Human Dignity and Law

I've previously published an article (abstract here) that argued that human dignity was the foundation or, in Aristotelian terms, the material cause of human rights. In turn, I grounded human dignity in humanity's creation in the image of God. Late in 2011 Jeremy Waldron published a piece (abstract here): How Law Protects Dignity. (In case you're wondering, yes, I've blogged about Waldron before but on precedent and constitutional law, not human rights. See here and here.)

Waldron begins by noting that references to dignity often amount to rhetorical hot air, "when people want to sound serious but are not sure what to say." On the other hand, Waldron observes that when he uses "dignity," he means that humans have a certain status, which sounds like what I contended. However, Waldron immediately goes on to ground the status that entails dignity not in some substantial attribute of humanity but because a human person

Is recognized as having the ability to control and regulate her actions in accordance with her own apprehension of norms and reasons that apply to her; it assumes she is capable of giving and entitled to give an account of herself (and of the way in which she is regulating her actions and organizing her life), an account that others are to pay attention to.

In short, humans have dignity because they have certain capabilities. (Martha Nussbaum would agree; I don't.) But Waldron isn't falling into a simple "capabilities" approach; he knows what I'm talking about when he considers and rejects an image of God approach to the question he's addressing.. Rather, Waldron means to describe the concept of dignity as it appears and is actually used in the law; his approach is an interesting blend of the analytic and the normative.

To the extent that a legal system affords any room for action to the individual, whether as a claimant in what is commonly understood as private law or even as a defendant in a criminal action, the law affords the human person an opportunity to state a claim of right. I have a right to correction of an injustice done to me and a right to defend against charges brought against me. It is in the fundamental "rights-stating" capability that Waldron finds the necessary relationship between dignity and law. Simply subjecting human conduct to rules means that there is an inner morality of law as law; law presumes dignity. Human can be treated as herds of cattle, and hence without dignity, but as soon as they are subject to law they are treated as agents and thus as having dignity.


The existence of some sort of trial before some sort of tribunal is the clearest evidence of Wadron's dignitary understanding of human rights inhering in law. It is not as thought people are not regularly abused without any sort of legal process, they regularly are so deprived. It is that they are so deprived by the absence of law. (We might want to note at this point that the first trial recorded in the Bible is that of Adam and Even in the Garden where God provided them with notice of the charges against them, an opportunity to defend themselves, and an impartial judge as well as punishment according to known law.) As Waldron puts it,

Applying a norm to a human individual is not like deciding what to do about a rabid animal or a dilapidated house. It involves paying attention to a point of view and respecting the personality of the entity one is dealing with. As such it embodies a crucial dignitarian idea—respecting the dignity of those to whom the norms are applied as beings capable of explaining themselves.

One might infer that if God himself is subject to such process, then God recognizes human dignity, and we should too. Of course, the nature and extent of the appropriate extent of process that should be afforded is culturally and historically contingent. Yet Waldron contends--and here we agree--that the form of law mandates some process and that process both evidences and instantiates dignity.

Human Dignity In Bioethics

A few weeks ago I linked to a piece of my own here in which I argued that the reality of human dignity is a condition necessary for a meaningful concept of human rights, and that a Christian account of human dignity is solidly grounded in the image of God in human beings. Nothing new in either point but I hope that my analysis of exactly what about the image of God entails human dignity will prove helpful.

Enter Zack Calo. In his recent piece, Human Dignity and Health Law: Personhood in Recent Bioethical Debate (abstract here), Calo does not enter into an exegetical or even theological argument but instead focuses on how different views of the nature of human dignity play out in the specific context of genetic engineering. He does so by engaging in a close reading of relevant works by Ronald Green (Babies by Design), George Kateb (Human Dignity), Gilbert Meilaender (Neither Beast Nor God), Robert George and Christopher Tollefsen (Embryo). Michale Sandel (The Case Against Perfection), and Jürgen Habermas (The Future of Human Nature).

Calo begins with the claim that "human dignity proved largely uncontroversial in the human rights context because it served as an unexamined background assumption that undergirded the established values of the human rights movement." Perhaps this is so by comparison to the focus of his piece, bioethics, but I believe even in the field of human rights conflicting understandings of dignity have equally "accentuated deep and fundamental ethical cleavages concerning the nature of personhood." But this is little more than a quibble.

Calo's readings of such a broad array of contemporary thinkers from diverse and in fact opposing perspectives is impressive. I made use of Meilaender's Neither Beast Nor God and found in Calo a like-minded interpreter. Calo also creates a useful typology of bioethical approaches: those grounded in human rights (Green and Kateb), those who start with a distinctively religious notion of human dignity (Meilaender), and those who begin instead with a non-religious perspective on human dignity (George/Tollefsen, Sandel, and Habermas). I have long found a great deal of value in the works of Habermas and I personally found Calo's development of his and Sandel's works the most interesting of the lot.

While I argued that explication of what accounts for human dignity can be an important wedge in discussions of human rights, Calo suggests otherwise, at least with respect to bioethics: "If one thing has become clear from current bioethical debate, it is that there should be modest expectations for the role of human dignity." But perhaps our differences are only a matter of style rather than substance because Calo goes on to remark that "human dignity is better employed as a vehicle for advancing a critical dialogical encounter, rather than as a locus for the reconciliation of competing anthropologies."

Whatever may ultimately be my disagreement with Calo, I can and do heartily commend his piece to everyone interested in the best approaches to the issue of human dignity in bioethics.

All We Are Saying, Is Give Contracts A Chance

What can be said to someone who believes that the lack of explicit biblical authorization for civil remedies for breach of contract means there should be no such remedies?  My McGeorge article makes an argument for civil remedies based on three well-established Christian doctrines.  The cultural mandate of the first chapter of the book of Genesis places a divine mandate on humanity to exercise dominion over the world.  World-wide dominion/cultivation/stewardship can only be accomplished cooperatively; thus, the Scriptures justify the social practice of contracting.  Contracting presupposes agency, and human agency is grounded in a second traditional Christian doctrine: creation in the image of God.

Finally, the doctrine of sin--the universal propensity of humans to act opportunistically--accounts for the need for contract law.  If human beings have the power to contract and the duty to cultivate but some act to subvert the practice of contracting by breaching, it follows that a form of enforcement, a remedy, is warranted.  Should State-enforced civil remedies be the only forum for contract remedies?  Absolutely not.  But is the State warranted in providing such a platform?  Seems clear enough to me.