View from
The Left

Preview: Human Dignity and the Law

(David Bachar)

If individuals are able to become authors of their lives in a substantive way, we can say they have lived a dignified life.”

Introduction

In October, my book Making Human Dignity Central to International Human Rights Law: A Critical Legal Argument will be released with the University of Wales Press (the Amazon page is already up). This book is important to me for a variety of reasons. To begin with, it will be the first major book of mine published. Secondly, the book is dedicated to my recently deceased friend Connor O’Callaghan, who was going to write the introduction before tragically passing away last summer. Connor and I wrote together frequently, and the dedication is intended to help keep the memory of an extraordinary young scholar alive. Finally, the text owes a great deal to my father, who was the first individual to truly inspire me with a passion for human rights, and he remains a mentor to this day. His insights and patience while reading over the book were vital to its completion.

In this short piece, I will sketch out my argument for how human dignity can be the central ideal of law. I will argue that dignity can be seen as the fundamental “mother right” or “archetype” from which all other rights flow. These are both different ways of expressing the point that protecting and amplifying human dignity is the central moral ideal of law. 

Human Dignity and Self-Authorship

The goal of a moral approach to jurisprudence should be amplifying the dignity of individuals. This is consonant with the Kantian position, well articulated by Arthur Ripstein in his great book Force and Freedom: Kant’s Legal and Political Philosophy. He argues that retaining a moral right to sovereignty should be conditional on state institutions maintaining a “rightful condition” for the positive development of all people living within their territory. A state can achieve this moral ambition by making the amplification of human dignity the central ideal of law.

My conception of dignity is highly individualistic and relates to a person’s general capacity for self-authorship. However, it cannot be exhausted by the concept of autonomy. I believe that an individual has dignity to the extent that he or she is capable of transforming the world around him or her and defining one’s personality through this active engagement. If individuals are able to become authors of their lives in a substantive way, we can say they have lived a dignified life. The argument presented here is, in many respects, deeply Kantian. Our basic dignity, as Kant understood it, lay in our existing as transcendental beings that ascribe value to the world rather than having value immediately ascribed to us externally by nature. Because we care about the existential world we inhabit, we constitute the ends we wish to strive for—and, in so doing, establish the boundaries that will have to be transcended to achieve those ends.  This process forms an integral link between dignity and agency.

Adopting this conception of dignity would also have significant repercussions for how one would understand human rights. For instance, it implies that the dignity of individuals is not entirely respected when legal and political institutions simply avoid interfering with the lives of their citizens, except where their actions infringe on the rights of others. One must go much further than this. Dignity, I will argue, is respected when legal and political institutions establish equal conditions for all individuals to prosper or fail and have their claims acknowledged or dismissed in the self-authorship of an authentic life.

Making Human Dignity Central to Human Rights Law

One way to achieve this would be through making respect for human dignity the central ideal of law, particularly human rights law. What I mean by this is that respect for human dignity becomes the legitimating basis through which law-making bodies claim the authority to govern because they establish the rightful condition. They are able to retain this legitimate authority to the extent they respect human dignity by realizing the ideal in concrete legal practice. The moral respect we show to human dignity could be hermeneutically linked to subsequent and increasingly more specific moral commitments codified in human rights documents, such as those required to democratically legitimate the state and those required for the full development of the human personality. Ideally, over the course of time, the link between domestic and international law would gradually become blurred as states internalize the democratic and economic requirements for sovereignty and regard them as integral principles underpinning their own legal systems. International law would then overlap with domestic law in a self-reinforcing manner as states increasingly affirm international law as a matter of principle rather than simply as a legal requirement. This would, in turn, establish a mutually legitimizing chain through which both domestic and international legal systems validate their position relative to one another. The rightful condition would be established.

Justice Aharon Barak, who was once President of the Supreme Court of Israel, has helpfully described this process in his book Human Dignity: The Constitutional Value and the Constitutional Right as an instance of dignity being a framework “mother right,” which births a number of “daughter rights” through a process of interpretation. Through this process we move from respecting human dignity at an abstract level to coming to respect it as a right with legal force. He writes: 

“A constitutional right formulated as a principle serves as a ‘common roof’ under which a wide variety of situations crowd together. Common to all of them is that they are expressions of the general principle that shapes the right…Under the canopy of the constitutional framework right, constitutional rights derived from it or that radiate from it crowd together. These rights are inherently of a lower level of generality than the framework right…A framework right is therefore a mother right. From it are derived daughter-rights. If the daughter-rights themselves are framework rights at a lower level of generality, granddaughter-rights are to be derived from them.  Other imagery expressing this concept views the mother right as a tree and the daughter-rights as branches growing from it.”

Conclusion: Human Dignity as a Constitutional Archetype

Another way of expressing this same point would be to see the protection of human dignity as the, not merely “a”, fundamental constitutional “archetype” to adopt a favored term of Jeremy Waldron. A state’s commitment to protecting and realizing this archetypal right should define the interpretation of any code of positive human rights law. Moreover, taking robust steps to make human dignity the archetype of positive human rights law would mean recognizing that positive rights are insubstantial unless they give rise to concrete obligations on the part of institutions to respect and advance them. In this respect, rights must be what Seyla Benhabib referred to as both determined by and constitutive of a, “jurisgenerative politics.” The recognition of positive rights flowing from dignity imposes subsequent obligations on actors (and politico-legal institutions) to take concrete steps to realize them. To not do so would demonstrate a lack of moral integrity since one should be willing to take the steps needed to advance archetypal dignity. This is the positive dimension of a conception of human rights based on dignity. As these rights become enshrined within positive law—and the human dignity they flow from increasingly respected and amplified—the laws governing socio-political institutions would become increasingly legitimate.

Matt McManus is currently Professor of Politics and International Relations at TEC De Monterrey. His book Making Human Dignity Central to International Human Rights Law is forthcoming with the University of Wales Press. His books, The Rise of Post-modern Conservatism and What is Post-Modern Conservatism, will be published with Palgrave MacMillan and Zero Books, respectively. Matt can be reached at mattmcmanus300@gmail.com or added on Twitter via @MattPolProf.

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