An Introduction to Three Concepts of Dignity

I am very pleased to be guest-blogging at the Volokh Conspiracy about my article, Three Concepts of Dignity in Constitutional Law, 86 Notre Dame L. Rev. 183 (2011).  The article identifies and explains three political and philosophical concepts of dignity found in constitutional decisions.  In my posts, I will explain how dignity can have very different meanings and consequences for constitutional law and political discourse.  I will post slightly modified excerpts from my article over the next week, starting today with the introduction.

The U.S. Supreme Court and constitutional courts around the word regularly use the term human dignity when deciding cases about individual rights and liberties.  For example, in the United States, dignity has been invoked in the context of freedom of speech, reproductive rights, racial equality, gay marriage, and assisted suicide.  Judges and scholars treat dignity as an important legal value, but they usually do not explain what it means and often imply that it has one obvious core meaning.  My article looks at a number of constitutional decisions and concludes that courts do not have a singular conception of dignity, but rather different conceptions based on how they balance individual rights with the demands of social policy and community values.

I identify three concepts of dignity, explaining their philosophical origins and how they affect or are reflected in constitutional decisionmaking.  I will provide a detailed explanation of each concept in subsequent posts, but the three concepts are as follows:  first, the dignity of the inherent worth of each individual, which is often linked to human agency, autonomy, and freedom from interference; second, substantive dignity, which requires living in a certain way and is associated with government policies that enforce a particular conception of dignity; and finally, the dignity of recognition, which seeks respect from the state and other individuals.   These concepts of dignity often conflict in contentious cases.

Despite the ubiquity and importance of human dignity in relation to individual rights and liberties, American lawyers are sometimes surprised to hear that dignity is a legal concept used by constitutional courts, including the U.S. Supreme Court.  Skeptics have often asked whether dignity stands for anything on its own.  In fact, many judicial decisions couple references to dignity with other values, such as choice, autonomy, community, well-being or respect.  Dignity could be seen as just a placeholder for these other values.

I have my own doubts about whether dignity can be a useful legal term, as I have previously argued (On the Use and Abuse of Dignity in Constitutional Law).  Such doubts and skepticism, however, have not prevented judges from invoking human dignity with increasing frequency to denote something of value or to indicate what should be considered of value.

By contrast to other contested but established and traditional terms like “liberty” and “equality,” dignity presents a relatively new legal value.  “Dignity” has an almost universally positive connotation—who can be opposed to dignity?  Nonetheless, its range of meanings is not well understood.  This confusion allows judges to use dignity with the hope that it can mean a number of different things and that perhaps there need not be a tradeoff between, for example, the dignity of individual liberty and the dignity of social belonging and recognition.  Subsequent posts will provide examples of how courts often use dignity to gloss over difficult tradeoffs in individual rights.

In analyzing the uses of dignity, I take the approach of the fox, not the hedgehog (“The fox knows many things, but the hedgehog knows one big thing,” said the Greek poet Archilochus.).  My article seeks to show, like Isaiah Berlin’s essay, Two Concepts of Liberty, that dignity has different meanings that point to different consequences for individual rights and liberties.

If constitutional courts persist in using dignity, they should be clearer about which dignity they have adopted.  Although the boundaries between the concepts are not impermeable, there are essential differences and disagreements about what dignity means and requires. Constitutional courts in Europe, South Africa, and India have adopted various substantive dignities or the dignity of recognition, concepts related to familiar continental legal values centered on the community.  These strains exist in American constitutional law, but they do not reflect the primary tradition of individualism and freedom from interference of intrinsic human dignity.  Identifying and articulating the three concepts of dignity can serve as part of the groundwork for choosing and defending a concept of dignity consistent with American constitutional traditions.

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