Sunday, June 03, 2018

Human Dignity & International Legal Human Rights

After Kant, because human animals alone have dignity they can make necessary and compelling or objective claims on each other (hence reciprocal notions of ‘obligation’ or ‘duty’ and ‘right’), and thus our actions are capable of embodying or expressing the “motive” proper to morality, one that also accounts for the (rational) recognition of the objective worth of others as “ends in themselves.” Dignity is an intrinsic value that signifies absolute worth, “a value that cannot be compared to, traded off against, or compensated for or replaced by any other value” (Allen Wood). Our dignity is owing to our rational normative agency (or ‘autonomy’), as we are beings that bring, so to speak, moral value or goodness into the world. Acting morally here means, in one sense, acting for the sake of humanity in one’s person, thereby respecting the objective worth of humanity as an end in itself and calling upon us to treat every person with equal dignity (as the worth of all rational beings is equal). It means that we accept moral constraints on our action if we are to make sense of the notion of our (reciprocal) capacity (potentiality) for rational agency (i.e., the capacity to will and act).

And with Wood, let’s not forget that “our capacities for feelings and emotion and even our animality are parts of our rational nature.” Such a conception is metaphysical in nature (I use this description loosely, sans any commitment to Kant’s specific metaphysical edifice and propositions, but more as a way to indicate a transcendence of naturalism insofar as that denotes a realm of strict causation or what Raymond Tallis terms ‘wall-to-wall’ naturalism). It means persons are to be construed as both infinitely valuable and irreplaceably valuable. As Kant said, we should always treat people as “ends” (‘self-sufficient’ ends at that, and thus not in the sense of some thing or state of affairs to be brought about by us) and never merely just as “means” (the ‘Formula of Humanity as End-in-Itself’). The polity of ends, if you will, means that we act as a self-governing community or society insofar as we are a collective group of (would-be) rational agents who act within the constraints of common, self-imposed, and objective norms. Dignity at once constrains and empowers.

In an incisive and discriminating discussion of Michael Rosen’s treatment of Kant and the idea of dignity in the former’s book, Dignity: Its History and Meaning (2012), Thomas E. Hill provides us with a defense of Kant’s views so as to weave together the “different strands of thought … commonly associated with dignity” as canvassed by Rosen: “(a) rank or status, (b) intrinsic value, (c) ‘measured and self-possessed behavior,’ and (d) respectful treatment.” Hill takes up the arduous challenge of explaining how these different elements make for a coherent if not compelling and wondrous tapestry in Kant’s work.

Although I am selecting and summarizing parts of Hill’s article for our purposes, I will not attempt to explain how these may or may not (or should or should not) be directly relevant or applicable to the “prominent” role played by the concept of dignity in the founding documents and conventions of the international legal human rights system. However, I do introduce some general thoughts on these matters by Paolo G. Carozza and Allen E. Buchanan respectively, and several titles in the list of “references and further reading” can aid in extended and sustained exploration of this topic. I should perhaps also note that, unlike Michael J. Perry in Toward a Theory of Human Rights: Religion, Law, Courts (2007), I believe we can and should provide a perfectly non-religious or “secular” ground for the fundamental morality of international legal human rights as incarnate in the idea “that every human being has inherent dignity and is inviolable.” At the same time, I welcome Perry’s attempt to proffer a specifically religious—in this instance, Christian—ground for this idea in as much as it might represent a worthy contribution to the Rawlsian project of an “overlapping consensus” (in our case, as it applies to the international legal and political order):

“Rawls’s solution to the challenge of legitimacy in a liberal society is for political power to be exercised in accordance with a political conception of justice. A political conception of justice is an interpretation of the fundamental ideas implicit in that society’s public political culture.

A political conception is not derived from any particular comprehensive doctrine, nor is it a compromise among the worldviews that happen to exist in society at the moment. Rather a political conception is freestanding: its content is set out independently of the comprehensive doctrines that citizens affirm. Reasonable citizens, who want to cooperate with one another on mutually acceptable terms, will see that a freestanding political conception generated from ideas in the public political culture is the only basis for cooperation that all citizens can reasonably be expected to endorse. The use of coercive political power guided by the principles of a political conception of justice will therefore be legitimate. [….]

Political power is used legitimately in a liberal society when it is used in accordance with a political conception of justice. Yet the challenge of stability remains: why will citizens willingly obey the law as specified by a liberal political conception? Legitimacy means that the law may permissibly be enforced; Rawls still needs to explain why citizens have reasons, from within their own points of view, to abide by such a law. If citizens do not believe they have such reasons, social order may disintegrate.

Rawls places his hopes for social stability on an overlapping consensus. In an overlapping consensus, citizens all endorse a core set of laws for different reasons. In Rawlsian terms, each citizen supports a political conception of justice for reasons internal to her own comprehensive doctrine. Recall that the content of a political conception is freestanding: it is specified without reference to any comprehensive doctrine. This allows a political conception to be a ‘module’ that can fit into any number of worldviews that citizens might have. In an overlapping consensus each reasonable citizen affirms this common ‘module’ from within her own perspective.”

With such an overlapping consensus we thus might achieve in philosophical and theoretical terms what has already been accomplished “on the ground,” that is, the “practical consensus” represented by the adoption of the Universal Declaration of Human Rights (UDHR), namely, a complementary metaphysical and moral justification that accords normative and even democratic legitimacy to the international legal system of human rights. Alongside several other legal and philosophical students of international legal human rights, Allen Buchanan reminds us of the conspicuous part played by the concept—and conceptions—of dignity in this system:

“Whether or not the notion that international legal human rights system is grounded in and serves to affirm the inherent dignity of humans [a]s a central feature of the system, it is surely a desideratum for a justification for the system that it can make sense of this notion given its prominence. [….]

The preambular rhetoric of the major human rights documents, including the UDHR [Universal Declaration of Human Rights] and the two Covenants (ICCPR [International Covenant on Civil and Political Rights] and ICESCR [International Covenant on Economic, Social and Cultural Rights]), refers not just to dignity, but to the inherent dignity of the human individual. The most plausible interpretation of this language is that the documents take seriously the idea that each human being is a subject of moral concern on her own account or, as one might also put it, that each has moral worth that is not in any way derivative.”

Back to Hill: when dignity refers, as in (a) above, to a notion of rank or status, it means that

“every human person has a status of dignity, which consists of rights, duties, and respect-worthiness that [non-human] animals lack. It is the status of equality before the moral law and the status of a moral ‘lawmaker,’ that is, a person who shares in the common practical reason that specifies what the basic law requires. The kinds of protections, responsibilities, and honour that are due to a person …. depends on many complex factors that determine how the fundamental moral law (for Kant, ‘the Categorical Imperative’) should be interpreted and applied.”

With regard to the notion of (b) “inherent dignity” (Buchanan) or “intrinsic value,” Kant’s interpretation is fairly unique insofar as it hones in on the idea that persons

“with dignity are ‘ends-in themselves,’ and so are not to be treated merely as means or treated with indifference. They are … beings with a special status and value that Kant contrasts with ‘relative value.’ As members of a possible ‘kingdom of ends,’ their dignity is contrasted with mere price—‘market price’ and ‘attachment price.’ Dignity is also described as an ‘inner worth’ and an ‘unconditional and incomparable worth. This implies that dignity is a worth not dependent on a person’s talents, accomplishments, class, race, gender, sexual orientations, or even moral record. More strikingly, dignity is not merely ‘above price,’ but is also ‘without equivalent.’ That is, dignity is not a commensurable value that permits trade-offs. [….] In effect, … to say that persons have the special intrinsic value of dignity is just to say that any fully rational and reasonable person would (and so we should) grant them the special status (rights, responsibilities, and honour) that the moral law (a law of reason [as it is, incidentally, with Hobbes]) requires. Kant describes this status in abstract and relatively formal terms in his earlier work, and then, taking account of real human conditions, he develops a thicker, more substantive conception in his later work.”

Much like Confucius reconfigures the notion of the junzi, which had meant the “son of a lord” (denoting aristocratic rank, specifically, the male child of a noble family and thus ‘nobility of blood’), to refer instead to (a moralized) “nobility of character,” Kant likewise proffers a transvaluation in meaning for the notion that (c) “measured and self-possessed behaviour,” or the historic idea that “that one should act in a dignified way as befitting one’s class and social status.” Kant’s moral theory, writes Hill,

“transforms the idea, making it appropriate to his conception of all human persons as fundamentally moral equals with basic capacity and rational predisposition to relate to others with due respect for standards that can in principle be justified to all. Thus the relevant class and status is that of human beings with dignity, and the ‘dignified’ behaviour that this calls for is whatever in context expresses one’s valuing of this status. Although Kant does not make the point explicitly, the relevant standards for dignified behaviour must include the duties to oneself not to debase humanity in one’s person—by servility, lying, gluttony, drunkenness, or any sexual practices incompatible with respect for oneself and others.”

“Finally, regarding (d), Kant held that we acknowledge the dignity of humanity by treating every person with respect. Respect for the moral law demands basic respect for every human person, no matter how disliked, useless, or misbehaving. [….] The duty to respect others is not … the general requirement to treat persons with dignity as ends-in-themselves, but rather a derivative and more specific duty comparable to the duties of love, gratitude, and friendship.”

*          *          *

Because my lifeworld (as the individuation—idiosyncratic or otherwise—of one or more worldviews) has a strong Marxist orientation,* and in conjunction with the fact that this is of course a more or less Leftist blog, I want at this point to highlight Marx’s affinity with the Kantian idea of human dignity, a comparatively little appreciated fact about Marx’s philosophical anthropology, his views on human nature, and his overarching humanist framework. Perhaps the best treatment of this topic is found in R.G. (Rodney) Peffer’s Marxism, Morality, and Social Justice (Princeton University Press, 1990). Peffer discusses Marx’s conception of human dignity in the context of an argument characterizing Marx’s overall moral viewpoint as that of a “mixed deontologist.” We need not go into the specifics of that argument but it’s helpful to have a shorthand description of same:

“ … [A]lthough Marx does not have a fully developed philosophical theory about morality, he does have a normative moral perspective, in which there is a fundamental continuity, at least from the formation of his original systematic views in 1844 through his later works. This moral perspective is based on three primary moral values: freedom (as self-determination), human community, and self-realization, as well as on some sort of principle demanding an egalitarian distribution of these goods—at least the good of freedom.”

Peffer goes so far as to claim that Marx “takes the nonconsequentialist notion human dignity rather than pleasure, happiness, or human perfection as the ultimate court of appeal in moral reasoning.” The “notion of ‘human dignity’ is even more fundamental to [Marx than the notion of freedom as self-determination],” for he is “committed to the equal intrinsic dignity of human beings and thus to equality in the distribution of freedom.” Human dignity for Marx serves as a unifying thread explicit in the early writings and implicit in his later works, evidencing a consistent fidelity to its function as an “evaluative concept.” Thus human dignity and the corollary good of self-respect might arguably be defined as axiomatic for Marx, more fundamental therefore, than freedom (as self-determination), human community, and self-realization, all of which, in turn, are presupposed or assumed by, or stand as one of the premises of any analysis of such pivotal and well-known Marxist concepts as alienation and exploitation.

Finally, the notion of human dignity in Marx appears in his idea (and ideal) of a communist society:

“There is, in fact, much textual evidence that Marx accepted the evaluative notion of human dignity. As Eugene Kamenka writes, Marx ‘is simply not concerned to portray communism as a society of plenty; he is concerned to portray it as a society of human dignity: a society in which labour acquires dignity and become free because it is carried out by full and conscious participants in a community given over to co-operation and common aims.’”

*          *          *

“At a very high level of generality, one can find human dignity invoked across legal systems of widely divergent traditions [here’s where the Rawlsian notion of an ‘overlapping consensus’ is germane] to denote two interrelated ideas: (a) and ontological claim that all human beings have an equal and intrinsic moral worth; and (b) a normative principle that all human beings are entitled to have this status of equal worthy respected by others and also have a duty to respect it in all others. The normative principle includes within it the obligations of states to respect human dignity in its law and policy as well. Based on this core common meaning of human dignity, there is broad consensus across legal systems that certain ways of treating other human beings ought always to be prohibited by law. Prohibitions on genocide, slavery, torture, forced disappearance, and systematic racial discrimination, for instance, represent some important examples of universal acceptance of the implications of the status and basic principle of human dignity. It is not surprising that in international human rights law many of these clearest instantiations of the requirements of human dignity also coincide with the strongest and exceptionless norms of international law, found for example in the definitions of crimes against humanity or jus cogens.

In the same way, the most widespread and evident use of dignity in human rights adjudication can be found in cases dealing with the protection of life itself and the integrity (physical or mental) of human persons. Cases are legion where inhuman and degrading treatment is found to violate the inherent dignity of the victims, and references to the requirements of human dignity pervade the case law of virtually all systems in these areas.” — Paolo G. Carozza

*          *          *

… [T]he relevant notion of dignity can be understood to include two aspects. First, there is the idea that certain conditions of living are beneath the dignity of the sort of beings that human are. Thus, for example, we say that when prisoners of war or victims of ethnic cleansing or the elderly or institutionalized persons with mental illness are kept in severely crowded, filthy conditions, this is an affront to their human dignity. [….] The implication is that, given the kinds of beings they are, namely, human beings, such a life is unfitting for them, beneath them, incompatible with their dignity as beings of that kind, and that for them to live in those unfitting conditions is an injury or something that is contrary to what they are due. Let us call this first aspect of dignity the well-being threshold aspect.

The second aspect of dignity is the interpersonal comparative aspect, the idea that treating people with dignity also requires a public affirmation of the basic equal status of all and … if they are not treated in this way they suffer an injury or a wrong. This second aspect of dignity is difficult to grasp is one approaches it by trying to define the term ‘basic equal status’ in a positive way. The prospects are brighter if one takes a kind of via negativa, focusing on cases where we have strong and stable intuitions about how unequal treatment constitutes an insult to a person’s dignity. When women’s testimony in court is systematically discounted because it is the testimony of women … or when a person of color is required to eat in a separate facility or use separate toilets, or when a woman receives less pay than a man doing the same job simply because she is a woman, … there is an affront to the person’s dignity in the interpersonal comparative sense, regardless of whether this kind of behavior tends to undermine their prospects for a minimally good or decent human life. [….]

If dignity includes both a well-being threshold aspect and an interpersonal comparative aspect, then a system of international legal human rights that affirms and protects the dignity of all people will include rights that function to ensure that all have the opportunity to lead a minimally good or decent life—a life fitting for human beings—and that all are treated in ways that recognize their equal basic status [‘fitting for human beings,’ explains Buchanan, ‘includes the idea that a good life for human beings typically requires some significant scope for autonomy’].” — Allen Buchanan 

* Should anyone be interested, and by way of elaboration, my lifeworld (as the individuation of one or more worldviews) happens to contain substantial elements from a broadly Marxist tradition and no less important philosophical and spiritual ideas and components from Buddhism, both streams of which are colored by Jain-like epistemological principles or a pragmatist-like epistemic orientation (from John Dewey to Hilary and Ruth Anna Putnam) that has no compunction whatsoever about borrowing, stealing, or learning from any number of non-religious and religious traditions and worldviews, from Stoicism in the ancient world to anarchism in our own time, the guiding principle of all such endeavors being a concern for Truth (my understanding of which is Gandhian in an existential or experiential sense, while philosophically dependent on the notion of truth as ‘one and many’ as filled out in several works by Michael P. Lynch). I believe this lifeworld to be minimally coherent, although I can hardly make any claim to a rigorous logical consistency, in part because of my belief in the inevitability of “metaphysical pluralism” (understood in a manner compatible with a minimal or modest ‘realism’ of sorts), and a conviction that our individual and thus idiosyncratic lifeworlds, as derived from or inspired by more or less “official” worldviews found in humanist and religious traditions and philosophies around the globe, “are more like a collage than a Canaletto” as explained by the late Ninian Smart, a trailblazer in the study of (religious and non-religious) worldviews and philosophies East and West, North and South. Smart suggests we acknowledge the significance of the fact that “we tend to live in a certain amount of aporia,” asking:

“Do we, when it comes to the crunch, really have a systematic worldview? We have an amalgam of beliefs, which we may publicly characterize in a certain way. I may say that I am an Episcopalian, but how much of my real worldview [what I term above a ‘lifeworld’] corresponds to the more or less ‘official’ worldview which tells me nothing directly about cricket, being Scottish, having a certain scepticism about nationalism, thinking there is life on other worlds, shelving the problem of evil, or other matters. Our values and beliefs are more like a collage than a Canaletto [cf. Lévi-Strauss’s use of the term ‘bricolage’]. They do not even have consistency of perspective.” 

References & Further Reading:

  • Beitz, Charles S. The Idea of Human Rights (Oxford University Press, 2009).
  • Besson, Samantha and John Tasioulas, eds. The Philosophy of International Law (Oxford University Press, 2010).
  • Buchanan, Allan E. The Heart of Human Rights (Oxford University Press, 2013).
  • Capps, Patrick. Human Dignity and the Foundations of International Law (Hart Publishing, 2010).
  • Carozza, Paolo G. “Human Rights, Human Dignity, and Human Experience,” in Christopher McCrudden, ed. Understanding Human Dignity (2011): 615-629.
  • Daly, Erin. Dignity Rights: Courts, Constitutions, and the Worth of the Human Person (University of Pennsylvania Press, 2013).
  • Donnelly, Jack. Universal Human Rights in Theory and Practice (Cornell University Press, 3rd ed., 2013).
  • Düwell, Marcus, et al., eds. The Cambridge Handbook of Human Dignity: Interdisciplinary Perspectives (Cambridge University Press, 2014).
  • Hill, Thomas E., Jr. Dignity and Practical Reason in Kant’s Moral Theory (Cornell University Press, 1992).
  • Hill, Thomas E., Jr. “In Defense of Human Dignity: Comments on Kant and Rosen,” in Christopher McCrudden, ed. Understanding Human Dignity (2011): 313-325.
  • Hill, Thomas E., Jr. Virtue, Rules, and Justice: Kantian Aspirations (Oxford University Press, 2012).
  • Kateb, George. Human Dignity (Belknap Press of Harvard University Press, 2011).
  • Kraynak, Robert and Glenn Tinder, eds., In Defense of Human Dignity: Essays for Our Times (University of Notre Dame Press, 2003).
  • Luban, David. Legal Ethics and Human Dignity (Cambridge University Press, 2007).
  • McCrudden, Christopher, ed. Understanding Human Dignity (Oxford University Press, 2014).
  • Morsink, Johannes. Inherent Human Rights: Philosophical Roots of the Universal Declaration (University of Pennsylvania Press, 2009).
  • Nickel, James W. Making Sense of Human Rights (Blackwell, 2nd ed., 2006).
  • Peffer, R.G. Marxism, Morality, and Social Justice (Princeton University Press, 1990).
  • Perry, Michael J. Toward a Theory of Human Rights: Religion, Law, Courts (Cambridge University Press, 2007).
  • Rachels, James. The Elements of Moral Philosophy (McGraw-Hill, 4th ed., 2003): 130-140.
  • Rosen, Michael. Dignity: Its History and Meaning (Harvard University Press, 2012).
  • Steiner, Henry J. and Philip Alston. International Human Rights in Context: Law, Politics, Morals (Text and Materials) (Oxford University Press, 2nd ed., 2000).
  • Waldron, Jeremy (et al.) Dignity, Rank and Rights (Berkeley Tanner Lectures, 2009) (Oxford University Press, 2015).
  • Wood, Allen W. Kant’s Ethical Thought (Cambridge University Press, 1999).
  • Wood, Allen W. Kantian Ethics (Cambridge University Press, 2008).

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