My forthcoming monograph for the University of Wales Press, Making Human Dignity Central to International Human Rights Law: A Critical Legal Argument, discusses a number of topics, ranging from the state of critical legal scholarship to international relations. However, much of what I might have written even a year earlier was profoundly altered by the rise to power of postmodern conservatives. Frequently agitating for a nationalist agenda, and opposed to universal human rights, this development lent my book a more cynical edge. Nevertheless, I still consider it an optimistic text—one that defends an emancipatory conception of human dignity and the steps we might take to realize it.
Dignity’s Unusual History
Conceptions of human dignity go back a very long way. Many of the great religions of the world—including the monotheistic faiths of Christianity, Judaism, and Islam—offer human dignity as something bestowed by God. Buddhists argue that the locus of human dignity lies in our capacity to pursue self-perfection. The term itself arose in the thirteenth century from the Latin dignitas, which referred to the “worthiness” of individuals. Initially, it often had an elitist connotation. People who possessed dignity typically occupied some high rank in society. It is for this reason we still occasionally speak about the dignity of a given position. However, with the advent of Renaissance humanism, many religious scholars increasingly called for some notion of dignity to be extended to all individuals since they were equally God’s creation. Perhaps the paradigmatic example is the “Oration on Human Dignity” by Pico Mirandola. Imagining a dialogue between God and Adam, Mirandola has God exclaim:
We have given you, O Adam, no visage proper to yourself, nor endowment properly your own, in order that whatever place, whatever form, whatever gifts you may, with premeditation, select, these same you may have and possess through your own judgement and decision. The nature of all other creatures is defined and restricted within laws which we have laid down; you, by contrast, impeded by no such restrictions, may, by your own free will, to whose custody We have assigned you, trace for yourself the lineaments of your own nature. I have placed you at the very center of the world, so that from that vantage point you may with greater ease glance Origins and Orientation round about you on all that the world contains. We have made you a creature neither of heaven nor of earth, neither mortal nor immortal, in order that you may, as the free and proud shaper of your own being, fashion yourself in the form you may prefer. It will be in your power to descend to the lower, brutish forms of life; you will be able, through your own decision, to rise again to the superior orders whose life is divine.
Mirandola began the process of tightly connecting dignity to notions of human freedom and political society. God himself decides that the dignity inherent in his creation means that Adam will be free to develop his own nature and power. While thinkers such as John Locke and Adam Smith continued to employ the concept of dignity in a more elitist sense, late in the Enlightenment Immanuel Kant gave it an almost canonical interpretation that remains hugely influential to this day.
For Kant, dignity is integrally related to the basic freedom enjoyed by all. While everything else in nature is in some respects purely governed by causal laws and is thus only contingently good, only human beings possess worth in themselves. This is because we are free to will moral laws without subordinating them to our cruder, more primal impulses. The power to choose our own ends—to be good rather than wicked—raises us above nature (although it also means our wrong actions attain a “radically evil” quality not found in other creatures). This elevated status means it is immoral to simply use people as one might deploy other objects in nature to pursue our own selfish ends. While everything else has a value which can be quantified and traded off against other concerns, human beings possess a dignity which puts them beyond all price. As Kant put it in the Groundwork to the Metaphysics of Morals:
What is related to general human inclinations and needs has a market price; that which, even without presupposing such a need, conforms with a certain taste has a fancy price; but that which constitutes the condition under which alone something can be an end in itself has not merely a relative value, that is, a price, but an inner value, that is, dignity … Morality, and humanity insofar as it is capable of morality, is that which alone has dignity.
The Kantian conception of dignity as related to human freedom is very powerful and rightly influential, and in my book I largely agree with its broad contours. But I also contend that Kant’s understanding of freedom and dignity is too abstract to entirely get to the heart of the matter. In particular, he is unable to explain how, if dignity is intrinsic in every individual, it can ever be fundamentally violated. This is an exceptionally important question; the totalitarian monstrosities of the twentieth century demonstrated how capable human beings are of stripping freedom and dignity away from their victims. Dignity is not inviolable, and to understand why, we need to start recognizing it not as an intrinsic status but on a continuum.
Dignity, Expressive Capabilities, and Self-Authorship
My position on human dignity draws heavily on the work of critical legal theorist Roberto Unger. Unger argues that all human beings exist as individuals embedded in particular socio-historical contexts. These contexts—whether they are traditions, religious faiths, or nations—provide us with a tremendous amount of material with which we shape our identity. Unfortunately, Unger says, we all too often become alienated from these socio-historical contexts when they are presented as naturalized features of the world. We come to think of socio-political, economic, and cultural arrangements as permanent and operating according to an inner necessity which cannot be challenged. However, Unger points out that this is a “false necessity” which is inevitably demonstrated through the flow of time. Human beings are capable of using their creative “context transcending powers” to reform and even entirely reshape the socio-historical contexts they live within. This ability is the most profound exercise of human freedom and creativity and it is integral to the rejuvenation of life.
In the book, I argue that human dignity is best realized through the amplification of such context-transcending powers, which I call expressive capabilities following Amartya Sen and Martha Nussbaum. This is because dignity lies in our total capacity to engage in self-authorship, which I characterize as defining ourselves by redefining the world around us. To the extent someone is capable of such context-transcending acts of self-authorship, they can be said to enjoy a robust degree of human dignity. The downside to this is that many individuals are not really very capable of such acts of self-definition, since they are highly limited by the imperatives of the socio-historical contexts around them. Societies which impose serious limits on the capacities of their citizens to enhance or exercise their expressive capabilities to engage in self-authorship therefore severely curtail their human dignity.
This argument also has a very serious material dimension to it. Expressive capabilities are related to the standard package of classical liberal rights to freedom, since a state which enables individuals’ free expression, association, and so on is amplifying their capacity for self-authorship. However, it is also fundamentally related to social and economic factors which impact someone’s overall capacity for self-authorship. For instance, without access to decent food and water, individuals are seriously curtailed in their capacity to change the world around them. In many respects, they are forced to live a life of severe precariousness which makes it impossible to authentically enjoy even a right to life. States which have the resources to provide all their citizens with access to food and clean water and do not do so are therefore seriously impacting the dignity of their citizens. To invoke Kant, they are effectively saying that the “price” of amplifying even basic dignity for all is too high to pay.
Nothing in my book is meant to suggest that individuals should exercise their expressive capabilities to change the world purely for the sake of it. Many may regard the socio-historical contexts in which they live to be “reasonably just” and only in need of tinkering around the edges. But I argue that many societies today fall short of what is possible in the amplification of human dignity, and many can even be characterized as deeply unjust societies. This is where the more concrete dimensions of my argument come in.
I argue that for socio-historical contexts to be considered just, individuals need to be capable of changing them where necessary through acts of civic freedom. To secure this freedom I argue two basic rights are necessary. These basic rights operate at a higher level of abstraction than the legal rights usually found in constitutions for a reason; they operate like general principles that should guide the formation of more specific positive legal rights and laws. The first right is to democratic authorship of the laws which govern individuals. The second right is to an equality of expressive capabilities except where inequalities flow from non-arbitrary circumstances.
What the first means is that individuals should enjoy a robust capacity to influence law and policy in their society. As Martin Gilens points out, this is often not the case today in nominally democratic societies. Everyone from exceptionally powerful individuals to large corporate entities often wield outsized political influence relative to the mass of people. This has led to speculation that countries like the United States are better categorized as plutocracies rather than democracies. Truly respecting a right to democratic authorship would require a reversal of this trend and offering individuals more ways to participate in governing themselves.
The second right means that individuals should have an equal capacity to exercise their freedom to define the world around them. This would mean rectifying the inequalities which increasingly define many societies, and giving everyone a fair shot at the good life as they understand it. This does not mean that we should aspire for equality of outcome for all, since morally significant factors like the choices of individuals will impact how their life turns out. But it does mean that arbitrary factors, such as whether one is born into a wealthy family or happens to be part of some historically elevated demographic, should not determine where people end up. As the liberal theorist John Rawls might put it, such arbitrary background factors have little to do with the choices individuals may make, but can tremendously impact a life for better or worse depending on how the lottery of life pans out. Realizing the second right would entitle people to counter this arbitrariness when and where it is possible to do so.
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