Defining “dignity” – nailing jelly to the wall?
8 August 2012
In his recent book Harvard philosopher Michael Rosen poses the question: what is dignity, exactly, and do we know it when we see it? We are all familiar with the mantra that all humans are endowed with equal dignity, but do we really understand what it means? Since it is a formulation that is increasingly advanced in justifying universal human rights, we should try to get to grips with it, rather than reversing into circularities such as defining it as an intrinsic quality from birth. What makes it intrinsic? And at what point is it acquired? And why do we owe the dead a duty of dignity when they have no rationality and make no choices, autonomous or otherwise?
There is no shortage of material about its philosophical antecedents as well as the modern efflorescence of concept in human rights instruments. It is the foremost right in the German Basic Law (“die Würde des Menschen“). It is invoked in the Preamble to the Universal Declaration of Human Rights—“Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world . . .” The Constitution of South Africa lists “human dignity, the achievement of equality and the advancement of human rights and freedoms” as one of the founding values of the South African state, and the Bill of Rights is described as affirming the “democratic values of human dignity, equality and freedom“. Article 1 of the Charter of Fundamental Rights of the European Union asserts the inviolability of human dignity, an interest which receives further explicit protection in Chapter IV (“Every worker has the right to working conditions which respect his or her health, safety and dignity” – Article 31). The European Convention on Human Rights contains no express reference to the right to dignity but “dignity” as we understand it in this context provides the philosophical underpinning for decisions on Article 2 (right to life), Article 3 (prohibition of inhuman and degrading treatment), and, in some cases, Article 8 (privacy and autonomy). Any argument about discrimination, reproductive rights, access to adequate medical care, social and welfare benefits for asylum seekers and the debate over assisted suicide has the right to dignity as its backdrop
But it is difficult to find any hard-edged definition of this concept. Some would agree with Schopenhauer’s “characteristically jaundiced view”, with which Rosen commences his exploration of the subject:
That expression, dignity of man, once uttered by Kant, afterward became the shibboleth of all the perplexed and empty-headed moralists who concealed behind that imposing expression their lack of any real basis in morals.
So is this a catch-all provision that says everything and means nothing, a mere hollow piety that has somehow come to play a central role in the discourse of human rights, or, as Rosen puts it, ‘the closest that we have to an internationally accepted framework for the normative regulation of political life”?
Rosen explores the early roots of the concept, from the works of Aristotle and Cicero to the modern notion of dignity which has inherited several distinct strands of meaning. So different in fact that contemporary users of the word often talk past one another: a prominent example is the Catholic church’s reliance on dignity of human life in its resistance to women’s reproductive rights. Iranian President Mahmoud Ahmadinejad describes his nuclear program as a “path to dignity” for the Iranian people. Like the terrorist/freedom fighter figure, dignity is Janus-faced.
Dignity began as a concept denoting high social status and the honours and respect due to rank. As Christianity spread it came to mean something quite different – an inner and private value enjoyed by all irrespective of societal status. The Enlightenment philosopher Emmanuel Kant sought to bridge the two ideas, using the term “dignity” to express something beyond the aesthetic notion of honour and hierarchy. He explains dignity as “the condition under which something can be an end in itself,” the condition of being in possession of “the unique intrinsically and unconditionally valuable thing” that is morality:
Morality is the condition under which alone a rational being can be an end in itself. . . . Hence morality, and humanity insofar as it is capable of morality, is that which alone has dignity.
The problem with this notion is that it is based on the idea that all humans are alike, children of God and equal in His eyes. Without this religious foundation the idea of special dignity rests on shaky ground. It means only that we have something that animals don’t have. An “intrinsic” attribute or value from which animals are excluded may be metaphysically sound but doesn’t stack up biologicially, as we discover more similarities, both in terms of genetic make up and intelligence, with the non-human animals from which we have evolved.
The enforcement of dignity
Rosen also questions the state’s role in protecting our dignity. In his view it is not for the state to avail itself of the semantic slipperiness of the concept in order to intrude on people’s private freedoms. He cites as an example the somewhat surreal case of Wackenheim v France (Communication No 854/1999 : France). M. Wackenheim suffered from human growth hormone deficiency. He participated as a voluntary projectile in his local community’s annual dwarf-tossing competition, until the authorities banned the ritual. He took his case all the way to the UN Committee of human rights, complaining that he had been discriminated against. So determined was the Committee to uphold M. Wackenheim’s dignity that it discounted his interest in earning an income in the manner of his choosing:
The Committee considers that the State party has demonstrated, in the present case, that the ban on dwarf tossing as practised by the author did not constitute an abusive measure but was necessary in order to protect public order, which brings into play considerations of human dignity that are compatible with the objectives of the Covenant.see .
Rosen strongly disagrees with this view. Degrading the banned ritual may be, but it was voluntary humiliation and involved autonomy just as much as any other choice. Dignity has nothing to do with public order and everything to do maintaining the sanctity of the inner sphere.
As such, the right to dignity has played a foundational role in legal decision-making. In 1995 the Strasbourg Court heard a challenge to the legality of the criminalisation of marital rape. It declared that
the abandonment of the unacceptable idea of a husband being immune against prosecution for rape of his wife was in conformity not only with a civilised concept of marriage but also, and above all, with the fundamental objectives of the Convention, the very essence of which is respect for human dignity and human freedom. (SW v United Kingdom)
The notion that a person’s “physical and psychological integrity” is part of the private life protected by Article 8 ECHR, coupled with the right to dignity under Article 1 of the Charter of Fundamental rights, won the day in A & Others, R(on the application of) v East Sussex County Council where disabled individuals in a care home asserted their right to be lifted in an appropriate manner. The cases on asylum seekers referred to above rely on the right to dignity as a way of channelling social and economic rights through the grid of the ECHR and dignity is of course an oft-cited interest in litigation involving discrimination against homosexuals (see Ghaidan v Godin-Mendoza).
Although these decisions are praiseworthy in themselves, the enforcement of an absolute, constitutionally protected right to dignity has created something of a legal quagmire, particularly in the German courts. Article 1 of the Grundgesetz led the Constitutional Court to order that the German military could not legally shoot down a passenger aircraft taken over by terrorists and headed towards creating terrible mayhem, on the grounds that doing so would be contrary to the dignity of the passengers (115 BVERFGE 118 (139)). The right to life of the people on the ground could not justify any infringement of human dignity of those in the targeted airplane, because this right’s guarantee neither allows nor admits to any justification based on other rights or values. Put differently, human dignity is always and unconditionally violated when infringed. Indeed the right to life of the potential victims played no part in the Court’s deliberations, being referred to only in terms of the right to state protection from being killed.
The problem with the idea of human dignity is that it necessarily leads to such an absolutist approach, allowing no balancing act to be carried out when it inevitably runs into conflict with other human rights. The problem is differently illustrated in a series of censorship cases, also based on Article 1 of the Basic Law. We all remember the controversy courted by the clothing company Benetton in its depiction of dying Aids patients in its large poster ads. In Germany one of these advertisements, displaying a pair of buttocks bearing the stamp “HIV positive” was banned by the authorities. It was only by dint of contortionist legal reasoning that the Constitutional Court persuaded itself to quash the ban (102 BVERFGE 347). Freedom of speech was a “concretisation” (Konkretisierung) of human dignity, and therefore could not be suppressed in its name. The logic of this reasoning is far from clear and “Konkretisierung” is not a term of art, even in German adjudication. Since the right to dignity allows of no incursions by other human rights in the German constitutional order this approach makes no logical sense, and illustrates how perilously close the concept of human dignity can come to the sledgehammer of authoritarian censorship.
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