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VOLUME
2:1
JUNE 2015
326-559
  • Human Dignity in Comparative Constitutional Context:
    In Search of an Overlapping Consensus

    Adeno Addis
Abstract

The concept of human dignity plays an important role in ordinary conversations and legal and political theories. It also occupies a prominent place in numerous national constitutions and international conventions. Yet, it is not always clear what the concept means or entails. The author, in an earlier work, argued that in a world of plural values and ethical commitments a topdown approach, whether philosophical or religious, is unlikely to provide us with a common standard for deciding what it means to dignify humans or to subject them to indignities. Building on the earlier work, this article argues that the best way to understand the scope and content of human dignity is to engage in a bottom-up inquiry, carefully describing the choices communities make in the name of human dignity. The purpose of such inquiry is to see whether there are patterns in the usage that suggest that there is a convergence of, an overlapping consensus on, an understanding of the phrase that could be appropriated as a standard of measurement in intercultural and intersystem conversations and critiques. Focusing on references to human dignity in national constitutions, the article shows that there are in fact patterns of usage that suggest the existence of a consensus on specific understandings of dignity.

Keywords
human dignity; constitutions; equality; human rights; jurisprudence; physical integrity.
Click here to read extracts of the article
Introduction

The concept of human dignity plays an important role in ordinary conversations1 and an even more important and central role in many legal and politicaltheories.2 And some commentators have claimed that human dignity is the only absolute value in a world of plural values and commitments.3 The concept also occupies a prominent place in numerous national constitutions and international conventions4 as well as judicial decisions.5 Yet, it is not always clear what the concept means or actually entails. It is one of those phrases that “carry unspoken assumptions and connotations” that can powerfully influence the discourse they permeate while escaping critical scrutiny.6

This much we know: human dignity is the dignity that humans supposedly have by virtue of the fact that they are humans, irrespective of who they are and where they come from. It is not the sort of respect we show people in virtue of their achievements or character. 7 Rather, the object of respect that is demanded by human dignity is one that is non-evaluative. We respect people simply by virtue of the fact that they are humans, nothing more and nothing less. But what precisely are the things that people deserve to have in the name of human dignity? And how do we go about identifying them?

One familiar approach, to which I shall refer as the top-down approach, attempts to define human dignity in an abstract way, as a first principle, and then apply it as a regulatory norm both within and across communities and cultures. Two familiar and prominent examples of such an approach are philosophical and theological enquires that attempt to define the scope and content of human dignity. Derived philosophically or theologically, human dignity becomes a universal principle applicable without geographic or cultural limits. It applies wherever and whenever humans are subjected to indignities.

The most famous and most influential philosophical approach to human dignity is that of Immanuel Kant’s. 8 Here human dignity is thought of as a state of affairs in which individuals are able to act autonomously. That is, humans have dignity to the extent that they are recognized as having the capacity to make their own choices and to determine their destinies. Kant viewed morality as a system of categorical imperatives that we must fulfil whether we wish or not. A central part of that system is the Categorical Imperative that human beings should not act towards others (and even regarding themselves) 9 in a way that treated them as means rather than as ends, for “man, and in general every rational being, exists as an end in himself, not merely as a means for arbitrary use by this or that will”. 10 To think of humans as ends in themselves is, for Kant, to view them as having internal worthiness, an absolute and priceless virtue, in other words a dignity that is inviolable. As he put it: “In the kingdom of ends everything has either a price or a dignity. If it has a price, something else can be put in its place as an equivalent; if it is exalted above all price and so admits of no equivalent, then it has a dignity”. 11 That entails that treating individuals as autonomous beings able to choose their destiny and capable of moral reflection is to acknowledge their dignity. 12

Another example of a top-down approach is a religiously based enquiry about the nature of human dignity. Here, dignity is explicitly tied to the idea that man was created in the image of God and given authority to be the creator of his temporal existence. The dignity owed to man is based on the similarity he apparently has with his Creator. 13 Pope Leo, or Leo the Great, (440–461AD) who is supposed to have been one of the earliest known Christian thinkers to use the word dignity preached that “[o]ur race has the dignity of nature, so long as the figure of divine goodness continues to be reflected in us as in a kind of mirror”. 14 In one famous passage, he says: “Realize, O Christian, your dignity. Once made a ‘partaker in the divine nature’, do not return to your former baseness by a life unworthy [of that dignity]”. 15 The Qur’an also clearly affirms human dignity (karamah) when it declares: “We have bestowed dignity on the children of Adam (laqad karramna bani Adama) … and conferred upon them special favors above the greater part of Our creation”. 16 There are many current pronouncements that embrace this position. The teaching of the Catholic Church is a prime example. 17 But it is not limited to the Catholic Church, or even to religious institutions. The Israeli Supreme Court, for example, made the following observation about human dignity: “for the supreme principle of human dignity is that man was created in the image of G-d, and by virtue of this perspective, hetoo is commanded to protect his dignity, since an affront to his dignity is an affront to the image of G-d, and every person is commanded in this regard, even a person who dishonours himself”. 18

As attractive as the top-down approach is, as I have argued in a recent article, it simply will not work. 19 In a world of plural values and ethical commitments and where the idea of god takes different forms and even more where many do not even believe in a god in whatever form that god is conceived, the justification of a universal dignity explicitly based on a particular value (autonomy) or on the likeness to a god is unlikely to succeed, at least unlikely to persuade.

Does that mean, therefore, that we should abandon the idea of human dignity as a universal principle? The answer is “No”. But, we need to abandon the idea of deriving the contents of human dignity from the top down. Instead what we must do to establish human dignity as a norm within a global public enterprise is to engage in a bottom-up process. By that I mean that we must engage in a careful examination and description of the choices communities and peoples make in the name of human dignity so as to see whether there are patterns in the usage that suggest that there is a convergence of, an overlapping consensus on, certain understandings of the phrase that we may be able to appropriate as a standard of measurement (as a kind of common law) when we engage in intercultural and intersystem critique. Only then will we be able to develop an idea of human dignity that will serve as a practical guide in a world of plural values and ethical commitments. This is an approach that could be referred to as human dignity pragmatism.

Where does one look to see to get a sense as to what a particular system, culture, or people mean by the idea of human dignity? Practice could take many forms. One could, for example, examine the political rhetoric in a particular country, culture or system. Quite often repeated declarations by the relevant actors (eg leaders) on human dignity may signal with what content the relevant community has endowed the concept. Or one could look at the laws that regulate in the name of human dignity. For this project I choose the latter approach. The laws that I will examine are the organic laws or the constitutions of countries (and to some extent major international human rights documents which have inspired many national constitutions) to see if there is an overlapping consensus in the way that constitutions and the relevant courts interpreting those constitutions describe and apply the idea of human dignity.

This article is part of a large project that attempts to develop an approach to human dignity that I have started in a recent article. There are three aspects to the project. The first article argued why top-down approaches, whether philosophically or theologically informed, will not help us to develop a usable concept of human dignity in the diverse world in which we live. That article also suggested that perhaps it is better to abandon the search for an abstract definition of human dignity, but rather to start from the bottom up to describe the choices people make in the name of human dignity. As I have already noted, the purpose here is to see if there are patterns that would suggest to us a commonality of usage. The current article starts that process by examining the use of human dignity in various national constitutions and major international human rights documents to see if there are patterns or commonalities on a set of understandings. In subsequent articles, I plan to explore in a more detailed way judicial decisions or the decisions of administrative tribunals of some selected countries and international human rights bodies to see when and how human dignity is invoked and whether there are convergences in how the concept is described and appropriated.

Human dignity pragmatism20 claims that the notion of human dignity is best understood as a political not a metaphysical concept. By “political” I do not mean to refer to partisan and ordinary politics, I simply mean to suggest that we develop a sense of what it means to dignify humans or to subject them to indignities from the relationships we establish and the institutions we construct and that the best way to develop a transnational and transcultural standard of dignity is through a process of looking for and discovering a pattern, an overlapping consensus.

The article is organized in a manner that facilitates a systematic and orderly inquiry into the issue raised in Section I — how to understand the concept of human dignity that seems to occupy a prominent role in several national constitutions and major international human rights documents. Sections II and III give a brief account of how and when the notion of human dignity got codified first in international human rights documents and how that in turn influenced the incorporation of the concept in many national constitutions. Section IV, which forms the heart of the article, examines the various meanings which have been attached to the concept — such as dignity as a vessel, dignity as autonomy, dignity as a source of rights, and dignity as equal treatment — and finds them unsatisfactory. The rest of Section IV then makes and defends two propositions. First, it argues that the meaning of dignity cannot be fully understood through a top-down approach (whether philosophical or theological), because the world is defined by diverse ethical and moral commitments. The article advocates what has been termed as human dignity pragmatism, a bottom-up approach, as a better way of capturing how the notion of human dignity is appropriated in real life and across cultures so as to see whether there is in fact a convergence or a consensus on a particular meaning among different cultures and systems. Second, the article tests that proposition by examining all references to dignity in several national constitutions and concludes that the meaning of dignity that is captured by those constitutional provisions and major international human rights documents is one or another aspect of personal integrity. The Section then teases out those various aspects of personal integrity. Sections V and VI explicitly explore what has been implicit throughout the article — the best way to think of human dignity is in pragmatic and practical terms rather than in terms of metaphysics. Pragmatists are committed to finding guiding principles from the experiences of real rather than hypothetical human beings.