PROCEEDINGS OF THE BRITISH ACADEMY • UNDERSTANDING HUMAN DIGNITY Edited by CHRISTOPHER McCRUDDEN Published for THE BRITISH ACADEMY 5v OXFORD UNIVERSITY PRFSS OXFORD UNIVERSITY PRESS Great Clarendon Street, Oxford 0x2 6df United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © The British Academy 2013 The moral rights of the authors have been asserted Database right The British Academy (maker) First published 2013 Paperback edition 2014 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Publications Department, The British Academy, 10 Carlton House Terrace, London SW1Y 5AH You must not circulate this book in any other form and you must impose this same condition on any acquirer British Library Cataloguing in Publication Data Data available Library of Congress Cataloging in Publication Data Data available ISBN 978-0-19-726582-6 Contents Acknowledgements Preface by the Rt Hon. the Baroness Hale of Richmond Preface by Archbishop Vincent Nichols Notes on Contributors 1. In Pursuit of Human Dignity: An Introduction to Current Debates CHRISTOPHER McCRUDDEN Part I Historical Perspectives 2. Dignite/Dignidade: Organizing against Threats to Dignity in Societies after Slavery REBECCA J. SCOTT 3. Würde des Menschen: Restoring Human Dignity in Post-Nazi Germany CHRISTOPH GOOS 4. The Secret History of Constitutional Dignity SAMUEL MOYN 5. Constructing the Meaning of Human Dignity: Four Questions CATHERINE DUPRE 6. Human Dignity: Experience and History, Practical Reason, and Faith DAVID HOLLENBACH Part II Dignity Critiques 7. Dignity: The Case Against MICHAEL ROSEN 8. Socio-Economic Rights, Basic Needs, and Human Dignity: A Perspective from Law's Front Line CONOR GEARTY IX XV xix XXV 59 61 79 95 113 123 141 143 155 VI CONTENTS CONTENTS Vll 10. The Triple Dilemma of Human Dignity: A Case Study CHRISTOPH MÖLLERS Dignity Rather Than Rights JOHN MILBANK Part III Theological Perspectives 11. 12. 13. 14. 15. Dignity, Person, and Imago Trinitatis JAMES HANVEY Human Dignity and the Image of God JANET SOSKICE Dignity as an Eschatological Concept DAVID WALSH The Vanishing Absolute and the Deconsecrated God: A Theological Reflection on Revelation, Law and Human Dignity TINA BEATTIE A Christian Theological Account of Human Worth DAVID P. GUSHEE Part IV Philosophical Perspectives 16. 17. 19. Human Dignity and the Foundations of Human Rights JOHN TASIOULAS In Defence of Human Dignity: Comments on Kant and Rosen THOMAS E. HILL, JR. Citizenship and Dignity JEREMY WALDRON Human Dignity, Human Rights, and Simply Trying to Do the Right Thing ROGER BROWNSWORD Part V Judicial Perspectives 20. Human Dignity: The Constitutional Value and the Constitutional Right AHARON BARAK 173 189 207 209 229 245 259 275 289 291 313 327 345 359 361 21 22. Dignity in a Legal Context: Dignity as an Absolute Right DIETER GRIMM 381 Human Dignity in the Jurisprudence of the European Court of Human Rights 393 JEAN-PAUL COSTA Part VI Applications 403 23. Justifying Freedom of Religion: Does Dignity Help? 405 JULIAN RIVERS 24. Which Dignity? Which Religious Freedom? 421 PATRICK RIORDAN 25. From Imago Dei to Mutual Recognition: The Evolution of the Concept of Human Dignity in the Light of the Defence of Religious Freedom 435 SERGIO DELLAVALLE 26. 'A Communion in Good Living': Human Dignity and Religious Liberty beyond the Overlapping Consensus 451 JOEL HARRISON 27. Dignity and Disgrace: Moral Citizenship and Constitutional Protection 467 EDWIN CAMERON 28. The Dignity of Marriage 483 CHRISTOPHER TOLLEFSEN 29. Response to Tollefsen and Cameron 501 ROBERT P. GEORGE 30. Dignity and the Duty to Protect Unborn Life 509 REVA SIEGEL 31. Is Dignity Language Useful in Bioethical Discussion of Assisted Suicide and Abortion? 525 DAVID ALBERT JONES 32. Dignity, Choice, and Circumstances 539 DENISE REAUME 33. Human Dignity, Interiority, and Poverty 559 CLEMENS SEDMAK Vlll CONTENTS 34. Dignity as Perception: Recognition of the Human Individual and the Individual Animal in Legal Thought joseph VINING Part VII Ways Forward? The Good Sense of Dignity: Six Antidotes to Dignity Fatigue in Ethics and Law matthias mahlmann Human Rights, Human Dignity, and Human Experience paolo g. carozza The Concept of Human Dignity: Current Usages, Future Discourses bern hard schlink Discourses of Dignity gerald l. neuman Dignified Disciplinary: Towards a Transdisciplinary Understanding of Human Dignity alexandra kemmerer Select Bibliography Tables of Cases, and Other Legal Authorities Index 36. 37. 38. 39. 573 591 593 615 631 637 649 659 699 713 Acknowledgements To a considerable extent, this book is the outcome of a conference held in Rhodes House, Oxford, in June 2012. It largely results from discussions there in which a decidedly multidisciplinary group, including historians, legal academics, judges, political scientists, theologians, and philosophers were brought together to discuss the concept of human dignity from their various disciplinary perspectives. Some of the main issues that the group were asked to consider include the following fundamental theoretical questions: Is there a minimum core to the meaning of human dignity? Is a person's human dignity to be assessed subjectively from his or her point of view, or 'objectively'? Can human dignity be understood in purely secular terms, or is it (as Michael Perry has claimed in respect of human rights) 'ineliminably religious'?1 Can there be a shared meaning of human dignity where there is religious and ideological pluralism? What ontological claims are implied by appeals to human dignity? Other questions were more directed at the implications of dignity for relations between individuals, and between individuals and the state: What are the implications of such ontological claims for the ways in which we should behave towards each other? What are its implications for the ways in which the state should treat those who fall under its authority? An important set of questions posed considered the relationship between human dignity, human rights, and other values: What is the relationship between human dignity and human rights? Is human dignity more appropriately seen as attaching to some rights rather than others? What is the relationship between human dignity and other values and principles connected with rights, such as autonomy, freedom, equality, social solidarity, and identity? What is the weight and status of human dignity? Does human dignity have a status superior to that of other values? Is it absolute, or can it be balanced against other values? Does human dignity essentially serve community or individual goals? Can it also serve moralistic and paternalistic goals? Is human dignity necessarily an emancipatory idea? Is it rights-supporting or rights-constraining? We also considered how, if at all, the concept of human dignity helps us to deal with claims made in relation to several issues that are among the most 1 Michael J. Perry, The Idea nf Human Rights: Four Inquiries (Oxford 2nd New York. Oxford i Jn/ver-sitv Prem. I'JQSY c l.l. 'Is the Idea of Human Riehls Ineliminablv Relieious?'. 11 -H.