Making Human Dignity Central to International Human Rights Law

A Critical Legal Argument

Matthew McManus

• Publisher: University of Wales Press
• Year: 2019
• Print ISBN:
  9781786834645
• Edition: 1
• eBook ISBN:
  9781786834669
• Topic: Law
• Subtopic: International Law
• Index: Law

In recent years, there has been an explosion of writing on the topic of human dignity across a plethora of different academic disciplines. Despite this explosion of interest, there is one group – critical legal scholars – that has devoted little if any attention to human dignity. This book argues that these scholars should attend to human dignity, a concept rich enough to support a whole range of progressive ambitions, particularly in the field of international law. It synthesizes certain liberal arguments about the good of self-authorship with the critical legal philosophy of Roberto Unger and the capabilities approach to agency of Amartya Sen, to formulate a unique conception of human dignity. The author argues how human dignity flows from an individual's capacity for self-authorship as defined by the set of expressive capabilities s/he possesses, and the book demonstrates how this conception can enrich our understanding of international human rights law by making the amplification of human dignity its fundamental orientation.

1

Overview of the Project

Introduction

In a world of democracies, in a world where the great projects that have set humanity on fire are the projects of the emancipation of individuals from entrenched social division and hierarchy; in such a world individuals must never be puppets or prisoners of the societies or cultures into which they have been born. Roberto Unger

In recent years, there has been an explosion of writing on the topic of human dignity, across a plethora of different academic disciplines. Philosophers such as George Kateb have argued that dignity is an ‘existential’ value of basic importance to the identity of all human beings. Legal theorists such as Jeremy Waldron and Ronald Dworkin have pondered dignity’s role relative to the divide between legality and normativity. Judges such as Aaron Barak have gone further and have argued that human dignity is the basic value, or ‘mother right’ underpinning all law. Christian theologians argue that all human beings possess a fundamental dignity that flows directly from God to man. Less positively, bioethicists and scientists such as Ruth Macklin and Stephen Pinker have looked upon dignity with scepticism, arguing that it is a ‘useless’ – and even dangerous – concept that imposes mystical boundaries on scientific analysis. Political scientists such as Michael Rosen have questioned whether human dignity actually helps us to settle any fundamental disagreements about how we should be governed. And while they have often been happy to invoke the value of dignity as such, many postcolonial scholars have been eager to strip dignity of its all-too Western, and often Christian, associations.

Despite this explosion of interest, one group has devoted very little – if any – attention to human dignity: critical legal scholars. One would be hard pressed to name any major critical legal theorist who has devoted any significant attention to analysing human dignity. When they have done, it has been almost always with an exclusively critical intent, often stereotypically drawing on stock ‘radical’ reasoning about how such bourgeois notions can only ever be implicated in a system of control and power. This is often considered part of the broader critique of liberal rights and their affiliated concepts that has been carried on by left-wing critics since at least the time of Marx’s essay ‘On the Jewish Question’, and finds modern-day expression in the work of Duncan Kennedy, Costas Douzinas, Pierre Schlag and others. To many of these authors, human dignity, at least in its liberal formulation, is inextricably tied up in vulgar liberal conceptions of the self and of law, and would need significant reformulation if it were to be of any use to a deeper emancipatory project.1 But their notable silence about the concept leads one to assume that they think that that is highly unlikely.

Such inattention to human dignity is echoed in the relative disinterest that many critical legal scholars show towards international law, which itself is echoed in the novel discipline of socio-legal studies, as pointed out by Eve Darian-Smith in her Laws and Societies in Global Contexts: Contemporary Approaches.2 Many critical legal and socio-legal scholars emerged from Anglo-American law schools, and their choice of legal topics invariably reflects this. To give just one example, almost none of the founders of critical legal scholarship – including Kennedy, Unger, Schlag and Gabel – has devoted a significant monograph to international law. Most of their focus has been on issues in legal philosophy and American law, including a seemingly unending stream of commentary on originalism versus linguistic indeterminacy and legal pragmatism. This is unusual, to say the least, given the uniquely philosophical problems posed by international law for the traditional positivistic accounts of legality that remain the popular targets of many critical legal scholars.

These observations about critical legal theory are meant to indicate the significant gap that exists in the literature, which my book is intended to fill. I will link international law and critical legal theory through an egalitarian conception of human dignity and an affiliated set of rights. What makes my project unique is how I will try to link human dignity to a broader critical legal project that looks at law as it is, with considerable scepticism and an eye for improvement. Like other critical legal scholars, I believe that modern law is prone to reinforcing – or at least turning a blind eye to – inequities that a just society would seek to rectify. This is unacceptable, and necessitates a deep criticism of the status quo. However, I also believe that any critical project must ultimately have some moral ambition at its heart if it is to resonate and persist into the future. Here, I echo Peter Gabel’s inspirational call for critical legal studies to rediscover what he claims is its spiritual orientation:

Within the critical legal studies movement that was itself an expression of this upsurge in awareness, we were confronted by a ‘legal order’ and hierarchical institutions that supported this order that seemed to allow no room whatsoever for the sense of love, hope, and transcendence that we felt ineffably all around us. On the contrary, it seemed to be an enormous, spiritually dead thought-machine that produced and reproduced both hierarchies and rules that made the world of the war, and racial hatred, and sexual repression, and environmental destruction appear entirely normal and inevitable. And this disjunction between our dawning, idealistic awareness and the professional settings in which we found ourselves as young adults led us to throw ourselves into trying to (a) take apart the fixity of, and (b) reveal the meaning of what everywhere surrounded us.3

Gabel’s plea comes at a unique time in critical legal scholarship. With the collapse of Marxist4 narratives and meta-narratives in the late 1980s, progressive scholars were left without a grand narrative that simultaneously offered critical tools and a vision of what the emancipated future would look like. As put by Lyotard:

In contemporary society and culture – post-industrial society, post-modern culture – the question of the legitimation of knowledge is formulated in different terms. The grand narrative has lost its credibility, regardless of what mode of unification it uses, regardless of whether it is a speculative narrative or a narrative of emancipation.5

The academic reaction to this declining belief in grand narratives,6 prompted by both theoretical and historical developments, has been a retreat into various forms of epistemic and normative scepticism. The tendency on the part of critical legal scholars is to engage exclusively in ‘trashing’ calcified orders that perpetuate inequalities and marginalization, while offering in return very little that is constructive. Some of this might be due to a given critical legal scholar’s disposition, and some to an over-eager embrace of postmodern scepticism. These are indeed important developments, and I will discuss them at some length. But, important as they are, I do not think that it is ultimately possible or helpful to engage exclusively in critical scholarship if one does not have some normative vision of what should replace a given legal order constitutive of the broader social status quo.

Fortunately, we are not bereft of intellectual resources with which to construct such a normative vision. From the critical legal standpoint, the philosopher Roberto Unger has provided by far the most comprehensive and far-reaching theoretical alternative to the status quo. Indeed, his work now stretches far beyond the confines of law, to encompass politics, social theory, psychology and even cosmology. My book draws tremendous inspiration from Unger, while attempting to go beyond him in applying Ungerian insights to international human rights law. However, it should not be understood as a dogmatic piece that applies a given theoretical framework wholesale on a new topic. I think that Unger is mistaken on several important normative and philosophical points. More importantly, I find his solutions to certain problems rather obscure and often too idealized. One of the orientations of my project is to anchor Unger’s insights into a more robust and grounded normative vision. The weight of this ambition is carried primarily by my conception of human dignity.

Theoretical Orientation of the Project: the Importance of Amplifying Human Dignity

In Chapters 2 and 3, I will sketch out the theoretical orientation of my project. Chapter 2 will focus primarily on discussing the extensive literature that has recently emerged on the topic of human dignity. It is also where I will discuss the links with critical legal studies most extensively, and demonstrate why I think critical legal studies needs to be animated by a more robust normative vision. Chapter 3 will be the most theoretically significant chapter, since it is where I will present and argue for the adoption of my own – competing – conception of human dignity.

Chapter 2 discusses various conceptions of human dignity, before concluding with why I think that it can be extremely useful for critical legal studies. Dignity remains a theoretically well-contested topic, with some authors claiming that its philosophical ambiguity renders it a fairly useless7 part of our moral vocabulary.8 Some have even argued that a focus on dignity contributes to the rise of unwanted social conservatism in morally sensitive fields such as bioethics.9 This is due in part to the long association of dignity with many Roman Catholic theories, the proponents of which have associated dignity with a human being’s status as a divine creation.10 Even authors more inclined to take a Kantian position11 on dignity remain sceptical that it means something substantially different than autonomy or freedom as understood by classical liberals.

While there is a great deal to be said for many of these conceptions – and I will clarify where my own conception draws upon them – I believe that none has adequately exhausted the conceptual potential of dignity for normative purposes. This is in part because human dignity has all too often been employed for political reasons, to justify conservative or under ambitious political positions that do not do justice to its normative potential. Many critical and socio-legal scholars remain sceptical of any normative concept the roots of which go back to a widely disdained source. But I also think that a key reason for dignity remaining an unpopular concept for so many critical legal scholars is that it has been theoretically misunderstood as an inherent quality rather than what I would call a continuum that can be amplified or diminished. This has bucked the transformative potential of dignity as a normative concept. All too often, it is conceptually aligned with the status quo. Since dignity is associated with inherent qualities that are either ascribed to human beings by God or that exist within us due to the a priori human capacity for agency, the conclusion is that social and legal institutions can play no role in diminishing or amplifying human dignity. Dignity is simply a brute fact (or not, if one is a sceptic). I feel that this is deeply unhelpful and limits the radical potential of dignity as a normative conception.

This is where the motivation to link human dignity to critical legal literature comes in. As mentioned earlier, all too often, critical legal studies has lacked a normative vision to complement its deconstructive propensities. This has also limited its transformative potential. I believe that a sufficiently robust conception of human dignity can fulfil this important function. Such a conception would be one that challenges us as human beings, and especially as lawmakers, to engender a moral vision of the world in which substantial injustices would be rectified. As I shall point out later, in a world where power and wealth are as unequally distributed as they are in ours, it seems disingenuous to claim that the dignity of all human beings is equally respected and amplified. One of the motivations for attaching a conception of human dignity to the critical legal literature is to rectify this problem, by both demonstrating how social and political institutions can amplify dignity, and clarifying why and how they still fall far short of this. In this way, human dignity provides a role analogous to that of political theory in the work of Rawls. The conception is meant as an ideal against which normatively to check the functioning of actually existent social and political institutions through attempting to reach a reflective equilibrium between theory and practice.

Chapter 3 will present the key theoretical and philosophical a...

Table of contents

• Cover
• Title Page
• Copyright
• Dedication
• Series Preface
• Contents
• Acknowledgements
• 1: Overview of the Project
• PART I: Theorizing the relationship between human dignity and international human rights law
• PART II: Realizing human dignity in the practice of international human rights law
• Notes
• Bibliography