Jeremy Waldron, Is Dignity the Foundation of Human Rights?

, New York University School of

Law (2013)

Initially, Waldron claims that given current failures and disagreements regarding human
rights, we must examine them from scratch in order to understand them in depth (2010b). He
then claims that to begin with morality is not the best way to understand human rights; rather we
should start from the law of human rights. That is to say, if we want to see what human rights
are, we should just focus on human rights law, namely the Declarations and Conventions – not
on the moral idea underlying them. According to Waldron, the best way to understand human
rights law is to start by examining its official justification, human dignity, treating it as a legal
rather than a moral concept in the first instance.

More specifically, Waldron regards dignity as a type of status traditionally connected with
rank He writes: “My own view of dignity is that we should contrive to keep faith somehow with
its ancient connection to noble rank or high office”. Waldron defines status as a “high-ranking
status, high enough to be termed a dignity”. He claims then that to treat someone as dignified is
to treat her as royalty; hence one whose dignity is not respected today should be seen as a prince
or a duke who had not been respected in the past.

In particular, Waldron argues that dignity is a legal status, namely something accorded to
people by law. A legal status in law is, in principle, as Waldron says, a package of rights and
duties accorded to a person or to a group of persons by law. For example, infancy is a legal
status. Yet, Waldron considers a legal status not just as a given package of rights and duties, but
as a special package that also entails a deeper explanation of why these rights and duties are
accorded to persons. That is to say, a legal status, as Waldron understands it, can explain why
rights and duties are attributed to 1] The status conception of dignity comes from the so called
meritocratic dignity. That is a kind of dignity which was protagonist in archaic societies (750-
479 BC). For example, in the Homeric epics dignity is accorded to persons with high status. The
latter is the status arising from the possession of characteristics regarded as meritorious. Special
characteristics such as family and friendships determine where one stands. Dignity, in this sense,
is determined by the place people hold in the social hierarchy, and is ascribed only to those of
high rank. We also see the status conception of dignity (dignitas) in the Roman world in which it
is similarly associated with the respect and honor due to a person with an important position. For
instance, in Cicero’s De Inventione, dignity denotes one’s role in the society, as well as the
honors and the respectful treatment that are due whoever has this role. One possesses an elevated
social status in the social order if one belongs, for example, to the nobility or to the church. The
status conception of dignity continued to exist until the Enlightenment, in the 18th century. Then
it started gradually to fade away, as a result of the abolition of aristocratic ‘dignities’ associated
with aristocratic ‘status’. But after years of latency, dignity as a status seems to have a sudden
revival nowadays especially within the context of the human rights discourses. Waldron is today
one of its main supporters.

Ultimately, Waldron sees the above legal status conception of dignity as perfectly combined
with equality. That is to say, he claims that all people in modern democracies possess it. More
specifically, he points to the Kantian passage in the Metaphysics of Morals according to which:
“no human being in a state can be without any dignity, since he at least has the dignity of a
citizen”. Waldron argues then that dignity as a legal status is combined with equality in the case
of the “dignity of citizenship”. He then claims that the legal status of the dignity of ‘citizenship’
can legitimately be proposed as the foundation of the rights of all citizens in modern
democracies. Recently, Waldron has examined the extension of the notion of legal citizenship
from the domestic to the global level.

 Oscar Schachter has observed that there is no explicit definition of “human dignity” in any of the
charters that invoke it. It’s intrinsic meaning has been left to intuitive understanding.
 Without a reasonable clear general idea of its meaning, we cannot easily draw specific
implications for relevant conduct.
 Stephen Pinker called it a “subjective squishy” notion and Ruth Macklin observed that the
concept remains hopelessly vague. To invoke the concept of dignity without clarifying its
meaning is to use a mere slogan.
 There is still no settled consensus about what it means to say that the right to dignity is a human
right, apart from the minimum claim that is a right that all humans are now conceived to have.
And we still disagree about which rights are human rights.
o For example, in addressing issues about the limits on rights and the possibility of
developing concepts like abuse of rights, we are invited to explore recent discussions of
human dignity that address its moralistic or non-emancipatory character, ideas of human
dignity that explore the responsibility that each individual has in respect of the human
dignity embodied in his or her person.
 A contested concept is the Kantian theory based on autonomous moral capacity, there is the
Catholic theory based on human being created in the image of God, there is also a theory
developed about dignity as status rather than a value.
 At least one scholar has argued that if we treat dignity as the foundation of rights, we are likely to
end up with different conceptions of rights matching different conceptions of dignity.
o “Human rights” might be understood to describe a concept, a list of rights, and a practice
of asserting and applying them; and the concept, the list and the practice, may be
understood in moral and legal terms.
 When people say that human rights are based on human dignity, one possibility is that they mean
that our discourse of human rights grew out of a pre-existing discourse about human dignity.
 There was certainly a pre-existing discourse of human dignity before the emergence of human
rights talk in its modern form. But, as Oscar Schacter has argued, it is implausible to suppose that
human rights grew out of discourse of dignity.
 Klaus Dicke has suggested that in the UDHR “the dignity of human beings is a formal
trascnadental norm to legitimize human right claims”. Just as the “grundnorm” of a legal system ,
the norm says that the provisions of the highest constitution are to be respected –is the source of
legal validity and, in that sense, legitimacy in that system for all statutory and regulative norms,
so a norm regarding human dignity might be an ultimate source for the legitimacy of human
rights norms.
o Klaus Dicke presumably does not want to deny the status of the great human rights
covenants as sources of law, valid on account of their signature and ratification by a large
number of countries. In other words, ICCPR does not create rights; it recognizes and
proclaims the rights that humans have already have. He believes that invocation of human
dignity is a reference to the special nature of human beings, their inherent worth, which
explains why they really do have the rights that the covenants proclaim, prior to and
independent of the positive law proclamation.

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  In his legal theory, Hans Kalsen distinguished between the dynamics and statics of a legal system.
In a dynamic sense, validity is a matter of higher laws empowering the making of laws or legal
orders at a lower level. A static analysis, on the other hand, is a system relation between legal
propositions which is more like derivation than like empowerment and enactment.
 The sense of “foundation” that promises the most is the suggestion that knowing what the
foundation of rights is would enable us to generate or derive human rights claims.
o On a deductive approach, Waldron begins with the conception of the foundation value—
say human dignity—and unpack it analytically to see what it involves.
o James Griffin’s argument on human rights is an example. Griffin begins with the “dignity
of the human person” and her argues that the idea is best understood in terms of the
importance of normative agency in the life of a human being. The value of normative
agency of a human being discloses itself in that being’s autonomy, that is, in her ability to
determine for herself what the shape of her life will be and what it is for her life to go
well. And that ability in turn, requires in certain key areas—indeed basic rights
embodying liberty, to guarantee that the person in question is the one who makes the key
decisions about her life without coercive interference.
 If dignity were treated as the foundation in sense, it might have a greater or a lesser impact
depending on how robust the conception of dignity was taken to be.
o In the German Airliner Case, the German Constitutional Court considered the right to life
in the context of a statute that would empower the armed forces to shoot down a
passenger plane in a 9/11 type of situation. The Court insisted on viewing the right to life
through the lens of dignity and since it was using a strongly Kantian notion of dignity, it
was able to insist that the innocent passengers and crew of the airliner could not be
destroyed simply to save the lives of a greater number of innocent people.
 In law, a status is a particular package of rights, powers, disabilities, duties, privileges,
immunities, and liabilities accruing to a person by virtue of the condition or situation they are in.
o To say of being that it has status of human dignity is certainly to imply that it has human
rights.
o We don’t have human rights because we have human dignity; our having human dignity
is our having human rights.
o Accordingly, if human dignity is a status, then we should say that it comprises not just a
set of human rights, but an underlying idea which explains both the importance of each of
these rights in relation to our being human and the importance of their being packaged
together in this regard.
 When we say that dignity is the foundation of human rights, we often give the impression that
dignity is an irreducible value, that we have burrowed deep below the rights that are recognized
in the familiar human rights charters and that once we burrow down to dignity.