©©The
TheAuthor
Author2012.
2012.Oxford
OxfordUniversity
UniversityPress
Pressand
andNew
NewYork
York University School of Law.
All rights reserved. For permissions, please e-mail: [email protected].
..........................................................................................
There is no such thing as a
right to human dignity: A
reply to Conor O’Mahony
Emily Kidd White*
1. Introduction
Since the adoption of the Universal Declaration of Human Rights1 in 1948, the concept of dignity has assumed an important place in human rights jurisprudence.2 Yet,
a number of scholars object to the presence of dignity considerations in the law.3 For
some, the fluctuations in the concept’s juridical use render it inherently ambiguous,4
invoked only for the purpose of lending weight to one’s political or ethical ideals.5 A
less critical interpretation is that dignity is simply a synonym for other moral principles, such as equality or goodness, and that the term itself adds no value beyond
these concepts.6 For such scholars, the fundamental question is whether the concept
exhibits a fixed content in its juridical application. In the absence of such fixed content it follows that the concept of human dignity can be of little use in guiding a court
towards the correct reading of a human rights case. Conor O’Mahony, the author of
“There is no such thing as a right to human dignity,”7 is well situated among those
dignity scholars concerned with the concept’s broad purchase in the variable terrain
*
1
2
3
4
5
6
7
J.S.D. Student, New York University School of Law. Email: [email protected].
The Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810.
DAVID KRETZMER & ECKART KLEIN. THE CONCEPT OF HUMAN DIGNITY IN HUMAN RIGHTS DISCOURSE (2002).
See, e.g., Steven Pinker, The Stupidity of Dignity, RICHARD DAWKINS INSTITUTE FOR REASON AND SCIENCE (May 1,
2008), available at http://richarddawkins.net/articles/2567-the-stupidity-of-dignity.
In R. v. Kapp, [2008] 2 S.C.R. 483, 2008 SCC 41, the Supreme Court of Canada signaled that it would
consider abandoning the concept of human dignity altogether. At ¶ 22 of Kapp, the majority finds human
dignity to be “an abstract and subjective notion that, even with the guidance of the four contextual factors,
cannot only become confusing and difficult to apply; it has also proven to be an additional burden on
equality claimants, rather than the philosophical enhancement it was intended to be.”
Christopher McCrudden, Human Dignity and Judicial Interpretation of Human Rights, 19 EUR. J. INT’L L. 655
(2008).
Aurel Kolnai, Dignity, 51(197) PHIL. 251, 252 (1976). See also Ruth Macklin, Dignity is a Useless Concept:
It Means No More Than Respect for Persons or Their Autonomy, 327 BRIT. MED. J. 1419 (2003).
Conor O’Mahony, There is no such thing as a right to dignity, 10 INT’L J. CONST. L. (I·CON)
XXX, XXX(2012).
(2011).
551–574
II•CON
•CON (2012), Vol. 10
0 No.
, 1575–584doi:10.1093/icon/mos011
–10
doi: 10.1093/icon/mos011
No.02,
2
I•CON
xx (2012),
1–10
576
I•CON
10 (2012),
575–584
of human rights law. After parsing international charters, domestic constitutions,
and human rights case law, O’Mahony suggests that two particular conceptions of
human dignity lie at the root of its seemingly contradictory application in the law.
The first is the common conception of human dignity as a right, i.e., the right to a
dignified life. Here O’Mahony is concerned by the apparent inconsistency of dignity
being cast as both the foundation and content of human rights law. The second is the
concept’s association with autonomy. If autonomy is considered an aspect of human
dignity, “then this suggests that dignity as a concept is susceptible to frequent limitation by reference to other values and goals, in which case its centrality in human
rights law and discourse could be called into question.”8 For O’Mahony, the logical
inconsistencies embedded within each of these associations undermine the salience
and utility of the concept of human dignity. In O’Mahony’s view, they also construe
dignity as a good subject to compromise. Free from these associations, the concept of
dignity’s more limited definition would entail something like “equal treatment and
respect.”9 Armed with a minimalist definition, the concept of human dignity would
have “greater strength” as a domestic constitutional principle and “achieve greater
harmony” with international human rights law.10 In addition, it will provide clearer
imperatives for lawyers and judges and, thus, provide a “greater scope for comparative constitutional analysis.”11
This response offers a brief methodological critique followed by two more detailed
sets of analytical critiques. In section two, the methodological critique, I suggest that
O’Mahony has adjudicated between various conceptions of human dignity by applying a particular criterion for the formal attributes of a “good” legal principle without
first justifying his selection of that particular criterion. In section three, I state two separate analytical critiques. Both take aim at O’Mahony’s finding that irresolvable tensions lie at the heart of the “autonomy” and “rights” associations with dignity. Unlike
O’Mahony, I am not convinced that human dignity considerations cannot guide us
in ascertaining the content of certain rights without losing their place as the foundation of international human rights law. It seems to me that there are ways of thinking
about this foundation/content dilemma which reduce this tension, the most notable
being Jeremy Waldron’s conception of dignity-as-rank.12 This is explored in greater
detail in section three. Section three also critiques O’Mahony’s dismissal of the association between dignity and autonomy. These are important points of contention as
much of the article’s argument rests on the finding that certain logical inconsistencies
adhere within these two common conceptions of human dignity.
In section four, I conclude by querying whether the concept of human dignity put
forward will succeed as suggested. Here I argue that the proposed concept of human
8
9
10
11
12
Id . at 567.
XXX.
Id. at XXX.
Id . at 552.
XXX.
Id.
Jeremy Waldron, Dignity and Rank, 48 ARCHIVES EUROPÉENNES DE SOCIOLOGIE 201 (2007). See also Jeremy Waldron,
Dignity, Rank, and Rights, in Tanner Lectures on Human Values 29 (Suzan Young ed., 2011).
There
no such
thing
a right
to human
dignity:
A reply
to Conor
O’Mahony 577
3
There
is noissuch
thing
as aas
right
to human
dignity:
A reply
to Conor
O’ Mahony
dignity cannot be a “better legal principle” because as constructed it simply defines
away its place and purpose in human rights case law.
2. Methodological critique
O’Mahony argues for the “equal treatment and respect” conception of dignity because
he finds it to be the best candidate for a good constitutional principle. This is an important finding because, as O’Mahony suggests, little effort has been made in the discipline to re-formulate existing constructions of dignity into a better legal principle.13
The “equal treatment and respect” conception maintains the following three claims:
(1) Every human being has an inherent dignity; (2) This inherent dignity demands
that certain rights be protected; and (3) Every human should be able to enjoy his or
her human rights without suffering discrimination or distinction based on external
characteristics.14 Altogether, these claims comprise the “minimum irreducible content”15 of human dignity. The fixed nature of this minimal definition is precisely what,
for O’Mahony, makes it a good constitutional principle. While this seems generally
plausible, O’Mahony does not provide a justification for why the best legal concept
of human dignity is the one that mirrors this definition of a good constitutional principle. This is unsatisfying. I am not convinced that “the substantive content of the
concept” can be so neatly swept aside.16 What a judge means to say when he or she
invokes the concept seems to be a far too important piece of the puzzle to bracket it so
quickly. The relationship between the concept’s use and case outcomes seem similarly
important.
O’Mahony’s framework prompts the question: “what is the purpose of a legal concept?” One wonders whether something important is missed if the goal is to ensure
that the concept of human dignity meets all of O’Mahony’s criteria for a “useful”
constitutional principle without broader reflection regarding its purpose, function,
and normativity. Such concerns seem particularly relevant in the domain of human
rights. Of course, O’Mahony might argue something akin to a rule of law consideration, suggesting that certainty in law provides its own normativity, adding that
such certainty promotes borrowing among judicial fora and greater harmonization
between domestic and international human rights law. There are, however, downsides to conceptual certainty in law. Many of our most important legal concepts, like
equality or privacy, require a balance between certainty and abstraction in order to
maintain purchase. I argue below that a too stringent focus on the concept’s mooring will decrease, rather than increase as suggested, the concept’s utility in the field
of human rights law. For one, the advances in certainty avowed by O’Mahony are
achieved only through a considerable curtailment of the concept’s applicability in
human rights case law.
13
14
15
16
O’Mahony, supra note 7.
Id. at XXX.
Id.
Id.
4
I•CON
xx (2012),
1–10
578
I•CON
10 (2012),
575–584
3. Critiques from Analytical Philosophy
3.1. Resolving the content/foundation dilemma
Much of the article’s impetus arises from O’Mahony’s finding of a logical inconsistency between particular uses of the concept of dignity in international human rights
and domestic constitutional law. One central concern is whether human dignity,
properly understood, is a constituent or foundational concept. For instance, it is often
asserted that because human beings possess an inalienable dignity, they are deserving
of certain human rights. This is the foundation argument, i.e., that rights are derived
from the inherent dignity of man. This perspective is reflected in the United Nations
Charter as well as in the International Covenant on Civil and Political Rights and
the International Covenant on Economic, Social and Cultural Rights. Elsewhere, it
is argued that certain human rights, for instance the prohibition on torture, protect
human beings from being stripped of their dignity. In such examples, human rights
are conceived as the means by which we protect, promote, or secure human dignity.
Dignity is thus routinely invoked as both the foundation for and the content of human
rights law. O’Mahony states:
the idea of the enjoyment of human rights being essential to a dignified life is entirely inconsistent with the concept of inherent human dignity, and if it is accepted that all human beings
have an inherent dignity, then the notion of a right to a dignified life through the enjoyment of
human rights must be abandoned. The two concepts cannot coexist.17
I am not certain that this is an irresolvable tension. This duality about dignity does
not suggest that the concept itself is confusing or ambiguous.18 Rather, if dignity is
related in some way to the ontological status of humankind, then this apparent tension
dissolves. This is the dignity-as-rank conception, whereby rank signifies a particular
high status afforded to all human beings.
Jeremy Waldron, the leading proponent of this view, suggests that the judicial concept
of human dignity affords an equal and high-ranking status to all human beings. In
his view,
we may say of “dignity” that the term is used to convey something about the status of human
beings and that it is also and concomitantly used to convey the demand that the status should
actually be respected.19
The conception of dignity is, then, better understood as a normative classification,
reflecting the universalization of the treatment that high-ranking persons have
historically enjoyed under the law. As Waldron suggests, “‘dignity’ may entangle
description and evaluation together in the way that certain predicates of status do.”20
The concept of human dignity thus signifies the process by which certain rights,
17
18
19
20
Id . at 562.
XXX.
Waldron, Dignity and Rank, supra note 12, at 203–204. In particular, note Waldron’s illuminating
analysis on Bentham’s critique of liberty at 204.
Id. at 205.
Id. at 208.
There
no such
thing
a right
to human
dignity:
A reply
to Conor
O’Mahony 579
5
There
is noissuch
thing
as aas
right
to human
dignity:
A reply
to Conor
O’ Mahony
previously enjoyed only by noblemen, come to be held by all. When we use the concept
of human dignity in law we are describing the normative reassignment of certain
rights to all human beings. Understood as such, we can see that the concept of dignity
can both denote a particular status and also make demands on the basis of that status.
What is more, it becomes clear how entitlements might interact with a legal status in
a complex way.21 For instance, a legal status is not necessarily repudiated when an
appurtenant entitlement is denied. This is correct even in cases where we might bear
out the nature of that legal status by reference to that particular entitlement.22
Seen through this lens, the concept of human dignity can ascribe content to rights
without falling prey to a logical inconsistency. This view undermines O’Mahony’s
argument that the classification of human dignity is both descriptive and normative. O’Mahony argues that unless the concept of human dignity maintains a purely
descriptive element it will lose “its inherent nature as a hallmark of humanity that
cannot be lost or taken away.”23 I disagree. I do not see how the statement “every
human being has an inherent human dignity by virtue of his or her humanity”24 can
be purely descriptive, unless one is making a naturalist claim, which O’Mahony is
not. The normativity of human dignity is more pronounced than O’Mahony suggests
and not limited to the corollary that “every human being because of his or her
inherent human dignity, should be afforded human rights on the basis of equal treatment
and respect.”25 Normativity does not exist exclusively in the prescription that certain
rights must follow from the fact of human dignity. Rather, it is present in the classification of the group and its worth. This is the insight at the heart of Waldron’s work
on the subject.
3.2. Autonomy and dignity
The association between human dignity and autonomy also troubles O’Mahony,
albeit in a slightly different way. The argument is that the autonomy association with
dignity undermines the gravity of the concept by suggesting that it is “susceptible to
frequent limitation by reference to other values and goals.”26 In this section, I argue
that O’Mahony has made three separate errors in his assessment of the relationship
between dignity and autonomy. The first two are analytical and the third is practical.
First, O’Mahony dismisses the possibility that dignity is and should remain a cluster
concept under the law. Second, he assumes that certain values cannot retain their
depth and normativity unless they are realized without qualification. Third, it is difficult to comprehend how the proposed principle of human dignity would itself adhere
to the “no limitations” criteria set by O’Mahony.
21
22
23
24
25
26
Id. at 226–227.
Id.
O’Mahony, supra note 7, at 563.
XXX.
Id.
Id.
Id . at 576.
XXX.
6
I•CON
xx (2012),
1–10
580
I•CON
10 (2012),
575–584
(a) Dignity as a cluster concept
It is worth noting that many of our most useful legal concepts are cluster concepts.
If human dignity is such a concept, then O’Mahony’s search for a minimalist definition misses the point that its purpose is to invoke a reticulum of ideas, principles, and
relationships across a variety of legal contexts. Obvious examples in law are equality,
privacy, and freedom. All require a certain degree of flexibility to offer insight into how
certain values and interests might interact with factual situations. In all of these cases,
it seems immediately apparent why the reduction of the concept into a circumscribed
legal “term of art” would result in a loss. There are important and obvious associations between human dignity and autonomy in common language. While it is not the
case that all commonplace understandings are appropriately transplanted into law, it
seems wrong somehow to completely dismiss the purchase of a dignity consideration
in cases where a state intrudes too deeply into the life of an individual or group. While
O’Mahony is correct to dismiss certain aspects of the dignity-as-autonomy conception (individuals lacking, or seen to be lacking, certain rational capacities would be
deemed less worthy of respect or protection; legal protections to the body could be
devalued), the consequent dismissal of all connections between autonomy and dignity
seems overly broad. O’Mahony’s remaining concern with dignity’s association with
autonomy is addressed in the next section. It pertains to the idea that any connection
between the principle of human dignity and autonomy will subject the former to
limitation.
(b) Concepts do not need to go all the way down to retain their normativity
According to O’Mahony’s analysis, dignity appears to be an all-or-nothing type of
concept. Yet, it remains unclear why the legal principle of human dignity must exist
without limitation for it to retain its normativity and/or utility. One answer that
O’Mahony seems to suggest is that any limitation on the concept will interfere with its
phenomenological or legal purchase. I will leave aside the issue of legal purchase for
the moment. I agree with O’Mahony that it does seem important to maintain that a
person is never without his or her dignity, even in the face of great abuse. This is, however, a different claim from saying that a person’s dignity can never be infringed upon.
What’s more, it also seems important in a phenomenological sense to argue that an
abusive act results in a transgression upon one’s dignity. Both uses can be maintained
if we understand dignity to be the type of concept that maintains a powerful normativity even when it is subject to limitation, adding, of course, the proviso that no person
is ever entirely without his or her dignity.
There are ways to think about the concept that does not require an all-or-nothing
depiction of dignity. For instance, some concepts can include a range while still attributing great normative significance to its initial threshold. We might then say that
all men possess a measure of human dignity, and we might construe this claim as
meaningful under the law. Thus, we can maintain the importance of this threshold
while still saying that certain actions and states infringe upon a person’s dignity.
Indeed, this seems exactly how the concept has been employed, most specifically in
There
no such
thing
a right
to human
dignity:
A reply
to Conor
O’Mahony 581
7
There
is noissuch
thing
as aas
right
to human
dignity:
A reply
to Conor
O’ Mahony
the face of certain standard threats to dignity like torture. We can then say that human
dignity provides us with the foundation for rights and also that human rights protect
us against certain standard threats to our dignity. If we understand the concept of dignity to operate in this way, we can describe rights as the means by which we protect
against infringements to dignity without detracting from the important normative
and phenomenological claim that man has an inherent dignity.
Related to this is O’Mahony’s argument that autonomy cannot be an aspect of dignity because there could be instances (a) where the dignity of one person would be
overridden by the dignity of another or, (b) where an individual’s autonomy could be
restricted in order to protect his dignity. Once again, the issue with this conclusion is
that it is driven by the assumption that useful legal concepts require unity and completeness. For O’Mahony, autonomy cannot be an aspect of dignity unless the concepts dovetail when the value of autonomy is realized completely. Another perspective
is that dignity relates not to any measure of autonomy but, rather, to the appropriate
measure of autonomy. A useful example of this type of relationship is famously
explained in Aristotle’s Doctrine of the Mean, where the good of a state reflects its appropriate usage, not its ultimate fulfillment. Of course, the question of what measure
of autonomy belongs to dignity is a difficult question. And yet, it is unsatisfying to
simply dismiss this connection because it will, naturally, be contentious. O’Mahony is
motivated to construct a principle of dignity that never comes into conflict with any
other value or measure of dignity. This seems unrealistic in a world of finite resources
and competing values. This issue will be discussed further in the concluding section
of this response.
It is worthwhile noting that both of these analytical critiques have a broader meaning within the context of the article. O’Mahony argues that the “equal treatment and
respect” conception of dignity is superior precisely because it does not house an intractable logical tension, which produces confusion and inconsistency into the jurisprudence.27 If, however, my critiques succeed in resolving these analytical tensions,
then O’Mahony loses this particular rationale for rejecting the dignity’s characterization as a right and also its association with autonomy.
(c) The limitation argument
Much of the above discussion prompts the question: how are we to make any substantive sense of dignity without running into a limitation? Put another way, can
the proposed conception of dignity as a legal principle ever succeed under the criteria
imposed by O’Mahony? The author states:
if autonomy is viewed as an aspect of dignity itself, and not simply a secondary right flowing
from dignity, than any limitation on personal autonomy and the right to self-determination
could only be justified by reference to human dignity itself — most obviously, the dignity of
others (sometimes characterized as societal dignity) or the perceived dignity of the individual
concerned.28
27
28
Id. at XXX.
Id . at 570–571.
XXX.
8
I•CON
xx (2012),
1–10
582
I•CON
10 (2012),
575–584
For O’Mahony, this is an unacceptable outcome precipitated by a confused and false
logic embedded within common conceptions of dignity. This conclusion is avoided
by the consistent characterization of autonomy “as a right which flows from human
dignity—a particularly important right, but still just a right, capable (like any other
right) of restriction in the interests of dignity itself.”29 For O’Mahony, this means that
autonomy rights flow from the concept of man’s inherent dignity, but maintain a
separate architecture from their foundation. This raises a pertinent question. What
does this separation mean and does it succeed in disassociating the principle of human
dignity from the types of conceptual conflict that concern O’Mahony?
O’Mahony concedes that certain autonomy issues represent “age-old and intractable”30 difficulties in human rights discourse. And yet, human dignity “demands
rights.”31 The central question is, then, what autonomy rights are necessitated by dignity considerations? More broadly we might ask: how are we to make sense of the
normative imperative that rights flow from the inherent dignity of man without one
again ask how the “demands of dignity”32 are interpreted into the content of rights?
For, if certain intractable debates abound in the ascertainment of rights, then what,
specifically, is dignity demanding from rights? O’Mahony’s minimalist conception of
dignity presents like an intellectual sleight-of-hand, shifting the political difficulties
associated with autonomy issues to the terrain of rights and away from the legal principle of dignity. Yet, it is unclear how we might begin to understand the nature of a
right in a particular legal context without attributing the kind of substance to the concept of dignity that O’Mahony is concerned with? There are two opposing conclusions
to this: either human dignity demands rights in a very vague and abstract way or its
normativity comes to permeate the rights claims themselves, making them subject to
the same sorts of negotiations, conflicts and limitations that O’Mahony has sought to
avoid. If we want dignity to have any purchase in the law, we will need to avoid the
first conclusion. Regarding the second, it seems that while O’Mahony has attempted
to brandish away conflict from the concept of human dignity, it is quick to return. The
concluding section of this article extrapolates on this critique more fully.
4. Conclusion: Human dignity, the Question of the Who and
the Question of the What
Even if we were to cast aside the methodological and analytical critiques outlined
above, I remain unconvinced that a minimalist principle of dignity will reduce tensions in the jurisprudence and strengthen the utility of the concept as O’Mahony suggests. This is mainly because I do not see how dignity considerations can be defined
so as to render them outside of political questions about human vulnerability and
flourishing. One method of thinking about human dignity considerations in the law
29
30
31
32
Id . at 574.
XXX.
Id . at 573.
XXX.
Id. at XXX.
Id.
There
no such
thing
a right
to human
dignity:
A reply
to Conor
O’Mahony 583
9
There
is noissuch
thing
as aas
right
to human
dignity:
A reply
to Conor
O’ Mahony
is to consider them a response to two separate but related questions: the Question of
the Who and the Question of the What. The Question of the Who considers who belongs
to the category of bearers of human dignity. The Question of the What considers what
type of life the bearers of human dignity deserve qua their inherent dignity. Both are
normative questions, but the latter concerns more politically divisive questions.
The Question of the Who, in many ways, seems beyond contestation, and perhaps it
has been since the concept of human dignity was introduced into domestic and international human rights law. Human dignity considerations are meant to apply to all
human beings. Here we might see obvious connections to Waldron’s theory of human
dignity as a normative classification regarding the status of all human beings. The
Question of the What is more difficult, but existing rights provide generally agreed upon
categories for an answer to this question. This is because rights represent the formalization of certain expectations regarding human life. Difficulties are present, of course,
in both the interpretation of those rights and in efforts to discern and describe new
areas of human vulnerability that demand rights protection.
To define human dignity as “equal treatment and respect” is to answer the Question
of the What exclusively in terms of the general equality that O’Mahony finds attributable to all human beings. In one way, this is an elegant answer—whatever it is we as
human beings deserve, we deserve it equally. And yet, in another way it represents a
sidestepping of the very real difficulties associated with human rights adjudication. It
also represents a serious restriction on our use of dignity considerations to examine
and articulate human vulnerability. I think it is important that we not do this. The
minimalist principle of human dignity proposed by O’Mahony places dignity considerations outside the realm of the contentious and beyond the scope of particular
questions about the law’s place in protecting and promoting human life. Rather, as
O’Mahony surmises, its applicability will generally be limited to equality cases, if not
more specifically so to anti-discrimination cases.
It is important to consider that highly divisive political issues can over time become
commonplace beliefs, which later become crystallized into rights.33 Points of deep
political contention can eventually become settled and protected. Limiting the use of
dignity to the more stable terrain of equality law isolates the principle from efforts to
regularize new protections to human life. The point is that within human rights law,
regardless of the care one takes to delimit the concept of human dignity, there should
be space for sincere conflict about the law’s protection and promotion of human life.
The question of what human life requires from the law invites a variety of responses.
Any effort to regularize the concept of dignity’s use will not eliminate political and
normative tensions from arising in the case law. Human dignity as foundation, as the
essence and heart of the human rights enterprise, is human dignity as phenomenological orientation. A claim to human dignity is a political and normative argument
33
For a general arc of such a theory, see ALEXANDRE KOJÈVE: OUTLINE
Howse & Bryan-Paul Frost eds. & trans., 2000).
FOR A
PHENOMENOLOGY
OF
RIGHT (Robert
10
I•CON
xx10
(2012),
1–575–584
10
584
I•CON
(2012),
of a particular sort. Reduced to a “term of art,” it cannot illuminate the Question of the
What. What’s more, it is unclear how the minimal principle of human dignity could
have any purchase at all even in the area of equality given O’Mahony’s directive that
the concept not place itself in any position where it might be pitted against another
value or be considered unclear. O’Mahony’s conceptual demands of dignity require it
to sustain a level of high generality, which all but ensures its relative powerlessness.
One might say, then, that my substantive criticism to O’Mahony’s article is that his
proposal (dignity as “equal treatment and respect”) reduces the Question of the What
to the Question of the Who. My objection is not that this isn’t a terribly important normative statement, only that O’Mahony has chosen such a relatively stable category of
rights as the exclusive arena for dignity considerations. O’Mahony’s prescription for
dignity prevents us from invoking the concept to describe those entitlements and protections we consider as essentially valuable to human life. So long as the Question of
the What is a part of our thinking about the law’s protection and promotion of human
life, this is a loss.