Substantive Dignity-Dwarf-throwing, Burqa Bans, and Welfare Rights

Today I explain the second concept of dignity, substantive dignity, from my article Three Concepts of Dignity in Constitutional Law, 86 Notre Dame Law Review 183
(2011)
.  My introduction and post on intrinsic human dignity can be found here and here.

By contrast to inherent or intrinsic dignity, positive conceptions of dignity promote substantive judgments about the good life.  Dignity here stands for what is valuable for individuals and society at large.  Constitutional courts will sometimes use this conception of dignity to justify political constraints on behavior or to promote values such as community or public morality.   Substantive dignity relates to a “proper” conception of dignity—guiding the individual and society to particular dignified choices.  This form of dignity will often conflict with an individual’s preferences or choices.  As this concept may be less familiar, let me begin with some examples and then further explain the concept.

In a much-discussed French case, Mr. Wackenheim, a dwarf, made his living by allowing himself to be thrown for sport.  The mayors of several cities banned dwarf tossing events.  Mr. Wackenheim challenged the orders on the grounds that they interfered with his economic liberty and right to earn a living.  The case went to the Conseil d’Etat (the supreme administrative court), which upheld the bans on the grounds that dwarf throwing affronted human dignity, which was part of the “public order” controlled by the municipal police.  The Wackenheim case demonstrates how a substantive understanding of dignity can be used to coerce individuals by forcing upon them a particular understanding of dignity irrespective of their individual choices.

European politicians have presented similar justifications for banning the burqa or full veil.  French President Sarkozy has supported the ban because the burqa “runs counter to women’s dignity.”  In Spain a legislator called the burqa a “degrading prison.”  The debate focuses little on what Muslim women think about the full veil or why some of them wear it in public.  Instead of associating dignity with religious choice, those who would ban the veil treat dignity as a different social ideal—one that measures up to majority standards of individual self-expression.

Respect for intrinsic human dignity, however, would favor individual choice.  As Martha Nussbaum wrote in the context of a discussion about the veil, “Respecting their equal human dignity and equal human rights means giving them space to carry out their conscientious observances, even if we think that those are silly or even disgusting.  Their human dignity gives them the right to be wrong, we might say.”

Prohibitions on prostitution and pornography have also been justified on grounds of protecting dignity.  The Canadian Supreme Court has explained that even adults consenting to make pornography may relinquish their dignity and be degraded in the eyes of the law.  This assumes that consent or the choice of a degrading profession is either not a good choice or is not a true choice, in that it may be based on economic necessity or coercion by others.

The issue is not whether laws prohibiting dwarf throwing, burqa wearing, prostitution, or pornography may be desirable social policy.  Rather these examples demonstrate that the conception of dignity used to defend such policies is not that of human agency and freedom of choice, but rather represents a particular moral view of what dignity requires.  These laws do not purport to maximize individual freedom, but instead regulate how individuals must behave in order to maintain dignity (and in the case of criminal prohibitions, stay out of jail).

By requiring the observance of certain social norms, substantive conceptions of dignity are related to a traditional understanding of dignity that requires judging the worth, honor, or respectability of a person.  Dignity may no longer be linked to a particular title or social class, but it may still require particular behavior or comportment.  The community may define dignity based on its particular understanding of what promotes the public good and improves the lives of individuals.

From a philosophical standpoint such dignity relates to theories of self-realization.  Such theories require the individual to act in a specific way or according to certain principles to achieve a good life.  For example, a person may realize himself by following “reason,” or by adhering to a particular religion, or by being part of a state.  Achieving “dignity” can also be a form of self-realization, if dignity takes the form of a social standard that individuals and the community must follow.

As with other similar theories, it is a short step from having substantive ideals of dignity to coercion of individuals in the name of these ideals.  When social norms of dignity are legislated, they regulate the activities a person may pursue for economic gain or for pleasure.  This goes beyond social disapproval of certain actions to legal prohibitions of activities deemed undignified.

Another aspect of substantive dignity emphasizes the material conditions required for living with dignity.  A number of modern constitutions explicitly protect dignity and associate this value with social and economic rights, such as rights to housing, healthcare, education, and a minimum standard of living.  The South African, Hungarian, and Indian Supreme Courts have relied on their distinctive constitutional protections for social-welfare rights to uphold rights to various welfare goods.

This defense, not just of welfare policy, but welfare rights, turns on many of the same arguments presented for negative liberty, i.e. that such welfare is an essential prerequisite for respecting human agency and autonomy, and as a consequence human dignity.  One can understand the appeal of this view because it expresses a fundamental truth about our humanity that we need to meet certain basic needs for food, shelter and the like.  Nonetheless, in the context of rights to welfare goods, dignity refers to a condition that goes beyond inherent human worth.  If a certain standard of living is essential to maintaining dignity, this suggests that dignity is not inherent in the individual, but rather depends on external factors.  A certain level of material well-being may be one of the conditions for exercising dignity, but it is not dignity itself.

The examples demonstrate how positive conceptions of dignity bring us away from the dignity of individual autonomy.  Inherent dignity focuses on a universal and equal quantum of dignity in each person and leaves open the question of what constitutes a good or dignified life—it seeks to maximize liberty and individual choice.  By contrast, positive conceptions of dignity focus on specific views of the good life.  We have to measure up to substantive dignity—it can be gained and lost.  Substantive views of dignity may constrain choices and thereby fail to respect the individual agency of those who have a different view of the good.