignity Rights: Courts, Constitutions, and the Worth of the Human Person

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As a result, these cases force us to reexamine the relationship between the individual and the state and, in turn, contribute to a new and richer understanding of the role of the citizen in modern democracies. Get A Copy. More Details Other Editions 3.

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1 Introduction

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About Erin Daly. Erin Daly. Critiques of dualistic accounts of the world often suggest we under- or de-value non-human nature, but I focus instead on the possibility that through a separatist account of humanity we undervalue ourselves by failing to recognise the ways in which we are embedded in and constituted by our environments, and thus we fail to protect adequately our human dignity.


Human Dignity

In this paper, I argue that ideas about humanness are explored in judicial reasoning and specifically the judicial reasoning of human rights courts through the concept of human dignity. In a number of jurisdictions, human rights courts use the concept of human dignity to grapple with our humanness and to make assertions about what it is to be a human person.

Dignity, however, is a concept with a long historical association with claims to human superiority over the rest of nature and a contemptuous, instrumentalist view of non-human animals. This paper explores whether the concept of human dignity as it is used in law prescribes an understanding of humanness that is necessarily anti-environmental. This suggests that dignity might have a critical role to play in incorporating new kinds of self-understandings into legal adjudication.

Human dignity is a concept that can accommodate understandings of humanness in which we are not only recognised as embedded in the world, but in which we are recognised as environmentally constituted. In the last section of this paper, I attempt an application of the topographical philosophy of Jeff Malpas in the context of judicial reasoning. In Ancient Rome, dignitas hominis referred to the high social rank and excellence of men in the ruling classes. Marcus Tullius Cicero, however, adapted this concept of high individual rank to speak of the high rank of man in the natural order.

The broadening of dignity meant the widening of the terms of comparison — dignity no longer answered the question about where a person stood in society, but rather where humanity stands in relation to everything else in the world. Dignity came to be a concept deeply concerned with the environment, and specifically its lesser worth and significance, in comparison with humankind. This idea of dignity, as that which defines the superior position of humanity in the cosmic order, continued through the Middle Ages and into the Renaissance. Historically, dignity was a concept used to frame not only human self-understanding, but also the terms for understanding the rest of nature.

Oliver Sensen argues, however, that even in the Enlightenment, dignity remained a concept concerned with the human position in nature.

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Dignity in the history of Western thought from Cicero to Kant is a deeply anthropocentric concept and one that seems to enforce a view of nature as of merely instrumental worth. It is a concept that appears to offer little to those seeking to challenge our anti-environmental self-understanding. In the next section, I consider whether this historic concern with our rank in the natural order continues to inform our understanding of human dignity in its contemporary legal uses, and whether dignity is a concept necessarily antithetical to environmental concerns.

The Charter and the UDHR sought, in the wake of two world wars, to mark a new world order and thus sought to articulate universal values, true for every person in that new order. In the post-War era, the monopoly of states on the use of force was no longer seen as a legitimate ground of sovereignty, but was associated instead with the atrocities of the holocaust.

No longer could sovereignty and the power to control territory by means of force ground the legitimacy of international law. Human dignity was incorporated into the Charter and the UDHR as a concept that asserted the central importance and worth of our humanity. In the context of human rights law, dignity both defines the class of things humans which are bearers of the rights and it acts as a justification for those rights. Human dignity was subsequently adopted into a range of international and domestic human rights instruments.

Dignity has also been incorporated into the constitutional texts of countries up from only 5 prior to the Second World War. With this proliferation of dignity references in legal text, there has also been a proliferation of dignity jurisprudence in human rights and constitutional courts around the world. As a concept that asserted and affirmed humanity, human dignity was often incorporated into the constitutional texts of states emerging from the oppression and violence of colonialism, Soviet rule, one party rule and apartheid.

Human dignity is employed in these contexts to reassert a shared humanity that was previously denied. For instance, the Constitutional Court of Hungary found: Human dignity, as the integrity of personality, means along with human life the essence of man. Dignity is the elevating quality of our human existence and value: it is worthy of an unconditional respect, the honour of our human essence. It is a prior value in the same way that life is, and it expresses the human dimension of life.

Human rights courts in India

Being a human and human dignity are inseparable from one another. In these contexts, human dignity becomes inextricably bound to assertions and claims about the nature of our humanness. While textual references to dignity abound in constitutional and human rights legislation, it is really in the jurisprudence of human rights courts that the value of the concept of dignity has been realised. Frequently, human rights courts use dignity to explore questions of our self-understanding and identity. Dignity is a concept intimatedly involved in judicial approaches to understanding the nature of our humaness and its implications for law.

While dignity is by no means the only concept through which courts have sought to express something about the nature of humanness, it is perhaps the concept through which this judicial attempt to grapple with what it means to be human is most explicit. Dignity in law is a concept concerned with human rights and the horrors we impose on one another, rather than our position in the natural order.

Dignity retains, however, a concern with human specialness, and it is a specialness that sets us apart from all else in the world. Dignity tells us that humans are normatively significant in law, but also that things are normatively insignificant, without legally defensible interests. In drawing this distinction, dignity is used to establish a hierarchy of normative and legal significance with humans at the top and non-humans again relegated to the lower levels.

Through dignity we demand for ourselves respect that we do not recognise as owed to those who lack dignified worth. Human dignity is often associated with a claim to human worth based on some inherent capacity or attribute. Dignity is thought to entail a conception of the human that is rational and autonomous, sometimes attributed to Kantian philosophy. Kant argued that all humans, unlike any other creatures, are to be presumed autonomous, rational and free. The idea that human dignity and autonomy are associated is one often expressed by courts.

This conception of personhood is criticised for being ahistorical and decontextualised, and one that recognises little relevant relationship to the surrounding environment. It is a conception of humanness often thought to be problematic for those concerned with environmental protection and preservation.

Human dignity might make those scholars who are concerned with Cartesian dualism immediately suspicious. As a concept concerned with defining and defending the human of human rights, dignity in law seems to retain the antiquated idea of the comparative superiority of humanity and thus offer us little assistance in addressing environmental concerns.

But does dignity commit us to a particular self-understanding?

1 Introduction

So far I have argued that dignity is a critical concept in human rights law and adjudication and one that is deployed by courts to explore the nature of our being. As such, it is a critical concept to consider in any discussion of the implications of our self-understanding for our environmental adjudication. From an environmental perspective, however, dignity is a concept historically associated with an anthropocentric ethic that seems anti-environmental or at least environmentally indifferent in its predisposition.

In law, dignity seems to maintain a separatist account of humanity. Is dignity, then, a concept to be overcome or abandoned in attempts to make law a tool for sustainability? In the next few paragraphs, I argue for a pragmatic understanding of dignity in law that suggests it is a concept that might in fact have a positive role to play in achieving more environmentally sound or at least receptive adjudication. In legal adjudication, dignity is not a concept with a fixed or uncontested meaning.

In the last few years, it is a concept that has been the subject of significant criticism by legal academics and practitioners who deny its universality and argue that it is defined in very different ways in different jurisdictions. According to McCrudden, while there has been wide-spread adoption of the concept of dignity into different legal systems and by a vast array of courts in their interpretation and application of human rights, this supposedly shared concept is revealed to be variable; a multitude of conceptions of dignity exist, often in direct conflict with one another.

Human dignity has indisputably different roles and functions in judicial reasoning as well as international treaty law and domestic law. He argues that instead of taking an a priori approach to determining the meaning of dignity, we ought to determine the meaning of human dignity by determining its use in legal practice.

Pragmatists view the law as a social institution and one that has the goal of furthering social purposes. Pragmatists often take an instrumentalist and outcomes-oriented approach to law and legal interpretation. Furthering social purposes is a context-specific, plural and provisional process. Pragmatism brings a recognition of contingency in its denial of foundational accounts of knowledge. Pragmatists see judges as engaged in creative problem solving rather than deriving correct answers from overarching principles. Importantly, pragmatists recognise a range of values that might come to play in decision making and in justification in legal reasoning.

Luban looks at function to determine the substantive meaning of the concept of dignity. This is an analysis of dignity in law as context-dependent, interpretive, social, rhetorical and historical discursive practices. Between hegemonic, universalist accounts of dignity that seemingly fail to take into account legal and cultural plurality, and a relativist account that sees dignity as an empty vessel, Luban offers us a middle road.

When judges use the concept of dignity, they are neither filling in their own meaning nor strictly adhering to some found meaning in precedent or moral theory, but rather they are reconstructing the concept, and adding additional layers to what dignity already tells us about the nature of our being. Dignity retains an openness that is an essential component of its meaning and function in judicial reasoning.

It is in this openness that we see dignity as an evolving concept, appropriate to accounting for our evolving and unstable understandings of ourselves. Rather than understanding dignity as a judicial attempt to pin down what it is that is the nature of our being, dignity is a concept open to many different aspects and understandings of humanness. A pragmatist approach that focuses on the practices of courts in their use of the dignity concept reveals a convergence or overlapping consensus on certain understandings of the concept across different legal jurisdictions in which the concept is used.

What is perhaps most significant about a pragmatist approach to understanding human dignity is the recognition that dignity is a concept that evolves and changes in response to new threats to it. Some of these may be threats that have long existed but are only recently recognised as such by our legal institutions — such as the denial of the right to marry to those not in heterosexual relationships. Others may be new threats, emerging as a result of technological developments or environmentally degrading practices.

This, Addis tells us, is what is most valuable about dignity.

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Addis argues: For the human dignity pragmatist, the idea of dignity is always a work in progress, not so much because of the limitation of our capacity to fully comprehend the true meaning of human dignity, but rather because the notions of dignifying humans or subjecting them to indignities are, as an initial matter, worked out within or are contingent on particular histories, structures and cultural resources that are themselves contingent.

None of this is to suggest that historical and theoretical accounts of dignity play no role in our understanding of dignity in law. Pragmatism offers an approach to understanding rather than an attempt to define the concept of dignity in judicial reasoning. Addis, for example, argues that we should look for overlapping consensus in the uses of the concept by different courts.

Understood pragmatically, dignity is a concept that may be open to accounts of humanness that are not antithetical to the environment or concerned with our comparative and relatively greater worth than the other animals. Dignity is a concept that may be open to accounts of humanness that recognise us as embedded in and constituted by our engagements with the world in which we live.

In the next section, I consider one such account offered by Jeff Malpas. I do not consider it here as an alternative to existing judicial uses of dignity, but rather as an understanding that helps us see the ways in which dignity might be useful in expanding judicial reasoning in response to environmental threats. Environmental threats to the realisation of human rights and to our very existence pose new and significant challenges to the recognition and respect of our human dignity. If these new threats require us to revisit some of our ontological assumptions, as the scholars considered at the beginning of this paper argue, dignity may be a concept open to new self-understandings that see us not as separate to our environments but as deeply embedded in and constituted by those environments.

Malpas suggests an alternative conception of ourselves that he argues ought to inform our use of dignity. He offers us an account of humanness as dependent on the world. While Malpas is not concerned directly with the environment or with dignity as a concept of legal reasoning, his approach to dignity is one that may nevertheless have some useful implications in both of these areas. It may allow courts to consider our humanness as spatially embedded and to examine the ways in which our identities are tied up with the world.

Dignity Rights | Erin Daly, Aharon Barak

Since it is an account that seems to locate humanness so thoroughly in the world, in contradiction to potentially problematic dualist accounts, it is worth exploring further. For Malpas, a grasp of space within which our actions, experience and thought are possible is essential to agency: The very possibility of being a creature that can have thoughts and that can have experience of a world is dependent on being a creature that has the capacity to act in relation to objects within the world. And this, in turn, is dependent on being a creature that has a grasp of both the subjective space correlated with its own capacities, as well as with features in its immediate environment, and the objective space within which the creature and its environmental surroundings are located.

Malpas argues that the specifics of the place in which we find ourselves are critical. Malpas is not making a psychological claim about the importance of particular places in our general self-definition. Malpas offers us an idea of place that is social. Malpas argues that belief is dependent on action and active engagement with one another and the world: Understanding an agent, understanding oneself, as engaged in some activity is a matter both of understanding the agent as standing in certain causal and spatial relations to objects and of grasping the agent as having certain relevant attitudes — notably certain relevant beliefs and desires — about the objects concerned.

In relation to our most basic beliefs, identifying them requires identifying their objects and causes. Malpas n 84 Just as humanness consists in relationships with self, other and the world, so dignity plays out in these three areas: …there is a sense of dignity that obtains in terms of the sense of worth that we have in relation to ourselves, a sense of dignity that we have of ourselves in relation to others, and so also a sense of the worth of others in relation to ourselves, a sense of the worth of ourselves in relation to the wider world, and of that wider world as it stands in relation to us.