1.1 History

In order to begin to delimit the complexity of the debates surrounding dignity, we can sketch a simplified history from its etymological roots in Latin to the post-1945 international legal order. The Latin term dignitas denotes both the status of an individual (a ‘dignitary’) and the bearing associated with that status (Agamben, Reference Agamben2002, p. 66). This bivalence grows from distinct legal and ethical currents within Roman thought. On the one hand, the aristocratic ethics of Stoicism centralised dignified bearing as part of its holistic socioethical interpretation of Socratic and Stoic Greek philosophy (Cicero, Reference Cicero and Walsh2000, p. 44). It is also linked, through Roman law, with ‘persona’, with its Latinate origins in the ‘mask’ that the individual adopts as an individual with juridical status within a court of law (Cancik, Reference Cancik, David and Eckart2002, p. 21). Thereby (Stoic) aristocratic self-control became entwined, through the Roman legal development of the ius honorarium (providing legal standing regardless of social status) and ius gentium (universal legality), with the pragmatic extension of legal standing to slaves (Lee, Reference Lee1956). From these currents dignitas ultimately came to denote both a (normative) demand for, and the (factual) possibility of, a universal legal status and a shared form of human behaviour. The Renaissance mixed this Latinate inheritance with the notion of man as imago dei – man made in the image of God – in order to stress the elevation of the species as a whole; the ‘dignity of man’ asserted humans’ elevation, including their dominion over nature, within this worldview (Kristellar, Reference Kristellar1979, p. 173). In the revolutionary era this was progressively democratised and materialised, and human dignity was accomplished through both the metaphysical elevation of man and, more concretely, the levelling of the station between common man and aristocrat (Paine, Reference Paine1791/1969, p. 194). The philosophical origins of these political developments lie in the Enlightenment, which, through Kant in particular, sought to derive man’s dignity from autonomy and rationality rather than revealed religion (Hutchings, Reference Hutchings1972). Whether or not Kant was successful in this, it can be said that, premised as it is on centralising human autonomy, the Enlightenment gave rise to a fully democratised ‘human dignity’ shifting between two slightly different arguments: autonomy as a distinguishing characteristic evidencing an already qualitatively different mankind from animals, or, rationality as the origin of autonomy providing a self-contained ground of dignity (Kant, Reference Kant and Paton1785/1948, pp. 97f.).

In spite of, or perhaps because of, this ambiguous legacy, dignity became a key normative principle in the post World War II international arena (Glendon, Reference Glendon2001). As a foundational norm within the United Nations, its organs and the rule of law it promulgated, human dignity served to signify that moral consensus, indeed universality, was the necessary response to the war’s atrocities. International legality was premised on a shared commitment to the value of the individual over and above the interests of the state. Such value does not always have clear political or moral correlates, but it does have clear legal consequences in requiring that all members of the international community work to prohibit the worst excesses possible in war (international humanitarian law) and to observe minimal standards of civil, political and social recognition (international human rights law). These bare commitments to an international rule of law, articulated through an appeal to human dignity, continue to have a rich, though not uncontested, life within international and domestic legal discourse.

In fact, the relative stability of human dignity claims within public international law is potentially misleading. A term’s having global discursive currency does not entail its garnering universal assent, nor does human dignity’s definitional universality necessarily entail global significance. Consideration of dignity in terms of its connotations of bearing, grace and aristocracy forms a more philosophically complex starting point to outline the full range and scope of contestation that dignity has generated. These aristocratic or behavioural connotations are problematic for any theory that associates dignity with universality – aristocratic status cannot be, by definition, a universal property – and emphasis on them is a strategic move in criticising the use of dignity (Pinker, Reference Pinker2008). Most radically it has been claimed, on the basis of these aristocratic connotations, that there can be use, indeed an increase in the use, of dignity within highly hierarchical or stratified societies. Note that this, prima facie, accords with the assumption that discourses of dignity have evolved in culturally specific ways rather than its having a stable ‘universal’ core. And it is clearly plausible that very different functions arise from an etymologically complex word like ‘dignity’. However, this ‘evolutionary’ narrative seems to deny us any critical purchase if we wish to distance ourselves entirely from ‘aristocratic dignity’: it is the same word, albeit made to function in a way unhelpful for discussion of normative universality. If, however, we reject any continuity between ‘aristocratic dignity’ and ‘contemporary dignity’ we may be therefore obliged to deny that there is any conceptual or normative continuity in dignity claims at all. It places us in the position of either accepting radical indeterminacy in meaning (i.e. accepting dignity simply means whatever people say it means), or, conversely, stipulating that certain conceptions of dignity should be privileged as primary or definitive. Neither of these positions, certainly without further justification, is satisfactory.

1.2 Comparative and conceptual debates

From this complex history, bound up as it is with anthropology, theology, ethics and law, it is not surprising that dignity is a locus of debate and heavily contested. Dignity is a valuable prize. Because of its conclusory air (appeal to dignity simply feels or appears decisive and definitive) it can be deployed as a normative vanishing point where debate has to end. Accordingly, contemporary debate concerning dignity takes place in a number of fields, within which dignity appears crucial and normatively decisive (Malpas and Lickiss, Reference Malpas and Lickiss2007). I will focus on two predominantly legal academic debates: a comparative debate concerning the function of dignity (this centres upon problems concerning the functional variations of dignity), and a conceptual debate concerning the content and bases of the notion of dignity (this generates problems concerning the normative stability of dignity). These will be considered respectively.

An intriguing set of problems is generated within a recent comparative discussion of dignity within nineteenth- and twentieth-century German law. It is suggested by James Q. Whitman that, moving away from the social inequalities of the nineteenth century, and in particular as a means of controlling the (pseudo-)aristocratic practice of duelling, German law increasingly afforded locus standi to working men to settle honour differences and honour slights (2000; 2003). This access to what now might be classified as ‘personality law’ was increased, not as we might expect reduced, by the Nazis coming to power. The Nazi preoccupation with honour led to the creation of popular ‘people’s’ courts wherein honour claims could be contested regardless of the class of the claimant. In fact, the courts were often used for workers to claim that they had been harmed or slighted by managers who should have been exercising respect for workers through leadership responsibilities delegated from, and vicariously exercised by, the Fuhrer himself (the ‘Führerprinzip’) (Whitman, Reference Whitman, Christian and Ghaleigh2003, p. 256). This affording of legal standing is, of course, not purely egalitarian – this honour, and this form of legal recognition, is open to Aryans only. It is nonetheless a recognition, within working men and women, of something resembling aristocratic honour. Consequently, says Whitman, the 1949 German Basic Law’s lauding of human dignity as the first principle of the constitutionFootnote ¹ and dignity as the apex of the constitution’s ‘objective values’, evidences continuity not discontinuity with the Third Reich. Conversely, two scholars – Gerald Neuman and Roger Cotterrell – engaging with Whitman, contest this assertion of continuity and its implicit undermining of a break between pre- and post-war German law. Cotterrell explores Whitman’s position as a comparativist and suggests that certain background assumptions equating civility with a distinctively American conception of liberty lead him inevitably to a denigration of European legal cultures (Cotterrell, Reference Cotterrell, Esin and David2007). Neuman argues that Whitman has construed the scope of dignity claims too specifically, leading to a counter-intuitive conclusion: ‘in post-War discourse, the obligation to respect human dignity signifies a minimum level of treatment owing to all persons […] I doubt that older norms of social honour can provide […] guidance for this purpose’ (Neuman, Reference Neuman, Christian and Ghaleigh2003, p. 273, emphasis in original). Post-war, dignity claims do not demand a ‘levelling-up’ of the social hierarchy to universal aristocratic status (p. 272). It is Neuman’s counter-argument that I will concentrate on, suggesting that it is correct but incomplete. Whitman is right in that we cannot ignore the honorific connotations of dignity, and Neuman appears in part to be simply stipulating away unfortunate and unhelpful conceptions of dignity. Nonetheless, if Nazi dignity is simply synonymous with ‘honour’ then there is clearly discontinuity with post-1945 jurisprudence, which Whitman himself concedes is ‘Kantianised’ (2003, p. 265). Not only that, it appears in some respects simply wrong-headed: Nazi honour, and the understanding of human dignity that the present German Constitution shares with international law, reflect palpably different worldviews, and denying any contextual discontinuity ignores sixty years of jurisprudence and politico-legal activity. Thus, I too will argue against Whitman’s conclusion, but suggest, observing a distinction between ontology and epistemology, that the problem with Whitman’s continuity thesis lies in a twofold blurring of these levels, both in terms of dignity’s varied appearances and function as both norm and external critique (section 2.5), and in terms of distinguishing the genealogy of dignity and its grammar within debate (section 3.4).

A different set of problems is generated by recent jurisprudential concern with the content of ‘human dignity’. The issue, as conducted by Christopher McCrudden and Paulo Carozza, is not one of function but of axiological stability, i.e. the basis of its normative force, not simply its functional efficacy (McCrudden, Reference Mccrudden2008; Carozza, Reference Carozza2008). There is agreement that dignity has a functional stability: it is a perennial part of our moral and legal vocabulary; it meets denigration of the person with an assertion of the worth of the person. Nonetheless, on one side (Carozza) we see defence of a phenomenological core. Dignity articulates minimum standards of humanity which are often observed in the breach when there are ‘gross and systematic violations of the life, liberty, integrity and equality’ (2008, p. 936). On the other hand, McCrudden concludes that there is an irreducibly plural set of ‘conceptions’ of dignity, premised on, but not over-determined by, ideas of intrinsic dignity, extrinsic dignity and politico-legal dignity (2008, pp. 679f.). In other words, despite functional stability, McCrudden identifies an underlying normative instability which Carozza denies: ‘No one jurisdiction has a coherent judicially interpreted conception of dignity across the range of rights, and no coherent conception of dignity emerges transnationally’ (2008, p. 724). I would suggest that both are correct when articulated in the following terms. Consistency and stability can be found in the moral and legal ‘grammar’ of dignity – i.e. the linguistic use that can be made of it, and the limits of intelligibility in its use – but it is epistemologically unstable (some people will simply fail or refuse to see the presence or absence of human dignity), ontologically plural (there can be no definitive account of the foundation of dignity) and often compounded (it may be better in some circumstances to articulate moral and legal claims in other more specific terms). Note that this construction draws upon an ontological and epistemological division. We know dignity through using the language of dignity, particularly where there is grave or tragic diminution of the person. This can be separated from how it exists at all, a far more difficult question concerning how it is that the (diminished) value or property of humanness, personhood or humanity may become separated from, or is revealed as different from, the individual physical human. ‘Human dignity’ is part of an ongoing attempt to articulate what human being is – dignity is at the fracture point of human and animal – and does this by articulating both facts and values. Because this ontology is, and will remain, uncertain and contested, dignity itself, whether simpliciter or as human dignity, remains uncertain and contested, inhabiting, ultimately, an unresolved space between human-as-fact and human-as-value.

2.1 Public international law

How does dignity function within international law with respect to detention? It naturally asserts the maintenance of dignity in detention. This is often generally associated with the prohibition on inhuman or degrading punishment. It also more specifically links this with rehabilitation, demanding that non-violative punishment must contain a rehabilitative element. Both minimal protection and fuller rehabilitation rights can be read as implicit within general human rights instruments. The minimal status claims of the Universal Declaration of Human RightsFootnote ² (UDHR) – an inalienable dignity / the worth of the person / the inalienability of certain rights – can be read flexibly as both minimal protections and a more general defence of the integrity of the person (Kretzmer and Klein, Reference Kretzmer and Klein2002). Parts of the UDHR have been converted to treaty instruments, principally the ‘twin covenants’, including the International Covenant on Civil and Political Rights (ICCPR) which uses dignity particularly with reference to the treatment of detained individuals.Footnote ³ Dignity is also found in the Convention on the Rights of the ChildFootnote ⁴ (CRC), which also links dignity with detention, both in its nature and duration.Footnote ⁵ This broad reading of detention rights is explicit in commentary on both the ICCPR and the CRC.Footnote ⁶ The continuing work of international criminal tribunals confirms this (Henham, Reference Henham2005). In this context – which draws together the laws of war and human rights discourses surrounding fair trials, due process and welfare for participants – dignity is often invoked to draw together the distinct lex generalis of human rights law and the lex specialis of humanitarian law.Footnote ⁷ The minimal reading of dignity found in international humanitarian law – ‘outrages upon personal dignity’Footnote ⁸ – requires the existence of an armed conflict and is intended primarily as a minimal standard for soldiers in the theatre of war (‘outrages against dignity’ is to be read in the light of ‘degradation’ and is ‘personal dignity’, deterring a potential reading of dignity as aristocracy, i.e. it is more fundamental than attacks upon the ‘socially elevated’Footnote ⁹). Nonetheless, dignity continues to straddle these otherwise distinct legal fields, both as minimal prohibition and normative common denominator.

Two normative themes are at work in these instruments and fields: basic protection of the body against the afflictive, and what might be termed a ‘personality-preserving’ claim calling for rehabilitation. Translated into moral terms, these twin protections represent a Kantian injunction against objectification: even prisoners should not be seen merely as a means to an end (arbitrary detention), which can be understood more specifically as exclusive pursuit of the social ends of punishment (protection of society and general deterrence). So, despite the relatively limited content of dignity – prohibiting the most egregious forms of afflictive punishment – it is also found in conjunction with stronger claims for ‘personality rights’ (Neethling, Reference Neethling and Smits2006). A fortiori, dignity, as an international norm, exhibits duality. On the one hand, we are dealing with the minimal (the protection of the body), on the other, a far more fulsome conception of the detainee (with a personality requiring protection).

What are the contextual peculiarities of the international arena which inform or underpin its deployment? Stemming from the United Nations Charter and the UDHR, international law conceptualises dignity in a non-culturally and non-normatively specific way: it does not specify how dignity should be realised or qualified other than through other norms, through legality and through the rule of law (Kretzmer and Klein, Reference Kretzmer and Klein2002, pp. 111f.). This flows from prevailing notions of public international law which are positivist, or more particularly, ‘sovereigntist’: they insist that the essence of normativity in the international arena is sovereign decision and sovereign self-limitation by states; this denies that normativity can exist aside from the will of a sovereign state. Nonetheless, international law places human dignity at its heart to the extent that it is a foundational principle for its core organisation (the United Nations), and for its core normative document (the UDHR). In these respects it is possible to characterise human dignity as a kind of grundnorm, a ground of normativity within the system. Even if the functioning of international law militates against the possibility of such a self-subsisting source of normativity, it is nonetheless important to stress that it is a norm, and one with clearly moral and ethical overtones, and as such can be read as a reaction against pre-war sovereigntist conceptions of legality which allowed positive law to become the tool of crimes against humanity apparently without contradiction.

What does this combination of function and context reveal? Dignity represents a basic norm: a peremptory norm, but not perhaps a conclusory norm (Simmonds, Reference Simmonds2008, pp. 311f.). That is, it should not be violated, and no derogation from it is possible, but it is not necessarily a conclusive end point to debate. This in turn heightens its duality. It is maximal: it has a substantial normative role, founding the principal organs of the international arena (the United Nations / the International Court of Justice) and acting as a foundation for human rights law. And it is minimal: its content is spelt out explicitly as prohibition of ‘outrages’ (humanitarian law) and a general defence of rehabilitative practices (CRC). As such it offers to be a basic norm in international law – and one with a broadly Kantian moral pedigree – but the nature of international law, and, we might suppose, the ambiguity of dignity, militates against a substantial dignitarian jurisprudence emerging. To the extent that international law is sovereigntist, we should only expect the most minimal normative commitments within the international arena. To the extent that international legal normativity has meaning independently of the state, that normativity tends towards low common denominators (respect for persons) and a defence of human security (basic respect for material conditions of human wellbeing) with an attendant respect for the independence of individual states in defining those standards.

2.2 European human rights law

European human rights law is a rich depository of judicial consideration of dignity and detention (be it judicially imposed detention, or part of administrative processes like immigration practice) and features widely within this jurisprudence. For present purposes it is notable that the European Court of Human Rights (ECtHR) is willing to use the language of dignity in relation to Article 5 cases, Article 3 cases, and reads these often in the light of Article 8 (Harris, O’Boyle and Warbrick, Reference Harris, O‘Boyle and Warbrick1995, pp. 81, 337). In other words, the law of detention overlaps with minimal prohibitions on inhuman treatment (Art. 3) and, explicitly, with the conception and defence of a personal, private, family sphere where the individual, all things being equal, would expect autonomy and freedom from state interference (Art. 8). With respect to Article 3, there is use of dignity across the scale from the inhuman to the degrading, with breach of dignity more or less synonymous with inhuman treatment and having a bearing on degrading treatment (Ireland v. The United Kingdom,Footnote ¹⁰X v. The United Kingdom Footnote ¹¹). In part this charts a movement from raw physical vulnerability (Testa v. Croatia Footnote ¹²) to more general notions of autonomy (Keenan v. The United Kingdom Footnote ¹³). More specifically, it indicates the destruction of personality in inhuman treatment, and the diminution of personality in degrading treatment. Where the detention falls short of generally accepted standards to the point of intolerability (Bitiyeva & X v. Russia Footnote ¹⁴), dignity is invoked; where detention intersects with illness and isolation, dignity is important (N v. The United Kingdom Footnote ¹⁵). There is a minimal, Kantian, prohibition at work here (i.e. not treating merely as a means to an end) but also at times a more distinctively civilian tradition that certain personality rights should be respected (Neethling, Reference Neethling and Smits2006), hence the combination of Articles 3 and 5 with consideration of Article 8 (i.e. the person’s ‘private sphere’).

Functionally, dignity is associated with at least three different kinds of notions. It serves first as a foundational notion which focuses on the most minimal demands made by the individual. The individual is the source of normative claims which are not conditional upon the will of states. Appealing to ‘holistic’ conceptions of the person, dignity is invoked where an individual is being considered as a whole, rather than as possessing individual, divisible, rights. By considering the dignity of an individual, particularly where there are questions of individual suffering (Pretty v. The United Kingdom Footnote ¹⁶), the complex demands of a ‘situated’ individual as a whole can be used as a counterweight to demands made by, and upon, the state. Second, it is a bridging notion which connects different rights, particularly minimal prohibitive claims (to life, contra torture) to more substantial rights concerning personality (to family life, to health). Dignity therefore gives weight to (though does not independently establish) the ‘indivisibility of rights’, that is, opposition to a de jure hierarchy of rights, each right being seen in a relationship with every other right (Van Boven, Reference Van Boven and Vasak1982). This gives rise to a third, principally heuristic notion of dignity as a problem-solving tool which is both foundational and bridging. In functional terms dignity is not reducible to either a holistic conception of the person, or as a bridge between rights, but as a problem-solving tool that can play these, and other rhetorical, roles simultaneously (Keenan v. The United Kingdom Footnote ¹⁷). In sum, as a heuristic dignity mixes basic prohibitions with personhood and personality claims entailing thin minimal prohibitions (denial of life destroys the person, torture reduces the person to the body) but also more substantial conditions of maintaining a personality and even flourishing as a person.

These claims can be contextualised by, first, a secure normative foundation for rights claims and by the interpretive strategies of the European Court. The European Convention on Human Rights (ECHR) accepts the importance of dignity via its drawing upon the UDHR with its basic commitment to dignity.Footnote ¹⁸ This commitment is underpinned by European states’ willingness (be it historical or following World War II) to observe human rights standards. These may well be contested domestically (where they are potentially contrary to positive domestic law), but derogation from or rejection of the Convention is politically imprudent, and, given the longevity of its influence, legally difficult in Europe. Second, for this consensus to be maintained, the Court must function in a way which is ecumenical with respect to jurisdictional differences. While it is often held that the Convention bears a greater stamp of common law influence (Moravcsik, Reference Moravcsik, Henry, Philip and Ryan2008), the very discussion of personality is more commonplace within civilian systems. Accordingly, the foundational, bridging and heuristic functions of dignity should be understood as, first, depending in part on a pre-existing consensus on the value and integrity of the ECHR itself. Second, the ECHR offers a synthesis of common law emphasis on minimal protections with civil law’s more nuanced commitments to personality rights including privacy and reputation as part of public law. Dignity does not have a pedigree in any particular form of legal system (although some link with Roman law can be posited), rather this (legally and religiously) ecumenical notion allows problem-solving within the normatively complex context of the ECHR.

2.3 German constitutional law

Human dignity has a complex, and fundamental, function within the German Constitution as inviolability-implying, personality-affording and reputation-protecting. Each of these has direct significance for detention and each will be considered in turn.

First, inviolability can be read as a substantive ‘defensive’ right, but above all as a value:

This is explicated both as defensive against the worst forms of afflictive treatment but also a more nuanced basis for judicial determination of values concerning the severity and impact of detention (Tobacco Atheist Case Footnote ¹⁹). This accords with a second, fuller, interrelationship of dignity and personality, evidenced inter alia by the Life Imprisonment Case.Footnote ²⁰ It begins with an unequivocal assertion of the core constitutional principles:

The consequences of this stress on persons and personality include an inexorable presence of rehabilitative goals within sentencing (Lebach Footnote ²¹). While this goal may never be reached, courts must strive to keep personality as a primary principle: ‘In determining whether to release a person sentenced to life imprisonment, courts must consider the personality of the offender, his behaviour in prison, the circumstances of his crime, and his capacity to lead a normal life’ (Kommers, Reference Kommers1989, p. 320).

The ‘objective right’ of inviolability, and more broadly the protection of personality, allow assertion of a third more nuanced value of reputation. In the Lebach judgment of 1973,Footnote ²² the fundamental principle of human dignity, and the importance of reputation, are given priority over another right, less fundamentally related to personality, i.e. freedom of expression. Damage to reputation can augment, and therefore render disproportional, punishment: ‘[T]he interest in receiving information [concerning soon to be ex-convicts] is not absolute. The central importance of the right to personality requires not only vigilance on behalf of the inviolable, innermost personal sphere [of the accused] but also a strict regard for the principle of proportionality’ (Kommers, Reference Kommers1989, p. 416, latter parenthetical remark in original). The decision goes on to talk about the ‘radiating effect’ of the right of personality, which, inter alia, puts limits on the publicity that can be afforded to wrongdoing and wrongdoers. Together, inviolability, and the relationship between society and personality, and the preservation of reputation, ‘radiate’, via human dignity, through the Constitution:

What then, can we say of the contextual particularities of German discourses of human dignity which give rise to these three different but related functions? The German Constitution, the Basic Law, was created by the controlling powers and native jurists for postwar Germany as an interim ‘re-democratising’ measure. The Basic Law has nevertheless been retained and remains largely unchanged even through the process of German reunification. The Basic Law has been interpreted by the Constitutional Court in a way which has drawn out strong philosophical currents (both latent and manifest) within the instrument. More particularly, Article 1 (human dignity) and Article 2 (concerning inviolability and personality) have meant that human dignity – understood in Kantian terms – is a key heuristic, a means of ordering the ‘objective’ values of the instrument. However, both Articles 1 and 2 are associated with the notion of the individual as a ‘spiritual–moral’ being (Kommers, Reference Kommers1989, p. 332), adding a communitarian element to the thin, Kantian, conception of the individual. Dignity is not simply a prohibition of treating individuals as a means to an end but concerns persons whose growth should be free and non-heteronomous (i.e. not shaped by external pressures). The person of the Basic Law is irredeemably social, but principally in a negative sense of potentially harmed by external heteronomous pressures.

The most important point is that Germany historically, and like other civilian systems, talks readily about core ‘personality rights’, which intertwine basic civil liberties with the public law defence of privacy, reputation and the integrity of the person. The civilian notion of a cluster of personality rights allows the thin moral import of dignity to be more easily appealed to. From a right to life to a right to self-creation, dignity and personality are treated as core demands at the heart of the species. A second distinctive feature of German jurisprudence is the invocation of Kant. In general a Kantian conception of the individual is ‘thin’ (characterised predominantly by rationality and autonomy) and a Kantian conception of rights is accordingly minimal, though strongly peremptory. As such Kant’s work is difficult to apply directly to complex constitutional questions: ‘The Kantian view tends to assume a juridical space divided into non-overlapping domains of liberty: the enforcement of rights consists in policing the boundaries between distinct domains’ (Simmonds, Reference Simmonds2008, p. 294). In some respects the German Basic Law can be read as an attempt to synthesise this Kantian defence of the inviolable sphere of the person and their basic rights with a communitarian concretisation of the preconditions of rights claims (i.e. a ‘thicker’ conception of the person requiring, inter alia, social welfare and support). To that extent it fits with the general model of the German State as ‘corporativist’: ‘The Basic Law has resolved the tension between the individual and society by postulating a community-related and community-bound individual, as the decisions of the Federal Constitutional Court have repeatedly stressed’ (Census Act Case,Footnote ²³ quoted in Kommers, Reference Kommers1989, p. 335). Less positively, we could say that there is a tension between liberal Kantianism and Hegelian communitarianism. While Kant may be the key to most readings of Article 1, the underlying conception of the Constitution is ‘statist’ in a Hegelian sense. The rational state – with clear separation of powers, recognition of equality, welfare as a precondition of the emergence of personality – is external to the individual’s sphere of inviolability but nonetheless essential for their personhood. Dignity, within these competing forces, becomes a synecdoche: it is a substantive right itself, it symbolises respect for other human rights and it is also the limit-point of the constitution. Dignity performs the limits of the Constitution not only as a value but because of its ambiguity (it has no settled jurisprudential function, it is conceded to be polymorphous) and because it invokes the person as the absolute limit of the reach of the state.

2.4 United States’ constitutional law

Detention, both its quantity and quality, has been considered in dignitarian terms by the United States Supreme Court in the light of both the Eighth Amendment (cruel and unusual punishment) and the Fourteenth Amendment (due process). It plays a distinctive role in discussions of the extent to which hard penalties can be imposed because of recidivism (‘three strike rules’) and in capital cases other than those involving murder (Van Zyl Smit, Reference Van Zyl Smit2002, p. 58f.; Coker v. Georgia Footnote ²⁴). With respect to quantity of punishment, life imprisonment without parole is constitutional but has to be proportionate: the Constitution prohibits a punishment ‘although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity’ (Re Lynch Footnote ²⁵). In terms of quality, human dignity, like discussion of ‘cruel and unusual’, acts at the limits of the forms of punishment, delimiting acceptability. Other cases point to the importance of dignity as a key limiting principle in the preconditions of the punitive; Skinner v. Oklahoma Footnote ²⁶ treats dignity as important in delineating where punishment is acceptable, marking a line between acceptable and unacceptable consequences of punishment. The discussion of standards of decency and dignity within Furman v. Georgia Footnote ²⁷ was a narrow one of popular will rather than general standards of humanity. Only the latter, it was contended, would have directly invoked notions of human dignity: ‘by the time the decision in Furman v. Georgia was being taken, ‘standards of decency’ had evolved in most Western countries to the point that capital punishment was seen as an inherent infringement of human dignity’ (Van Zyl Smit, Reference Van Zyl Smit2002, p. 63).

The essential features of the United States’ Constitution are its relative antiquity (which entails interpretative ambiguity but also a certain immutability), its self-contained status (it is interpreted by the Supreme Court with a set of distinctive interpretative positions) and its being a substantively minimal document (it is short and difficult to amend). The last characteristic points to the more fundamental normative dimension of the Constitution: it is founded upon an ideology of safeguarding liberty through curtailing the power of the federal state. Accordingly, unlike its French counterpart, the US Constitution largely implies its core value – liberty – rather than vaunts it in strongly rhetorical terms. The absence of any clear commitment to ‘solidarity’ or ‘fraternity’ in the US Constitution entails a far thinner libertarian reading of dignity. Certainly a ‘zone’ or ‘sphere’ of privacy and self-creation is implied and isolated from calculations concerning the ‘Common Good’. But the aggregate benefits of liberty, and the maximisation of that liberty, mean that the status and worth of the individual are ultimately self-creations rather than dependent upon political recognition and positive actions by the state. Note in this respect that while Germany gives its Constitutional Court robust power of judicial review which protects the individual from executive fiat (Elfes Case Footnote ²⁸), the Supreme Court has varied considerably in the extent to which it has been an effective counterweight to the executive (Eberle, Reference Eberle2002).

Dignity for the most part has to be extrapolated from a systemic, and largely negative, constitutional protection of liberty, autonomy and self-determination. While there are some explicit fundamental rights (due process, rule of law), clear substantive constitutional rights have evolved slowly (e.g. the right to privacy is a recent innovation; Griswold v. Connecticut Footnote ²⁹), which in turn has rendered the evolution of the Eighth Amendment slow and unpredictable. An ‘inner sphere’ of privacy and autonomy is generally protected by the Fourteenth Amendment, but is generally realised in the systemic exclusion of the state from the home and general ‘interference’. At the same time, human dignity is not a wholly alien presence within constitutional discussion (New York Times, Reference Liptak2009). It has been held to be the ‘basic concept underlying the Eighth Amendment’ (Trop v. Dulles Footnote ³⁰) and has been held to be an authentic element, like freedom, of the American value system: ‘These doctrines and guarantees are central to the American experience and remain essential to our present-day self-definition and national identity’ (Roper v. Simmons Footnote ³¹). As such, dignity is not wholly incompatible with an ‘original intent’ interpretation of the Constitution.

In sum, the ‘importation’ of human dignity into US Constitutional interpretation retains a core ambiguity concerning whether dignity remains an interpretative tool which can be construed from popular opinion and popular will to have become a constitutional principle, or whether it remains merely a rhetorical component of Supreme Court discourse. The Supreme Court has not been opposed to the language of international human rights law, and has expanded the clarity of liberty through judicial review, but this is a narrow construal of dignity and certainly not one amenable to strict ‘originalist’ emphasis on the text of the Constitution. This fundamental ambiguity highlights an important element of the use of dignity across legal spheres. Is it an internal heuristic which locates and delimits the normative, or is it a notion essentially external to law with which external critique is possible?

3.1 Meaning: duality, circularity, performativity

What is the meaning of ‘dignity’? The foregoing analysis has established some comparative and historical variations concerning the use of dignity. Some are contextual (the historical origins of a legal field, or textual approaches to a constitution). Some are conceptual (the normative status of heuristic tools, or the extent to which personhood is explicated within a legal field). The following conceptual analysis intends to build upon the foregoing account, looking for the possibility of constants – be they historical, axiological, or otherwise – in the use of dignity. It proceeds with the assumptions that, first, juridical use of dignity is not wholly separable from dignity in ordinary language. Second, following from the first, it also assumes that even if, ex hypothesi, human dignity functioned within a closed system of legal meaning, the historical origins of dignity (as term, as principle) still have some explanatory role in articulating the presence of that term or principle within legal discourse. In sum, it assumes that meaning is, for the most part, use, and that constants are to be found in the usage of a term. It concludes that there is a limiting grammar of dignity – linked to, but not over-determined by, its genealogy – that the division of ontology and epistemology remains useful in discerning this grammar, and that there are a number of recurrent problems in the use of dignity generated in most part by blurring epistemology and ontology.

If meaning is linked to the common language we use, then the meaning of dignity remains dual. It is still intelligible to talk about its aristocratic connotations like nobility, as it is possible to read ‘dignity’ in a very narrow formal, Kantian, way. Are these two different meanings? Stipulating a division between dignity simpliciter and human dignity in order to demark a distinction is tempting but misleading. Not only are they treated as interchangeable in many contexts, but the assumption of difference is question-begging. On the one hand, human dignity quantifies but does not qualify: it indicates the range of possessors but not necessarily what they possess. (Appeal to distinctive, Renaissance-based, discourses of human dignity and man as imago dei only defers the problem to an earlier point: man’s being God-like does not explain why dignity is God-like.) On the other hand, dignity simpliciter is applied predominantly to humans: if we apply it to animals, or indeed any other specific group, we are extending by analogy, not expanding the concept.

The duality that we have inherited is related to a more fundamental duality in terms of the factual and the normative at work in anthropology and metaphysics. Dignified behaviour (understood as non-animal behaviour) and dignified status (elevation of individuals or of the species) remain irreducibly linked: dignified behaviours evidence our distance from animals; our distance from animals demands dignified behaviours. As such, the duality of dignity cannot be synthesised into a univocal concept. Appeal to human dignity only brings to light the equivocation between fact and norm at work in dignity simpliciter. This goes some way towards explaining the equivocation between minimal and maximal readings that we find in legal contexts. Dignity has minimal behavioural correlates distinguishing us from animals; it also has a more fulsome relationship with our conception of what it is to be human. In short, dignity retains a circle of related factual, behavioural and normative meanings, and a range of functions, that cannot, without further argument and justification, be reduced to a single notion of ‘intrinsic worth’ or ‘elevation’.

One other important equivocation in legal discourse is between dignity as a peremptory norm and as a conclusory norm. It should be conclusory (it should, given its definitive universality, be the end point of all normative debate); but it is more often better viewed as peremptory (no derogation from it is permitted, but it does not delimit all possible questions). It is a norm which is decisive, and from which derogation and dissent would call into question commitment to legality or morality per se. But to question the interpretive or heuristic value of dignity is certainly intelligible (we can question the usefulness of appeal to dignity without abandoning commitment to the moral value and status of either individuals or collectives). In the light of this it is better, for the purposes of clarifying the use, and not simply the legal contestation, of dignity, to move away from the designation ‘norm’ altogether and treat dignity as in many respects as a performative (Austin, Reference Austin1962). One way or another, through clear and opaque argument, through normative stability and instability, dignity performs the limitation of debate. This despite the fact that countless interlocutors deploy dignity with different synonyms in mind and with different intentions at work. For instance, we could compare a human rights lawyer discussing the right to a fair trial and a conservative bioethicist appealing to the human dignity of an embryo. In common is the belief that this term marks a limit-point to discussion and, conversely, the implication that dissent draws into question the possibility of intelligible or legitimate debate. As such, dignity has force even where its normative credentials are unclear or questionable. The extent to which this force is premised upon ambiguity (merely ‘rhetorical force’) is clearly significant, and it remains true that the question of ambiguity is important: to characterise dignity as a performative is not to forsake further conceptual discussion. The source of ambiguity lies, as I have suggested, in lack of clarity in distinguishing epistemology and ontology. These now require direct attention.

3.2 Epistemology: the body and the person

We know dignity predominantly through the body. Dignity is manifest in certain behaviours, and the ‘upright gait’ is a key trope for linking dignity-as-aristocracy with dignity as the absence of degradation (Bloch, Reference Bloch and Schmidt1961/1988). Dignity asserts the inviolability of the body, and although it intersects with principles like autonomy, which assert the inviolability of the mind or will, the dignified body tends to be a point of prohibition rather than positive obligations (i.e. the objective conditions for autonomous decision-making). However, if we know dignity predominantly through the body, it is not purely the biological individual, but the body as a site of normativity. This is captured in the language of the person: a person is minimally an individuated human being, but it is also the individual who possesses legal status (Daube, Reference Daube1943). A person is necessarily within juridical and political relations. Accordingly, actions which tear person and human apart – i.e. torture and inhuman treatment – expose the diminution of dignity. We know and see dignity in the contexts where there is degradation because we see the destruction of personhood. It is possible to deny this appearance of dignity: we could insist that what is taking place be articulated in other terms, or that ‘personhood’ is reducible to other factual or normative phenomena. Nonetheless, to the extent that we accept the possibility of a person, with a distinct integrity, and as a distinctive source of normative claims, dignity remains a way of articulating the factual and normative qualities of that personhood.

The combination of discourses of personhood and dignity have allowed dignity to become a point of resistance to the individuation which is said to be characteristic of modern forms of political and ethical philosophy. If liberalism entails an anomic individuation of persons, communitarian uses of dignity assert the embeddedness of the person within a sociolinguistic community (Taylor, Reference Taylor1992). In parallel, the ‘scientific’ ‘hedonistic calculus’ of utilitarianism individuates persons as tokens within sociopolitical calculations; dignitarian ethics is broadly located within deontological opposition to utilitarianism precisely in this resistance to scientific individuation. Thus, personhood and dignity have remained points of resistance to these individuating tendencies. Many deployments of dignity in these debates are not well-formed articulations of personhood. But they do tend to perform opposition to individuating discourses even where prevailing (‘scientific’) tendencies are inimical to such assertions.

The body is, in sum, inseparable (normatively) from the person, not wholly internal to positive law, and generates normative debates in terms of integrity and inviolability which are articulated via dignity. The body should not be separated from the person. Accordingly, we can add to the clarity of conceptual debate by insisting that the association of dignity and minimal protections is important. The foundational status, or the axiological stability, of dignity as a value is less important in this context than its articulation of the appearance or disappearance of personhood.

3.3 Ontology: history and axiology

The more basic question of the preconditions of dignity, as a phenomenon and as a value, is a rather more historical question. The basis, or the being, of dignity can be divided into two different, but contiguous, narratives: historical dissemination of the term ‘dignity’, then axiological clarification of the term. These exhibit distinct processes of reification, codification, universalisation and democratisation. In essence, dignitas has, from its Latinate origins, undergone a process of generalisation, but the source and nature of this generalisation is complex.

Building upon the etymological history of dignitas previously adumbrated, a historical narrative can be drawn from the Renaissance to modern codification. The Renaissance reception and use of dignity can be characterised as a process of reification of ‘humanity’ and the attribution of characteristics to humanity as a distinct entity (Kristellar, Reference Kristellar1979). The use of dignity is bound up with the assertion of man’s dominion over Creation and its elevated relationship flowing from that dominion. Humanity is located uneasily between Creation and God (in whose image it is made), with humanity as corporate entity ultimately located close to God, while individual men could remain close to nature (physically and morally). We have inherited this reification, and discourses of the dignity of man and human dignity retain this reifying tendency, allowing us to laud humanity as a whole while challenging individuals’ temptations toward inhumanity. This generalisation of humanity’s dignity is one which is familiar and which remains part of dignitarian discourse, but one far from immune to philosophical critique or ethical problematisation (Glover, Reference Glover2001). A second historical trend which arguably pre-dates, but principally post-dates the Renaissance is codification, and dignity has a well-charted relationship with both natural law and positive law through appeal to the rights of man and human rights discourse (Bloch, Reference Bloch and Schmidt1961/1988). This too is a form of reification, albeit one which equivocates uneasily between appeals to immanence (understood as ubiquitous and immutable law) and transcendence (understood as normative force independent of the state). In sum, reification and codification tend to pull in two directions: humanity and natural law towards a generalisation of dignity premised on intrinsic properties (humanity’s properties); positive law towards generalisation premised on extrinsic recognition (how we treat people with humanity).

The second narrative concerns more directly axiological developments in discussion of dignity. The first, located in the Enlightenment, stressed the universalisation of dignity, asserting the moral equivalence of persons. The second, in the Revolutionary era, stressed democratisation, asserting the political equivalence of persons. Kant clearly inherited the Renaissance’s conception of humanity, and took the reification of humanity to its logical conclusion, calling upon us to acknowledge and respect humanity in ourselves as a distinct, noumenal, dimension of our being (Kant, Reference Kant and Paton1785/1948). However, the axiological thrust of Kant’s position is universalisation as the basis of rational, moral action. Dignity plays a key, but complex, role within this axiology, working as a synecdoche for Kant’s ethics as a whole, and more specifically as a normative constant from which moral decision-making is generated and regulated. In short, generalisation of dignity within Kant’s work rests in part on a Renaissance inheritance of a reified humanity, and upon a more specific deployment of universalisation as a ‘regulative’ or ‘constitutive’ ideal (Caygill, Reference Caygill1995, pp. 129f.). The Enlightenment in turn fuelled the Revolutionary era’s concern with emancipation – suffrage and political recognition – translating this into demand for universal political recognition. Discourses of ‘The Rights of Man’ drew broadly upon Enlightenment universalisation, but were also able to harness the aristocratic connotations of dignity in order to draw attention to both the material discrepancies between classes and the human reality that lay under the trappings of the dignitary (Paine, Reference Paine1791/1969, p. 194; Burke, Reference Burke1790/1969, p. 171). In this sense, the Revolutionary era sought a materialisation of dignity in order to assert its universality: there is no logical or moral reason why the common man should not share the material conditions of dignitaries.

Such a compressed narrative cannot capture the historical or the axiological subtleties that surround dignity, not least the recurrence of the honorific and aristocratic meaning of dignity which intimates the divide between man and animal (without the explicit need for reification), and which remain significant even for Kant, who was at ease discussing the inevitability of dignitaries and hierarchy in society (1797/1996, p. 103). What both these ontological narratives, and the recurrence of honorific notions of dignity, reflect is a tool or focus for human self-perception. The ‘being’ of dignity lies ultimately in human efforts to discern what is distinctive, and what is good, in humans, with dignity sitting at the intersection of metaphysical, anthropological, moral, legal and political discourses of human self-perception. While this does not secure its being in any strong foundational sense, it does begin to explain its resilience, as well as its performative potency in denoting the limits of debate.