Abstract
The concept of dignity figures prominently in legal and moral discussion on such topics as human rights, euthanasia, abortion, and criminal punishment. Yet the notion has been criticized for being indeterminate and either insufficient or redundant (or both) in justifying the kinds of legal and moral rights and views its proponents use it to vindicate. The criticisms have inspired some novel conceptions of dignity. One of them is Tarunabh Khaitan’s proposal that dignity should be understood as an expressive norm. In this article, I assess Khaitan’s suggestion. I maintain that it faces two challenges that its advocates should be able to solve for the proposal to be plausible.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
This, of course, is only a rough recapitulation of some of the problems faced by one conception of dignity. For pertinent discussion, both for and against different notions of dignity, see, e.g., Beyleveld and Brownsword (2001), Dan-Cohen (2011), Kaczor (2011), Kretzmer and Klein (2002), Macklin (2003), McCrudden (2008), The President’s Council on Bioethics (2008), Schroeder (2009), (2012), and Varelius (2009).
A significant part of international criminal law and of the criminal law of many individual jurisdictions focuses on the protection of human rights and human rights also often figure in the definition of proper judicial procedure and punishment. For discussion on the relationship between human rights and criminal law see, e.g., Shepherd (2012) and Tulkens (2011).
According to McCrudden (2008, p. 681) “[d]ignity can … be seen as itself a right or obligation with specific content, and not only as the basis for human rights in general, or a catalogue of specific rights. In some jurisdictions, human dignity is recognized as a right enforceable by an individual in the same way as any other right.”
These ideas by Austin have given rise to a considerable amount of discussion pertaining to such questions as how precisely the notions of locutionary act, illocutionary act, and perlocutionary act should be conceived, how the illocutionary force of a sentence or an utterance is to be understood, etc. (see, e.g., Searle 1969; Recanati 1987; Barker 2004). The intricacies of these debates need not concern us here; the above rough characterization of Austin’s ideas suffices for the purposes of this article.
And related legal thinking. For the sake of brevity, I now speak of moral thinking only. For discussion on the relationship between morality and law see, e.g., Dworkin (2011, p. 400 ff.).
As Khaitan (2012) acknowledges, bioethics and the related legislation constitute one area in which the notion of human dignity has recently played a prominent role. Accordingly, as it is impossible to here examine all or even many of the contexts in which dignity figures, I now use the bioethical context as my main, but not the only, example. This is not to say that the bioethical context would necessarily be more important than other areas in which dignity figures or could be employed. Difficulties corresponding to the problems I now point out face dignity in other contexts as well.
Of course, the above mentioned and other existing alternative approaches to those employing the notion of dignity face problems of their own. But that as such does not entail that employing the notion of dignity is necessary in accounting for the illocutionary forces of disrespectful actions. In light of the above considerations, to establish that dignity is necessary in regulating expressive wrongs, it would need to be shown that the problems the other approaches confront are insurmountable or at least of graver significance than those faced by dignity.
Though I now focus on autonomy, the considerations I put forward arguably apply, mutatis mutandis, also in connection with such other values as, say, personhood, humanity, identity, etc.
Though in the previous section I argued that dignity is not necessary in accounting for the disrespectful illocutionary forces of actions for the sake of argument I now assume that it is.
If dignity itself is seen as a good that we should strive after, the problem of justifying dignity arises again; what reasons warrant deeming dignity as that kind of an end?
It could also be objected that, instead of focusing on whether individual uses of dignity or individual practices related to dignity can be justified on utilitarian grounds, here we ought to concentrate on a set of social practices involving the equal expression of respectful attitudes towards people. And whatever reasonable conception of benefit is employed, the objection could proceed, the adoption of such practices will always be justifiable on utilitarian grounds. However, whether utilitarian grounds support the adoption of a set of social practices that requires people to express equally respectful attitudes toward each other surely depends on what society is in question and on precisely what kinds of concrete behavior the norms in question prescribe and prohibit (see also the below remarks on justifying dignity as a general norm).
On the other hand, if the value of autonomy alone suffices to justify the regulation of expressive wrongs related to autonomy it becomes unclear why we need the notion of dignity anymore. In other words, then we face a version of the criticism that the notion of dignity is redundant.
According to Oxford English Dictionary, in one of its senses ‘respect’ as a verb means ‘to avoid harming or interfering with.’ In such a sense of the word, it can be reasonable for a subject to respect even a tyrannical monarch if she otherwise will, say, lose her job or be tortured. But that it is reasonable for her to take such unfortunate facts into account evidently does not entail that she ought to respect the tyrannical monarch in the sense that she ought to value him positively as a monarch. On the other hand, someone might argue that, despite being a tyrant, the monarch deserves the same basic respect that all people merit by virtue of their possessing human dignity. (Cf. also, e.g., Darwall 1977) But in that use too, the notion of dignity is employed to demarcate certain beings, namely humans, that deserve (particular kind of) respect from beings that do not merit (similar) respect.
As already suggested above, according to a central one of what might be called the more traditional conceptions of dignity, dignity is a property rational creatures have in virtue of being rational creatures (see, e.g., Kaczor 2011). Given some plausible conception of rationality, it seems reasonable to deem dignity thus understood valuable and, thus, justifying that conception of dignity does not face the problem Khaitan’s proposal confronts. Yet this kind of a conception of dignity faces a version of the problem of redundancy: if the morally important work is done by the concept of rationality, the notion of dignity would seem to be superfluous.
It might be useful to point out that as the question now is about explaining the value dignity is to have in all cases in which it has value, the consequentialist considerations possibly supporting dignity cannot provide the now needed grounding. An anonymous reviewer suggested that at least in the context of autonomy this other value I am now after is humanity. If I understand it correctly, in this view we ought to express a respectful attitude towards a person’s autonomy because, or when, she is human. I cannot address it here in detail, but I would suggest that this position is troubled by difficulties similar to those threatening the more traditional conceptions of dignity. Assuming that beings other than human(s) can have autonomy, why would only human autonomy merit respect? Or if autonomy merits respect wherever it occurs, why refer to humanity, or even to dignity? Precisely what does the notion of humanity, or dignity, add to the value of autonomy and why? Why not just speak about expressing a respectful attitude towards autonomy? Etc.
See also, e.g., Dan-Cohen (2002, Ch. 5). I now leave assessment of these kinds of possibilities for future.
References
Adler, M. (2000). Expressive theories of law: A sceptical overview. University of Pennsylvania Law Review, 148, 1363–1501.
Amselek, P. (1988). Philosophy of law and the theory of speech acts. Ratio Juris, 1, 187–223.
Archard, D. (2008). Informed consent: Autonomy and self-ownership. Journal of Applied Philosophy, 25, 19–34.
Arpaly, N. (2002). Unprincipled virtue: An inquiry into moral agency. New York, NY: Oxford University Press.
Austin, J. L. (1962). How to do things with words: The William James lectures delivered at Harvard University in 1955. Oxford: Clarendon Press.
Barker, S. (2004). Renewing meaning: A speech-act theoretic approach. New York, NY: Oxford University Press.
Beauchamp, T. L., & Childress, J. F. (2009). Principles of biomedical ethics (6th ed.). New York, NY: Oxford University Press.
Beyleveld, D., & Brownsword, R. (2001). Human dignity in bioethics and biolaw. New York, NY: Oxford University Press.
Capron, A.M. (2003). Indignities, respect for persons, and the vagueness of human dignity. British Medical Journal, Rapid Response, www.bmj.com/rapid-response/2011/10/30/indignities-respect-persons-and-vagueness-human-dignity.
Dan-Cohen, M. (2002). Harmful thoughts: Essays on law, self, and morality. Princeton, NJ: Princeton University Press.
Dan-Cohen, M. (2011). A concept of dignity. Israel Law Review, 44, 9–23.
Darwall, S. L. (1977). Two kinds of respect. Ethics, 88, 36–49.
Dunn, P. H. (2003). How judges overrule: Speech act theory and the doctrine of stare decisis. The Yale Law Journal, 113, 493–531.
Dworkin, G. (1988). The theory and practice of autonomy. New York, NY: Cambridge University Press.
Dworkin, R. (2011). Justice for hedgehogs. Cambridge, MA: Harvard University Press.
Gur-Arye, M. (2012). Human dignity of “offenders”: A limitation on substantive criminal law. Criminal Law and Philosophy, 6, 187–205.
Harris, J. (1985). The value of life: An introduction to medical ethics. London: Routledge.
Kaczor, C. (2011). The ethics of abortion: Women’s rights, human life, and the question of justice. New York, NY: Routledge.
Khaitan, T. (2012). Dignity as an expressive norm: Neither vacuous nor a panacea. Oxford Journal of Legal Studies, 32, 1–19.
Kretzmer, D., & Klein, E. (Eds.). (2002). The concept of human dignity in human rights discourse. The Hague: Martinus Nijhoff Publishers.
Macklin, R. (2003). Dignity is a useless concept. British Medical Journal, 327, 1419–1420.
McCrudden, C. (2008). Human dignity and judicial interpretation of human rights. European Journal of International Law, 19, 655–724.
McKenna, M. (2005). The relationship between autonomous and morally responsible agency. In J. S. Taylor (Ed.), Personal autonomy: New essays in personal autonomy and its role in contemporary moral philosophy (pp. 205–234). New York, NY: Cambridge University Press.
Parliament of United Kingdom (2006). The racial and religious hatred act. Available at: www.legislation.gov.uk/ukpga/2006/1/pdfs/ukpga _20060001_en.pdf).
President’s Council on Bioethics. (2008). Human dignity and bioethics: Essays commissioned by the President’s Council on Bioethics. Washington DC: The President’s Council on Bioethics.
Recanati, F. (1987). Meaning and force: The pragmatics of performative utterances. New York, NY: Cambridge University Press.
Ripstein, A. (2006). Beyond the harm principle. Philosophy & Public Affairs, 34, 215–245.
Schroeder, D. (2009). Dignity: One, two, three, four, five, still Counting. Cambridge Quarterly of Healthcare Ethics, 19, 118–125.
Schroeder, D. (2012). Human rights and human dignity: An appeal to separate the conjoined twins. Ethical Theory and Moral Practice, 15, 323–335.
Searle, J. (1969). Speech acts: An essay in the philosophy of language. Cambridge: Cambridge University Press.
Shepherd, J. D. (2012). A human right not to be punished? Punishment as derogation of rights. Criminal Law and Philosophy, 6, 31–45.
Sunstein, C. (1996). On the expressive function of law. University of Pennsylvania Law Review, 144, 2021–2053.
Tulkens, F. (2011). The paradoxical relationship between criminal law and human rights. Journal of International Criminal Justice, 9, 577–595.
Varelius, J. (2009). Minimally conscious state and human dignity. Neuroethics, 2, 35–50.
Acknowledgments
I thank two anonymous reviewers of this journal and Juha Räikkä for valuable comments. The writing of this article was financially supported by a research grant from the Academy of Finland for which thanks are also due.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
About this article
Cite this article
Varelius, J. Two Challenges for Dignity as an Expressive Norm. Criminal Law, Philosophy 6, 327–340 (2012). https://doi.org/10.1007/s11572-012-9175-8
Published:
Issue Date:
DOI: https://doi.org/10.1007/s11572-012-9175-8