The Need for Agreement About the Substantive Account of Dignity Being Invoked by the Law

Brown “does not purport to definitively determine the source, nature, relevance and meaning of the broad concept of ‘dignity’ as it exists in legal or ethical thought.”^{Footnote 5} He nonetheless goes on to assert that dignity, whatever it is, is stoutly protected by the actio iniuriarum. This is not as problematic in the context of a legal discussion as it might at first seem, because the law does not require philosophical exactitude in order to perform its very limited function. Brown recognizes this as he cautiously adopts Graeme Laurie’s definition of dignity as “the state or quality of being worthy of respect.”^{Footnote 6} By dignity Brown means: “a nonpatrimonial interest entitling all legal persons to be treated, in all circumstances, with respect.”^{Footnote 7} It is inviolable, he says, but one can waive one’s right to raise an action in respect of breach to dignity. This definition, Brown says, “remains general, yet is still specific enough to permit the pursuit of remedies in respect of infringement of dignity in the courts.”^{Footnote 8}

Brown is correct to say that a definition of this degree of generality will suffice for the law. But he is wrong to assert that the general definition he proposes is sufficient.

Brown and Laurie’s identification of dignity with the idea of respect for persons of course recalls Ruth Macklin’s broadside against dignity. “Dignity is a useless concept”, she said, “A close inspection of leading examples shows that appeals to dignity and other vague restatements of other, more precise, notions, or mere slogans that add nothing to an understanding of the topic.”^{Footnote 9} And for her, dignity is nothing over and above “respect for persons or for their autonomy.”^{Footnote 10}

I have set out elsewhere my reasons for saying that Macklin is wrong exegetically in her conclusion from her “inspection of leading examples,”^{Footnote 11} and her implication that “respect for persons” or “autonomy” are “more precise” notions than dignity. But she is surely right to say that if dignity is nothing more than “respect for persons” or for autonomy, one should stop using the word ‘dignity.’ Dignity, in order to justify a place in ethical and/or legal discourse, needs to demonstrate that it brings something distinct.

I have contended, perhaps extravagantly, that not only does it add value, but that it is the ultimate value: the parent principle, from which spring subsidiary notions such as autonomy, beneficence, nonmaleficence, justice, and respect for persons, and which must condition all the ways in which these lesser notions are allowed to behave in practice. This contention is derived exegetically: I cannot justify it again here. But it depends on a view of humans as quintessentially relational and embodied.

The criterion of embodiment will not be controversial, although some of its corollaries may be. The criterion of relationality, conversely, is highly controversial, and contrary to the zeitgeist in bioethics, western politics, and economics. Dignity, I contend, is objective human thriving. To behave with dignity is to approximate as nearly to the objective criteria for human thriving as circumstances allow. This might be described as the project and process of humanization. It is central to this contention that humans can only thrive in relationship. Hermits do not thrive.

This criterion of relationality is not necessarily present in Brown’s tentative definition of dignity. His definition is consistent with an atomistic conception of the human person—which is the antithesis of the conception at the root of my view of human dignity.^{Footnote 12} When used in the context of the law, however, his definition is saved from being disastrous simply because the law necessarily legislates for persons embedded in the relational nexus that we call society, or the body politic. Hence the function of the law itself provides the model of the person that Brown’s definition signally fails to supply.

In many legal contexts, Brown’s definition will generate the same solution as the definition that I argue is correct. And for that matter, as I illustrate below, the law, unassisted by any express reference to dignity, will often reach a dignitarian conclusion. But there are some situations where the definition matters. This is particularly true in relation to issues about the regulation of human enhancement technologies, where the meanings of ‘human’ and ‘person’ come squarely into focus. If ‘respect for persons’ is the sole guiding principle, when one comes to deploy it to say (for example) whether or not an identity-altering intervention is permissible, one will necessarily have to expound ‘person’ and ‘respect’ in ways that borrow so copiously from dignity theories that the final account is inescapably dignitarian.

Laws are intrinsically offensive. Most of them interfere with our autonomy. The law of contract says that I must not change my mind about an agreement. The criminal law says that I must not drive my car at the speed I choose. The law of tort says that I have to take care in driving, when I might otherwise choose to be careless.

These sorts of interferences require very strenuous justification. There are, broadly, two types of possible justification. One is that an atomistic individual, on the basis of some calculations about the benefits of society v. the detriments of the surrender of self-sovereignty, or (more likely), on the basis of unreflective acquiescence to the situation in which she finds herself, has decided that the balance comes down in favour of membership of society, and accordingly signs the social contract, agreeing to the club rules (including the penalties for infringement).

This model is objectionable on many levels. It insults both the calculator (labeling her desire to participate in society essentially selfish: a type of reciprocal altruism) and the acquiescer (implying that her passive assent is less praiseworthy than the selfishness of the calculator and accordingly that she deserves less of a voice in any discussion about the shape and direction of society). It fails to recognize that most of us have little choice: that we have signed the social contract under duress of a degree that in any other context would vitiate the agreement. It is too neat: it is the sort of explanation that occurs when one seeks to press a prefabricated template on to the variegated jungle of human life and relationships. It is based, in other words, on no remotely credible account of the nature of human beings and human being. Credible ethics and law presuppose credible anthropology. If one has no coherent account of the human being, it is hardly likely that one will have a coherent account of the relationships between human beings that constitute a society.

The second type of justification for the law is the one based on the assumption that humans are intrinsically relational creatures; that it is not possible for them to thrive outside society; and that society, therefore, is not an institution that one should accept only grudgingly, on balance and after mature consideration of the alternatives, but rather the point, or an expression of the point, or somehow intimately bound up with whatever the point is, of human living. That this is the case is a consequence of some invariable facts about humans—facts which coalesce into an inalienable status.

This is the justification offered by dignity and it is, I suggest, far more concordant with our intuitions about and our observations of ourselves and our societies than the alternatives. It means that we will not breach contracts, or speed, or be careless, because it is not good for us: the boundary between ourselves and our neighbours is, if not illusory, at least blurred and porous. Even if this is not true as a matter of ontology, it should be true as a matter of ethics, and since the only possible justification of law is that it promotes human thriving (a project in which ethics will play a prominent part), a legal system that promotes this view of human relationships will be one which is doing its job. Mountfield and Singh observed that dignity is “Janus-faced.”^{Footnote 13} If X violates Y’s interests, Y’s dignity might possibly be violated, but X’s dignity certainly will be. This is a cogent way of expressing the vibrant reciprocity that should be at the core of all societies ruled by law, and hence of the principle that should be at the core of all law.

So: dignity, as articulated in expressly relational terms, is (at least covertly) at the root of all justifiable laws. Sometimes, in order to do justice, it will be necessary to speak expressly in terms of this relational account of dignity. To embark on law-making or the exposition of law without making clear just what one means by dignity is, at best, unwise.

It is Dangerous to Use the Idea of the actio iniuriarum Without Prior Agreement About the Dignity Interests that it Purports to Protect and Vindicate

In each of the examples of the use of the actio iniuriarum given by Brown, the legal answer is plainly right—by which I mean, self-servingly, that it is the answer that would be given were the judges directing themselves that the dignity interests in play were dignity interests articulated in the way that I would articulate them.

As I have indicated above, this is likely to be the case with respect to most legal solutions offered by modern judges in modern democratic states to most problems before them. I have said, too, that there will be some legal problems on the wilder frontiers of bioethics where this will not be the case, and where the judges will have to use a more philosophically fine-grained view of dignity than is usually necessary. But the open-endedness of the notion of the actio iniuriarum gives cause for concern even in the context of more mundane legal problems. Who is to say that a defendant’s action has compromised or threatened my dignitas? Me? Am I the sole definer and delineator of my dignitas? And if my dignitas has indeed been compromised or threatened, who is to say that this compromise or threat is of a degree such as to justify a legal remedy? Me? Even to a common lawyer, used to and welcoming the idea of judicial creativity, the actio iniuriarum rings alarm bells. It seems like a licence for (for instance) the suppression of free speech. To be able to insult is, up to a point, a facility that should be protected by the law.

The prophylactic against these dangers is the idea of dignity that I have advocated. The dangers cannot be prevented by saying simply that persons should be respected. That averment begs far too many central questions. But if one sees the shape of both claimant and defendant (and hence their interests) as defined by the beneficent pressure of the individuals surrounding them in their societies, and their interests as necessarily reciprocal, one will conclude that it is good (up to a point) both for the insulter to insult, and for the insultee to be insulted. Indeed one will not distinguish radically between these two goods: they are the two sides of the same relational coin.

The qualification ‘up to a point’ is a course a vital one, and one difficult to determine. But the dignity analysis assists in that determination in a way that (for instance) the ‘respect for persons’ analysis cannot.

The Law Often Protects Dignity Interests Adequately Without a Sophisticated Dignity Analysis

I have touched on this point already, and have explained why the assertion does not undermine my basic contention that the law would be better if it were more expressly based on a communitarian notion of dignity. To put it another way, the law, because it compels, and because society should not lightly compel, should always demand less in terms of behaviour than will (for instance) professional ethics.^{Footnote 14} It does not follow necessarily, but in fact is the case, that the law will often be able to get by with less rigorous formulations of its key ideas than would be acceptable to moral philosophers.

It should therefore not be surprising that the law has often reached conclusions identical to those that would be reached by explicit and sophisticated reference to human dignity. This is because philosophical notions are generalized and roughened into rules of thumb by the time they reach the courts, and also because the law, being (however atomistic its focus) the law for everyone, necessarily imports some conception of societal interest and relational anthropology into its substantive conceptions.

As I have already acknowledged, Brown gives some very good examples of this. But if and insofar as he suggests that the actio iniuriarum (and the Protection from Harassment Act 1997) is unusual in this respect, he overstates his case. It is not unusual at all: it represents the rule. It is far harder to identify exceptions to the rule than it is to establish the rule itself. One might say that the whole of public law—particularly well exemplified by the criminal law—aims to (and by and large in England and Scotland does) protect dignitas. Dignitas is the core interest at stake in all offences against the person, all sexual offences, arguably all or most offences involving dishonesty or damage to property, and so on. Most noncriminal public law can coherently be described as a system for protecting the dignitas of the individual as against public authorities. The same can be said for most of the law of tort and contract. Even if some degree of mens rea is or should be an ingredient of an action based on actio iniuriarum, a qualifying degree of mens rea is present in all or most of the ‘intentional torts’ and is likely as a matter of fact to be present in most cases of actionable breach of contract.

In my original article I argued that the idea of property, as it is classically understood in the law, could not capture the real outrage associated with the misuse of human body parts. Brown agrees. I stand by that contention. But it should not be taken as representing despair at the idea of the law as a whole dealing adequately with that outrage, or as suggesting that an idea from the outside (such as the actio iniuriarum) needs to be imported into the English law. Property is an idea uniquely—or at least unusually—unsuited to capturing anything that is really fundamental to human thriving.

Article 8 of the ECHR is the Natural Legal Vehicle for the Idea of Human Dignity

My original article in this journal made the case for this contention, pointing out that the balance between the interests of the individual in Article 8(1) and the wider societal interests in Article 8(2) reflects accurately the socially defined and embedded nature of the human individual that is described by a dignity analysis.

In Pretty v. United Kingdom the court said: “The very essence of the Convention is respect for human dignity and human freedom. Without in any way negating the principle of sanctity of life protected under the Convention, [the case concerned end of life decision-making] the Court considers that it is under Article 8 that notions of the quality of life take on significance.”^{Footnote 15}

The phrase “notions of the quality of life” would seem to encompass most matters relating to human thriving—and accordingly to embody the concept of human thriving at the centre of my proposed definition of dignity. Aharon Barak comments that “[t]he accepted view is that human dignity is the underlying value of the convention. It serves as a basis for all of the rights determined within it. It is also used in the interpretation of the provisions of the convention.”^{Footnote 16}

The centrality of dignity to the ECHR is perhaps surprising in the light of the fact that, unlike most comparable instruments (and notably unlike the Universal Declaration of Human Rights, which repeatedly refers to dignity,^{Footnote 17} and which the ECHR expressly purports to implement^{Footnote 18}), the Convention itself makes no express reference to dignity. One might expect to find it in the preamble, alongside reference to ‘fundamental freedoms’, ‘justice’, ‘peace’ and ‘effective political democracy.’ It is not there.

This curious absence is probably a reflection of the drafters’ concern to ensure that the ECHR was a practical instrument rather than a mere declaration.^{Footnote 19} The Universal Declaration had declared: the function of the ECHR (as the preamble notes) was to make the Declaration work. At the time that the ECHR was drafted, little work had been done on the substantive meaning of dignity. The word ‘dignity’ appears as a placeholder in many of the post-Second World War instruments, but never, in those instruments, is there any attempt to explicate its meaning. There was probably concern that to use the word ‘dignity’ would be mere window-dressing.

But it soon became clear—for some of the reasons outlined in my original article—that dignity was not hopelessly amorphous. Indeed it was indispensable. It was sometimes the only way to realise the more obviously substantive rights described in the Universal Declaration and in the ECHR itself. It has been repeatedly and increasingly used by the Strasbourg Court.^{Footnote 20} Barak observes, in the context, inter alia, of discussion of the ECHR, that “[o]ver the years, human dignity’s effect has intensified in Europe…”^{Footnote 21}

Breaches of human rights are actionable in UK law under the Human Rights Act 1998. There are many claims for compensation and other remedies under the Act, and the machinery for obtaining remedies works well.

Plugging the Gaps Left by Article 8

Article 8 is, of course, not a universal panacea for all violations of dignity. It can be invoked only against public authorities and signatory states. It would help in only one of the three scenarios discussed: the child’s heart case—and then only if the heart had been retained by an NHS body.

This is Brown’s strongest point—although he does not make it expressly. But it is hardly an argument for the actio iniuriarum, which is an invitation to judges to become unfettered legislators. Primary legislation, inspired by the dignity principles binding on public authorities and articulated in the Universal Declaration of Human Rights and the ECHR, is needed.

England has its own common law offence (“outraging public decency”) which will cover many scenarios comparable to those in the articles.^{Footnote 22} It has been used, for instance, for prosecuting the display of earrings made from human foetuses^{Footnote 23} and (in the distant past) disinterring a corpse for dissection,^{Footnote 24} and exhibiting a picture of sores.^{Footnote 25} The Law Commission has suggested that it should be made a statutory offence covering any act or display of an obscene or disgusting nature sufficient to outrage contemporary standards of decency.^{Footnote 26} Such proposed legislation is undoubtedly feasible. While the proposed legislation does not meet all the concerns identified by me and by Brown, it shows that further dignity-inspired legislation can.

The Strasbourg court has shown the utility of and necessity for dignity, and has demonstrated how dignity can be used in a legal context without unacceptably truncating the autonomy of those against whom it is invoked. National legislatures should learn these lessons and apply them, enacting primary legislation that covers the areas where dignity is needed, but which the ECHR does not reach.