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A Performative Definition of Human Dignity

Martin O’Malley

Human dignity attained international recognition as a universal prin-ciple within the historical context following the Second World Warwith its inclusion in the preamble of the Universal Declaration ofHuman Rights (UDHR). Present German scholarly discussions onMenschenwürde clearly acknowledge the historical realities that led tothe inclusion of the principle in the UDHR and subsequently in theGerman Basic Law (1949). Nevertheless, scholarly examination of theprinciple in Germany tends to focus upon dignity’s abstract conceptualmeaning. The principle’s historical aspect is downplayed, except to theextent those scholars mention classical treatments of dignity by suchfigures as Cicero, Pico della Mirandola, Schiller and of course Kant.1

These treatments focus upon the principle’s foundation and meaning asan objectively valid norm. Conversely, scholarly examination humandignity in the United States displays a great deal more fragmentationin both the principle’s meaning and application, as illustrated by RuthMacklin’s famous intervention.2

The UDHR Preamble unequivocally asserts dignity’s central rolein the panoply of principles intended to guide the post-war interna-tional community. »Whereas recognition of the inherent dignity andof the equal and inalienable rights of all members of the human familyis the foundation of freedom, justice and peace in the world […]«. Hu-man dignity shares equal billing with human rights in the document,yet for whatever reason, dignity was not »received« in the US. This isnot to say that the principle was rejected or even disputed, but rather

Facetten der Menschenwürde A 75

1 See Tiedemann 2007; Stoecker 2003. An exception to this trend may be found in thesoon to be published work of Rainer Forst, Goethe-Universität Frankfurt a.M.2 See Macklin 2003.

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that it did not become a common referent for ethical or legal discus-sions. My eventual intention is to show that this lack of reception hasharmful moral consequences, but it is important to first grasp the factof its absence in US debates.3 This point is briefly illustrated below.Second, a deeper understanding of the principle itself is necessary, re-quiring a definition that has relevance for both US and German con-texts. The definition is the primary goal of this work and comprises thebalance of the essay. Third, the potential contradiction posed by humandignity’s »historical emergence« and its »claim to universality« poses athreat to the principle’s relevance. Thus the explanation of the pro-posed definition must consider and clarify both its contingent and uni-versal elements.

Absence of Human Dignity Principle in US »Social Imaginary«

It is striking to note that while both human dignity and human rightsare championed by the UDHR, Americans seem to persistently over-look the principle of dignity. Though, it has enjoyed some attentionduring the national discussion on bioethics during the presidential ad-ministration of George W. Bush (2000–2008).4 Beforehand, however,it simply played little role in the public discussions. Using Charles Tay-lor’s term, it was simply not an element of the American »social ima-ginary«. »What is interesting in the social imaginary is that it is sharedby large groups of people, if not the whole society […] the social ima-ginary is that common understanding which makes possible commonpractices, and a widely shared sense of legitimacy«5 . The followingfigure graphically illustrates how, between 1940 and 2000, humanrights are mentioned with a far greater frequency in US literature thanhuman dignity.6

76 ALBER PHILOSOPHIE Nikolaus Knoepffler / Peter Kunzmann / Martin O’Malley (Hg.)

Martin O’Malley

3 This was the hypothesis of a previous article: O’Malley 2010, 253.4 See Schulman/Davis 2008.5 Taylor 2007, 172.6 Thanks here to Samuel Moyn for the insight regarding the relatively recent and sud-den increase in references to universal human rights since 1977. See: Moyn 2010.

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Figure 1. Comparison of »human dignity« and »human rights« 1940–2000 in›American English‹7 .

The figure above is meant for illustrative purposes only and does not initself »prove« anything. Perhaps the relatively infrequent reference tohuman dignity in US literature, and I would argue also US ethics dis-course, is a function of the relatively very high regard for the principleof freedom in the US social imaginary.8 This priority for »freedom«makes it relatively easy for Americans to reaffirm »their faith in fun-damental human rights« as the UDHR states. But, the reluctance toembrace an equally binding commitment to the »dignity and worth ofthe human person« is still puzzling. A preference for the principle ofautonomy could also help explain the deeply critical scholarly answerto the question: What exactly is meant by human dignity?

Comparing the dignity principle in the US and Germany is com-plicated by the very different receptions of the principle. Therefore, acomparative study of the two national contexts requires first a carefullydifferentiated understanding of the term dignity. This is achieved witha provisional and performative definition that identifies five essentialelements. And second, a comparative study requires a limited domainof both German and US literature. For this purpose, this paper primar-ily examines the »scientific« discourse relevant to positive law, and



7 This diagram was generated by the Google NGram viewer March 01, 2011, URLhttp://ngrams.googlelabs.com. The terms compared are »human dignity« and »humanrights« from 1940 to 2000 in the corpus »American English« with a smoothing value of»0«.8 Whitman 2004; Eberle 2002.

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specifically the legal reasoning relevant to the UDHR, the LisbonTreaty, and the decisions of each nation’s highest courts. The definitionwas born in my struggle to make sense of the widely disparate lan-guage used to discuss dignity.9 My experience is that scholars in theUS and in Germany generally focus upon one or two of these elementsto the exclusion of the others. Disparate national experiences, precon-ceptions, philosophical convictions and intentions with regards to thedignity principle create a very complicated discourse. Thus, the defini-tion is primarily intended to provide insight to the present comparativestudy, but I hope that with continued scrutiny and improvements itmight also find traction in wider discussions on human dignity.

The current performative and pragmatic approach attempts to in-corporate the insights of the political historian Quentin Skinner, whowarns against dealing with abstract political conceptions as having dis-cernibly linear ideological trajectories rather than being essentiallybound to specific political and language spheres.10 He advises carefulattention to the precise circumstances and contexts when terms areused. Though the UDHR provides a baseline meaning, the dignity de-finition is framed functionally and thus is somewhat formally. Thisapproach grounds and focuses the subsequent study on US and Germanlaw by providing differentiated categories whereby the principle of dig-nity can be meaningfully compared in relevant German and UShistorical contexts. Thus the dignity principle’s »universal and con-text-independent« claims can be examined according to a genealogicalmethod that surveys the actual historical claims of human dignity (per-formance) by German and US legal scholars and practitioners.11

Studying the critical scholarship on the nature of the principle,and tracing the historical emergence and contemporary use of the prin-ciple in US legal scholarship has much to offer both German and USaudiences. I want to make it clear, however, that I am not a lawyer.What follows is rather a focused examination of dignity as an ethical


Martin O’Malley

9 This research is the topic of the research project »Würde ist nicht dignitas« sponsoredby the VolkswagenStiftung, specifically under their initiative »Wissenschaft ist mehr-sprachig«.10 Skinner 2008.11 The historical approach adopted here benefits greatly from James Whitman’s »level-ing-up« thesis and Jeffrey Waldron’s development of a similar »transvaluation« thesiswhereby Waldron specifically argues that human dignity is a normative status. Whit-man 2004; Waldron 2009.

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principle for which the insight of legal scholarship is essential. In thisendeavor, I am encouraged by the eminent ML Friedman’s characteri-zation of the complex »chemical reaction« that represents the influenceof values upon the law, and law on values.12 The present essay is part ofa larger ethical argument that the principle of dignity, despite its com-plexity, is an important one that should play a more prominent role inthe US. Contemporary debates regarding bioethics, state-authorizedtorture, and incarceration, for example, point to the ethical dilemmasthat emerge when human dignity as a value is either neglected or al-lowed to be overruled by such values as autonomy, security, or effi-ciency. This argument benefits a great deal from the recent work oflegal historians and legal philosophers.

Provisional performative definition of human dignity

The following definition is used to examine the principle within thecontext of legal history:

Human dignity is the recognized affirmation that humans, quahumans, have a status of distinctive and exceptional worth expressedand thus discernible in law.

Such a definition may strike Germans as too »thin« a moral con-ception. Yet, just such a performative definition helps capture themeaning contained in the principle of human dignity that is incorpo-rated into the UDHR, the German Basic Law, and other legal formularsand systems. It is important to note that this performative approachdoes not surrender normative claims or the relevance of normativeclaims for the law – the opposite is the case. By »performative« whatis intended here is an examination not only of the moral content of theprinciple, its inherent reasonableness and its coherence among otherprevailing values and principles, but also a genealogical review of howhuman dignity has been and continues to be applied. The followingexplanation should help to clarify what is meant by the definition, theusefulness of such a performative approach, and the specific and neces-sary role of moral normativity for national and international structuresof law.

Two aspects of the principle’s performative definition are espe-



12 Friedman 2002, 589.

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cially essential, namely, the (a) action of recognition and the (b) objectof recognition. The action of recognition is essential because, as an ac-tion, it is an historical act that occurs in a particular time and place. Theact is therefore contextualized by a specific moral environment and themeaning of the act is both informed and restricted by that context. Theobject of recognition is essential because, despite its contextualized ori-gin, human dignity is a claim that all human beings, by virtue of theirbeing human beings, possess an unconditional worth – an absolute va-lue.13 Among other advantages to this approach is the incorporation ofthe tension between the contingent and universal directly within thedefinition itself. Rather than posing a contradiction, the tension propelsits utopic dynamism – such that the process of recognizing it is a pro-cess towards more justice and not merely compliance.14

What follows is a detailed examination of the definition of humandignity as (a) the recognized affirmation (b) that humans, (c) qua hu-mans, (d) have a status of distinctive and exceptional worth (e) that isexpressed and thus discernible in law.

(a) The recognized affirmation

Recognition assumes an actor affirming the subsequent claim.15 In thecase of human dignity, the archetypal act of recognition was the formaladoption of the UDHR by the United Nations General Assembly onDecember 10, 1948. The recognitions of dignity in the Lisbon Treaty,in the constitutions of individual nations, and more generally, have allbeen influenced by the UDHR and share essential elements with it.

The UDHR is insightful because of what it says about the principleand also what it does not say. The declaration uses precisely the lan-guage of recognition – a language of consensus regarding »rightness«.Such language conveys an affirmation of the principle’s »true-ness« in


Martin O’Malley

13 See Knoepffler/O’Malley 2010.14 The identification of utopianism with human rights is found in Moyn 2010. Theidentification of utopianism with human dignity is found in Habermas 2010.15 It was only after present definition was formed that I was led to Honneth’s literatureon recognition spanning twenty years of development. The present work uses the term»recognition« in a way that is common and »un-freighted«, but there are many specificinsights to be gained from Honneth. These insights are noted in the text and footnotes.See Honneth 2003 [1992]; Honneth 2010.

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the sense of asserting a conviction shared by the signatories. It is as if tosay: »We believe that humans have this dignity!« The declaration isitself a deeply laden moral document, but it makes no transcendingphilosophical claims to ground the claim for human dignity. The recog-nition is dependent upon the many nations that represent often dis-tinctly different religious, moral and social ways of thinking. This plu-ralism did not hinder the representatives of those nations fromregistering their assent to the moral claim of human dignity. And thepluralism is assumed in the continuing discussions regarding humandignity’s meaning and appropriate application. Put simply, recognitionis an act of social and moral consensus possessing an historical begin-ning and a continuing relevance.16 By emphasizing recognition, thedefinition of dignity is not dependent upon metaphysical, ontologicalor otherwise generalizing claims about what the world »is«. There is no»justification-transcendent point of reference«17 needed to lend weightto the recognizing claim. All that is necessary is the performative pre-supposition of a unitary »world-out-there« that is already a necessaryelement of the claim. For without such a presupposition, the dignityclaim is meaningless. The recognizing claim in Article 2 of the LisbonTreaty is insightful here (my emphases):

»The Union is founded on the values of respect for human dignity, freedom,democracy, equality, the rule of law and respect for human rights, includingthe rights of persons belonging to minorities. These values are common tothe Member States in a society in which pluralism, non-discrimination, tol-erance, justice, solidarity and equality between women and men prevail«18 .

The very act of signing on to the treaty binds each signatory to thespecific claim as well as the presuppositions inherent in the claim. Withparticular attention to human dignity in this article, the signatory isessentially claiming that »it is true« that respect for human dignity is avalue that grants validity to the union. To say that »these values arecommon« is to say that we believe these values to be true. There is alsoan implicit demand that other nations joining the union must committo these values.



16 There are some analogies to be drawn here with HLA Hart’s »rule of recognition«,but Hart’s insight is not essential for the argument being made here.17 Habermas 2003, 42.18 Lisbon Treaty: Consolidated Versions of the Treaty on European Union and theTreaty on the Functioning of the European Union 2010.

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The signatories’ pluralism, which in the Lisbon Treaty is explicitlystated in the document, introduces complexity to the actual object ofthe assenting recognition. The philosophically unsatisfying nature ofthe historical act of recognition is that each nation’s assent to the givenproposition brings with it a distinct interpretation of the proposition.Even though the proposition is an universalistic one, the recognition isdependent upon the particular societies and reflects the distinct moralframeworks of those societies.19 Further, though the initial act of as-senting is an instance of moral achievement, that achievement repre-sents merely a landmark – one point of the society’s learning trajectoryof understanding the dignity principle. It is not the reception of a static,invariable, or immutable »thing«. The landmark binds the assentingnations to a framework of commitments, of course. But as the UDHRitself emphasizes, a continuing process of education and promotion ofrights and freedoms is necessary. This process of learning means thatcommitment to the dignity principle is a dynamic process that simulta-neously requires an ongoing consensus as well as openness to furtherinsights and corrections. The element of »recognition« in defining thedignity principle thus holds together the tension between post-meta-physical pluralism and the objectivity of moral values. Though theUDHR is archetypal, this proposed definition applies to the principleas it exists in national contexts as well, including of course in Germany.

It is important to address Klaus Dicke’s functional analysis of dig-nity in the UDHR because Dicke pays close attention to the way recog-nition is necessary for the dignity concept. It is also important becausedespite the good deal of agreement between his functional analysis andthe performative approach of the present analysis, he argues that dig-nity is a principle that resists definition. Dicke’s approach presents apotential dilemma first for the thesis that dignity can indeed be profit-ably defined and, second, that recognition itself should be includedwithin the dignity definition. That said, there is agreement that theact of recognition itself cannot constitute dignity.20 There is certainlymore to it than that.

Dicke’s primary thesis is that »the dignity of human beings in the[… UDHR …] is a formal, transcendental norm to legitimize human


Martin O’Malley

19 The legitimacy or lack of legitimacy of the signatory nations’ political representativesis relevant insofar as it reflects the general limitations of political representation.20 Dicke 2002, 114.

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rights claims«21 . He argues that because each of the UDHR’s catalo-gued rights is both conditioned by history and yet is a claim for uni-versality, the rights lack a clear philosophical, political and legal foun-dation. Thus dignity »functions« as a foundation for rights by givingthem a legitimation and a means for interpreting and applying them.The UDHR specifically identifies dignity as the foundation of humanrights, but the concept of dignity had no consensus meaning in thepost-war period, or beforehand for that matter. The idea of dignitywas unquestionably »out there« in the form of distinct Catholic, Jewishand Enlightenment notions, as well as in Kant’s philosophy of freedom,but there was no consensus on the term’s specific meaning and therewas no established systematic legal principle of dignity. For dignity tofunction »foundationally« and thus as this source of legitimacy for hu-man rights, according to Dicke, it had to (1) be recognized, (2) as thefoundation of freedom, justice and peace, and it had to (3) be univer-sal.22 In the search for an Archimedean point (my term) to ground theUDHR’s catalogue of human rights, dignity functioned as the referentto (i) the political experience of WWII and (ii) the desire for democraticnations ruled by law. Dignity additionally referred to (iii) the specificworth or value of (iv) individual human persons.23 In becoming such areferent point, dignity assumed and transcended (sublimated) a greatdeal of existing and pluralistic political regulative thinking. As such,Dicke argues that the principle must remain somewhat indefinable –»somewhat« because he does offer a general conclusion that »dignity isthe expression of the unity of mankind«24 . Thus, for Dicke, dignityremains a transcendental norm. He uses this term to distinguish theprinciple from norms of substance that provide direct and deductiveprinciples for political and legal applications.

It seems to me, however, that the search for an Archimedean pointto ground human rights attributes too much significance to the role ofdignity as a foundational? principle. Yes, dignity has a role in law andgives weight to political and legal interpretations of human rights. Butno, rights are not deductively »founded« on dignity as if they were



21 Id., 118.22 Id., 114. The numeration of these and following points is imposed upon Dicke’s ana-lysis.23 Id., 117.24 Id., 114.

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derived principles. Also, in trying to solve the perceived problem thathuman rights are indeterminate principles needing a further founda-tion, Dicke merely shifts the problem of indeterminacy from humanrights to the principle of human dignity, and then he solves the pro-blem of dignity’s indeterminacy by sacralizing it. »In a religious con-text we know the prohibition to draw pictures of God. I would nothesitate to apply that prohibition to human beings because freedom,understood as the underivable responsibility of human beings as citi-zens of the world, cannot be enacted without a certain sphere of indivi-dual secrecy«25 .

Dicke uses the Kantian term »transcendental« to describe dignity,but the effect of his argument is to make dignity also at least a bit»transcendent« and thus potentially out of reach. If this is the case,then the UDHR grounds a system of international law upon a principlethat is theoretically indefinable and perhaps mysterious. Dicke clearlydemonstrates his respect for the role of democratic participation whenhe states: »In my view, the [… UDHR …] develops its own triad,namely freedom, equality and participation in a political social andinternational order as necessary to secure the rights that the Declara-tion contains«26 . Yet Dicke’s desire to establish a foundation for humanrights upon a sacralized principle of dignity is potentially incompatiblewith a system of law that so esteems participation. It is incompatible ifdignity’s »indefinability« effectively masks something contained in theprinciple, or if it prioritizes the interpretations of some groups overothers in a way that is resistant to public discourse.

Dicke’s concern is certainly praiseworthy, namely grounding uni-versal human rights with a principle that responded to the experienceof human tragedy. But the difficulty in defining such a principle doesnot imply its impossibility, and I argue that rather than simply leavingit shrouded in mystery, it can be given content and meaning from pre-cisely the tangle of experience that not only gave rise to the recognitionof the principle, but which continues to inform it. However, this can bedone only if the act of recognition is brought inside the definition itself,that is, as a transparent source that gives content and meaning to theprinciple.

Many accounts of human dignity make mention of its connection


Martin O’Malley

25 Id., 120.26 Id., 119 (my emphasis).

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to experience without adequately explaining the relationship of the»experience« of the war’s inhumanity to the »meaning« of the princi-ple. Habermas refers to the experience as having had a »discovery func-tion« (Entdeckungsfunktion).27 Dicke also acknowledges that the dig-nity principle only »has meaning if referred to political experience andpolitical claims«28 . His approach would be in fact strengthened if hewent a step further to acknowledge that the experience of inhumanityis deeply bound to the very meaning of the principle.29 Thus, dignitydoes not merely »refer to« tragic experience in the explanation of theprinciple’s coming-to-be. Dicke’s potential openness to such an ap-proach is indicated when he concludes that the UDHR is precisely theanswer to respond to Hannah Arendt’s 1949 observation that natureand history have lost their ability to provide a foundation for politicsand policies. »In my view, the Universal Declaration is a prompt andclear answer to the challenge that Arendt’s observation implies. Basedupon political experience, it spells out a political program to establishconditions under which human beings can equally enact their respon-sibilities as citizens of the world«30 .

The act of recognition within the performative definition of hu-man dignity accounts for the post-war context as an essential elementof human dignity the principle’s historical dimension. The principle asit exists today would be a very different principle if it could be ab-stractly conceptualized as independent from that experience. This isthe reason why recognition is part of the definition of dignity. Humandignity was a »never again« response to a crime with particular facets.The dignity principle recognizes the essential worth of humanity inresponse to a particular form of inhumanity.

By including recognition – an action – within the definition, dig-nity reveals a dynamism similar to that contained in human rights.Rights are not just passive objects; they are »claims« that assume awhole context of justice. When a right is referred to, so is a wholecontext of justice. And so is the case with dignity. It retains the imprintof the wrongdoing to which it originally responded, though the princi-ple is not limited by the nature of its responsive origins; human dignity



27 Habermas 2010, 346.28 Dicke 2002, 120.29 This connection is perhaps an area where Honneth’s insights are especially helpful.30 Dicke 2002, 120.

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has the internal resources to deal with situations very different fromthe context of World War II. It is a moral claim that contains a wholecontext of justice that is informed by the history of its coming-to-beand its continuing-to-be.

(b) that humans,

The dignity definition specifies the object of recognition, namely hu-mans, and includes an implicit anthropological claim that humans arecapable and deserving of being recognized as possessing this particularand undifferentiated status. Reflection on the succession of politicalliberation movements in modern history illustrates how demands for»equality« were demands of groups to be recognized as humans – withbeing recognized as sharing the particular status simply defined as»human«. Conversely, the argument that there are different »sorts«of humans was made by those groups who resisted the liberationmovements.31 They had to make the argument that there are morallysignificant anthropological differences among peoples or between thegenders in order to resist movements for equal rights for peoples ofnon-European origin, women etc.

Many classical and religious human dignity conceptions that haveuniversalistic (non-sortal) aspects include quite »thick« anthropologi-cal convictions, such as the Christian anthropology grounded in theimago dei. In comparison, the anthropologies of the UDHR and thedignity conceptions that followed it are relatively »thin«. One is sim-ply committed to the basic anthropological claim that humans have aninherent capacity to receive the designation of dignity. By inherent ismeant that humans do not need any extra education, nationality, reli-gious affiliation, birth, title, rank, office or possession to be capable ofreceiving this designation. If that seems self-evident to modern ears,then it is important to emphasize that until very recent history, thiswas not at all self-evident.

16th century Catholic scholars, for example, wrestled with the is-sues of slavery and the treatment of American Indians and other peo-ples encountered by European explorers in the late 15th and early 16th


Martin O’Malley

31 Waldron 2009. Waldron’s lecture sections are denoted with »§«-symbol; §11 dealswith »sorts and conditions of men«.

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century by attempting to ascertain whether they had souls. The 1537papal bull Sublimus Dei declares that the indigenous peoples are indeed»human« and thus possess human souls. This recognition is primarilyframed in the context of whether they are capable of exercising reasonand receiving the faith. The act of recognizing the people’s humanityreveals a specific anthropology. And the act also commits the »actors todefending certain basic and minimal standards owed to those now re-cognized as persons. This meant that they could not be deprived of theirliberty and that they are capable of holding property. Thus, the fact oftheir belonging to the group humans make it clear that they have awell-defined status in society with distinct rights protected by law.Since Sublimus Dei, the Catholic Church has been theoretically com-mitted to an univocal anthropology and thus to rejecting such distinc-tions of human capacities associated with racial or other fundamentalsortal differentiations. The UDHR, analogously, commits the signa-tories to a thinner anthropology than an imago dei, but it is no lessunivocal in its rejection of any inherent sortal differences among hu-man beings with respect to their having dignity.

The close relation of recognition (a) to anthropology (b) is clear inthe example of the US’s Civil Rights Movement that reached full forcein the 1960s. It was not a movement to change any moral principles perse, nor was it a movement to amend the reasoning supporting thoseprinciples. The movement’s aspiration was to broaden the recognitionof humans – all humans – as the object of those well-established moralprinciples. Specifically, the civil rights movement struggled to have agroup of previously marginalized people recognized as human – hu-man without distinction or qualification. Martin Luther King’s »Letterfrom Birmingham Jail« calls for the transition to a situation in which»all men will respect the dignity and worth of human personality«. It isimportant to note that the letter is addressed to so-called moderateswho profess no objections to King’s basic principles. Agreeing theoreti-cally that African Americans were humans, the moderates had sug-gested patience in responding to manifest injustice. King’s response,mirroring the response of the civil rights movement, is essentially thatthe failure to extend rights is a failure with essentially two possibleroot causes. Either African Americans are sortally different, and thusnot necessarily due equal rights (note that King did not use the term»sortal«). Or, sortal differences are erroneous, and racially-determineddenial of rights is a tolerated evil. King’s argument to the Birmingham



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pastors is that tolerating the racially-based denial of civil rights is tan-tamount to the denial of African Americans’ humanity – and just aspernicious.

Broadening recognition of humanity’s non-sortal nature is thedecisive achievement of the liberation movements. Being human, then,is to possess a basic and undifferentiated nature common to the wholespecies. Jeremy Waldron and James Whitman argue that the recogni-tion of this undifferentiated human nature conveys a »status« that is acrucial and essentially moral step that was historically necessary for theimbuing of that status with the content of worth that is due all humanindividuals. More will be said on the specific content of the dignitystatus below, but it is important here to note that the status of dignityassumes a basic human capacity for reasonableness, self control, beingresponsible, to following rules […] and thus to being moral. These arebasically anthropological claims. Though dignity’s moral content ismore fully expressed in following sections and given concrete expres-sion in the law (e), it should be emphasized that the moral aspect ofdignity remains not just important, but essential to all five elements ofthe definition.32

Waldron’s insight (following Whitman) is that the notion of sta-tus (or rank) most adequately captures the way that dignity functionsin society. When we express that humans have a dignity, we are sayingthat they bear a status by virtue of their being human. All the elementsof the dignity definition are relevant to this status. There are also, ofcourse, important differentiations within the status of humanity, suchas infancy or minority. When humans are too young, are married, havecommitted felony or are members of the armed services, that »condi-tion« confers a conditional status upon the person. Yet that conditionalstatus does not jeopardize the universal and inalienable nature of thebasic status of being human. The UDHR and subsequent human dig-nity claims reject all intra-human or sortal differentiations. Waldrondefines such differentiated status that »categorizes legal subjects on thebasis of the sort of person they are. […] Sortal status represents a per-son’s permanent situation and destiny so far as the law is concerned«33 .The dignity principle, as King and Waldron argue, makes absolutely


Martin O’Malley

32 Waldron’s lecture (§4) uses Lon Fuller, 1969, The Morality of Law to emphasize themoral nature of dignity.33 Waldron 2009, § 7 (emphasis Waldron’s).

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clear that any such fundamental anthropological sorting is morally re-pugnant, subject to public reproach, and worthy of legal rectification.

(c) qua humans,

The logical implication of a univocal anthropology (b) is that, as hu-mans, there are no exceptions to the application of the principle for allhumans. The recognition of a legally relevant category of »humans«(anthropology) is specified with the qualification »qua humans« to in-troduce a radical egalitarian aspect to the definition of human dignity.Humans, as stated above, have the inherent capacity to receive the de-signation as having distinctive and exceptional worth. The recognitionof this anthropological reality implies that humans, qua humans, havea claim to worth simply because of their humanity and should be re-cognized as equal to all other humans in many important respects. InWaldron’s terms, the principle of dignity reflects the evolution to a»single-status system«34 where all humans are necessarily equal beforethe law.

The universalizing claim here is similar to that of the US’s De-claration of Independence: »We hold these truths to be self-evident,that all men are created equal«. Whether or not the claim is self-evi-dent, the egalitarian principle is a necessary element of human dignityand it is closely dependent upon anthropology. In the Declaration, theanthropological claim follows with a moral claim: »that they are en-dowed by their Creator with certain unalienable Rights«. These rightsare held by virtue of one’s being human. And the content of the moralclaim is laden with the concerns: »Life, Liberty and the pursuit of Hap-piness«. All three of these claims owe their meaning to the particularhistorical concerns and philosophical understandings of the rebelliousAmericans who wrote the Declaration.

The history of modern emancipation movements can be under-stood as a narrative of not only the recognition of humanity’s non-sortal nature (b), but also of the privileges due the continually expand-ing human status. Europe’s aristocracy had enjoyed carefully detailedprivileges that were enforced by varieties of social and legal measures.



34 Waldron 2009, §10. Waldron notes that this phrase is taken from Gregory Vlastos,Justice and Equality, in Jeremy Waldron, Hg., 1984, Theories of Rights, 55.

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There were variations in the privileges and the enforcement measures,but what was common was a class system that sanctioned such divi-sions among persons (sortal distinction) and the understanding of vio-lations to be threats to the dignity of the person as well as the rank. The»leveling up« narrative (developed by James Whitman and JeremyWaldron) frames the development whereby more and more people areincluded in a special rank possessing protected privileges. Ultimately,with the adoption of the UDHR, this rank is universalized while retain-ing its legal function of defining the specific privileges of status mem-bers, namely of all humans. An analogous narrative is provided byHonneth’s philosophy of recognition, whereby modern emancipationmovements are seen within a trajectory of groups struggling for recog-nition.35 Honneth’s approach sheds much light upon the critical andcontinual role of historical actors in achieving what Whitman and Wal-dron refer to as the privileges of the human status.

Whitman traced the evolution of continental law and argues thatit developed in a way that is closely tied to notions of respect and also toetiquette. Punishment codes, protections of privacy and rights to speechall developed in analogous ways such that laws that were first reservedfor a privileged few were continually expanded until they were univer-sally applicable. Whitman’s argument with reference to Germany isthat the codes that protect personality were framed in terms of honor-ing specific categories of status. The status of aristocrats and the duel-ing classes were protected in the 19th century. This law was framed interms of personality, and it was expanded in the late 19th century toinclude increasingly wider groups of people such as the members of thegrowing bureaucracy. Though this example is not essential for the ar-gument, it is interesting to note that Whitman even includes the Naziperiod as participating in this leveling up. The Nazi ideology specifi-cally honored a status of German citizens even as the Nazis deliber-ately excluded groups of people from citizen status for reasons basedupon ethnicity, sexual orientation, political dispositions etc. They spe-cifically honored the working class as a category deserving special at-tention because of their status as German citizens. After the war, theBasic Law’s second article expanded the protection of personality uni-versally, following the example of the UDHR, but Whitman argues


Martin O’Malley

35 Honneth 2003 [1992]. See also Honneth 2010.

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that the history of the law continues to inform understanding of thepost-war law.36

The insight gained by reflection on the leveling-up hypothesis isthe value of understanding human dignity as a rank or status. Status issomething that is possessed, but not as an ontological or biologicalattribute in the sense that humans possess a soul or even a nose. Ratherit is a socially recognized reality reflecting moral claims of worth thatare carefully defined according to socially defendable criteria, such as inthe law. This is an important distinction because the deep-seatedness ofthe dignity principle understandably obscures the distinction. It isworth remembering that aristocrats were often referred to as having»blue blood« to reinforce their quasi ontological/biological sortal dif-ference from mere commoners. The UDHR was the culmination of aprocess whereby all humans were recognized as having a particularvalue worthy of deliberate protection. The fascist period is a demon-stration of the intellectual depravity and moral peril of sorting humanbeings because of the purity of their blood or any other biological orideological reason. The experience of the war generated a »neveragain« response that informs the universalism of the dignity principle.All human persons have this dignity – no individuals or groups may beexcluded for ethnic, religious, political, or any other reasons. The uni-versal claim of personhood that applies to all humans admits no excep-tions. The dual principles of »fundamental equality« and »subject sta-tus« have important relevance here, though the content of theseprinciples is better reserved for the following section.37

The legal philosopher Winfried Brugger addresses the anthropo-logical aspects of human dignity in his development of the idea of a»decisional cross«.38 His approach distinctively identifies the anthro-pological suppositions and values functioning in legal systems, as wellas the constitutional principles and regulations that support them. Byfocusing specifically upon the »hard cases«, he outlines and therebydifferentiates four specific anthropological considerations that a deci-sion-maker must incorporate into a just decision. Namely, a decisionmust consider the reality of a socially embedded person’s (i) ideals and



36 Whitman 2004. It is worth noting that the principle of human dignity is related, butdistinct from the principle of personality.37 See Knoepffler 2010, 66.38 See Brugger 2008a; English version: Brugger 2008b.

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values, as well as their (ii) basic natural (biological-psychological-so-cial) needs. The vertical axis of Brugger’s cross, (i) to (ii), is intersectedby the horizontal pole spanning (iii) historical considerations of tradi-tion and (iv) forward-looking teleological legal considerations of thelaw’s ultimate purpose. There is much more to be said about Brugger’swork than this short synopsis, but I want to draw attention to the in-herent cultural specificity implied by this framework. Apart from basicnatural needs (ii), each element of the decision cross possesses aspectsthat are deeply and legitimately shaped by specific cultures. Neverthe-less, Brugger argues that universal principles like human dignity andhuman rights offer a great deal to unite distinct legal contexts. Impor-tantly, Brugger shows that both the culturally specific as well as uni-versal anthropological considerations remain essential aspects of thehuman dignity principle.

(d) have a status of distinctive and exceptional worth

The universal and egalitarian nature of the dignity status confers aminimal and baseline protection against active insults to that dignity.That is established in the section (c) above, and the specific content ofthat protection is outlined below in section (e) regarding the law. Morethan a minimal or baseline protection, however, the dignity status alsosubstantiates the conviction that humans have distinctive and excep-tional worth. Waldron’s description of dignity as the »nobility for thecommon man« reflects the high-valuing aspect of the status now ap-plied to all humans, but this valuing aspect also reflects dignity’s rela-tive nature.39 Mel Brooks wisely notes that »It’s good to be King«, butthe aristocracy of various lands and time periods enjoyed diverse bene-fits. Furthermore, while section (b) presumes consensus for a minimalanthropology and section (c) implies an implicit consensus regardingthe minimal egalitarian valuing of humans, there are wide religious,cultural, and national divergences regarding the nature and measureof human worth. This ambiguity is not solved by the dignity principleand demonstrates dignity’s continual dependence upon social contexts.For example, Germans have expectations based upon human dignitythat are different from the expectations of Americans and very differ-


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39 Waldron 2009.

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ent from citizens of developing nations. Despite its ambiguity and de-pendence upon social convictions for specific content, the dignity prin-ciple nevertheless indicates a »high« status and one deserving bothprotection and promotion. The following discussion treats both theminimal consensus aspect of human dignity’s distinctive and excep-tional worth, as well as its necessarily open-endedness given the diver-sity of the societies that make the claim.

Given the world-shattering events of WWII and the fact that hu-man dignity in the UDHR is a counter claim to those specific atrocities,we have at least a base-line content for human dignity. The content isfound in the imperative to not do what the Nazis did, at the very least.If the national experience was more influenced by the atrocities of theJapanese, the content would also include the opposite of those relatedbut unique atrocities. The base-line content is given formal content inthe dual principles of »fundamental equality« and »subject status«. Atthe very least, all persons are to be treated as fundamentally equal andalways as ends in themselves – never merely as means.40

A range of views exists regarding what human worth actuallymeans beyond the base-line meaning. The pluralism within this rangedoes not hinder the insights and impact of philosophical, religious andsocial ideas on human dignity and the application of the principle.However, it does require that we understand the principle as a dynamicone that is continually open to and dependent upon broad moral reflec-tion. Christian, Jewish, and other religious traditions find foundationsfor dignity in both »revealed« and rational sources. The deep culturalinfluences of these traditions have a profound influence on the waythat dignity is interpreted. This is far beyond the base-line contentprovided by the context of WWII, even though the influence of reli-gious traditions is subject to the limitations of democratic legitimacy.Emancipation movements since 1948 have exposed inconsistencies andshortcomings of both the dignity conception and its application, as theexample of Martin Luther King shows.

Kwame Anthony Appiah’s approach in »The Honor Code« (2010)is perhaps similar to Honneth’s study of history for moral insights.Appiah develops a version of the leveling up hypothesis by examiningthe moments of moral revolutions in the past few hundred years. Hereflects upon the fact that arguments for moral action are just as ra-



40 Knoepffler/O’Malley 2010, 65.

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tional before the abolition of slavery, the empowerment of women, andthe march for civil rights etc., as they were afterwards. Appiah arguesthat what changes is a change in social identity. What was formerlytolerable is subsequently beneath our dignity. Our »honor« forces usto object to the treatment of ourselves or others in such a way. Thischange is one that Hans Joas and others have detailed, and whichCharles Taylor describes well in his treatment of collective agency.

»Democratic societies are organized not necessarily around a ›civil religion‹,as Jean-Jacques Rousseau claimed, but certainly around a strong ›philosophyof civility‹, enshrining the three norms, which in contemporary societies areoften expressed as 1) human rights, 2) equality and nondiscrimination, and3) democracy«41 .

Taylor’s comparison with civil religion is important insofar as it de-monstrates the importance of social moral convictions to give contentto the principle of dignity. Jewish and Christian convictions that hu-mans are made in the image of God (imago dei) have profound bearingupon the valuing of the species. Yet, these convictions are not shared byall people who recognize human dignity. Following Aristotle, manytraditional and even contemporary natural law anthropologies identifydistinct attributes that human beings do not share with other animalsto emphasize the uniqueness of humans who stand atop what is de-picted as the hierarchy of nature. Yet this approach to specify humans’unique dignity may not be very convincing to cultures not imbued intraditional natural law thinking. Moreover, recent findings indicatingthe high level of neural, affective, and social abilities in dolphins,whales, primates etc., should not threaten conceptions of human worth.Rather, I think the insight of dignity as a rank or status gives mostinsight into its dependence upon social moral convictions. The highstatus that was historically attributed to nobility reflected the generalsocial convictions regarding the »state of nature«, their world view. Thepresent world view, or rather, »world views« have changed, but theycontinue to inform our understanding of human dignity. In this sense,general cultural, religious and philosophical accounts of dignity have arole in filling in the content of dignity in terms of influencing both itsuniversal meaning and the specific meanings for specific normativecontexts.


Martin O’Malley

41 Taylor 2010.

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The Kantian insights relevant to the principle of specifically»Würde« have relevance to this section (d) because Kant argues(Grundlegung zur Metaphysik der Sitten) that humans have a »valuebeyond price« and he grounds the intrinsic worth that every humanbeing possesses by virtue of their (related) rational and moral capacities.With due humility as a non-specialist in Kantian philosophy, the mostconvincing explanation of this formulation seems to be that Kant isreferring here not to some ontological claim, but a conclusion derivedfrom reason.42 Oliver Sensen categorized all 111 times the term»Würde« appears in Kant’s published work and specifically the 17 timesthat it is used in the Grundlegung. Sensen’s conclusion is that Kant’s useof the term reveals dignity is not a foundational concept. It does notprovide a grounding for the categorical imperative, but instead is usedto elaborate on the implications of the »formula of autonomy« wherebyevery individual should act only according to maxims which are univer-salizable (GMS, AA 04: 434.12–14) and the »formula of kingdom ofends« whereby society consists of individuals treated only as ends inthemselves and never merely as means (GMS, AA 04: 433.17–18).43

Sensen argues that Kant’s uses Würde to stress the value of morality;that it has a worth that is above all such things that can be assignedmonetary value or price. »While morality has dignity in the sense thatit should be sought above all else, humanity has dignity in the sense ofbeing elevated over the rest of nature in being capable of morality«44 .Kant’s emphasis in the Grundlegung is not on the value of humanbeings, whether inherent or not, but upon morality. Sensen’s conclusionis that the move from the valuing of morality to the valuing of humanbeings for having the capacity for morality is a derived emphasis.

Though it is a derived emphasis, it is rationally defensible and bene-ficial. The reasoning could be framed in the following way: First, moral-ity is the highest exercise of reason, most excellently expresses freedomand thus has an unconditional value. Second, humans possess the capa-city for reason, freedom and thus morality. Third, an unconditional va-lue cannot be relativized; it is above all other values and without price,and therefore absolute. Therefore, humans have an absolute value.

There is much more that could be said here, of course, but for the



42 Sensen 2009b.43 Sensen 2009a, 322.44 Id., 325.

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present it is important to note the value of Kantian insights into the»distinctive and exceptional worth« possessed by human beings. Withregard to the dignity definition’s anthropology (c), Kant brings a greatdeal of insight to the nature of the person as possessing the capability toreason and thus to be moral. And with regard to (a) recognition, it issignificant to note how the dignity principle was »received«, especiallyin Germany where a »Kantian« approach has significantly influencedthe interpretation of the dignity principle. This is especially the casefollowing the classic explication of the Basic Law in Dürig’s 1957 com-mentary where he outlined the principle of »subject status«. With ob-vious Kantian overtones, it states essentially that every person pos-sesses a status as a subject and may never be treated merely as ameans. Though it is not self-evident in the UDHR principle of dignityor even in the German Basic Law, this is a weighty and convincinginterpretation of dignity. It speaks not only to the great worth humanspossess by virtue of their possession of moral capacity, but the approachalso gives an essential insight into how dignity must be interpreted.Namely, every human being is of such great value, that there is noforeseeable situation whereby it is conceivably justifiable to sacrificeeven a single human being for some utilitarian purpose.

The present definition has the disadvantage of lacking a more con-crete list of clearly delimited moral implications. However, it has thebenefit that it captures the principle’s open-ended quality of being cap-able of progress – and also decline. Regarding decline, for example,Whitman has written on the criminal punishment practices of the US,which are arguably very contrary to dignity, but which many Ameri-cans tolerate.45 Nevertheless, the definition’s open-endedness is givenstructure and stability by the process by which it is incorporated intolegal structures. As Andorno argues, the UDHR and other UNESCOdeclarations are law and should not be understood as merely ethical orpolitical assertions.46 The declarations are »soft law« insofar as theyrequire further incorporation into national and international struc-tures, but the claim to dignity in those documents is not merely pie-in-the-sky wishfulness. If it is utopic, it is a realistic utopia (Habermas’phrase) that demonstrates the final element of the definition, legal in-corporation.


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45 Whitman 2003.46 Andorno 2009.

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(e) that is expressed and thus discernible in law.

The account so far places great emphasis upon the »actions« of consti-tuting, sustaining and developing the principle of dignity as a recog-nized status signifying high worth. As a moral principle, it is valid andobjectively true to the degree that it performatively satisfies demandsfor justification. Yet human dignity is not a moral principle that can beexercised and thus performatively recognized or exercised privately orabstracted from the social sphere. It is an essentially social principle andone that characterizes the quality of human social interaction such thatits performance is necessarily public. For complex modern societies, thepublic performance is observed most transparently in the institutiona-lized rules of social interaction, namely in the law as it is both writtenand practiced. This is the basis for, among other things, the necessaryconnection between human dignity and human rights, especially since1948. The dignity-law connection is not an historical coincidence, but aconsequence of dignity’s particular meaning.

The role of reason both abstractly and in public deliberation isessential for understanding the meaning of dignity, of course, but so isthe application of the principle. This can be seen as simply a function ofthe social (national) actors practicing that which they have professed.Because recognition is described as an historical »we believe« moment,the »true-ness« of the professed conviction is demonstrated in both therational description of belief and the actions which are pertinent to thatbelief. Thus if a society professes a belief in human dignity, it shouldstructure its social rules in ways that are consistent with this belief andthe society should also dependably implement those rules. Though hu-man dignity may be recognized in ways that are irrelevant to the law,the medium of law is essential for preserving the principal elements ofhuman dignity, such as preventing scenarios that are clearly contradic-tory to dignity. In this sense, the medium of law is also a necessarymarker for human dignity. »Unless valid norms are turned into a uni-versal practice, an essential condition of justifying them as morallybinding remains unfulfilled«47 .

The focus on law for revealing the meaning of dignity is poten-tially unsatisfying for perhaps the same reasons that legal systemsgenerally fall short of achieving moral ideals. On the one hand, the



47 Habermas 2003, 45.

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law deals primarily with extreme situations and is as best capable ofoutlining behavior that is socially acceptable, and not morally exemp-lary. Thus, it is understandable to be suspicious of an attempt to look tolaw for moral insight. On the other hand, however, the law in basicallylegitimate societies essentially represents the rules those societies havechosen for themselves. This is not to diminish the continuing horizon-tal tensions among conflicting laws and the vertical tensions betweenthe law as it is and the law as it could be if it were to represent fulljustice. Nevertheless, the law is an expression of institutionalized mor-al progress, and thus it is an appropriate (if not sufficient) subject mat-ter for discerning social moral progress. Many of the tensions in thecurrent historically embedded account of dignity are listed in the fol-lowing chart:

Contingent Categorical

historical, situated, incomplete absolute, universal

national (sub-national), context dependent international, context independent

open-ended, dynamic, utopic morally binding in law

based upon social consensus based on reason

based upon, and continually open to experi-ence

experience transcendent, transcendental

meaning must be relevant for peoples distantfrom WWII context (in place and time)meaning continually disclosed in strugglewith contemporary moral issues

definitive meaning found in unanimous in-ternational reaction to WWII atrocities asincluded in the UDHR

Figure 2: The Contingent and Categorical Tensions in the Legal Conception ofDignity.

These tensions, taken as a whole, could be seen as inherent contradic-tions and thus a grave flaw in the thesis I am proposing. Worse, theymight introduce doubts regarding endeavors like the UDHR or the useof dignity in legal regimes. For this, and other reasons, I agree withWaldron’s insight that it is not only helpful, but essential, to under-stand the principle of dignity with the help of legal philosophy. Thelaw is precisely the discipline that struggles with questions of moraltruth, rightness, valid norms, universalizing practice, and the contin-gencies inherent in the social contexts of limited humans.

The tensions also express the fittingness of a performative defini-tion over a static one. Human dignity as a legally recognized status


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Knoepffler 48424 / p. 99 / 30.9.11

deserving of »being honored« is an abstraction that needs concretiza-tion on the broad social level that law provides.

The argument is that the law is the most apt location for observingthe performance of human dignity. This argument will be ultimatelydemonstrated (or not) by its fruits, namely, the insights gained byusing the definition in analyzing the legal language of Germany andthe US. In the interest of clarity, however, the following six elementssummarize the essential reasoning for looking to the law for under-standing human dignity:

First, while recognizing that dignity plays a role in familial, reli-gious, community and other social settings, human dignity mostly re-fers to the broad social context relevant to such large bodies as nationsor even multi-nation groupings. Second, while discourse in these broadsocial contexts is complex, the political arena is the forum where demo-cratic societies ultimately discern committed courses of action. Third,decisions in the political arena which have the force of commitment areexpressed in laws that enjoy the support of enforcement mechanisms.Fourth, these enforcement mechanisms are not merely coercive, theyfunction well when they reflect normative consensus and function po-sitively as standards for proper civil conduct.48 Fifth, the law providesthe forum for public hearings and the platform where arguments arehashed out – even the arguments from people who are decidedly onsociety’s margins. In a word, the law provides the mechanism by whichhuman dignity can be realized. And finally, laws that reflect a commit-ment to human dignity are necessarily partial and limited, and couldnever exhaust the content of the dignity principle. The laws do intendto achieve a situation of, if not perfect human dignity, at least morehuman dignity. As such the dignity principle serves a teleological func-tion of achieving more justice in society.

Human dignity as the recognition of human worthiness is an all-encompassing principle that contains the moral wisdom of the past, andpossesses the potential to deal with present and future violations. Thelaw is not the only context in which human dignity can be broached,but it is an essential tool for both protecting and advancing it.



48 Waldron 2009, § 7.

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