Dignity, Integrity, and the Concept of a Person

and Adeno Addis

Abstract

The idea of human dignity, found in almost all legal and political cultures, now plays a very significant role in political and legal discourse. The concept occupies a prominent place in many national constitutions and international human rights conventions. Some constitutional and conventional laws in fact claim that the pursuit of dignity is (or should be) the central organizing principle of every government. Yet, it is not always clear what this seemingly central concept means or entails. Its popularity seems inversely related to its clarity. Dignity is often invoked in support of opposing positions on the same issue. Using an approach that the article refers to as dignity pragmatism, the author advances the argument that careful examination of the use of dignity in national constitutions and international human rights documents and their elaboration by the relevant tribunals shows that the idea of human dignity is often used in the context of defending the integrity of the person. Here integrity is defined as the condition of wholeness or completeness. The article details what the conditions for integrity are and how human dignity is invoked in its defense. On this account, dignity is an existential value. It is about personhood in its various dimensions – physical, psychological and social. When integrity as wholeness is threatened, existence itself is threatened. Viewed this way, indignity is the effacement of personhood.

1 Introduction

The concept of dignity now plays a very significant role in the political and legal domains, sometimes in support of opposing positions on the same issue. Dignity is, for example, invoked in support of both the protection and the ending of life. 1 It is marshalled in favor of and against autonomy. 2 It is used to defend and oppose religious commitments. 3 Often, dignity is thought to be inherent in the person, while other times it is taken to refer to a relation that is highly dependent on cultural and political developments, a rank bestowed by social recognition developed intersubjectively. 4 Participants in an array of political and legal disputes invoke dignity in support of their claims or in opposition to the claims of others. Because often the concept of human dignity is applied to yield opposite and contradictory outcomes, some have argued that the concept has exhausted its usefulness and should therefore be abandoned. 5 I have argued in previous works that even though human dignity has often been invoked in ways that suggest that it means everything 6 and hence stands for nothing, it is a mistake to conclude that human dignity is therefore a concept with no discernable value. 7

In the last few years, I have started to explore the relationship between dignity and other central concepts in political and legal thought such as equality and autonomy. The purpose has been to see whether the notion of dignity, a rather ambiguous concept, could be understood better if it were examined in relation to other fundamental concepts and principles and in the context of examining specific choices people make in the name of dignity. 8 This is an approach that I have, borrowing from David Luban, 9 labeled human dignity pragmatism. 10 By ‘human dignity pragmatism’ I mean to refer to the process of developing the idea of dignity from human right practices, from the choices and decisions people make in the name of dignity rather than trying to rely on a contested epistemological understanding of what it means to dignify humans or to subject them to indignities. 11 The argument here is that we will better understand the nature of dignity if we work from the bottom up rather than from the top down. 12 As I have argued elsewhere, the top-down approaches (whether of religious or secular philosophical nature) are ill-suited for developing a workable notion of dignity that could serve as, to use a famous phrase from the Universal Declaration of Human Rights, 13 ‘a common standard of achievement for all peoples and all nations’ 14 in the diverse world in which we live. 15

As part of a larger project on dignity, I have, as I noted earlier, started to explore the relationship between dignity and other central concepts in political and human rights discourse in the contexts of specific choices and decisions people make in the name of dignity. In one article, for example, I argued, though rather briefly, that dignity might be related to integrity. 16 In most national constitutions (both the texts and their elaborations by the relevant tribunals) dignity is often invoked in relation to the protection of the physical integrity of a person from certain kinds of punishments. 17 A person is said to have been subjected to indignity to the extent that he or she is targeted for punishments or treatments that seriously demeaned him or her physically and/or psychologically. A similar consensus is found among major international human rights documents. Those documents prohibit the use of ‘torture and cruel, inhuman and degrading treatments’ 18 on the account that those punishments or treatments are violations of the ‘inherent dignity’ of the person. 19 Dignity on this account is like a trump card, to use a Dworkinian imagery, 20 every individual flashes to stop government or private actors from engaging in punishments or treatments that are regarded as directed at the very integrity of the physical person. Although there is no such overlapping consensus, dignity is also invoked (in many cultures and systems) to impose an obligation on the government to provide the minimal level of material assistance to sustain the physical integrity of the person. 21 The argument here is that the physical integrity of the person can be undermined by an act of commission as well as an act of omission.

In this article, I will explore systematically the relationship between dignity and integrity. More specifically, this project will explore the issue of whether dignity can be, at least partly, understood as protecting the integrity of the person. This of course requires that I specify what I mean by integrity. The following section attempts to do just that.

2 Integrity

The notion of integrity has been invoked under varying circumstances to convey different meanings. 22 As a general matter, however, it has been used to describe one of two circumstances. It is invoked to refer to a person’s adherence to a moral or ethical code. Thus, an individual will be said to have integrity to the extent that he or she leads his or her life in strict compliance with moral or ethical code. We may refer to this as moral integrity. Integrity understood this way is generally seen as a virtue. 23 A person with moral integrity is contrasted with people who are corrupt, hypocrite, self-deceiving, weak-willed, and the like. 24 The person of integrity in the above sense is a morally virtuous person and we respect him for leading such a life. The respect we show such a person is what Stephen Darwall would refer to as ‘appraisal respect’. We accord the respect as a result of our positive appraisal of him as a person or of his specific pursuits. 25 To ‘[a]ttribute integrity’ in the sense that I set out above ‘is arguably the most respectful praise we offer.’ 26

We do not associate that notion of ‘respect for integrity’ with the sorts of respect we mean to invoke when we talk about human dignity. Human dignity is the respect we show to people in virtue of their humanity, nothing more and nothing less. This is similar to what Darwall calls ‘recognition respect’. 27 The respect here, to quote Darwall, is the ‘moral requirements [to recognize] that are placed on one by the existence of other persons.’ 28 Recognition respect is granted equally to the person who lives in strict compliance with moral and ethical code and to the person whose life is a string of corruption and deception. Recognition respect is not earned; it is simply granted by virtue of the fact that the target or recipient of recognition is a human being. 29 We subject persons to indignity when we withdraw that respect from them. Torturing the terrorist is as impermissible a violation of the dignity of the person as is torturing a morally upright and innocent person. At least, that is what people generally mean to embrace with the notion of human dignity.

There is a second sense of integrity directly related to personhood which I shall argue provides us with a way to understand the concept of dignity. Integrity here refers to the condition of wholeness or completeness. 30 We might refer to this as integrity as wholeness. There are two aspects of this ‘wholeness’. First, the integrity of the person in this sense (personhood) has various dimensions such as physical, psychological, 31 and social. The person is ‘whole’ only to the extent that all aspects of his being are protected from serious curtailment or the threat of curtailment that leads to a life of ‘covering’. 32 Second, integrity understood as wholeness is not atomistic and individualistic; it is social in the sense that one’s identity becomes ‘meaningful only in the context of human interaction.’ 33 A person is not merely a physical body but an entity that develops its central identities and commitments through interaction with other human beings. 34 Personhood is in large measure constituted socially. 35 Now, the social dimension of the individual might not be or may not seem to be as stable as the physical dimension but it is no less central to personhood. I shall expand upon this later in the article.

At any rate, when we talk about protecting the dignity of a person or conversely when we worry that a person has been subjected to indignities the point of departure seems to be a notion of wholeness or completeness of a person which has been affirmed or undermined. 36 In the philosophical realm, Gabriel Taylor defends the proposition of integrity as wholeness by claiming that the most fundamental notion of integrity is ‘of the person who ‘keeps his inmost self intact’ whose life is ‘of a piece,’ whose self is whole and integrated.’ 37 And protecting this whole and integrated self is the baseline (the necessary starting point) from which a human being can flourish with human excellence. 38 As George Kateb has argued, dignity is an existential value. 39 When the integrity of the person is at stake existence is at stake in some manner and dignity is about protecting that integrity (personhood) in all of its dimensions. 40 On this account, indignity is the ‘effacement’ of personhood.

3 Dignity as integrity

As I noted earlier, a person is complete or whole to the extent that the various dimension of her identity – physical, social, and psychological – are respected or protected. Examination of both national and international laws suggests that when people defend or critique a choice or a decision in the name of dignity they seem to be making arguments in defense of the integrity of the person in the sense that I have outlined it above. The ACHPR puts the issue straightforwardly: ‘Every human being shall be entitled to respect for his life and the integrity of his person.’ 41

The integrity of the person 42 could be undermined by others as well as by the person himself. The notion of dignity that is associated with autonomy (most often associated with Immanuel Kant) has difficulty explaining as to why people should be prohibited from voluntarily engaging (as autonomous beings) in activities that are seen to devalue one or another aspect of their being. As I shall argue later, dignity as integrity will have less (or no?) such difficulty, for dignity as integrity does not view dignity as a property of one capacity of the individual (eg autonomy). 43 Dignity attaches to personhood in its entirety, not to one or another capacity whether it is autonomy or reason. 44

3.1 Dignity as physical integrity: The prohibition of certain types of punishments

Whatever else the self may be, it is its body. Bodily integrity is the minimum required for the concept of a person. 45 As JM Bernstein notes, ‘[t]he self is its body, and being a body is what makes the self vulnerable to assault and violative depredations of the other.’ 46 Michel Foucault’s work 47 has shown with great historical sensitivity how the body is a target of power both to be managed and to be produced for certain functions. 48 The body is vulnerable to and is a site of subjugation. So, when we speak of the integrity of the person, physical integrity (freedom from physical vulnerability) is often what we think of. And when we speak of indignities, physical depredation or violation is what we often have in mind. Because ‘bodily autonomy and bodily integrity [are] immediate ingredients in the human being’ their violations become ‘a denial of the victim’s status as human49 and hence a denial of his or her dignity. Bodily integrity stands ‘for what should not be passed beyond, in, and through the violation of it.’ 50 By ‘physical or bodily integrity’ I mean to refer not just to the body’s immunity from direct attack (eg slaps on the face), but also immunity from any attempt by another to act towards the target in a way that is highly insensitive ‘to the most basic needs and rhythms of a human life: the need to sleep, to defecate or urinate’, 51 etc. It is this expanded sense of physical integrity that has been associated with dignity.

National as well as international jurisprudence shows that physical integrity is considered to be a matter of dignity. In a 1999 decision, Law v Canada (Minister of Employment and Immigration), Justice Frank Iacobucci of the Canadian Supreme Court made the observation that ‘[h]uman dignity […] is concerned with physical and psychological integrity and empowerment.’ 52 The South African Constitutional Court in Christian Education South Africa v Minister of Education, a case involving a challenge to a law that prohibited corporal punishment in schools, tied the prohibition to human dignity. 53 ‘The outlawing of physical punishment in school,’ the Court notes, ‘had a principled and symbolic function, manifestly intended to promote respect for the dignity and physical and emotional integrity of all children.’ 54 Although the word ‘and’ was inserted between ‘dignity’ and ‘integrity’ suggesting that they capture two different values or concepts, a reading of the opinion suggests that in fact dignity was viewed as standing for the proposition that the protection of the physical and psychological integrity of the person is the vindication of his or her humanity. 55 In Canadian Foundation for Children, Youth and the Law v Canada, the Canadian Supreme Court addressed an issue similar to that addressed by the South African Constitutional Court (ie corporal punishment). 56 Although unlike its South African counterpart it ended up upholding the state statute, 57 the Canadian Supreme Court nevertheless made the important point that dignity is concerned with physical and/or psychological integrity. 58 Justice Kennedy of the United States Supreme Court also makes a similar observation. In a concurrence in Olmstead v LC Zimring, a case involving the treatment of people with severe mental illness in ‘deinstitutionalized’ settings, Kennedy notes that the lives of these individuals were ‘virtually devoid of “dignity” or “integrity of body, mind, and spirit”.’ 59 Kennedy appears to employ the phrase ‘integrity of body [and] mind’ as the very definition of dignity.

In fact, most national constitutions refer to human dignity in the context of the physical integrity of the individual (the prohibition of degrading and humiliating punishment). Thus, Article 34 of the Algerian Constitution refers to the inviolability of human dignity in the context of prohibiting any ‘form of physical or moral violence or infringement’. 60 The Armenian Constitution prohibits the subjecting of people ‘to torture, inhuman and degrading treatment or punishment’ in the context of protecting human dignity. Torture is the paradigmatic violation of physical integrity and thus of dignity. Torture (or rape, which is a form of torture 61) undermines the physical and emotional integrity of the person. As Bernstein argues, torture and rape do not just ‘break the victim’s linguistic will’ or put him/or her into shame, but they ‘violate […] the person at the level of basic bodily integrity. The body is invaded, injured, defiled.’ 62 That is what it means to undermine the integrity of the person (his or her wholeness) at the basic level and in the process to humiliate and debase him or her.

Many other national constitutions have similar provisions. 63 The Finnish Constitution, for example, provides that no one shall ‘be sentenced to death, torture, or otherwise treated in a manner violating human dignity’. 64 The El Salvadorian Constitution provides for the right of habeas corpus ‘when any authority attacks the dignity or physical, mental or moral integrity of the detained person’. 65 Physical integrity – integrity as wholeness – appears to be an essential aspect of how many national constitutions conceive of human dignity. And conversely, degradation and humiliation 66 are viewed as attacks on the person’s very integrity and ‘the diminution of his or her life.’ This was the view of the United States Department of Justice about the ‘loss of dignity’ that victims of sexual abuse in prison suffer. 67 Indeed, the Eighth Amendment of the United States Constitution which prohibits the use of ‘cruel and unusual punishment’ 68 has been read by the United States Supreme Court as focused on protecting the dignity of the person. As Justice Kennedy put it, ‘[r]espect’ for ‘the essence of human dignity inherent in all persons […] animates the Eighth Amendment prohibition against cruel and unusual punishment.’ 69

The United States is not the only country where human dignity has been recognized as a constitutional value even though the constitution itself does not mention human dignity at all. The French Constitution, for example, does not mention human dignity and yet French courts have recognized it as a central constitutional value. Thus, in the Bioethics Decisions the Constitutional Council held that ‘the dignity of the human being is safeguarded against all form of subjugation and degrading treatment as a principle of constitutional value.’ 70

Before the Israeli parliament (the Knesset) codified it by a 1992 enactment, 71 the Supreme Court of Israel had developed the right to human dignity in its decisions. The Court first invoked human dignity as a legal principle in Katalan v Prison Services, a case that involved the legality of conducting an enema with prisoners who were suspected of hiding drugs inside their bodies. Writing for the Court, Justice Ahron Barak noted, ‘[t]he system of life in prisons does not require the negation of the prisoner’s right’ to the integrity of his body and the preservation of his human dignity. 72 Barak further notes that ‘[t]he use of an enema on a detainee against his will and for [no] medical reasons, injures his bodily integrity, and injures his dignity as a human being.’ As Justice Barak saw it, the ‘prisoner is deprived of liberty but his humanity has not been taken away from him.’ 73 Apparently, whatever else human dignity may entail it is certainly about the protection of the bodily integrity of human beings. 74 For Barak, dignity is best understood as integrity as wholeness.

The Irish courts have also invoked dignity in relation to physical integrity. Thus, in Re a Ward of Court which involved the withdrawal of life support from a person who had been in a vegetative state for two decades, Judge Denham of the Irish Supreme Court noted that it was a violation of dignity to apply ‘invasive medical treatment’ that results in ‘a loss of bodily integrity.’ 75 As Connor O’Mahony notes, in Re a Ward of Court ‘dignity arguably played the role of a source of our normative justification for a right – namely, the right [to] bodily integrity and concomitant right to refuse medical treatment.’ 76 As I noted earlier, the South African Constitutional Court has also often invoked dignity in relation to the physical integrity of the person. 77 ‘In many cases,’ says the Court in one case, ‘where the value of dignity is offended the primary breach occasioned may be of a more specific right such as the right to bodily integrity […].’ 78

The Supreme Court of Brazil has, on several occasions, invoked dignity in cases related to torture. In Herbert Fernando de Carvalho the Court concluded that obtaining evidence from an individual through torture violates the dignity of the person. 79 In Rio Grande do Sul State Prosecutor the Court relied on dignity to impose and obligation on the government to deal with the lack of sanitation and overcrowding in prisons. 80 As Márcio Ricardo Staffen and Mher Arshakyan put it, the Court understood this requirement as one of providing the ‘minimum conditions to provide for prisoners to preserve their mental and physical integrity stemming from dignity.’ 81 The Court has relied on dignity in several other cases to disallow a particular governmental action as being inconsistent with the dignity (physical or mental integrity) of the person. 82 So, for the Brazilian Supreme Court, dignity, at least in these cases, is understood as integrity.

International human rights conventions reinforce this constitutional consensus. 83 Thus, the ACHPR directly links human dignity and degrading treatments. After recognizing the right to respect ‘the dignity inherent in a human being,’ the Charter immediately (in the same article) prohibits ‘all forms of degradation of man particularly slavery, slave trade, torture, cruel, inhuman and degrading treatment’. 84 There seems to be no doubt in the minds of the drafters of the African Charter that physical integrity is a matter of human dignity. 85 Likewise, Article 5 ACHR opens with a declaration that everyone ‘has the right to have his physical, mental, and moral integrity recognized’ before declaring that no one should be ‘subjected to torture or to cruel, inhuman, or degrading punishment or treatment.’ 86 It is clear that the ACHR considers the prohibited punishment as threats to the integrity (and hence dignity) of the person on whom they are inflicted. 87 The European Court of Human Rights also invoked dignity as the ground on which ‘inhuman and degrading treatment or punishment’ is prohibited. 88 As the Court put it in MS v The United Kingdom, engaging in degrading treatments in violation of Article 3 of the Convention is ‘an affront to human dignity.’ 89 Indeed, in as early as 1978 the ECHR had described the protection of dignity as ‘one of the main purposes of Article 3.’ 90

All major international human rights documents have made the prohibition of degrading treatments as non-derogable. Generally human rights treaties allow signatory states to suspend (derogate from) most of the rights in those treaties to which they are parties ‘in time of public emergency which threatens the life of the nation’ if certain conditions are met. 91 However, the prohibition on ‘torture or cruel, inhuman and degrading treatment or punishment’ cannot be suspended (derogated from). Even a threat to the life of the nation would not entitle officials to engage in torture and other cruel and degrading treatments. According to all major international and regional human rights conventions, therefore, integrity as wholeness is a matter of human dignity and hence inviolable.

The most important international conventions relating to the laws of war, the Geneva Conventions, also very clearly and directly link dignity and physical integrity. Indignity is said to have occurred when certain treatments are inflicted on prisoners of war. Thus, Common Article 3 of the Geneva Conventions prohibits ‘at any time and in any place whatsoever […] outrages upon personal dignity, in particular, humiliating and degrading treatment.’ 92 In another section of the article the Convention prohibits ‘violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.’ 93 In Prosecutor v Bagosora, et al, 94 a case before the International Criminal Tribunal for Rwanda (ICTR), ‘outrages upon personal dignity’ was one of the counts against the defendants. The ICTR Statute incorporates Common Article 3 violations through Article 4 (e) of the Court’s Statute. 95 In Bagosor the Tribunal explained that ‘outrages upon personal dignity’ are ‘acts which cause serious humiliation, degradation or [are] otherwise […] a serious attack on human dignity.’ 96 In several of its decisions, the International Criminal Tribunal for the former Yugoslavia (ICTY) has shown what acts are deemed ‘outrages upon personal dignity.’ 97

The apparent international conventional consensus that undermining the physical integrity of the person is a violation of human dignity is also a principle of customary international law. 98 Torture, genocide, crimes against humanity, and war crimes are not only prohibited by various conventions but they are also prohibited as violations of peremptory or fundamental norms under customary international law. Indeed, the violators of these fundamental norms are considered as enemies of all humankind (hostis humani generis), 99 not just enemies of this or that person or this or that group or country. Because such crimes are seen as crimes against all of us, customary international law permits any state to assert jurisdiction to prescribe and/or to adjudicate in relation to those crimes without having to show that there is a link between the state that is asserting the jurisdiction and the crime. That is, in relation to crimes that are considered to be crimes against all of us there is what international lawyers refer to as universal jurisdiction, the principle under which any state is permitted to assert prescriptive and adjudicative jurisdiction over individuals who are alleged to have committed these crimes whether the crimes were committed within its territory and regardless of the nationality or residence of the victim or the perpetrator.

To summarize, there seems to be an international consensus that undermining the physical integrity of the person at the level of basic bodily integrity is quite often what it means to subject him or her to indignities. Securing the integrity of the person is the vindication of his or her dignity. As JM Bernstein directly (and in my view correctly) notes, the ‘violations of the body’s borders, their pollution, in exposing the bodily self beyond any possibility of protection blurs the line separating life and death, when that line is so blurred a kind of “soul murder” or “soul death” or “social death” emerges.’ 100

There have also been increasingly common arguments defending assisted end of life procedures as a matter of dignity understood as bodily integrity, both in the legal 101 and academic 102 domains. 103 But there is much less consensus on the value of invoking dignity as integrity to defend the end of life. 104 There is deep controversy as to when and in what manner the notion of human dignity should be invoked at the end of life or at ‘the edge of life’ as Ronald Dworkin refers to it. 105

3.2 Dignity as physical integrity: The issue of existential minimum

There is considerable jurisprudence both within international human rights law and across national laws that suggests that dignity as integrity would be seriously undermined if resources essential for livelihood were denied. 106 In the area of international human rights, two of the documents comprising the international bill of rights refer to the essential minimums. Thus, the Universal Declaration of Human Rights, a document generally regarded as having achieved the status of customary international law, recognizes that there is a minimum level of existence that is ‘worthy of human dignity.’ 107 And the International Covenant on Economic, Social and Cultural Rights (ICESCR) asserts that States ‘recognize the fundamental right to be free from hunger.’ 108 The ICESCR Committee has, in several General Comments, reinforced the proposition that there is an existential minimum that states are duty bound to provide. 109 And the Committee links this required existential minimum to inherent dignity of the person. Thus, in General Comment 12, The Right to Adequate Food under Article 11 of the Covenant, the Committee ‘affirms that the right to adequate food is indivisibly linked to the inherent dignity of the human person and is indispensable for the fulfilment of other human rights enshrined in the International Bill of Rights.’ 110 And in General Comment 4, The Rights to Adequate Housing, the Committee makes a similar claim when it observes that the right to adequate housing is derived from the ‘inherent dignity of the human person’ as are all the rights in the Covenant. 111

The ECtHR has, relying on Article 3 of the European Convention of Human Rights which prohibits the subjecting of people, among other things, to ‘inhuman and degrading treatment,’ has started to impose a positive obligation on states to provide for some sort of existential minimum. Thus, in VM and Others v Belgium, 112 a case that involved a family of asylum seekers whose applications were rejected by the Belgian authorities who subsequently evicted them from reception centers and with no material assistance left them to fend for themselves on the streets for several weeks, held that the Belgian authorities failed to discharge:

their obligation not to expose the applicants to conditions of extreme poverty for four weeks […] having left them out on the streets with no resources, no access to sanitary facilities, and no means of providing for their essential needs. The Court considers that the applicants were thus victims of treatment which failed to respect their dignity and that this situation undoubtedly aroused in them feelings of fear, anguish or inferiority capable of inducing desperation. It finds that such living conditions, combined with the lack of any prospect of their situation improving attained the level of severity required to fall within the scope of Article 3 of the Convention and amounted to degrading treatment. 113

The IACHR has on several occasions declared that the right to life puts a correlative duty on the state to provide for minimum living conditions. In Villagran Morales v Guatemala the Court notes that the ‘the fundamental right to life includes not only the right to every human being not to be deprived of his life arbitrarily, but also the rights that he will not be prevented from having access to the condition that guarantee a dignified existence.’ 114 A concurrence by Judge Cançado Trindade in another opinion 115 makes a similar observation. Judge Trindade writes: ‘the fundamental right to life (Article 4 of the American Convention on Human Rights) is understood lato sensu, comprising likewise the conditions of life with dignity.’ 116 And states ‘have the obligation to guarantee the creation of conditions required in order that violations of the basic right do not occur and, in particular, the duty to prevent its agents from violation it.’ 117 In Indigenous Community Case 118 the Court explicitly linked the right to life to the right to minimum living conditions. The Court put it this way: ‘[o]ne of the obligations that the State must inescapably undertake as guarantor, to protect and ensure the right to life, is that of generating minimum living conditions that are compatible with the dignity of the human person and not creating conditions that hinder or impede it.’ 119 In the case of Indigenous Peoples that minimum condition does not just include health, housing, food clean water, etc, but access to their ancestral lands and to the use and enjoyment of natural resources found in them.’ 120 In fact, for the Court many of the minimum resources required for a dignified life, such as clean water and food, are intimately linked to the land. 121

National constitutions are often even more direct in linking human dignity and livelihood. Thus, the Constitution of Switzerland recognizes that a person ‘in distress and without the ability to take care of himself or herself has the right to help and assistance and to the means indispensable for a life led in human dignity.’ 122 Many other national constitutions have similar provisions. 123

The South African and German Constitutional Courts have read their respective constitutions’ references to human dignity as requiring an existential minimum. Justice Zak Yacoob of the South African Constitutional Court, for example, made the following observation in Government of the Republic of South Africa v Grootboom: ‘There can be no doubt that human dignity, freedom and equality, the foundational values of our society, are denied those who have no food, clothing or shelter.’ 124 The Justice continued: ‘[a] society must seek to ensure that the basic necessities of life are provided to all if it is to be a society based on human dignity, freedom, and equality.’ 125 And in Jaftha v Schoeman126 Justice Yvonne Mokgoro, writing for the Court, was explicit in her emphasis that whenever a socio-economic right touching on basic necessities of life is limited, dignity is ‘invariably implicated.’ 127

The German Basic Law has been read by the German Constitutional Court as embodying an ‘existential minimum (Existenzminimum)’ 128 In a relatively recent decision, 129 for example, the Court relied on the human dignity provision of the German Basic Law 130 to deem the amount of social benefit that asylum seekers received to be unconstitutionally insufficient for existential minimum. 131 The Court affirmed that the constitutional principle of human dignity ‘establishes this right [to the guarantee of a dignified minimum existence] as a human right’ 132 and that right ‘may not be modified in light of migration-policy considerations.’ 133 The fundamental right to a minimum standard of living (existential minimum) guaranteed by Article 1 (human dignity) and Article 20 (social state principle) of the Basic Law encompasses ‘both the physical existence of an individual and the possibility to maintain interpersonal relationships and a minimum of participation in social, cultural and political life.’ 134

What is interesting about the German asylum seekers benefit case is not only that the Constitutional Court affirmed the notion of ‘existential minimum’ as a matter of human dignity (applying to all person living in Germany) but also that it places that interpretation in the context of the interpretive weight of the International Covenant on Economic, Social and Cultural Rights (ICESCR) Committee. Equally interesting is that the Court’s notion of an ‘existential minimum’ appears to be very similar to John Rawls’s ‘social minimum’ 135 or Jürgen Habermas’s adequate ‘living condition.’ 136 It is perhaps not surprising that the German Constitutional Court has adopted positions not too dissimilar to the views advanced by prominent neo-Kantian political and social theorists. Several of the Court’s decisions on dignity have explicit Kantian flavor. 137

Constitutional courts of other countries have also invoked human dignity provisions found in their respective constitutions to develop a jurisprudence that requires the state to provide for a minimum livelihood. The Hungarian Constitutional Court, for example, read the right to social security contained in the Hungarian Constitution as entailing ‘the obligation of the State to secure a minimum livelihood through all of the welfare benefits necessary for the realization for the right to human dignity.’ 138 In another case, the Hungarian Constitutional Court ruled that such things as emergency shelter ‘are minimum requirements of the state’s obligations to discharge its duty to dignity.’ 139 Emergency shelter is part of that ‘existential minimum’ recognized by the German Constitutional Court. The Indian Supreme Court has recognized a similar obligation on account of human dignity, even though the Indian Constitution does not specifically tie minimum sustenance to human dignity. Thus, in Mullin v Administrator, Union Territory of Delhi and Others140 the Indian Supreme Court read the preambular provisions of liberty and fraternity 141 as including ‘the right to live with human dignity and all that goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing, and shelter […].’ 142 The Indian Supreme Court explicitly links the ‘right to life’ to ‘the right to live with human dignity,’ 143 nicely linking existential minimum and physical integrity. In France, the Constitutional Council which recognized dignity as a constitutional principle in the absence of an explicit constitutional provision by combining different pieces of the preamble has invoked dignity in the context of supporting decent housing for everyone. 144 And so has the Brazilian Supreme Court. 145

In some limited circumstances, even the United State Supreme Court has linked dignity and existential minimum, not only in relation to food and clothing but in terms of medical assistance as well. In Brown v Plata, a case that involved prison overcrowding in California prison system and the consequence of that to the availability of existential minimum, Justice Kennedy writing for the Court made this observation:

Just as a prisoner may starve if not fed, he or she may suffer or die if not provided adequate medical care. A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society. 146

Kennedy thus seems to link human dignity, which he has said at another point of the opinion is ‘inherent in all persons’, 147 to the integrity of the person.

To summarize, even though there isn’t the level of international consensus that one sees in relation to certain physical punishments as being inconsistent with dignity, 148 there is wide acceptance both within international human rights law and among national laws that existential minimum is also at the core of human dignity. 149 The idea here is not just that the lack of essential minimums undermines physical integrity itself (the vulnerability of the embodied self), 150 but that it severely (and impermissibly) affects and constrains the agent’s choices as well. 151 As the German Constitutional Court noted in the asylum welfare case, a lack of existential minimum will also seriously undermine the possibility for an individual ‘to maintain interpersonal relationships and a minimum of participation in social, cultural and political life.’ 152 This is very similar to John Rawls’ reasoning in adopting his ‘social minimum’ as a ‘constitutional essential.’ As Rawls put it, a ‘social minimum’ – a package of material goods and services – is what is required for a person’s ability ‘to take part in society as citizen,’ 153 or, as he put it at another point, ‘to understand and to fruitfully exercise’ his or her capacities as a self-determining being. 154 As Adam Smith long ago recognized and noted, the idea of existential minimum is tied to available resources and the expectations of the times. 155

Let me just make one more point before I end this section. 156 To say that there is some consensus that existential minimum is a matter of human dignity is not to suggest that similar consensus also exists as to which branch of government will ensure that such ‘minimum level sustenance’ is provided for as a matter of human dignity. The question of what constitutes existential minimum or minimum level sustenance is not easily answered. It is going to depend on the level of resources a country has, the stage of development of the community, and the like. 157 Some national constitutions seem to suggest that the elected or political branches of government be given some deference (from the courts) to determine the appropriate level necessary for minimum sustenance. 158 I believe such deference is highly appropriate for the reasons well explored by the South African Constitutional Court. 159 But the deference is not absolute. As the Court explained in the same case, ‘[i]n order for a State party to be able to attribute its failure to meet at least its minimum core obligations to a lack of available resources it must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.’ 160 As the South Africa Constitutional Court notes and as the ICESCR Committee has often announced, elected governments are institutionally better situated to make the budgetary trade-offs that must be made as an initial matter, but they must then justify those choices at least in relation to the denial of existential minimums (or social minimums) to adjudicative tribunals. The reviews by adjudicative tribunals are meant to gauge the sincerity and reasonableness of the governmental actions. Perhaps this process is similar to what some American scholars refer to as ‘a weak-form of judicial review.’ 161

But let me also emphasize that although the issue of determining an appropriate level for existential minimum is an important one and that the elected branches of government might possess comparatively better institutional competence to answer that question, what is important for our purpose here is that both international human rights jurisprudence and national constitutions recognize that minimum level sustenance is a matter of integrity at the basic level and hence an issue of human dignity.

3.3 Dignity as integrity: The social dimension

The African Charter on Human and Peoples’ Rights provides examples of treatments that would result in indignity. After announcing that ‘[e]very individual shall have the right to respect of the dignity inherent in a human being,’ 162 the Charter lists examples of what it considers are indignities and degradations: ‘slavery, slave trade, torture, cruel, inhuman or degrading treatment.’ 163 In the last section I explored how torture and other forms of cruel, inhuman and degrading treatments are considered as violations of the dignity of the physical person. What I would like to focus on here is the issues of slavery and slave trade as indignities. Of course, slavery is often accompanied with cruel and inhuman physical treatment, but the African Charter specifically lists slavery and slave trade separately from other inhuman acts suggesting that slavery is not simply about physical cruelty, but it is also a form of social death. 164 Orlando Patterson has argued very forcefully in much of his work that the slave is socially dead. 165 The slave is ‘desocialized’ and ‘depersonalized’ and then installed in the structure of master-servant environment ‘as a non-being.’ 166 The very integrity of the person as a social being is comprehensively undermined. Recognition (being treated as human) by social others is the primary mechanism through which ‘one attains humanity.’ 167 And that, of course, is the very thing that is denied to the slave.

The proposition that slavery is the ultimate indignity people could inflict on other people is not difficult to show. When an individual’s very humanity is questioned and he is treated as if he were a commodity (bought and sold like other commodities), then the person as a social being is dead. 168 And it is often agreed that even an individual’s consent to be held as a slave will not change the fact that the person has been subjected to indignity.

To some extent torture could also be viewed as a violation of the integrity of the social, not just the physical, person. As I have argued elsewhere, ‘[t]orture robs the target of torture [of] an important ingredient of being a human subject, the capacity for autonomy and will’. 169 The person is turned into a physical object which is subject to the complete control of the torturer, fully manipulated and commandeered as if he were no different from an object. The ‘you’ is turned into an ‘it.’ 170 In a recently released diary a Guantanamo detainee describes being picked up from his home country of Mauritania and then transported from one country to another (often blindfolded) to be subjected to torture and abuse by a new group of torturers and abusers until he was finally brought to Guantanamo for more abuse. He compared his circumstance to a slave this way:

I often compared myself with a slave. Slaves were taken forcibly from Africa, and so was I. Slaves were sold a couple of times on their way to their final destination, and so was I. Slaves suddenly were assigned to somebody they didn’t choose, and so was I. And when I looked at the history of slaves, I noticed that slaves sometimes ended up as an integral part of the master’s house. 171

The last sentence indicates that the detainee too became an integral part of the Guantanamo ‘family’ 172 to the extent that he even came to have ‘humane emotions […] towards [his] enemies [, his keepers]’ to his utter confusion. 173

But some treatments that may appear to some to be indignities, seemingly undercutting the social integrity of the person, are not as clear cut. Take for example the case of Manuel Wackenheim, 174 a dwarf from France who sought to participate in a competition of dwarf-throwing the purpose of which was to see who could throw a dwarf the farthest. Wackenheim wanted to volunteer to participate as one who would be tossed by competitors. He would wear protective gear and he would land on a suitably placed airbed. 175 So, safety was not much of an issue. Even more importantly, Wackenheim would be paid a very good amount for participating, enabling him to make a decent living. There was only one problem: the city in which he lived banned the practice of dwarf-tossing contest partly 176 because such entertainment represented an ‘affront to human dignity’, a violation of respect for the dignity of the human person. 177 The Conseil d’État held that the prohibition was within the legal authority of the mayor. 178 The mayor has the authority to insist that there is ‘a conception of human beings’ that shows ‘the proper respect’ for the human person. 179 The ICCPR Committee endorsed the view of the French authorities, concluding that the prohibition was compatible with the Covenant. 180

It is not quite clear what ‘conceptions of human beings’ informed the decisions of the French authorities and the ICCPR Committee. Bodily integrity is clearly not the issue here, for there is consent to participate and safety is not a concern. And neither is psychological integrity. Thus, the conception of the social person must have informed the decisions. What attributes of the social person are undermined here such that the activity has diminished Mr Wackenheim? Unlike the slave, Wackenheim is an active agent attempting to shape the contours of his life, ‘to take personal responsibility for identifying what counts as success in his own life […] to create that life through a coherent narrative or style that he himself endorses,’ as Ronald Dworkin would put it. 181 Indeed, Wackenheim himself argued that the government not allowing him to shape the contours of his life, to decide what counts as success in his own life and to take responsibility for it, is ‘an affront to his dignity.’ 182 It is as if the little person was being treated as a teenager incapable of defining ‘what counts as success in his own life.’ 183 This, Wackenheim claimed and not without reason, is humiliating. 184 Now, throwing people is undignified but there are many actions and activities that we engage in that are not particularly dignified. 185 Not every undignified act is necessarily a case of indignity in the sense of undermining the integrity of the person as a social being. 186

Suppose one were a Kantian and believed that autonomy is a defining feature of the person as a social being. 187 Under that view, Wackenheim’s desire to participate in the enterprise seems to be the vindication, not the diminishment, of his agency. I have been critical of the notion of dignity as autonomy in other works, 188 but perhaps in this circumstance the notion of agency could be assimilated into the idea of dignity as a vindication of the (social) integrity of the person.

But perhaps it was not primarily the dignity of Wackenheim that concerned the French authorities and the ICCPR Committee. Wackenheim clearly thinks that his dignity was not violated. Rather, the concern might have been the dignity of the group to which Wackenheim belonged – the dignity of little people. The thinking might be that what occurs here will paint an image of little people as objects of entertainment or amusement rather than people with equal social status as human beings. 189 If that is the thinking, then the issue becomes even more complicated. First, an argument has to be made how an activity that might not be viewed as demeaning to a member of the group who engages in it could be viewed as potentially demeaning to other members of the social group who are not even participants in the enterprise. That is, the complicated issue of the relationship between individual and group dignities has to be worked out. I deal with the issue of group dignity in another work, 190 but at the moment it is sufficient to note that there is a real paradox in seeing an activity as a threat to group dignity when it might not be viewed as such a threat to the dignity of the individual who has actually engaged in it. The only way that the paradox could be resolved is if it could be shown that group dignity is separate from (and is not in the service of) 191 the dignities of individual members. That, it seems to me, might be difficult to show.

But even if it could be shown that the dignity of the group of little people is undermined by what Wackenheim has engaged in, it seems to me that the proper response is not to curtail the agency of an individual to shape the contours of his life and to take responsibility for it, but to make sure that other areas of life are open to little people to assert their agency such that the ‘job’ of Mr Wackenheim will not be viewed as a defining feature of the possibilities and limitations of little people generally. The assertion of agency in diverse areas of life (which is not the case now) will likely put activities such as the one in question here in proper context.

4 Dignity as social integrity: Identity and the importance of commitments

4.1 General account

When a person is prevented either culturally or legally from presenting herself wholly or completely, then that person has been subjected to indignity. There is nothing more demeaning or humiliating than to be forced to deny part of what constitutes oneself as a person. Such a life is not only a diminished life and hence inconsistent with integrity as wholeness but in some circumstances it might also be said to lack integrity in the sense of not living consistently with the ethical code of truth and openness (moral integrity). The latter would occur when a person because of threat and fear of legal and cultural sanctions leads a life of lies and deceit, what Kenji Yoshino, following Erving Goffman, 192 would call a life of ‘covering.’ 193 Covering is a clear form of inauthenticity (not to be true to oneself), 194 a form of the fragmentation of the self where the coverer has often internalized the culture’s demeaning view of his or her identity that is being covered. So, the coverer is not only demeaned by others, but he demeans himself as well.

Persons of integrity are true to their constitutive commitments, such as how and whom to love. Bernard Williams gives decisive voice to this view when he says that persons have ‘a set of desires, concerns […] call them projects, which help to constitute a character.’ 195 These commitments, attitudes and projects are a significant part of what gives meaning to our lives. 196 And these acts and commitments express dignity as integrity, as Jean-Paul Sartre’s work on existentialism demonstrates. 197 Thus, when a person is forced either legally or culturally to abandon or deny those commitments, that person’s self-understanding is shattered or at least disoriented. 198 She suffers a loss of her integrity as a social person; she suffers humiliation. Humiliation is ‘the extension of cruelty from the physical to the psychological [and social] realm of suffering.’ 199

In its decision in the gay rights cases, the Supreme Court of the United States has relied heavily on the notion of dignity, sometimes using it as a stand-in for the integrity of the person in the sense I have described above.

4.2 Dignity as integrity in the United States Supreme Court

Although the United States Supreme Court has invoked dignity as personal integrity (the ability of the person to present the whole of himself/herself) 200 in several areas, it is in cases involving gay rights that the Court has clearly advanced the notion of dignity as integrity. In several important decisions 201 Justice Kennedy writing for the majority has advanced the argument that the criminalization of homosexual relationships and the exclusion of gays from participating in important institutions of the community (military, marriage, etc) had presented gay citizens with two options each of which was very unattractive and a serious attack on their very being. They were either forced to live a lie (‘covering’) 202 about an essential aspect of who they are (a life of a diminished self) or if they tried to present themselves wholly they were turned into criminals 203 or treated as not fully sane. 204 Either option is a serious attack on their dignity. 205 It undermines their ‘humanity and integrity,’ as Justice Kennedy put it. 206 Their humanity is in fact linked to their integrity, both in the moral and social sense. Their moral integrity is attacked to the extent that they must live a lie 207 and their integrity as wholeness is attacked to the extent that they are treated as if they were insane or criminals.

In Obergefell v Hodges, Kennedy starts with the observation that marriage has been transcendently important in human history. 208 Kennedy argues that marriage is important because it promises couples that they will ‘find a life that could not be found [by each] alone.’ 209 It allows couples to ‘define themselves by their commitment to each other.’ 210 The argument here seems to be that marriage makes the individual more whole, more complete, and hence enables him or her to pursue human excellence better. And excluding members of a group from this institution purely on the basis of a central feature of who they are as social beings 211 is a diminution of their very being. One could disagree, as I have done in another work, 212 with Kennedy’s historical assertion that marriage has been central in human history or his claim that marriage is a foundation for human excellence or fulfilment, 213 but what is undeniable for our purpose here is that Kennedy sees the denial to gay couples of the right to participate in the institution of marriage as an attack on their ‘humanity and integrity,’ 214 and therefore an attack on their dignity. Dignity and integrity are here linked in the following manner: starting with the proposition that sexual orientation is an ‘immutable’ 215 aspect of people’s identities and same-sex marriage is the only ‘real path’ to the profound commitment that is expressed in marriage, Kennedy asserts that prohibiting gay marriages is an attack on the integrity of the person as a physical (the immutability of orientation) and social (one with commitments and projects 216) being. As he eloquently put it, ‘Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty.’ 217 The attack on gays’ commitments to love is an attack on a central constitutive element of who they are, an attack on their very personhood (their integrity 218) and hence an attack on their dignity. It is not accidental that Justice Kennedy refers to exclusion of gays from the institution of marriage as a ‘dignitary wound.’ 219

5 Dignity and juridical integrity

Historically, one of the most significant forms of recognition of the person as an equal member of the community has been the recognition of legal personality. 220 A number of international human rights documents, such as the UDHR, 221 the ICCPR, and the American Convention, affirm and recognize the importance of the integrity of juridical personality. The ICCPR, for example, reproduces the right of legal recognition which was first enunciated in the UDHR. It affirms the right of everyone ‘to recognition everywhere as a person before the law’. 222 It is not just that juridical personality is recognized as a right, but it is thought to be so fundamental that a state is not allowed to derogate from it even in circumstances when the life of the nation is threatened. 223 A similarly worded right is recognized in the American Convention on Human Rights. 224 And just as in the ICCPR, the right to juridical personality is made non-derogable by the American Convention on Human Rights. 225 The African Charter is even more explicit in tying juridical personality to human dignity. Article 5 reads thusly: ‘Every individual shall have the right to the respect of the dignity inherent in a human being and the recognition of his legal status.’ 226 The Inter-American Court of Human Rights makes the link between dignity and juridical integrity directly and clearly. In Yean and Bosico v Dominican Republic, 227 a case that, among other things, involved the application of Article 3 of the American Convention, 228 the Court puts the relationship between dignity and juridical integrity this way:

[T]he failure to recognize juridical personality harms human dignity because it denies absolutely an individual’s condition of being a subject of rights and renders him vulnerable to non-observance of his rights by the State or other individual. 229

Juridical personality concerns the integrity of the person and its violations or curtailment is thus viewed as subjecting victims to indignities in the same way as the diminishment of physical and social personhood. As the designation of suspected terrorists as ‘enemy combatants’ by the United States government in the wake of the attack on 11 September clearly showed, to be deemed as a legal non-person (as those enemy combatants were) is to lose the capacity to contest ‘the proceedings that define [one] as legal non-persons in the first place.’ 230 It is to lose the recognition to vindicate all other aspects of the integrity of the person. To be a legal non-person is to be without belonging and without dignity. 231 The most extreme form of non-recognition is of course the status of being a slave. 232

Although few national constitutions specifically provide that juridical personhood is a matter of human dignity, it seems clear that it is assumed in many of the provisions of many national constitutions. In the world in which we live not to be recognized as a legal person is to lose much of everything else, including the protection of one’s physical integrity. Joseph Raz’s observation about the rule of law and its relationship to human dignity, with some slight alterations, applies to juridical personal integrity as human dignity as well. Raz argues, ‘observance of the rule of law is necessary if the law is to respect human dignity. Respecting human dignity entails treating humans as persons capable of planning and plotting their future.’ 233 To respect the juridical personhood of each individual is to respect their humanity, to treat them as individuals with interests and commitments and the ‘capacity to assert [those] claims’. 234 Viewed this way, juridical personality is an essential condition for (or an aspect of) dignity.

In fact, there are two ways to think of juridical personality as being an aspect of dignity as integrity. First, the recognition of an individual ‘as a person before the law,’ to use the ICCPR formulation, is the recognition that an individual possesses needs, interests, and commitments that merit vindicating just like the needs and interests of others that are protected or vindicated. 235 On this reading, juridical personality (the recognition of the person as a legal entity) is the vindication of the public and social person just as prohibition of torture is the vindication of the integrity of the physical and psychological person. So, the first and constitutive aspect of juridical personality is the recognition of the person as a member of a particular human community with needs, interests, and projects as valid as those possessed by other members of the community and ones which have been formally recognized. Juridical personality is the means through which the equal humanity (equal agency) of persons is affirmed, as an initial and formal matter. Put simply, we show respect for a person when we recognize him/her ‘as a potential maker of claims’ 236 and as ‘having a certain parity of status with oneself.’ 237

The second and more instrumental way of thinking of juridical personal integrity is to view it as an essential condition for the affirmation of the integrity of the person in all of its other dimensions (physical, social and psychological), for not to be recognized as a legal person in the world in which we live is essentially to fail to be a player at all in other dimensions of life. I think Bernstein made a version of this argument (although not in relation to juridical personality) when he observed that recognition

is the primary mechanism of human survival […]. The unrecognized wither, the partially recognized – those recognized and also misrecognized – suffer denigration, shame, humiliation, diminished opportunities,[and] lack of self-respect […]; those who suffer significant patterns of misrecognition … are denied access to routine means of attaining the kind of full self-respect that is the ideal of unconditional social recognition […]. Because […] recognition is a condition of existence, an intentionally partial absence of recognition across a whole life or merely at one time causes an injury to the very being of the one misrecognized. 238

Not being recognized as a juridical person surely will lead to much of what Bernstein believes will ensue if social recognition is not extended to individuals or segments of a people. Either way (whether justified as a constitutive or an instrumental norm), as both Jürgen Habermas 239 and Alex Honneth 240 argue, the recognition of legal personality has been the means by which communities have affirmed equal membership and the equal dignity of members of those communities.

6 Dignity as integrity: Summary

To summarize, there seems to be an overlapping consensus that respect for personal integrity, whether in the legal (juridical), physical, social or emotional (psychological) sense, has become an important part of what it means to dignify humans. Any form of systematic humiliation 241 of persons is subjecting them to indignities. 242 Many constitutions declare that human dignity is inviolable, with the implication that no circumstance should justify derogation from it. Reasoning from different cultures and traditions, various people have come to the conclusion that securing the integrity of the person, securing the wholeness of the person, is the ultimate vindication of his or her dignity. In a very interesting article written almost a decade ago, Christopher McCrudden proposed a ‘minimum core’ of dignity that recognized that ‘every human being possesses an intrinsic worth […] [and] that this intrinsic worth should be recognized and respected by others, and that some forms of treatment by others are inconsistent with, or required by, respect for this intrinsic worth.’ 243 This article has shown that there is in fact an overlapping consensus among the various cultures and civilizations that the idea of dignity has often been invoked in the defense of the integrity of the person as a physical, psychological, social, and juridical being. Now, as I explore in another work 244 to say that integrity as wholeness is what we seek to vindicate when we use the rhetoric of dignity is not to claim that there is a static notion of wholeness. First, what we know to be wholeness and what actions would undermine that integrity (and hence dignity) at a given moment of time might appear differently in another era. That is, as we come to know more about the human condition and what actions would seriously interfere with embodied integrity we will have a more expanded notion of both integrity and dignity. Indeed, that has been the history of human development. Punishments that were viewed as perfectly tolerable and not inconsistent with dignity and integrity were viewed in later times as in fact serious attacks on both. 245 Second, it is not just the limits of our knowledge but also the fact that humans are always developing, always becoming, that makes the idea of a static notion of integrity as wholeness as false as it is unattractive. Under this account wholeness (and dignity) should be viewed as a process that is never completed. 246

Before I end let me just mention one area where the issue of integrity will, in the near future, be raised with more intensity and perhaps with more alarm. This is the issue of the human genome and whether it should be left intact if we are to honor the dignity of the human person. I intend to deal with the issue of dignity and the genome in another article, but at the moment it is sufficient to note that some countries are already struggling with the issue. Thus, Article 120 of the Swiss Constitution exhorts that any federal legislation on the use of reproduction and genetic material must ‘take into account the dignity of creation’ and the security of man and other creatures. 247 Now, whether dignity requires that there be ‘genetic integrity’ – leaving the genome intact – raises all sorts of questions both about the meaning and stability of humanness and the issue of scientific and medical progress. And the notion of dignity is going to play a significant role in the process of thinking and reflecting on the issue.

7 Conclusion

Human dignity is said to dictate that human beings must be treated as inviolable. 248 As I have argued in this article, treating individuals as inviolable beings is to respect and protect the various dimensions of their personhood – their physical, psychological, and social dimensions. In the main, therefore, the concept of dignity is about the idea of a person. It is an existential value. 249 In the same way that personhood is not limited to one feature (eg the body or the mind) of the person, dignity is not a property of ‘any one specific human capacity [eg autonomy].’ 250 It attaches to personhood. Integrity is not just about mind and body but about constitutive commitments as well. In a case involving gay and lesbian equality Justice Sachs of the South African Constitutional Court put the point well when he notes, ‘people live’ not just ‘in their bodies’ but in ‘their communities [and] their cultures’ as well. 251 John Stuart Mill 252 and Bernard Williams 253 have also argued, in different ways, that a person’s constitutive commitments and projects form a character, an identity for the individual. 254

An examination of human rights practices (both texts and their elaborations by the relevant tribunals) across nations and in the international domain shows that dignity is often invoked as a means of affirming or protecting the integrity of the person, in other words, integrity understood as wholeness. From the most basic (the body) to the most reflective (social commitments) aspects of our being, we are dependent on social others for the recognition of the borders of our personhood but we are also vulnerable to the violation of those borders by same social others. The rhetoric of dignity is meant to foster recognition and minimize vulnerability.

Acknowlegements

A number of colleagues and friends made very helpful comments on earlier drafts of the article. Some sent detailed written comments, others raised questions and made suggestions at various symposia at which the paper was presented, and several conversations with many others have greatly helped me to clarify and sharpen the arguments in the article. I have had the big fortune of being a recipient of valuable help form a long list of people. I would especially like to thank Nicolas Almendars, Christoph Bezemek, Jörg Fedtke, Adam Feibelman, James Gordley, Ann Lipton, Steve Rattner, Michael W Reisman, Keith Werhan, and Robert Westley. I also want to acknowledge the extraordinary research assistance that Victoria McIntyre provided.

Footnotes

1

A good example is the debate in relation to euthanasia and assisted suicide. Ronald Dworkin, Life’s Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom(Random House 1993). In relation to assisted suicide, the lines are drawn where dignity is invoked on both sides of the debate. Some argue that we protect life until it takes its natural course as a way of respecting the dignity of life. [See decision of the European Court of Human Rights.] Others, on the other hand, claim that there is dignity in one being able to end a life that one has not endorsed and which in fact subjects one to pain and suffering. See eg, ibid; Cruzan v Director of Missouri Department of Health, 497 US 261, 302 (1990) (In a dissent Justice Brennan argued that Cruzan should be allowed to ‘die with dignity.’). In Planned Parenthood of Southern Pennsylvania v Casey, 505 US 833, 851 (1992), a case challenging the constitutionality of a state statute prohibiting abortion under certain circumstances, human dignity was also invoked on both sides of the plurality opinion and the dissent. ibid 916 and 983.

2

For an example of dignity invoked in support of and against autonomy, see the debate in the dwarf-tossing case discussed in Section 3.3 of the text of this article. To some extent the conversation over abortion also illustrates the division. Reeva Siegel has argued that in that context only the pregnant woman is the actor with dignity – her very physical and emotional integrity are on the line. Reeva B Siegel, ‘Dignity and Politics of Protection: Abortion Restriction Under Casey/Carhart’ (2008) 117 Yale L J 1694, 1736–45. Others, including the American Convention on Human Rights, assert that there is dignity on the other side as well (the dignity of the fetus). Article 4 of this Convention provided that the right to life shall be protected by law ‘and in general from the moment of conception.’ It might not be surprising that the convention that is meant to apply to the Americas would affirm that personhood begins from the moment of conception, for the Catholic Church which has a powerful presence in all of South America teaches that the human person exists from the moment of conception.

3

This is clearly seen in the debate on gay rights.

4

Alex Honneth, The Struggle for Recognition: The Moral Grammar of Social Conflict (MIT Press 1995) 92 (‘[T]he reproduction of social life is governed by the imperative of mutual recognition, because one can develop a practical relation-to-self only when one has learned to view oneself, from the normative perspective of one’s partners in interaction, as their social addressee.’) That is, what we think is dignifying people or subjecting them to indignities is worked out through a process of interaction and recognition. See also Jay M Bernstein, Torture and Dignity: An Essay on Moral Injury (University of Chicago Press 2015) 13 (‘[T]he self is normative construction that is so constituted through its relations to others. Selves are relational beings who are inescapably dependent on others for their standing or status as a human self – as a person.’). See also ibid 212 (‘Acquiring a sense of self-worth involves having a sense that one matters to social others.’); Bertram Morris, ‘The Dignity of Man’ (1946) 57 Ethics 62 (‘[W]hat is distinctive about human life is to be found in the process of communication […]. The process of communication is the means by which man establishes his relationships with man as man.’). In his own way Mette Lebech makes a similar point. Mette Lebech, On the Problem of Human Dignity: A Hermeneutical and Phenomenological Investigation (Königshausen & Neumann 2009); Mette Lebech, ‘What is Human Dignity?’ (2003) 2 Maynooth Phil Pap 59.

5

Ruth Macklin, ‘Dignity is a Worthless Concept (2003) 327 BMJ 1419 (Dignity is ‘a useless concept,’ for it offers merely ‘vague restatements of […] more precise notions.’); Helga Kuhse, ‘Is There a Tension Between Autonomy and Dignity?’ (2000) 2 Bioethics and Biolaw 61, 72 (‘Dignity is nothing more than a shorthand expression for people’s moral intuitions and feelings.’); George Kateb, Human Dignity (Harvard University Press 2011) 4. (Kateb referred to a similar view, without endorsing it, when he says that ‘human dignity adds nothing but a phrase to the theory of human rights.’).

6

So, what precisely did President Barack Obama mean to require when in a 2011 executive order he instructed agencies to take ‘human dignity’ into account when analyzing the costs and benefits of regulations? What exactly does human dignity mean here? Rachel Bayefsky, ‘Dignity as a Value in Agency Cost-Benefit Analysis’ (2014) 123 Yale L J 6.

7

Adeno Addis, ‘The Role of Human Dignity in a World of Plural Values and Ethical Commitments’ (2013) 31 Neth Q Hum Rts 403; Adeno Addis, ‘Human Dignity in Comparative Constitutional Context: In Search of an Overlapping Consensus‘(2015) 2 J Int CompL 1. In much of my work, I have argued that dignity does not stand for one particular value or one specific human capacity (eg autonomy). It is often used to refer to different aspects of personhood. At times, it is used to capture a particular notion of equality. Other times, it is invoked to refer to human agency or rational capacity. And as I shall argue in this article, human dignity could also be understood through the notion of integrity. Human dignity therefore appears to be a placeholder for many established concepts. If so, why then bother with the idea at all? Why not simply use those other concepts and abandon the notion of dignity? On top of some of its analytical values that I have explored elsewhere, there are some pragmatic reasons why it is not wise or even possible to erase the phrase ‘human dignity’ from our vocabulary or conversations. First, the notion of human dignity has often served the important purpose of leading negotiators across cultural and national boundaries to agree on a set of human rights norms without needing to explore contentious issues as to what aspect of humanness or human nature requires them. Religious people rely on the supposed similarity of humans to God. Those who think reason distinguishes humans from other creatures rely on reason as the source of dignity. Still others see dignity as a creature of a particular political and social history of communities. So, the notion of human dignity has allowed the emergence of consensus on human rights issues and documents without the need to agree on the different justifications for those rights. Christopher McCrudden, ‘Human Dignity and Judicial Interpretation of Human Rights’ (2008) 19 Eur J Int L 655. See also Charles Beitz, ‘Human Dignity in the Theory of Human Rights‘ (2013) 41 Phil Public Affairs 259, 265. Second, the notion of human dignity plays an important symbolic role to the extent that it puts the emphasis on the person as deserving of respect rather than as simply a beneficiary of governmental action and to the extent that it ‘serves to differentiate the human species from others.’ ibid 267. Third, and perhaps most importantly, no amount of declaration of the term’s uselessness is likely to diminish its popular use. Its religious roots and its current significance in religious rhetoric will ensure its continual resonance. And the concept is institutionally entrenched. The job of the scholar is to make sense of, to explain, not to dismiss, people’s intuitions. Even if we could explain people’s behaviors as observers without using the term ‘dignity’ as I have argued we can, given its institutional and rhetorical hold, we will need dignity in our deliberations ‘about what to do, how to behave, how to treat people […].’ Charles Taylor, Sources of the Self: The Making of the Modern Identity (Harvard University Press 1989) 57.

8

Addis, ‘The Role of Human Dignity in a World of Plural Values and Ethical Commitments’ (n 7).

9

David Luban, ‘Human Rights Pragmatism and Human Dignity’ in Rowan Cruft et al (eds), Philosophical Foundations of Human Rights (Oxford University Press 2016) 263.

10

Addis, ‘Human Dignity in Comparative Constitutional Context’ (n 7) 16–23. As I noted in the text, I borrow the phrase from David Luban whose work in this and other areas has been very instructive. Dignity pragmatism can also draw from Ludwig Wittgenstein’s work. Wittgenstein argued that ‘the meaning of a word is its use in the language.’ Ludwig Wittgenstein, Philosophical Investigations (GEM Anscombe tr, 3rd edn, Prentice Hall 1968) para 43. The claim is that words do not have essential or core meanings that are fixed and naturally apply in all uses of the word. For a helpful account of Wittgenstein’s views see Leslie Meltzer Henry, ‘The Jurisprudence of Dignity’ (2011) 160 Univ Pa L Rev 160, 169, 186–190. Henry quotes Wittgenstein as having said that to understand the meaning of a word ‘don’t think but look.’ at 187. I will heed part of Wittgenstein’s advice: I will ‘look’ but I will also think.

11

In an earlier article I have referred to the approach as a political conception of dignity. Adeno Addis, ‘The Role of Human Dignity in a World of Plural Values and Ethical Commitments’ (n 7) 423–442. By ‘political’ I do not mean narrow partisan or ordinary politics. I simple mean to refer to the process by which we construct what it means to dignify people or to subject them to indignities through the choices we make and the decisions we take in the name or in defense of dignity or in the name of avoiding indignities. That is, dignity is best explicated from our human rights practices, practice understood widely.

12

David Luban, from whom I have borrowed the phrase ‘human dignity pragmatism’ observes thusly: ‘A human rights pragmatist […] insists that the meaning of the phrase “human dignity” is not defined by a philosophical theory, but rather determined by its use in human rights practice. In a sense, the pragmatist reverses the order of explanation, defining ‘human dignity’ by its inferential rather than the other way around.’ Luban (n 9) 275.

13

Universal Declaration of Human Rights, GA res 217 A (III), UN Doc, A/810, at 71 (1948).

14

ibid pmbl.

15

Robert Brandon whom David Luban cites as the inspiration for the phrase ‘human dignity pragmatism’ argues that the ‘process of applying concepts’ is very similar to how the American and English common law develops. ‘Unlike the creatures of statutory law, there are no explicit original definitions or initial principles laying down circumstances and consequences of application for the concept. All there is to give them content is the actual applications that have been made of them over the years. They are case law all the way down.’ Robert B Brandon, Reason in Philosophy: Animating Ideas (Harvard University Press 2009) 84. The claim I make in this and other articles about how to understand the concept of dignity is just that. There is no original definition of dignity from which everything flows. Rather, the concept of dignity develops from our practices, when and how it is invoked within and across cultures. In the same way that a common law judge is engaged in a ‘rational reconstruction’ (ibid 86) of the tradition as she applies the particular concept in a specific circumstance, our application of dignity simultaneously constitutes the concept. Every application of the concept is based on a rational construction of our practices.

16

In a 1946 essay which has been rather overlooked, Bertram Morris makes the claim (not further pursued or defended) that human dignity and personal integrity are linked. Morris (n 4) 60 (‘Personal integrity […] is genuine dignity.’). By personal integrity he meant personal identity. And personal identity for him developed in the process of what he calls genuine communication when we recognize and communicate with others qua human. ibid 62. Part of the purpose of this project is to see how dignity and integrity relate.

17

Addis, ‘Human Dignity in Comparative Constitutional Context’ (n 7) 16–23. The right not to be subjected to torture is the paradigmatic dignity right.

18

International Covenant on Civil and Political Rights (ICCPR), art 7, 16 December 1966, S Treaty Doc No 95–20, 6 ILM 368 (1967), 999 UNTS 171; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art 16 (1), 10 December 1984, 1465 UNTS 86; African Charter on Human and Peoples’ Rights, art 5, 27 June 1981, 21 ILM 58, 1520 UNTS 217; American Convention on Human Rights (n 2); European Convention on Human Rights (ECHR), art 3, 4 November 1950, 213 UNTS 222.

19

The American Convention on Human Rights prohibits the infliction of torture or other cruel, in human and degrading treatments in the same article that begins with the recognition of ‘the right to have [one’s] physical, mental, and moral integrity respected.’ American Convention on Human Rights art 5.

20

Ronald Dworkin, ‘Rights as Trumps’ in Jeremy Waldron (ed), Theories of Rights (Oxford University Press 1985) 153–167. The notion of a ‘trump card’ is often described by others as one of ‘negative liberty’. See also Ronald Dworkin, Is Democracy Possible Here? (Princeton University Press 2006) 31.

21

The issue is covered in Section 3.2 of the text of this article.

22

Mark S Halfon, Integrity: A Philosophical Inquiry (Temple University Press 1989); Greg Scherkoske, Integrity and the Virtues of Reason (Cambridge University Press 2013); Cheshire Calhoun, ‘Standing for Something’ (1995) 92 J Phil 235; Damian Cox, Marguerite La Caze, and Michael P Levine, Integrity and the Fragile Self (Routledge 2003); Bernard Williams, ‘Integrity’, in JJC Smart and Bernard Williams (eds), Utilitarianism For and Against (Cambridge University Press 1973).

23

Nancy Schauber, ‘Integrity, Commitment and the Concept of a Person’ (1996) 33 Am Phil Q 119. For an account of ‘virtue’ as a praiseworthy quality of character see Julia Annas, Intelligent Virtue 100–101 (Oxford University Press 2011). See also ‘Symposium: Virtue (2016) 99 The Monist 97–223 (2016); Julia Driver, ‘Minimal Virtue: Symposium on Virtues’ (2016) 99 The Monist 97 (‘All who write on virtue agree that virtues are excellences of character.’)

Gabriel Taylor, ‘Integrity’ (1981) 55 Proc Aristotelian Soc 143; see also George Kateb, ‘Socratic Integrity’ (1998) 40 Nomos 77.

24

Gabriel Taylor (n 23). See also Kateb, Socratic Integrity (n 23), Kateb claims that Socrates was a model of two kinds of integrity – intellectual and moral integrity. ‘He shows intellectual integrity by a single-minded intensity or concentration in pursuit of truth or of wisdom.’ ibid 79. Socrates ‘shows moral integrity in his strict avoidance of injustice.’ ibid. In this essay I see the two as connected and will simply treat them as aspects of moral integrity. Indeed, as Kateb himself notes, for Socrates his intellectual integrity is ‘a means to reducing the amount of injustice in the world.’ ibid 81; see also ibid 94. See also Kateb, Dignity (n 5) 7 (‘Condemned to death on the charges against him, [Socrates] chooses to die for the safety of the laws of the city rather than escaping with the help of his friends.’); see also Calhoun (n 22) 237 (‘[P]eople of integrity […] are not […] crowd followers […] nor are they so weak-willed or self-deceived that they cannot act on what they stand for.’).

25

Stephen Darwall, ‘Two Kinds of Respect’ (1977) 88 Ethics 36, 44; Stephen Darawll, ‘Social Integrity’ (1998) 40 Nomos 77.

26

Schauber (n 23). Another version of integrity in the sense set out here simply praises the person not for the virtues of the substances of what he stands for but for simply having fidelity to the things one values regardless of how they are evaluated by others. The virtue here is standing for what one believes in even if what one believes in is viewed by many (even most) as not being virtuous and one is willing to bear the consequences of one’s conviction even when that consequence is painful. Lynne McFall, ‘Integrity (1987) 98 Ethics 5, 7; Owen Flanagan, Varieties of Moral Personality (Oxford University Press 1991) 81. When Atticus Finch, a character (lawyer) in To Kill a Mockingbird who seemed to display great courage to act according to his conscience in the face of lots of pressure to act to the contrary from members of his community, was told by someone that most folks think that he (Atticus) was wrong he responded: ‘before I can live with other folks I’ve got to live with myself.’ Bernard Williams, Shame and Necessity (University of California Press 1993) 120.

27

Darwall, ‘Two Kinds of Respect’ (n 25).

28

ibid 45.

29

Halfon (n 22) 156 (‘Generally speaking’ dignity refers to the proposition that ‘a person has worth simply and solely in virtue of being a person.’).

30

American Heritage Dictionary provides as an alternative definition ‘[t]he quality or condition of being whole or undivided; completeness.’ Oxford English Dictionary gives the following alternative definition: ‘1a. The condition of having no part or element taken away or wanting; undivided unbroken state […] 2. The condition of not having marred or violated; unimpaired or uncorrupted condition.’

31

Martin Luther King, Jr, ‘Where Do We Go From Here?’ in James Melvin Washington (ed), A Testament of Hope: The Essential Writings and Speeches of Martin Luther King, Jr(HarperSanFrancisco 1991) 246 (‘As long as the mind is enslaved, the body can never be free. Psychological freedom, a firm sense of self-esteem is the most powerful weapon against the long night of physical slavery.’) Another aspect of psychological integrity as dignity is explained by the Inter-American Court of Human Rights in Velasquez Rodriguez v Honduras when the Court held that prolonged isolation and lack of communication seriously undermines the individual’s right to personal integrity under Article 5 of the American Convention of Human Rights. That integrity was understood to be a matter of dignity. ‘Velasquez Rodriguez v Honduras, Ser C, No 4ʹ (1988) 9 H R L 212; Judgment of 29 July 1988 Inter-AmCtHR (Ser C) No 4 (1988) (‘First, the mere subjection of an individual to prolonged isolation and deprivation of communication is in itself cruel and inhuman treatment which harms the psychological and moral integrity of the person and violates the right of every detainee under Article 5 [1] and 5 [2] to treatment respectful of his dignity.’ ibid para 187). The Court went on to say the ‘guarantee of physical integrity and the right of detainees to treatment respectful of their human dignity require States Parties to take reasonable steps to prevent situations which are truly harmful to the rights protected.’ ibid para 187.

32

Kenji Yoshino, Covering: The Hidden Assaults on Our Civil Liberties(Random House 2007). Covering is ‘the downplaying of one’s nonmainstream identities as a threat,’ to ‘tone down a disfavored identity to fit into the mainstream,’ ibid ix. Yoshino borrows the term from Erving Goffman. Erving Goffman, Stigma: Notes on the Management of Spoiled Identity (Englewood Cliffs 1963) 102. On this account, integrity or authenticity is about ‘being – and remaining – “one’s own person”.’ Greg Scherkoske (n 22) 11. See also Anthony Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession (Harvard University Press 1995) 95 (‘Personal integrity [is] the condition of wholeness’ that results when all aspects of the self are ‘on amicable terms.’); Obergefell v Hodges, 135 S Ct 2584, 2596 (2015) (Justice Kennedy writing for the majority described covering in the context of gay citizens: For long ‘many persons did not deem homosexuals to have dignity in their own distinct identity. A truthful declaration by same-sex couples of what was in their hearts had to remain unspoken.’).

33

Remy Debs, ‘On Betram Morris’s “The Dignity of Man”’ (2015) 125 Ethics 836, 838 (describing Morris’s position). Morris (n 4) 57 (‘I wish to emphasize the indispensability of man’s social relationships, as pertaining to our belief in his dignity and as giving positive content to that notion.’).

34

James Baldwin makes the point this way: ‘I am what time, circumstances, history, have made of me, certainly, but I am also, much more than that. So are we all.’ The ‘much more’ phrase perhaps refers to the fact that he is also a physical being with certain needs and emotional dispositions. See James Baldwin, Notes of a Native Son (Bacon Press 1990) xxxii.

35

By ‘social’ I mean to include the law as well. Our identities are often constituted through the law. The law affirms or discourages a particular identity.

36

Although I am using the notion of wholeness or completeness of the person in a slightly different way from the way he uses it, the idea of integrated self owes a great deal to Harry Frankfurt’s work. See Harry Frankfurt, ‘Freedom of the Will and the Concept of a Person’ (1971) 68 J Phil 5.

37

Gabriel Taylor (n 23) 143.

38

Human flourishing is a concept familiar to those working in the Aristotelian tradition. See Robert C Bartlett and Susan D Collins, Aristotle’s, Nicomachean Ethics: A New Translation (University of Chicago Press 2011). See also Henry (n 10), 213–215; Martha Nussbaum, Frontier of Justice: Disability, Disability, Nationality, Species Membership (Harvard University Press 2006) 159–60. As it is clear from the discussion in the text, human dignity does not demand that everything that is required for human good or flourishing be provided, but only that that is essential for personhood or the human status. The argument here is that dignity is the necessary starting point but not a sufficient condition for human flourishing (human excellence). John Kleinig and Nicholas G Evans, ‘Human Flourishing, Human Dignity, and Human Rights’ (2017) 32 L Phil 539. As to what constitutes human flourishing ‘would be a matter of considerable variability and contention.’ ibid 543. As John Stuart Mill observed man ‘is a progressive being.’ John Stuart Mill, On Liberty (Hackett Publishing 1978) chapter 1. That means, there cannot be a static answer to the question of flourishing.

39

Kateb, Dignity (n 5) 10. Two scholars describe our aspirations to dignity as ‘plausibly aris[ing] from our biological evolutionary past and from our confrontation with existential concerns that have accompanied the emergence of human consciousness.’ David J Mattson and Susan G Clark, ‘Human Dignity in Concept and Practice’ (2011) 44 Policy Sci 303, 313. See also Peter Bieri, Human Dignity: A Way of Living (Polity 2017) (‘A dignified way of living is therefore not just any way of living, but the existential response to the existential experience of being under threat.’)

40

Kateb, Dignity (n 5) 10. (‘Human dignity is an existential value; value or worthiness is imputed to the identity of the person or the species. I stipulate that when the truth of identity is at stake, existence is at stake; the idea of human dignity insists on recognizing the proper identity of individual or species; recognizing what a person is in relation to […] all other persons.’)

41

African Charter on Human and Peoples’ Rights (n 18) art 4 (emphasis added).

42

The question as to who is a person (the human in human dignity) is not beyond controversy. For many, there seems to be no question as to what the basic features of a human are even when there is deep disagreement as to what those humans are owed by virtue of the fact that they are humans. But that apparent consensus masks the fact that there are deep disagreements among various communities as to the status of fetuses or embryos, a circumstance that Ronald Dworkin included in what he calls ‘the edges of life’ (Dworkin, Life’s Dominion [n 1]). The Catholic Church teaches that life begins at conception and the protection afforded through human dignity is therefore available to fetuses as well (Vatican, The Instruction on Respect for Human Life in Its Origin and on the Dignity of Procreation, cited in Dworkin, Life’s Dominion [n 1] 39.) ‘[E]very human being’ has a ‘rights to life and physical integrity from the moment of conception.’ ibid. The American Convention on Human Rights endorses (or at least codifies) that view, perhaps reflecting the dominance of the Catholic Church in South America. American Convention on Human Rights (n 2) art 4 (‘Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception.’) There is some equivocation (‘in general’) but it is clear that the American Convention seems to be in line with the view of the Catholic Church. But most international human rights conventions do not express such sentiment, indicating a lack of consensus among the various cultures and systems as to whether an embryo or a fetus has the status of a person.

On the level of national laws, there is division as well. Most are either silent on the issue or reject that the fetus is a person. The United States Supreme Court, for example, purported to avoid the issue altogether when it claimed in Roe v Wade that it ‘need not resolve the difficulty question of when life begins.’ (Roe v Wade, 410 US 113, 159 [1973]). But see Planned Parenthood of Southeastern Pennsylvania v Casey, 505 US 833, 914 (Stevens, partly concurring and partly dissenting, notes: ‘[T]he state interest in potential life is not an interest in loco parentis, for the fetus is not a person.’ The South African Constitutional Court, on the other hand, has concluded that dignity does not vest in the fetus. (Christian Lawyers Association of South Africa v Minister of Health 1998 [4] SA 113 [T]). And under the Japanese Constitution the ‘foetus is not regarded as a human being deserving of human dignity.’ (Shigenori Matsui, ‘Human Dignity in Japanese Law’ in Marcus Düwell and others [eds], The Cambridge Handbook of Human Dignity: Interdisciplinary Perspective 422, 425 [Cambridge University Press 2014]). There are, however, some national communities which have taken the position that the fetus is in fact a human being and due the dignity owed to other humans. The German Constitutional Court, for example, has read the human dignity provision of the Basic Law to apply to unborn fetuses. In the First Abortion Case the Court observed that ‘[w]henever human life exists, it merits human dignity; whether the subject of this dignity is conscious of it and knows how to safeguard it is not a decisive moment. The potential capabilities inherent in human existence from its inception are adequate to establish human dignity.’ (BVerfGE 39, 1. ‘The life that is developing in the maternal body stands under the protection of the Constitution [human dignity and right to life provisions] as an independent legal entity [Rechtsgut].’). See also The Second Abortion Case, BVerfGE, 88, 203 (‘Human dignity is already an attribute of unborn human life, not just human life after birth or with a developed personality […] Where human life exists [menschliches Leben] human dignity belongs to it.’ at 254.) A similar sentiment is expressed in the Hungarian Constitution. A Magyar Köztársaság Alkotmánya [Constitution of the Republic of Hungary], art 2.

To repeat, there is deep division across cultures and nations about the status of the fetus as a person although many legal systems are either silent on the issue or try to sidestep the issue altogether. I shall join the evaders in this essay. As Justice Blackmun noted in Roe it is a difficult issue that might be best left to philosophers and theologians. Roe v Wade, 410 US at 159. And Dworkin is correct in referring to the question ‘Is the fetus a person?’ as treacherous. (Dworkin, Life’s Dominion [n 1] 23).

For my purpose here, I will assume the general linguistic understanding of a person – the entity from birth to death. Most legal systems seem to function on the basis of that assumption. At any rate, the project here is about what values or interests people are seeking to vindicate when they invoke the concept of human dignity not an attempt to determine who qualifies as human as a matter of first principle. After all, human dignity pragmatism is warry about our capacity to resolve issues of this sort from the top down as a matter of first principle in the diverse world in which we live where there are many and often conflicting starting points. The inquiry here is a narrow one. It is an attempt to explore the various legal interests that are listed in constitutions and human rights documents the violations of which are considered to lead to indignities regardless of how the human is conceived. Even if it were to be the case that there is consensus on the personhood of the fetus, that position would not undermine the idea of dignity as integrity that I shall develop in subsequent pages of this article. If the issue of dignity for the fetus arises (perhaps often in the context of abortion), then those who invoke dignity would turn to physical integrity as the point of departure. But, of course, they have to resolve the inevitable clash between the dignity of the mother, her physical integrity, with the physical integrity of the fetus that they wish to defend. This is, in fact, the very issue that worried one justice of the German Constitutional Court of the position of the Court in regard to the recognition of the dignity of the fetus. He notes, “the fetal right [to life] in the dignity clause […] predestined [the Court] to give precedence to the protection of the unborn life over the pregnant woman’s right to self-determination.’ (BVerfG, 2BvF 2/90 28 May 1993, commenting on abortion decision, BVerfGE 39, 1 (1975), (cited in Erin Daly, Dignity Rights, Courts, Constitutions, and the Worth of the Human Person [University of Pennsylvania Press 2013] 42.)

43

If one takes people’s capacity for vulnerability (to indignity) as a capacity, perhaps one could say that dignity might be about one capacity. But vulnerability to indignity is not a capacity in the same way that autonomy and agency are. One of my colleagues brought this point to my attention.

44

Bernstein (n 4) 265. Bernstein was perhaps right when he claimed that ‘[n]othing had done more harm to the discourse of human dignity than the assumption that there is some magical property, say the possession of the power of reason, whose simple possession by an individual suddenly gives her the standing of having intrinsic and inviolable worth.’ ibid. See also Christian Smith, What is a Person? Rethinking Humanity, Social Life, and the Moral Good from the Person Up (University of Chicago Press 2010) 441–442.

45

In his now classic study entitled ‘Individuals’, the late Oxford philosopher Peter Frederick Strawson referred to the ‘body’ as one of the ‘basic particulars’ of what it means to be a person. PF Strawson, Individuals (Methuen 1957).

46

Bernstein (n 4) 13. See also ibid 145. Another author referred to the ‘embodied beings’ capacity to suffer as ‘prosaic and potentially painful reality.’ See Hartley Dean, ‘Introduction: Towards an Embodied Account of Welfare’ in Kathryn Ellis and Hartley Dean (eds), Social Policy and the Body: Transition in Corporeal Discourse (Macmillan 2000) xi, xxiv.

47

Michel Foucault, The Birth of the Clinic: An Archaeology of Medical Perception (AM Sheridan Smith tr, 1975); Michel Foucault, Discipline and Punish: The Birth of the Prison. (Alan Sheridan tr, Vintage Books 1977); Michel Foucault, The History of Sexuality. Volume I: An Introduction. (Robert Hurley tr, Vintage 1980); Michel Foucault, Power/Knowledge: Selected Interviews and Other Writings 1972–1977 (Colin Gordon ed, Knopf Doubleday Publishing Group 1980).

48

Foucault uses reproductive regulation as an example of power managing and producing the body.

49

Bernstein (n 4) 259.

50

Bernstein (n 4) 145. For the boundary metaphor in terms of protecting the integrity of the body; see Judith Jarvis Thomson, The Realm of Rights(Harvard University Press 1990) 205. (‘A traditional metaphor for a person’s claim is a boundary: all around a person is a boundary [a fence or film or membrane] such that to cross it is to infringe one of his or her claims.’).

51

Jeremy Waldron, ‘Cruel, Inhuman, and Degrading Treatments: The Words Themselves’ 35 (NY Univ School of Law, Pub Law Research Paper, Paper No 08–36, 2008), available at<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1278604> accessed 15 November 2019. See also Mohamedou Ould Slahi, Guantanamo Diary (Little, Brown and Co 2015). Slahi who is a Mauritanian citizen was abducted by the United States government from his homeland in 2001. The abduction was carried out with the cooperation of the Mauritanian government. Slahi who had been held in Guantanamo since 2003 details in this extraordinary diary a level of cruelty and inhumanity one would have expected only from a lawless third world regime, including denying him to take a shower or brush his teeth for months designed to humiliate him. Every time his interrogator came in he remarked ‘what a smell!’ and ‘you smell like shit.’ ibid 237.

52

Law v Canada (Minister of Employment and Immigration) [1999] 1 SCR 497, at paras 53 and 61 (CA).

53

Christian Education South Africa v Minister of Education 2000 (4) SA 757, at para 50 (SAfr). The European Court of Human Rights in Tyrer v United Kingdom similarly held that subjecting a 15 year old to judicial corporal punishment was an assault on his dignity. Tyrer v United Kingdom (1978) App No 5856/72, 2 EurHRep 1, at 11–2. (para 33).

54

Christian Education South Africa (n 53), para. 50.

55

ibid.

56

Canadian Foundation for Children, Youth and the Law v Canada (A-G), [2004] 1 SCR 76 (2004), 234 DLR (4th) 257 (Canadian Foundation).

57

Section 43 of the Criminal Code (RSC 1985 c C-46) reads: ‘Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.’

58

Canadian Foundation (n 56), 56 (‘The nature of interest affected – physical integrity – is profound.’). Interesting, the court concluded that although the physical integrity of the child is interfered with, such punishment (within certain limits) in fact serves the dignity of the child by protecting the integrity of the family unit.

59

Olmstead v LC Zimring, 527 US 581 609 (1999) (emphasis added).

60

Constitution of the Democratic Republic of Algeria 1996, art 34.

61

The International Criminal Tribunal for Rwanda (ICTR) makes that point in Prosecutor v Akayesu, Judgment, 2 September 1988, paras 597 (‘The Chamber considers that rape is a form of aggression and that the central elements of the crime of rape cannot be described in a mechanical description of objects and body parts […] [It is more like torture.] Like torture rape is used for such purposes as intimidation, degradation, humiliation, discrimination, punishment, control or destruction of a person. Like torture, rape is a violation of personal dignity, and rape in fact constitutes torture when inflicted by or at the instigation of or with the consent or acquiescence of a public official or the person actin in an official capacity.’). See also ibid, paras 687 and 688. See also Alfred Museman Case, ICTR-96-13-T, 2002, paras 222, 225, 228.

62

Bernstein (n 4) 118, 119. Some have argued that to some degree curtailing the right of a woman to have an abortion is also a matter of dignity as integrity. It implicates the physical and emotional integrity of the woman, her ability to control her own body. See Siegel (n 2) 1736–45. The Bolivian Plurinational Constitutional Tribunal declared unconstitutional the requirement of a Bolivian law that a rape be reported as a precondition for access to abortion on the ground that this would violate the dignity of the woman, for, as the Court saw it, the requirement subjects her to what amounts to be torture or cruel, inhuman or degrading treatment. Dignity here is viewed as physical and psychological integrity. Paola Bergallo and Augstina Ramὁn Michel, ‘Ethical and Legal Issues in Reproductive Health: Constitutional Developments in Latin American Abortion Law’ (2016) 135 Int J Gyn Ob 228, 230.

63

Some comparative constitutional law commentaries include chapters dealing with the notion of dignity in one or another constitutional culture. See, for example, Donald P Kommers, ‘Autonomy, Dignity and Abortion’ in Tom Ginsburg and Rosalind Dixon (eds), Comparative Constitutional Law (Edward Elgar 2011) 441; Paulo G Carozza, ‘Human Dignity in Constitutional Adjudication’ in Ginsburg and Dixon (ibid) 459; See also several chapters in The Cambridge Handbook of Human Dignity: Interdisciplinary Perspectives (n 42).

64

Suomen perustuslaki [Constitution of Finland], 1 luku, para 7.

65

El Salvador Const (2003), art 11. See also Bolivia Const (2009), art 73; Brazil Const art 5 (III); Croatia Const (2001), art 25; Democratic Republic of Congo Const (2011), art 18; Egypt Const (2014), art 55; Ethiopia Const (1994), art 2(1); Equatorial Guinea Const (1995), art 13 (2); Georgia Const (2004), art 1(1); Greece Const (2008), art 7 (2); Haiti Const (2012), art 44 (1); Honduras Const (2012), art 68; Iran Const (1989), art 39; Jordan Const (2011), art 8 (2); Kazakhstan Const (1998), art 17 (2); Latvia Const (2007), art 23; Lithuania Const (2003), art 21; Macedonia Const (2011), art 11; Monaco Const art 20; Morocco Const (2011), art 22; Malawi Const (1999), art 42 (1) (b); Nicaragua Const (2007), art 33 (2); Nigeria Const (1999), art 34 (1); Papua New Guinea Const (1991), art 36 (1); Seychelles Const (2011), art 16; South Sudan Const (2011), arts 11 and 156; Sudan Const (2005), art 149 (1) (B); Tanzania Const (1995), art 13 (6) (d); Togo Const (2007), art 16; Turkey Const (2002), art 17; Uganda Const (2005), art 24; Ukraine Const (2004), art 28; Yemen Const (2001), art 48 (B). New Zealand, which has no written constitution, provides in Section 9 of its Bill of Rights Act of 1990 that no one is to be ‘subjected to torture or cruel, degrading, or disproportionately severe treatment or punishment.’

66

Article 28 of the Sudanese Constitution expresses the protection of the person as ‘the integrity of his person.’

67

Regulatory Impact Assessment for PREA Final Rule, US Dep’t Just 44 (17 May 2012). The Inter-American Court of Human Rights also cites human dignity to condemn sexual violence against inmates in a prison. See Miguel Castro-Castro Prison v. Peru, Merits, Reparations and Costs, Judgment, 203, 206, 259 (Inter-AmCtHR 25 November 2006), available at<http://www.corteidh.or.cr/docs/casos/articulos/seriec_160_ing.pdf>.

68

US Const Amend VIII (1791). The phrase ‘cruel and unusual’ punishment/treatment was adopted essentially word for word from the English Bill of Rights of 1689. The Canadian Charter of Human Rights uses the same phrase rather than the more modern ‘cruel, inhuman, or degrading treatment or punishment’ favored by most national constitutions and international human rights conventions.

69

Brown v Plata, 563 US 493, 510 (2011). See also Roper v Simmons 543 US 551, 560 (2005) (‘By protecting even those convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons.’); Trop v Dulles 356 US 86, 100 (1958) (plurality opinion) (‘The basic concept underlying the Eighth Amendment […] is nothing less than the dignity of man.’); Hope v Pelzer, 536 US 730, 738 (2002); Hall v Florida 572 US (2014); Furman v Georgia, 408 US 238, 270–73 (1972) (Brennan, concurring). Brennan observes that a punishment is ‘cruel and unusual’ ‘if it does not comport with human dignity.’ ibid 270. And then Brennan goes on to say that ‘cruel and unusual’ punishments’ ‘true significance […] is that they treat members of the human race as nonhumans, as objects to be toyed with and discarded […] even the vilest criminal remains a human being possessed of common human dignity.’ ibid 272–3). Justice Brennan sets out more fully his view that the American ‘Constitution embodies the aspirations to […] human dignity’ in William J Brennan, Jr, ‘The Constitution of the United States: Contemporary Ratification’, in Sanford Levinson and Steven Mailloux (eds), Interpreting Law and Literature: A Hermeneutic Reader (Northwestern University Press 1988). Brennan argues that one clear example where human dignity is embodied in the Constitution is in the Eighth Amendment’s prohibition of cruel and unusual punishments.

70

Bioethics Decisions (Cons Council, 27 July 1994, D 1995, Somm 299, note Favoreu, DC 94-343/344), exerpted in Norman Dorsen and others, Comparative Constitutional Law: Cases and Materials (2nd edn, West Academic Publishing 2003) 491.

71

Basic Law: Human Dignity and Liberty, 2754–1994, SH No 1454 (Isr), available at<https://www.knesset.gov.il/laws/special/eng/basic3_eng.htm>.

72

HCJ 355/79 Katalan v Prison Services 34 (3) PD 294 [1980].

73

ibid 298. The issue was whether an enema would be carried out on the bodies of prisoners when there is well-founded suspicion they had smuggled drugs within their bodies but without their consent. The Court opined that enforcing ‘enema on a prisoner against his will without medical reason injures the integrity of the body […] and damages his dignity as a person.’

74

Justice Thurgood Marshall of the United States Supreme Court made similar arguments in a dissent involving the search of private body cavities. See Bell v Wolfish, 441 US 520, 592–593 (1979) ([T]he search of private body cavities has been found to engender ‘deep degradation’ and ‘terror’ in inmates. This offends not only the privacy interest of the target, ‘but also his interest in “minimal dignity”.’).

75

In Re a Ward of Court (withholding medical treatment), [1995] 2 IR 79, 82 (Ir).

76

Conor O’Mahony, ‘The Dignity of the Individual in Irish Constitutional Law’, in Dieter Grimm and others (eds), Human Dignity in Contex (2016).

77

S v Williams and Others 1995 (7) BCLR 861 (CC). South Africa Const, art 12 (1) (‘Everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.) See also S v Makwanyane and Another 1995 (3) SA 391 (CC) (S Afr) where the Constitutional Court held that the death penalty was unconstitutional pursuant to the constitutional prohibition of cruel, inhuman or degrading punishment’ (See South Africa Const § 11 (2) as well as the principle of human dignity. As Justice Chaskalson put it: ‘[t]he rights to life and dignity are the most important of all human rights, and the source of all other personal rights. By committing ourselves to a society founded on the recognition of human rights we are required to value these two rights above all others. And this must be demonstrated by the State in everything that it does, including the way it punishes criminals. This is not achieved by objectifying murderers and putting them to death to serve as an example to others in the expectation that they might possibly be deterred thereby.’ ibid para 144.

78

Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC), 962, para 35 (S Afr).

79

Herbert Fernando de Carvalho and Another v Superior Court of Justice (STF/HC 70389/SP/1994).

80

Cited in Márcio Ricardo Staffen and Mher Arshakyan, ‘The Legal Development of the Notion of Human Dignity in the Constitutional Jurisprudence’ (2016) 12 Revista Brasileira de Direito 108, 121.

81

ibid 122.

82

Thus, for example, the Court concluded that forcing individuals to undergo a DNA test is inconsistent with the constitutional right to dignity. See JoséAntônio Gomes Pinheiro Machado v Rio Grande do Sul Court of Justice (STF/ HC 71373 RS/1994), cited in Staffen and others, ibid 122. Here dignity was understood as integrity as wholeness.

83

(n 18).

84

African Charter on Human and Peoples’ Rights, (n 18) art 5. The African Commission on Human and Peoples’ Rights has explored the scope of the dignity provision of Article 5 in various circumstances including flogging (Doebbler v Sudan), detention conditions (Achutan v Malawi), and the legal labelling of people with mental illness as ‘lunatics,’ defined as ‘idiot[s] or person[s] of unsound mind.’

85

Torture and slavery (and one could also add rape) are paradigms of dignity violations, serious infringement of a person’s integrity. See also Bernstein (n 4) 1. (‘Torture and rape are paradigms of moral injury.’) In fact, rape has been used as a form of torture and has been recognized by international tribunals as a war crime in the same way torture has been recognized as a war crime.

86

American Convention on Human Rights (n 2) (emphasis added).

87

In Neira Alegria et al v Peru, the Inter-American Court of Human Rights read Article 5 of the Convention which protects the integrity of the person as protecting his inherent dignity.<http://www.corteidh.or.cr/docs/casos/articulos/seriec_29_ing.pdf>.

88

Tyrer v UK, App No 5856/72 (ECtHR, 25 April 1978) para 33 (The student’s ‘punishment […] constituted an assault on precisely that which it is one of the main purposes object of Article 3 to protect, namely a person’s dignity and physical integrity.’) The basis of the decision is Article 3 of the European Convention, ECHR (n 18) art 3.

89

MS v UK, App No 24527/08 (ECtHR, 3 May 2012) para 45. Valasinas v Romania, App No 44558/98 (ECtHR 24 July 2001, ‘Obliging the applicant to strip naked in the presence of a woman, and then touching of his sexual organs and food with bare hands showed a clear lack of respect for the applicant, and diminished in effect his human dignity.’); Piechowicz v Poland, App No 20071/07 (ECtHR, 17 April 2012) para 141; Sochichiu v Moldova, App No 28698/09 (ECtHR, 15 May 2012) para 40; Salikhov v Russia, App No 23880/05 (ECtHR, 3 May 2012); Mouisel v France, App No 67263/01 (ECtHR, 14 November 2002) para 48. Most of the cases are discussed in Elaine Webster, ‘Interpretation of the Prohibition of Torture: Making Sense of "Dignity" Talk’ (2016) 17 Hum Rights Rev 371, available at<http://link.springer.com/article/10.1007/s12142-016-0405-7> accessed 15 November 2019.

90

Tyrer v UK (n 88) para 33. (Tyrer’s punishment ‘constituted an assault on precisely that which it is one of the main purposes of Article 3 [art 3] to protect, namely a person’s dignity and physical integrity.’) The Court was also quick to add that the punishment might have had psychological impact as well. See ibid.

91

See International Covenant on Civil and Political Rights (ICCPR) (n 18) art 4; European Convention art 15 (n 18); American Convention (n 2) art 27. The conditions (other than that there be a ‘threat to the life of the nation’) are: the state should officially proclaim the emergency, the suspension of the rights be proportionate to the threat both in terms of duration and geographic scope, etc. The European Court of Human Rights in Lawless v Ireland defines ‘public emergency’ as ‘a situation of exceptional and [actual or] imminent danger or crisis affecting the general public, as distinct from particular groups, and constituting a threat to the organised life of the community’ and when normal responses are inadequate. Lawless v Ireland No 3 [1961] ECHR 15, R 31.

92

Geneva Convention (No III) Relative to the Treatment of Prisoners of War art 3 (1) (c), 12 August 1949, 6 UST 3316, 75 UNTS 135.

93

ibid art 3 (1) (a).

94

Prosecutor v Bagosora et al, Case No ICTR-98-41-T. In Prosecutor v Eliézer Niyitegeka, (Case No ICTR-96-14-T) the Rwanda Tribunal gives a series of examples of ‘outrages upon personal dignity’ See ibid at paras. 465, 466, 467 and 499.

95

ICTR Statute, art 4 (e).

96

Bagosora, at para 39, citing to Kunarac et al, Judgment (AC), 12 June 2002 at para 161 (‘[T[he humiliation of the victim must be so intense that any reasonable person would be outraged.’).

97

See Aleksovski, Judgment (TC), 25 June 1999, para 229; Kvocka et al, Judgment (TC), 2 November 2001, para 173. The Court found that using detainees as human shields, forcing them to relieve bodily functions in their clothing, etc. are degrading and humiliating and thus serious attacks on human dignity.

98

Article 38 of The Statute of the International Court of Justice refers to ‘international custom, as evidence of a general practice accepted as law’ as one source on the basis of which the Court should decide cases before it. Customary international law (CIL) consists of state practices that have now matured into legal rules or principles by virtue of the fact that states engage in those practices because they believe they are legally obligated to do so (opinion juris). For a good account of how CIL emerges see Vaughan Lowe, International Law (Oxford University Press 2007) 36–63.

99

In an earlier article I have argued as to why these crimes are regarded as crimes against all of us rather than as crimes against the citizen of this or that nation or as crimes against this or that group. See Adeno Addis, ‘Imagining the International Community: The Constitutive Dimension of Universal Jurisdiction’, (2009) 31 Hum Rts Q 129.

100

Bernstein (n 4) 119. (citations omitted). I shall say more about ‘social death’ later in the article in relation to slavery. See also ICTR decision in Prosecutor v Kayishema, ICTR-95-A-T, para 151. The Tribunal seems to see a connection between dignity and physical and mental integrity.

101

Cruzan v Director of Missouri Department of Health, 497 US 261, 302 (1990) (In a dissent Justice Brennan argued that Cruzan should be allowed to ‘die with dignity.’ Brennan continued, ‘[d]ying is personal. And it is profound. For many, the thought of an ignoble end, steeped in decay, is abhorrent. A quiet proud death, bodily integrity intact, is a matter of extreme consequences.’ ibid 310–11). See also Rodriguez v British Columbia, [1993] 3 SCR 519 [Can] [Corey J dissenting] ‘[T]he right to die with dignity should be as well protected as is any other aspect of the right to life. State prohibitions that would force a dreadful, painful death on a rational but incapacitated terminal ill patients are in affront to human dignity.’).

102

Dworkin, Life’s Dominion (n 1). See also Marcus Düwell, ‘On the Border of Life and Death: Human Dignity and Bioethics’, in Marcus Düwell and others (eds) (n 42).

103

There are two ways in which to link the right to assisted end of life and integrity as wholeness. Frist, the argument is that the ailing person should be allowed to control or have a say about his/her physical integrity. After all, the issue of assisted end of life arises when the patient is experiencing intolerable pain and suffering, sees a serious deterioration of the physical body, and realizes that the end is not far off. Second, dignity understood as integrity as wholeness arises because the patient not only seeks to maintain a particular physical body before departing, but, to quote Justice Stevens of the United States Supreme Court (defending the refusal of life-sustaining medication), the patient also has an ‘interest in dignity [to] determine[…] the character of the memories that will survive after her death.’ Washington v Glucksberg, 521 US 702, 743 (1997) (Stevens, J concurring).

104

See, for example, decisions of the European Court of Human Rights. This is very different from the question of refusing medical treatment offered for life sustaining purposes which many countries including the United States recognize as protected liberty. Cruzan (n 1). See also Washington v Glucksberg 521 US at 743 (Stevens, J concurring) (‘The freedom embraces not merely a person’s right to refuse a particular kind of unwanted treatment, but also her interest in dignity, and in determining the character of the memories that will survive after her death’).

105

Dworkin, Life’s Dominion (n 1) 3.

106

As the discussion on ‘existential minimum’ in this section shows, there does not need to be the intent to subject one to indignity for indignity to occur.

107

Universal Declaration of Human Rights (n 13) art 23 (3). See also Article 22 (‘Everyone, as a member of society, has the right to social security and is entitled to realization, through national and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.’ Oscar Schachter, who was one of the first modern international legal scholars to explore the scope of dignity, wrote that dignity contemplates existential minimum. See Oscar Schachter, ‘Human Dignity as a Normative Concept’ (1983) 77 AJIL 848, 851 (Schachter lists ‘[d]egrading living conditions and deprivations of basic needs’ as ones that denigrate ‘the worth and dignity of the individual.’).

108

International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3, at art 11 (2) (‘The State Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed’ to provide for that existential minimum.). In his State of the Union address, which is now known as the Four Freedoms Speech (6 January 1941), one of the four freedoms that President Franklin D Roosevelt of the United States proposed was ‘freedom from want’ where the essential needs of people are met.

109

General Comment 3 (on Article 2-The Nature of State Parties Obligations); General Comment 4 (on Article 11-The Right to Adequate Housing); General Comment 12 (on Article 11-The Right to Adequate Food).

110

General Comment 12, The Right to Adequate Food, at para 4.

111

General Comment 4, para 7.

112

Case of VM and Others v Belgium, 60125/11 (7 July 2015), available at<https://www.legal-tools.org/doc/05bc7c/pdf/>. The case involved the removal from Belgium to France of a family of asylum seekers from Serbia. The group included small children as young as four years old and one child with serious physically disability. Belgium claimed that France where the asylum seekers had initially applied for asylum (but rejected) was still responsible for their claim. The individuals were told to leave and they were kicked out of their reception center. As the appeal process continued, the individuals became homeless and did not receive any material support from the government. They lived on the streets for four weeks before thy finally returned to Serbia with the assistance of a charity. The disabled child died not long after they returned to Serbia. They claimed that their treatment by the Belgian authorities was ‘inhuman and degrading treatment’ under Article 3.

113

VM and Others v Belgium (n 112).

114

Villagran Morales et al v Guatemala (19 November 1999), para 144.

115

Rights of Children Advisory Opinion OC-17/2002 (28 August 2002).

116

ibid.

117

ibid. See also Juvenile Reeducation Institute v. Paraguay, Judgment (IACtHR, 2 September 2004) at para 159 (‘[T]he State has an ineluctable obligation to provide […] persons [in its custody] with the minimum conditions befitting their dignity as human beings.’) See also ibid paras 253.

118

Case of Yakye Axa Indigenous Community v Paraguay (17 June 2005).

119

ibid para 162.

120

ibid para 167. See also Xákmok Kásek Indigenous Community v Paraguay (24 August 2010), Sat paras 120 and 217.

121

See also Case of the Sawhoyamaxa Indigenous Community v Paraguay (29 March 2006), para 73 (63), 73 (64); Velez Loor v Panama Case, para. 216; Vera Vera v Ecuador, para 44.

122

Federal Constitution of the Swiss Federation (18 April 1999) art 12, available at<https://www.admin.ch/opc/en/classified-compilation/19995395/index.html>.

123

See, for example, Finland Const § 19 (‘Those who cannot obtain the means necessary for a life of dignity have the right to receive indispensable subsistence and care.’); Italy Const art 38 (‘Every private citizen unable to work and unprovided with the resources necessary for the existence is entitled to private and social assistance.’); Burundi Const arts 27 and 52; Dominican Republic Const art 62(9); Bolivia Const art 19 (1); Guatemala Const art 78; Cape Verde Const art 69; Japan Const art 25 (‘All people shall have the right to maintain the minimum standards of wholesome and cultured living.’). The Japanese constitutional right is implemented through the Livelihood Protection Law. Article 3 of the statute guarantees for a minimum level of assistance for a wholesome living. The Iraqi Constitution links human dignity to work by claiming that ‘[w]ork is a right to all Iraqis in a way that guarantees a dignified life for them.’ Iraq Const 2005, art 22.

124

Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC), para 20. See also Soobramoney v Minister of Health (KwaZulu-Natal) 1997 (12) BCLR 1696 (CC), para 8; Mazibuko v Johannesburg 2010 (4) SA 1 (CC), at 16–7.

125

Grootboom (n 124) para 69.

126

Jaftha v Schoeman, 2005 (2) SA 140 (CC).

127

ibid at para 21. Justice Chaskalson has made a similar point in written remarks outside the Court. Arthur Chaskalson, ‘Human Dignity as a Foundational Value of Our Constitution Order’ (2000) 16 South Africa Journal on Human Rights 193, 204. (Socio-economic rights are ‘rooted in respect for human dignity, for how can there be dignity in a life lived without access to housing, health care, food, water or, in the case of people unable to look after themselves, without appropriate assistance?’).

128

Robert Alexy, A Theory of Constitutional Rights (Julian Rivers tr, Oxford University Press 2004) 290 (‘[T]here can hardly be any doubt that the Federal Constitutional Court presupposes the existence of a constitutional right to an existential minimum.’ See also Kinderfreibeträge [Children’s allowance], BVerfGE 43 108 (1976) 121, available at<http://www.servat.unibe.ch/dfr/bv043108.html>; Steuerfreies Existenzminimum (Tax-free minimum standard of living [Minimum Livelihood Case]), BVerfGE 82 60, available at<http://www.servat.unibe.ch/dfr/bv082060.html>. Orphan’s Pension II, 1 BvL 4/74, BVerfGE 40, 121 [18 June 1975] [establishing the doctrine of minimum substance]; Tax free substance 1 BvL 20, 26 184, 4/86, BVerfGE 82, 60 (29 May 1990) [elaborating on the doctrine of minimum substance). The German parliament has codified a notion of existential minimum in its Social Security Code. German Federal Social Security Code, art 1 (11 December 1975), BGB1 I at 3015 para 1, s 1 (as amended), cited in Susanne Baer, ‘Dignity, Liberty, Equality: A Fundamental Rights Triangle of Constitutionalism’ (2009) 59 Univ TO L J 417, 445.

129

18 July 2012, 1 BvL 10/10 (Ger), available at<https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2012/07/ls20120718_1bvl001010en.html>. The statute at issue was the Asylum Seeker Benefit Act which awarded benefits to asylum seekers at a much lower rate than that for citizens.

130

German Basic Law, art 1 (1) (‘Human dignity is inviolable. To respect and protect it is the duty of all state authority.’) The Court used the human dignity provision along with Article 20 of the Basic Law which declares Germany as a ‘democratic and social federal state’ to insist that an existential minimum be granted to migrants.

131

Asylum seekers were given significantly less benefits than were given to German citizens. BVerfG (n 129) para 3.

132

See BVerfG (n 129) para 64. See also Federal Constitutional Court – Press Office, Press release no 56/2012 of July 2012, available at<http://www.bundesverfassungsgericht.de/pressemitteilungen/bvg12-056en.html>.

133

BVerfG, (n 129) para 97. The Court here was responding to the argument that generous amounts will serve as incentives to asylum seekers.

134

www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2012/bvg12-056.html>. para 1 (a), at 3 accessed 15 November 2019.

135

See John Rawls, Political Liberalism (Columbia University Press, expanded edition 2005) 228–29 (For Rawls, ‘a social minimum providing for the basic needs of all citizens’ is part of what he calls a ‘constitutional essential’).

136

Jürgen Habermas, Between Facts and Norms (MIT Press 1996) 123 (Habermas claims that the ‘status of the legal persons’ implies that individuals have ‘[b]asic rights to the provisions of living conditions that are socially, technologically, and ecologically safeguarded’ if those individuals are to enjoy the four other basic rights: the rights to equal individual liberties, the rights to the recognition of ‘the status of a member in voluntary association,’ the accountability of rights (their legal protection), and the ‘basic rights to equal opportunity to participate in process of opinion-and-will-formation [political autonomy]’).

137

See for example, The Aviation Security Case. BverfG, 1 BvR 357/05, 15 February 2006. See also Absatz-Nr 124; 45 BVerfGE, 187 (1977), available at<http://www.hrcr.org/safrica/dignity/45bverfge187.html>(Life Imprisonment) (‘It would be inconsistent with human dignity’ to turn the offender ‘into a mere object of [the state’s] fight against crime.’ The principle that ‘the human being must always remain the end of itself has unlimited validity in all areas of the law.’ ibid 2.

138

Alkotomἀnybrὁsἁg (AB) [Constitutional Court] 32 /1998 (V1.25) AB (Hungary) (social welfare case), quoted in Neomi Rao, ‘Three Concepts of Dignity in Constitutional Law’ (2011) 86 Notre Dame L Rev 183, 238.

139

Rao (n 138) 238.

140

(1981) 2 SCR 516; (1981) 1 SCC 608, at para 8.

141

Constitution of India, 1950. preamble. (‘We, The People Of India, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic and to secure to all its citizens: Justice, social, economic, and political; Liberty of thought, expression, belief, faith and worship; Equality of status and of opportunity; and to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the nation […].’)

142

Mullin (n 140) 518. In another case, the Indian Supreme Court concluded that ‘[n]o state … has the right to take any action which will deprive a person of the enjoyment of […] basic essentials.’ See Olga Tellis v Bombay Municipal Corporation, (1985) 3 SCC 545.

143

ibid.

144

Conseil Constitutionnel (CC) [Constitutional Court] decision No 2001-446DC, 27 June 2001, J0 10828 (Fr), available at<https://www.conseil-constitutionnel.fr/decision/2001/2001446DC.htm>.

145

Staffen and Arshakyan (n 80) 122.

146

Brown v Plata, 563 US 493, 510, 511 (2011) (emphasis mine). What made the requirement of existential minimum pertinent here for the Court is the fact that prisoners were in the state’s custody and unable to provide their own existential minimum.

147

ibid 510 (‘As a consequence of their own actions, prisoners may be deprived of rights that are fundamental to liberty. Yet the law and the Constitution demand recognition of certain other rights. Prisoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment… The basic concept underlying the Eighth Amendment is nothing less than the dignity of man.”’

148

The United States is one of a handful of developed countries which do not recognize such an affirmative right as a matter of constitutional law. See DeShaney v Winnebago County Department of Social Services 489 US 189 (1989).

149

Even if their constitution does not provide for such minimum, some countries declare by statute or otherwise for a ‘survival threshold’ even though that threshold might not be explicitly justified by reference to dignity. Robert Leckey refers to notes of the Canadian government’s ‘declared survival threshold’ in connection with its workfare program. Robert Leckey, ‘Embodied Dignity’ (2005) 5 OUCJ 63, 68.

150

Hartley Dean, ‘Introduction: Towards an Embodied Account of Welfare’ in Kathryn Ellis and Hartley Dean (eds), Social Policy and the Body: Transition in Corporeal Discourse (Macmillan 2000) xi, xxiv (‘[A] prosaic and potentially painful reality’ of embodied beings is the capacity to suffer).

151

Joseph Raz, The Morality of Freedom (Oxford University Press 1986) 155 A person’s ‘choices must not be dictated by personal needs.’ See also James Griffin, On Human Rights (Oxford University Press 2008) 180–81.

152

BVerfG (n 129) para 66.

153

Rawls (n 135) 166. See also James Griffin, On Human Rights (Oxford University Press 2008) 8–9 (‘Human rights [in our case dignity] can then be seen as protection of our human standing, or as I shall put it, our personhood. And one can break down the notion of personhood into clearer components by breaking down the notion of agency. To be an agent, in the future sense of which we are capable, one must (first) choose one’s own path through life – that it not be dominated or controlled […]. And one’s choice must be real; one must have at least a certain minimum education and information. And having chosen one must be able to act; that is, one must have at least the minimum provision of resources and capabilities that it takes (call all of this “minimum provision”‘).

154

Rawls (n 135) 7. (‘[T]he first principle covering the equal basic rights and liberties may easily be preceded by a lexically prior principle requiring that citizens’ basic needs be met, at least insofar as their being met is necessary for citizens to understand and to be able to fruitfully to exercise those rights and liberties.’).

155

Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations [1776] (1827), Book V, 368. available online from Harvard College Library (‘A linen shirt, for example, is strictly speaking, not a necessity of life. The Greeks and the Romans lived, I suppose, very comfortably though they had no linen. But in the present times, through the greater part of Europe, a creditable day-labourer would be ashamed to appear in public without a linen shirt, the want of which would be supposed to denote that disgraceful degree of poverty which, it is presumed, nobody can well fall into without extreme bad conduct.’). I thank Christoph Bezemek for drawing my attention to this observation.

156

The materials in this section track discussion in Addis, Human Dignity in Comparative Constitutional Context (n 7) 23.

157

If one were to read Articles 2 (1) and 11 (1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) together one will reach that conclusion. See also ICESCR Committee General Comments No 3 (on Article 2) No 4 (on Article 11); Asahi v Japan 21 Minshü 5 at p 1043 (1967), excerpted in Vicki C Jackson and Mark Tushnet, Comparative Constitutional Law (Foundation Press 1999) 1441. In Asahi, the Japanese Supreme Court explored the scope of the constitutional and statutory right ‘to maintain the minimum standards of wholeness and cultured living.’ In the process the court seems to have concluded that at least under the act (Livelihood Protection Law) implementing the constitutional right (Article 25) the ‘minister has the discretionary power […] to determine the level of payment necessary.’) Jackson and Tushnet, ibid 1441 and 1442. The reason for such discretion is because the notion of ‘minimum standards of wholeness and cultured living […] is rather abstract and relative […]. Its substance changes in relation to the development of culture and the national economy and can be determined only after taking into consideration all these and other uncertain factors. Consequently, the authority to determine what constitutes the minimum standards of wholeness and cultured living is usually vested in the discretionary power of the minister.’ ibid at 1442. See also BVerfG (n 129) (‘[A]dequate benefits have to be ascertained in light of circumstances in Germany, the country in which this existential minimum must be guaranteed. The Basic Law does not permit that needs for a dignified life be assessed at a lower level by referring to the existence levels in the country of origin or in other countries. Nor does the Constitution permit one to differentiate among recipients of basic social benefits in accordance to their residence status; the legislature must always take as its guidance concrete needs to secure a person’s existence.’).

158

See, for example, Colombia Constitution art 51. (‘All Colombian citizens are entitled to live in dignity. The state will determine the conditions necessary to give effect to this right and will promote plans for public housing, appropriate systems of long-term financial and community plans for the execution of these housing programs.’) In Ruling C-700 of 1999 the Colombian Constitutional Court declared that ‘Congress should be in control of designing a new system that complies with Article 51 of the Constitution.’ See Helena Alviar Garcia, ‘Social, Economic and Cultural Rights and Economic Development: Limiting or Reinforcing the Market’, in Grἁinne de Bứ rca, Claire Kilpatrick and Joanne Scott (eds), Critical Legal Perspectives on Global Governance: Liber Amicorum David M Trubek (Hart Publishing 2014) 369, 377. See also Corte Constitutional (Constitutional court), Sentencia (Ruling) C-700 of 1999, MP (Judge) José Gregorio Hernández, available at<www.corteconstitucional.gov.co/relatoria/1999/C-700-99>.

159

The South African Constitutional Court appears to recognize that the political branches of government have comparatively better institutional competence to engage in making that judgment. See Minister of Health v Treatment Action Campaign 2002 (5) SA 721, [37] (CC) (‘[T]he courts are not institutionally equipped to make the wide ranging factual and political enquiries necessary for determining what the minimum core standards’ ought to be). See also Asahi v Japan 21 Minshü 5 at p 1043 (1967) (excerpted in Jackson and Tushnet [n 157] 1442). The Korean Supreme Court made a similar point when it noted that whether ‘the standards of livelihood protection are reasonable has to be determined by considering all relevant payments for livelihood protection and all reduced or exempted burdens’ and the elected branches of government have a discretion to weigh all factors. Their decisions will be struck down only if ‘the state did not legislate for livelihood protection at all or where legislation is so irrational that the state abused its discretion.’ See Standards for Protection Livelihood Case, 9–1 KCCR 543, 94 HunMa 22, 29 May 1997 (cited in Dorsen and others [n 70] 1230–31).

160

Minister of Health v Treatment Action Campaign 2002 (5) SA 721(CC), 19 (S Afr) para 26, quoting from General Comment 3 of the ICESCR Committee.

161

Mark Tushnet, Weak Courts, Strong Rights: Juridical Review and Social Welfare Rights in Comparative Constitutional Law (Princeton University Press 2008); Jeremey Waldron, ‘The Core of the Case Against Judicial Review’ (2006) 115 Yale L J 1346, 1370.

162

African Charter on Human and People’s Rights (n 18) art 5.

163

ibid.

164

Other major international human rights conventions have provisions prohibiting slavery and slave trade in similar terms. ICCPR (n 18) art 8 (‘No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.’); ECHR (n 18) art. 4; American Convention on Human Rights (n 2) art 6.

165

Orlando Patterson, Slavery and Social Death: A Comparative Study(Harvard University Press 1982); Orlando Patterson, Freedom: Freedom in the Making of Western Culture(Basic Books 1991) 9–10 (‘The slave is always an excommunicated person. He, more often she, does not belong to the legitimate social or moral community; he has no independent social existence; he exists only through, and for, the master; he is, in other words, natally alienated.’).

166

See ibid 337–8.

167

Bernstein (n 4) 212 (‘One attains humanity only by being treated as human, only by being lifted through socialization to the status of being [full] human.’) See also Charles Taylor, ‘The Politics of Recognition’ in Amy Gutmann (ed), Multiculturalism and ‘The Politics of Recognition’ (Princeton University Press 1994) 25 (‘[O]ur identity is partly shaped by recognition or its absence, often by misrecognition of others, and so a person or group or people can suffer real damage, real distortion, if the people or society around them mirror back to them a confining or demeaning or contemptible picture of themselves.’) See also Charles Taylor, The Ethics of Authenticity (Harvard University Press 1992) 48 (‘My own identity crucially depends on my dialogic relations with others.’).

168

In a written communication responding to an earlier draft of the paper, my colleague, Adam Feibelman, raised the question whether the assertion that the slave is socially dead underplays the fact that there is a social space when slaves might in fact assert their social agency. His argument is that at least amongst themselves and in some social settings (church?) they surely affirm their social being. I think Feibelman is correct that there is a very narrow social space in which a semblance of social agency might be asserted, but even the relationship among slaves themselves is highly conditioned by their status as slaves. Slaves are part of household that not only defines their relationship with the master and his family but their relationship among themselves as well. See Allen Buchanan, ‘The Egalitarianism of Human Rights’ (2010) 120 Ethics 679, 695 (‘[S]lavery need not and typically does not destroy an individual’s capacity for normative agency […] Further, slaves can still exercise normative agency.’).

169

Adeno Addis, ‘Torture as a Counterterrorism Strategy’ (2010) XLIV Revue de Droit Compare/CompLRev 129, 143 (‘[T]orture robs the target of torture an important ingredient of being a human subject, the capacity for autonomy and will. The person is simply turned into a physical object which is subject to the complete control of the torturer. Torture dehumanizes the victim. Put simply, the individual ceases to be a subject and becomes an object that is controlled and fully manipulated by another human being. Torture victims are, for that moment, in a similar position as slaves. They are [under] the complete and unlimited control of another human being.’) But as I argued in the same article, the torturer too is often corrupted and dehumanized. Torture robs the torturer of an important character of being human – that of having empathy for other human beings. ibid 144. The famous Russian writer who spent time in the Soviet gulags, Alexander Solzhenitsyn once observed: ‘Our torturers have been punished most horribly of all; they are turning into swine; they are departing downward from humanity.’ Cited in Addis, Torture (ibid) 144. The same point was made long ago in relation to masters and slaves. See Jean-Jacques Rousseau, The Social Contract and Discourses 3–4 (GDH Cole tr, EP Dutton and Company1950) (‘Tel se croit le maître des autres, qui ne laisse pas d’être plus esclav qu’eux [One thinks himself the master of others, and till remains a greater slave than they]” Rousseau made the same point elsewhere but did so more directly and succinctly: ‘maître et esclave se dépravent mutuellement [master and slave corrupt each other.]’ Jean-Jacques Rousseau, Émile Or On Education, at 70. (cited in Taylor, The Politics of Recognition) (n 167) 45.

170

Christian Smith: What is a Person?: Rethinking Humanity, Social Life, and the Moral Good from the Person Up (The University of Chicago Press 2010) 436 (‘To treat a person as a thing is to violate that order of reality, to try to turn a “you” into an “it”. It is a denial of personhood.’)

171

Slahi, Guantanamo Dairy (n 51) 314.

172

ibid 315. Slahi talks about the three phases of captivity. The first and ‘worst’ phase is one where the captive longs to get back to his family and strenuously resists the process of constant dehumanization. The second phase is one where the captive realizes that one has control over nothing – when to go to the bathroom, sleep, take shower, wake up, etc. This is the phase of resignation. The third phase is one when one discovers a new home and ‘family’ that one never chose. ‘Every time a good member of my present family [guard, interrogator, etc] leaves it feels as if a piece of my heart is being chopped off. But I am so happy if a bad member [a torturer] has to leave.’ ibid 316.

173

ibid 313 (‘At one point I hated myself and confused the hell out myself. I started to ask myself questions about the humane emotions I was having toward my enemies. How could you cry for somebody who caused you so much pain and destroyed your life?’).

174

Manuel Wackenheim v France, Communication No. 854/1999, UN Doc CCPR/C/75/D854/1999 (2002).

175

ibid para 2.1 (‘Wearing suitable protective gear, he would allow himself to be thrown short distance onto an air bed by the establishment staging the event (ἁ discotheque).’).

176

I say ‘partly,’ because ‘public order’ and ‘public health’ were listed as additional purposes for the prohibition. There is a similar prohibition in Germany. In 1992, the Administrative Court apparently banned similar performances on the account that this reduces the dwarves to ‘projectiles’ violating their dignity. Eckart Klein, ‘Human Dignity in German Law’ in David Kretzmer and Eckart Klein (eds), Concept of Human Dignity in Human Rights Discourse (Springer Netherlands 2002) 145, 158. The imagery is meant to suggest that the person is being used as an object rather than a subject. But one can think of so many other activities, including some very brutal sports, where the individual is thrown as if he or she was a ‘projectile,’ And if we prohibit those sports on the ground of dignity, we would be prohibiting a lot of things! The Court seems to suggest that autonomy was undermined (dignity as autonomy), but it seems rather strange to think that there is lack of autonomy here anymore than there is in many other activities.

177

See also Wackenheim (n 174) para 2.5 (‘[D]warf tossing was an attraction that affronted human dignity.’) Interestingly, human dignity was seen as ‘being part of public order and the authority vested in the municipal police being the means of ensuring it.’ ibid para 2.2).

178

Wackenheim v France, Conseil d’Etat [CE Ass] [highest administrative court] 27 October 1999, Rec Lebon 372 (Fr).

179

ibid.

180

See Wackenheim (n 174) paras 7.5 and 7.6. The Committee held that the prohibition ‘was necessary in order to protect public order, which brings into play considerations of human dignity that are compatible with the objective of the Covenant.’ ibid para 7.4.

181

Ronald Dworkin, Justice for Hedgehogs (Harvard University Press 2011) 204. Dworkin here is describing his second principle of dignity – the principle of personal responsibility for one’s own life. Indeed, Dworkin calls this principle the ‘principle of authenticity.’ ibid 204.

182

Wackenheim (n 174) para 3. Wackenheim may have an ally in Ronald Dworkin who has argued that dignity is constituted by two principles. Dworkin, Is Democracy possible here? (n 20). The two principles are ‘the principle of intrinsic value’ and ‘the principle of personal responsibility.’ ibid 9–11. While the first is about recognizing the intrinsic and equal importance of every human life, the second ‘insists that individuals have a personal responsibility to determine the values that define success in their lives.’ ibid 37. The second principle seems to support Wackenheim’s version of dignity. Wackenheim is claiming that what it means to dignify people partly means to treat them as beings who have responsibility to ‘determine the values that define success in their lives.’ ibid 37. See also Dworkin, Justice for Hedgehogs (n 181) 191–252. Here Dworkin sets out the two principles of dignity in more detail and expresses the second principle (the principle of personal responsibility) thusly: ‘The second is a principle of authenticity. Each person has a special personal responsibility for identifying what counts as a success in his own life; he has a personal responsibility to create the life through a coherent narrative or style that he himself endorses.’ ibid 204.

183

Dworkin, Justice for Hedgehogs (n 181) 204.

184

Avishai Margalit, The Decent Society(Harvard University Press 1996) 16 (‘The sense in which paternalism is humiliating is that people are being treated as immature.’).

185

Michael Rosen, Dignity: Its History and Meaning (Harvard University Press 2012) 68 (‘There can be no argument, in my opinion, but that dwarf-tossing is undignified. But then again so are many other human activities.’) As Rosen notes, one would probably find many equally (or more) undignified activities in clubs and bars late at night or even in many sports. ibid. Boxing and perhaps aspects of American football are good examples. And even a more apt example is the new and rather brutal spot called the Ultimate Fighting Championship (UFC) where contestants bloody each other and often knock each other unconscious with kicks on the head.

186

As Christine Korsgaard put it, ‘The question of whether another can assent to your way of acting can serve as a criterion for judging whether you are treating her as a mere means.’ Cited in Rosen, Dignity (n 185) 118.

187

Immanuel Kant, Groundwork to the Metaphysics of Morals (Akademie Edition 1785) 4:435–6, (‘Autonomy is therefore the ground of the dignity of human nature and of every rational nature’); Stephen Darwall, ‘Kant on Respect Dignity, and the Duty to Respect’, in Monika Betzler (ed), Kant’s Ethics of Virtue 187 (Walter de Gruyter 2008).

188

I have argued elsewhere that the idea of dignity as autonomy under certain circumstances goes against our basic intuitions and the general claim that dignity is inherent in all humans. To the extent that infants and people with disabilities do not have the capacity for autonomy, the theory of dignity as autonomy would suggest that they are not entitled to assert dignitary interests. That clearly cannot be. Indeed, it is the most vulnerable who need the protection of dignity to retain their humanity.

189

I am exploring the notion of group dignity in another work.

190

ibid.

191

Appropriating Joseph Raz’s ‘service-conception’ of authority. Raz (n 151). Jeremy Waldron has developed what he terms a ‘service-account’ of group identity (Waldron, The Dignity of Groups). Waldron expresses the traditional liberal view that group dignity is derived entirely from the service it performs for individuals. Group dignity is understood simply as the means by which the dignities of individual members are affirmed and protected. So, when we talk about group indignities we are simply talking about indignities that are ultimately visited on individuals. Let me add here that Waldron does not entirely embrace the service-conception of dignity for he ‘cannot rule out the possibility that groups and group entities may have a value in themselves.’ For a recent and interesting examination of Raz’s service-conception of authority see Nikolas Kirby, ‘The Service Conception: Just One Simple Question’ (2017) 36 L Phil 255.

192

Yoshino (n 32).

193

ibid.

194

Taylor, Authenticity (n 167) 29.

195

Bernard Williams, A Critique of Utilitarianism (n 22) 112.

196

Bernard Williams, ‘Persons, Characters and Morality’ in Bernard Williams (ed) Moral Luck: Philosophical Papers1973–1980 (Cambridge University Press 1981) 12. See also Schachter, Human Dignity (n 107) 848, 850; Drucilla Cornell, The Imaginary Domain: Abortion, Pornography and Sexual Harassment (Routledge 1995) 4 (‘what we think of as ‘individuality’ and ‘the person’ are not assumed as given but respected as part of a project.’). See also ibid 40.

197

Jean-Paul Sartre, Existentialism is a Humanism (Yale University Press 2007).

198

See Schauber (n 23) 122. Schauber views these ‘ground project[s] as ‘constitutive of ourselves’ and ways through which we express ourselves in the world. ibid.

199

Margalit (n 184) 85.

200

See, for example, National Treasury Employees Union v Von Raab, 489 US 656, 680–81 (Scalia, J, dissenting).

201

Romer v Evans, 517 US 620 (1996); Lawrence v Texas, 539 US 558 (2003); United States v Windsor 570 US 12 (2013).

202

Obergefell v Hodges, 135 S Ct 2584, 2596 (2015) (As Justice Kennedy put it: ‘A truthful declaration by same-sex couples of what was in their hearts [same-sex intimacy] had to remain unspoken.’).

203

Lawrence v Texas, 539 US, at 578 (Justice Kennedy in Lawrence concluded that the prohibition against gay sexual intimacy imposed the injury and stigma of criminality.). In a case involving gay rights, the South African Constitutional Court makes a similar point. See National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC); 1998 (12) BCLR 1517 (CC).

204

It is not just that their very beings were criminalized but for ‘much of the twentieth century […] homosexuality was treated as an illness.’ Obergefell, 135 S Ct, at 2596. The homosexual was not a sane person. He was not totally there! He was after all a person with diminished mental capacity. The American Psychiatrist Association classified homosexuality as a mental disorder. See Michael J Rosenfeld, The Age of Independence: Interracial Unions, Same-Sex Unions, and the Changing American Family (Harvard University Press 2007) 176 (‘Until the 1950s, the consensus of psychiatrists and psychologists was that homosexuals were deeply disturbed people.’).

205

Obergefell, 135 SCt, at 2596. In fact, this is a theme in all of Kennedy’s opinions on gay rights.

206

ibid.

207

Margalit, (n 184) 51 (‘A social order that violates the moral integrity of its dependents creates a humiliating society. Violation of moral integrity is sufficient for branding a society as humiliating, although it is not a necessary condition.’).

208

Obergefell, 135 SCt, at 2594.

209

ibid.

210

ibid 2600.

211

ibid 2596 (Kennedy writes: ‘[M]any persons did not deem homosexuals to have dignity in their own distinct identity.’).

212

I am exploring the issue in another draft entitled On Equality and Dignity: A Jurisprudential Inquiry.

213

Obergefell, 135, SCt, at 2596.

214

ibid. See also US v Windsor 133 SCt 2675, 2694 (2013) (‘Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities.’).

215

Kennedy characterizes sexual orientation as an ‘immutable’ aspect of identity. See Obergefell, 135 SCt, 2594 ‘And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment’); ibid 2596 (‘Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable.’).

216

See Obergefell, 135 SCt, at 2593 (Kennedy views commitments as an important part of one’s identity and hence protected through liberty or dignity.). See also Minister of Home Affairs v Fourie, 2006 (3) BCLR 355 (CC), 10 (SAfr), (cited in Daly [n 42] 43).

217

Obergefell, 135 SCt, at 2600 (comparing Lawrence and Obergefell).

218

Kennedy saw the exclusion as a way of diminishing and demeaning those who were excluded. See Obergefell, 135 SCt, 2602.

219

Obergefell, 135 SCt, at 2606 (emphasis added). A ‘wound’, whether physical or social, is of course a result of an attack on the integrity of the person.

220

Honneth (n 4) 163, 165 and 168.

221

UDHR (n 13) art 6 (‘Everyone has the right to recognition everywhere as a person before the law.’).

222

ICCPR (n 18) art 16.

223

ICCPR (n 18) art 4 (‘In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant [under strict conditions,]’ but no derogation is allowed from, among others, Article 16.; see also American Convention on Human Rights (n 2), art 27.

224

American Convention on Human Rights (n 2) art 3 (‘Every person has the right to recognition as a person before the law.’).

225

American Convention on Human Rights (n 2) art 27 (‘In time of war, public danger, or other emergency that threatens the independence or security of a State Party, it may take measures derogating form its obligations under the present Convention [under very strict conditions]’. But the State Party is not allowed to derogate from or suspend the right under Article 4).

226

African Charter of Human and Peoples’ Rights (n 18) art 5.

227

Case of the Girls Yean and Bosico v Dominican Republic (8 September 2005), available at<http://www.corteidh.or.cr/docs/casos/articulos/seriec_130_%20ing.pdf>.

228

American Convention on Human Rights (n 2) art 3.

229

Yean and Bosico (n 227) para 179.

230

Linda S Bosniak, ‘Persons and Citizenship in Constitutional Thought’ (2010) 8 Int J Con L 9, 22.

231

The point I am making here is similar to the observation that Hannah Arendt made about nationality. The right to a nationality, Arendt observed, is the ‘right to have rights.’ For Arendt, not to have a nationality is to lose all other rights to the extent that rights are guaranteed within a state system which requires that one belongs (become a national) if one is to avail oneself to those rights. See Hannah Arendt, The Origin of Totalitarianism (Harcourt Brace & Co 1952). Legal personality in the way I have described it performs the same functions that Arendt saw for nationality.

232

See Arthur Ripstein, Force and Freedom: Kant’s Legal and Political Philosophy (Harvard University Press 2009) 136 (arguing that slavery, in whatever form it comes, is ‘the annihilation of legal personality: the slave becomes an object, fully subject to the master’s choice.’).

233

Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford University Press 1979) 221.

234

Joel Feinberg, Rights Justice and the Bounds of Liberty: Essays in Social Philosophy (Princeton University Press 1980) 151. For Feinberg, human dignity is often about ‘the recognizable capacity to assert claims.’

235

The idea that procedural safeguards (or the legal recognition of persons) are matters of dignity has been pretty much part of the conversation in American administrative law circles since the 1970s. A good example of the dignitarian view is Richard Stewart, ‘The Reformation of American Administrative Law’ (1975) 88 Harv L Rev 1667, 1684–1686.

236

Feinberg (n 234) 151. See also Joel Feinberg, ‘The Nature and Value of Rights’ (1970) 4 J Value Inq 243, 252.

237

Beitz (n 7) 279.

238

Bernstein (n 4) 214.

239

Jürgen Habermas, ‘Struggles for Recognition in the Democratic Constitutional State’ in Amy Gutmann (ed), Multiculturalism (Princeton University Press 1994) 107–148.

240

Honneth (n 4).

241

By humiliation, I mean to refer to what Avishai Margalit meant in his The Decent Society (n 184). Margalit sets out three forms of humiliation: ‘treating humans as non-humans, rejection [of people from the encompassing group]; and acts intended to lead to lack of control or to highlight one’s lack of control.’ ibid 146. Humiliation in the context of integrity may occur in any of the three forms at various circumstances. But at the end, humiliation assumes its opposite, recognition. If there were no sense of respect for the integrity of the person as a human being, there would not be the idea of humiliation or indignity. ibid 52–53.

242

ibid 149 (‘Humiliation is a concept based on contrast, and the opposite of humiliation is a concept of respect for humans. If there is no concept of human dignity, then there is no concept of humiliation either.’).

243

Christopher McCrudden, ‘Human Dignity and Judicial Interpretation of Human Rights’, (2008) 19 EJIL 655, 679.

244

I plan to explore the issue in a project tentatively titled Uniqueness and Universality: Two Dimensions of Dignity.

245

The use of torture is a good example. Another example is female genital cutting.

246

Mervi Patosalmi, ‘Bodily Integrity and Conceptions of Subjectivity (2009) 24 Hypatia 125, 133 (‘In [Drucilla Cornell’s] thinking, the person is not a finished entity, but a process. The person is continually imagining and re-imagining who she or he is and how she or he wants to be.’) See Cornell [n 196]).

247

Switzerland, Const art 120.

248

The reasons offered for this inviolability vary depending on whether religious or secular philosophical approaches are employed. But whatever the reasons for inviolability it requires that a person should be treated as a subject whose value is independent of anyone or anything else.

249

George Kateb develops the distinction between existential and moral values. See Kateb, Dignity (n 5) 10–17.

250

Smith, What is a Person? (n 170) 453.

251

National Coalition for Gay and Lesbian Equality v. Minister of Justice (n 203) para. 117.

252

Mill writes about a ‘plan of life’ that gives an individual’s life shape and coherence (n 38).

253

Bernard Williams explores what he refers to as ‘projects’ that constitute a character. Williams (n 22).

254

Somogy Varga refers to these commitments as ‘core identifications.’ Somogy Varga, ‘Core Identifications: The Motive that Really ‘Speak for Us’ (2015) 52 APQ 301. See also MEC for Education: KwalZulu-Natal v Pillay 2008 1 SA 474 (CC) para 53 where Chief Justice Pius Langa of the South African Constitutional Court makes the point that ‘dignity and identity are inseparably linked.’

If the inline PDF is not rendering correctly, you can download the PDF file here.

OPEN ACCESS

Journal + Issues

The Vienna Journal on International Constitutional Law (ICL Journal) endorses an approach towards a coherent understanding of International Constitutional Law, thus preparing the ground for novel answers to the challenges of a changing global legal framework. Advised by a body of distinguished jurists, the Journal publishes high-standard peer-reviewed contributions by scholars and legal professionals from around the globe.

Search