Human Dignity as a Sui Generis Principle

• Published date: 01 December 2019
• Author: Stephen Riley
• DOI: http://doi.org/10.1111/raju.12258
• Date: 01 December 2019

© 2019 The Author. Ratio Juris © 2019 John Wiley & Sons Ltd.

Ratio Juris. Vol. 32 No. 4 December 2019 (439–454)

Human Dignity

as a Sui Generis Principle

STEPHEN RILEY*

Abstract. This paper argues that human dignity is a sui generis status principle whose function

lies in unifying our normative orders. More fully, human dignity denotes a basic status to be

preserved in any institution or process; it is a principle demanding determination in different

contexts; and it has its most characteristic application where the legal, moral, and political place

competing obligations on individuals. The implication of this account is that we should not seek

to reduce human dignity to either a legal norm or a legal principle.

1. Introduction

Talk of human dignity’s special importance in our constitutions and in our thinking

about law as a whole is widespread. But without a jurisprudential theory explaining

why human dignity is more than a norm this talk will remain indeterminate and

rhetorical.

My conclusion is that human dignity is a principle, but one distinct from our nor-

mal characterisation of legal principles. It generates decisions, or is given determi-

nation, when our normative orders—i.e., law, morality, and politics—are in dispute.

The normative and doctrinal implications of this are that some, though not all, of our

common regulative uses of human dignity will become difficult to defend. The phil-

osophical conclusion is not only that human dignity is inconsistent with prevailing

theories of legal principles, but that it is sui generis in that this inconsistency arises

from a distinctive function related to normative ordering as a whole. Only this char-

acterisation satisfactorily connects our foundational ideas to at least a proportion of

human dignity’s existing regulative uses.

The guiding question used to reach this conclusion is how human dignity might

be said to be a “foundation.” The ascription of foundational status to human dignity

is commonly found in human rights law, constitutional law, and other legal contexts.

It remains contested what this means and whether human dignity is foundational in

the same way for different fields of regulation. The most general form of this question

of foundations is whether and how human dignity is foundational (i.e., necessary)

* Versions of this paper were presented at Utrecht University, Strathclyde University, and the

University of Leicester. My thanks for questions and suggestions received at those events and

for detailed comments by Dr. Clark Hobson and reviewers at Ratio Juris. Any remaining faults

are mine alone.

Stephen Riley

440

Ratio Juris, Vol. 32, No. 4© 2019 The Author. Ratio Juris © 2019 John Wiley & Sons Ltd.

for certain laws and, conversely, if and how law is foundational (i.e., necessary) for

human dignity. Clarification of the relationship between human dignity and law will

lie partly in how we understand it as a principle within a theory of legal principles

(Section 6). In part it will require explaining and justifying how foundational can mean

“extralegal” (Section 5). And, in part, conjoining law and human dignity requires

understanding how the existing law of human dignity can and should feature in

philosophical reflection (Section 4). But law’s own claim to be a necessary condition

for human dignity must be found in isolating that part of human dignity that is nec-

essarily related to justice. This will be the concern of the next two sections.

2. Human Dignity as Concept

The present paper does not survey the vast and growing literature on the concept

of human dignity in ethical and legal discourse (see Daly 2012; Debes 2017; Düwell

et al. 2014). It is concerned, rather, with coherence between ethical and legal dis-

course. This section outlines, without fully defending, a concept of human dignity

that will be later defended as the product of a more comprehensive reconstruction.

An initial distinction separates human dignity as a justice-based concept from

human dignity as a virtue-based concept. Assuming that this distinction is defensible

(it is challenged in Hennette-Vauchez 2011), there are good reasons to favour charac-

terisation of human dignity in relation to justice. Aligning human dignity with justice

not only yields other-regarding (rather than self-regarding) duties but it already com-

mits us to a certain view of practical reason within our normative orders, namely, that

those orders should be made to respect the basic status of individuals (Brownsword

2014; Neal 2014). Moreover, it relies neither on philosophical anthropology nor on

contractarianism for its defensibility. That is, defence of a justice-centred concept

of human dignity can rely exclusively on ideas and practices immanent in contem-

porary human rights discourse without relying on positive law, or on contractual

claims, or on species-based claims (see Kateb 2011, also Section 5 below).

A second distinction within a justice-based concept of human dignity is whether it

must be articulated as a value or as a status concept. The first would relate to axiol-

ogy and requires an account of what we should value and how, particularly how the

value of agents and their ends should feature in our deliberation. The second would

relate to principles of rights-conferral, autonomy, and respect. The reason why we

should favour the second is found in the ambiguous relationship between human

dignity and Kantianism. If ethical and legal discussion have an agreed meeting point

it is that human dignity’s significance lies in the demand to “[a]ct in such a way

that you always treat humanity, whether in your own person or in the person of

any other, never simply as a means, but always at the same time as an end” (Kant

1948, 91; emphasis removed). This relates to certain foundational commitments es-

tablished by Kant in his Groundwork (1948), but this has been adopted in a much

simpler form as the basis of various regulations in law. That is, lawmakers and judges

have taken this idea to mean that we should directly prohibit the objectification or

instrumentalisation of individuals (see Enders 2018). For Kant (1948, 96–7) “dignity”

was foundational in expressing the possibility of unconditional ends, i.e., categorical

imperatives. But it was not intended to be translated directly into legal prohibition

of treating others as mere means. It was intended as a test for individuals to apply

to their maxims for action. We, and the courts, treat this prohibition as foundational