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What’s So Special About Human Dignity?

I.INTRODUCTION

The title of this paper may seem question begging. Is there anything special about human dignity? Well, perhaps not, depending on what we mean by “special.” According to one longstanding tradition, one very much still in vogue, human dignity is special because it marks out the unique (i.e., elevated, divine, free, dominant, etc.) status of human beings in the order of creation. On this view, the “specialness” of our dignity lies in its being something that other animals and objects lack, or at least do not possess to the same degree. I have no interest in affirming anything like this here. I am entirely open to the possibility – indeed, enthusiastically so – that human dignity is not at all special in this sense. For all I know, chickens have a dignity (i.e., chicken dignity) that is in essence equal to that of human beings, even if it may not impose the same practical requirements, such as the right to vote. As I understand it, talk about human dignity is simply talk about the kind of dignity attributable to human beings; it need not make any assumptions, positive or negative, about the kind of dignity attributable to other animals, even though such comparisons may be fundamental to some theories of human dignity.1 This is not a trivial point. As Michael Meyer puts it, it would be a “cruel irony” indeed if human dignity, a foundational moral idea of our time if anything is, turned out to be an inextricably speciesist concept.2

In this paper my aim is to convince you that human dignity is special in a rather different sense. If we think, as I do, of morality as composed of a diverse and potentially conflicting set of fundamental considerations – e.g., considerations of justice, freedom, fairness, equality, virtue, utility, etc. – then we might ask how concerns about human dignity fit into this wider moral landscape. One answer is to think of human dignity as a marker of our basic “moral status,” i.e., one’s existence as an object of moral concern. Understood in this way, human dignity serves as a kind of gateway concept in our moral thinking; it delimits the boundaries of the moral community, telling us who is in and who is out. I don’t exactly want to deny this here. But I do want to argue that human dignity has a more substantive role to play in our moral thinking as well. Along with, perhaps, indicating why (or at least that) someone should be treated morally, ascriptions of human dignity also, I think, tell us something about how to treat them morally. In this latter capacity, human dignity can be understood as one substantive moral consideration (or value) among others. What I want to do in what follows is to give an account of what’s

1 See, e.g., George Kateb: “The core idea of human dignity is that on earth, humanity is the

greatest type of being – or what we call species because we have learned to see humanity as one species in the animal kingdom, which is made up of many other species along with our own – and that every member deserves to be treated in a manner consonant with the high worth of the species.” George Kateb, Human Dignity (Cambridge: Harvard University Press, 2011), pp. 3-4.

2 Michael Meyer, “The Simple Dignity of Sentient Life: Speciesism and Human Dignity” in The Journal of Social Philosophy (2001), Vol. 32, No. 2, p. 115; Peter Singer, Animal Liberation (New York: Harper Collins, 2002), pp. 198-199.

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special about human dignity in just this sense, i.e., as one moral consideration among others.

A philosophical theory of human dignity can be seen as having four main components, or as answering four key questions. First, it ought to tell us something about the nature of human dignity, or about what it is (e.g., is it an indicator of value or “worth,” of status, or of virtue?).3 Second, once we understand what human dignity is, we will want to know what grounds it, i.e., the conditions under which someone comes to possess or to lose it; third, as a normative concept, a complete theory of human dignity should tell us what its practical requirements are, what duties and/or reasons it generates. And fourth, there are methodological questions about how inquiry into all of this should proceed and be understood. The most natural way to construct a theory of human dignity is probably to begin by answering the first question, and then to let the dominos fall from there. For instance, if we start by thinking of human dignity as a moral virtue, this will directly impact our thinking about its grounds and practical requirements. On the one hand, it will have to be grounded in aspects of one’s character and behavior (e.g., one’s tendency to “stand up for oneself,” or to keep composure in challenging circumstances). And as for its practical requirements, these will follow, at least in part, directly from our understanding of its grounds, i.e., of what it takes to attain the virtue of human dignity. This natural direction of influence, from one question to the next, certainly exerts a pressure on theorists of human dignity to orient their analysis around the first question about its nature, as many have.4

My strategy here will be different, and in a sense opposite. The concept of human dignity is, of course, quite an old one. And its long history of recognition within political, legal, philosophical, religious, literary, and popular discourse has furnished us with an array of intuitions about its basic nature, its grounds, as well as its practical requirements. However, instead of prioritizing our intuitions about the nature of human dignity, and adjusting our thoughts about its grounds and practical requirements accordingly, I want to do just the opposite. It is our intuitions about the special practical requirements of human dignity that I want to take as given in what follows. The conceptual analysis will be “reverse engineered” from there, so to speak. If what we want, methodologically speaking, is ultimately to reach some degree of reflective equilibrium between our pre-theoretical understandings of (a) the nature, (b) the grounds, and (c) the practical requirements of human dignity, then proceeding in this way may be of some use. After all, achieving such reflective equilibrium is likely to involve revision at each end. The following inquiry can thus be seen as one (attempted) step – a step involving revision of our understanding of (a) and (b) in light of some core intuitions about (c) – along the larger path towards that coherentist ideal. As I hope to show, it is also a step that yields some valuable insights.

II. DIGNITY AND RIGHTS

3 Michael Rosen’s recent book on dignity is tremendously helpful not least because it clearly

identifies several different ways of thinking about the nature of dignity. See: Michael Rosen, Dignity: Its History and Meaning (Cambridge: Harvard University Press, 2012).

4 See e.g., Kateb 2011; Martha Nussbaum, “Human Dignity and Political Entitlements” in Human Dignity and Bioethics: Essays Commissioned by the President’s Council on Bioethics (Washington, D.C., 2008a), pp. 351-381; and Rosen 2012.

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In a remarkable essay written some years ago, Joel Feinberg drew a close

connection between human dignity and the possession of “rights.” He writes:

Having rights enables us to “stand up like men,” to look others in the eye, and to feel in some fundamental way the equal of anyone. To think of oneself as the holder of rights is not to be unduly but properly proud, to have that minimal self-respect that is necessary to be worthy of the love and esteem of others. Indeed, respect for persons (this is an intriguing idea) may simply be respect for their rights, so that there cannot be the one without the other; and what is called “human dignity” may simply be the recognizable capacity to assert claims. To respect a person then, or to think of him as possessed of human dignity, simply is to think of him as a potential maker of claims. Not all of this can be packed into a definition of “rights;” but these are facts about the possession of rights that argue well their supreme moral importance.5

This is a rich passage, and not all that easy to interpret. How exactly is the imagined relationship between dignity and rights to be understood here? Well, one way into things is to see Feinberg as asserting a relationship not between human dignity and rights per se, but rather between human dignity and the kind of activity that rights license and encourage, i.e., “claiming.” On this reading, having human dignity involves being ready to “stand up like a man” and (when necessary) to assert one’s rights in the way that, say, a Victorian gentleman might have defended his “honor.” In other words, on this account, human dignity becomes a kind of virtue, one very much like the virtue of courage or pride. It is a disposition connected to and licensed by the possession of rights, to be sure, but not one that comes packaged with the possession of rights as such. It is a virtue that requires cultivation.

If we understand Feinberg’s thesis in this way, however, it begins to look rather awkward as a thesis about human dignity. For a start, the kind of disposition or virtue that Feinberg is interested in – i.e., the disposition to “stand up like a man” and “claim” one’s rights – is, on reflection, not a universally appealing one. Even if we put aside its machistic overtones, it is easy to imagine perfectly wonderful cultures in which such a litigious disposition would be frowned upon.6 Indeed, a readiness to claim one’s due is not a wholly appealing character trait even in our own culture.7 But there is a deeper problem of universality to be reckoned with here too. After all, human dignity is supposed to be something that all human beings, or at least nearly all human beings, possess. The capacity to claim one’s rights, or to stand up for oneself in a social context

5 Joel Feinberg, “The Nature and Value of Rights” in The Journal of Value Inquiry (1970),

Vol. 4, No. 4, pp. 252-253. 6 It doesn’t follow from this that the notion of “rights” has no place in such societies. As James

Nickel notes, “we can easily imagine the concept of a right functioning in cultures where actions such as demanding, claiming, and protesting are frowned on as discourteous.” James Nickel, Making Sense of Human Rights: Second Edition (Oxford: Blackwell, 2007), p. 27. For instance, it’s possible to imagine a system of rights recognition or enforcement that relies entirely on practices of shaming (rights violators) rather than any overt practice of claiming rights.

7 Pace Feinberg, Michael Meyer interestingly argues that the key dignitarian virtue is not the propensity to claim one’s due but rather that of “self-control,” which may sometimes council just the opposite. Michael Meyer, “Dignity, Rights, and Self-Control” in Ethics (1989), Vol. 99, No. 3, pp. 520-534.

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or in a court of law, by contrast, is not even close to universal. Many lack the courage needed for this, others lack the requisite information or education, and many more (e.g., infants, the elderly, the comatose, the mentally disabled, the profoundly injured, etc.) lack the basic hardware needed for it. The fact that such a broad swath of humanity would lack human dignity, on this reading of Feinberg’s view, is certainly one very strong reason to reject it.

Perhaps we should consider a different reading then. One alternative is to reverse the previous interpretation and imagine Feinberg to be equating human dignity with the possession of rights itself, rather than any ostensible disposition, effort, or capacity to claim them. In other words, on this reading the crucial mark of human dignity would be whether one can justifiably or validly claim some right from others, irrespective of whether one is actually disposed to do so or even capable of doing so. This is after all just what it means to have a “right,” according to Feinberg, who places the Hohfeldian notion of a “claim right” (i.e., a justified or valid claim to the performance of certain duties on the part of others) at the center of his discussion.8 Seeing things in this way would allow Feinberg to get around the problems of universality mentioned above. For one, the notion that people are owed certain forms of treatment, as a matter of duty, seems far less culturally specific than the idea that claiming one’s due is a virtue in itself. Moreover, it’s fairly easy to wrap one’s head around the thought that all human beings have (at least moral) rights of some kind – and thus that all human beings have human dignity – on this view. From an exegetical vantage point, it’s also worth noting that human dignity is still closely linked to the activity of “claiming” on this reading, albeit now in a less direct sense. Human dignity may not depend on one’s actual disposition or capacity to claim one’s rights, nor even (I suppose) on the justifiability of doing this (perhaps circumstances make it imprudent and/or immoral), but it does still mark something like one’s basic entitlement to claim whatever it is that one has a right to from others. As Feinberg puts it, human dignity denotes one’s status as a “potential maker of claims.”9

This second interpretation is probably the right one, for the reasons just cited above. Yet if we do go this interpretive route, it looks as if Feinberg has reduced (or rather, inflated) human dignity into a generic marker of moral status. Otherwise put, it looks as if Feinberg turns human dignity into what I earlier called a gateway concept in our moral thinking, i.e., an indicator of one’s membership in the moral community, or that one matters in some fundamental moral sense. Having moral rights, after all, is at the most abstract level just a way of being a source or focus of moral obligation for others. This generic understanding of human dignity is fairly widespread in the literature. According to Rainer Forst, for example, human dignity is exactly this: it marks one’s status as someone to whom the actions of others must answer in some basic sense. In Forst’s terminology, it marks one’s possession of a fundamental right to justification: “Being recognized in one’s dignity as a human being means, in general terms, not being ignored in questions that concern one in essential ways.”10

8 Wesley Hohfeld, Fundamental Legal Conceptions (New Haven: Yale University Press,

1923), pp. 36-38. 9 Feinberg 1970, p. 253 (my emphasis). 10 Rainer Forst, “The Ground of Critique: On the Concept of Human Dignity in Social Orders

of Justification” in Philosophy and Social Criticism (2011), Vol. 37, No. 9, p. 967.

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Perhaps this broad understanding of dignity is all well and good. But as Charles Beitz has interestingly noted in a recent article, there is a cost to understanding human dignity in this way. The cost is that it becomes hard to accommodate or make sense of the strong intuition that only certain forms of mistreatment constitute violations of human dignity. If human dignity is a general marker of moral standing, then it seems to follow that any kind of moral mistreatment – i.e., any treatment that falls short of what one’s moral standing demands – would violate one’s dignity. There doesn’t seem to be much hope, then, as Beitz plausibly notes, of illuminating the moral particularity of violations of human dignity on such a view. He writes:

The trouble with [a view like that of Forst or Feinberg]… is that there seems to be no way to prevent it from dissolving into a generic idea of moral standing. If that is true, then it will deliver an interpretation of “treating with dignity” that will be too broad and unspecific to capture the thought that there are certain particular ways of treating people that are incompatible with their dignity… It seems to say that we show respect for people’s human dignity by treating them as we ought to treat them or in ways we can justify to them. This interpretation will not be much help in explicating the more specific idea that there are particular ways of treating people that are ruled out by respect for their human dignity.11

I think Beitz is right to point out that only certain forms of mistreatment seem to constitute violations of human dignity. In fact, that is the guiding thought behind this paper, one that I will elaborate on in what follows.

But Beitz also glosses over an important feature of Feinberg’s view. It may appear as if Feinberg’s account of human dignity “dissolves” into a generic account of moral standing. But that’s not quite right, at least not by Feinberg’s own lights. After all, their “supreme moral importance” notwithstanding, rights are still only one part of morality, as Feinberg understands it, in accordance with what is more or less the standard view. Put another way, for Feinberg, as for many others, the question of what we owe to others, morally speaking, is not (always) exhausted by the question of what moral rights they have. Consider the following two situations in which this seems to be true:

First, we may owe something (e.g., an expression of thanks) to someone on account of, say, their actions (e.g., the offering of useful advice), without having a duty or obligation to give it to them and thus without their having a right to this. The standard understanding of a moral right, or at least a moral claim right, is that it correlates with moral duties or obligations, i.e., norms taken to have a morally mandatory character in that they must (barring extraordinary circumstances) be complied with.12 When we morally owe something to someone in a non-mandatory sense, then, the language of rights becomes inappropriate, and we may well prefer to use the more flexible language of “reasons” instead. For instance, precisely because it’s not a mandatory requirement, it seems more plausible to say that I have a reason (or more than one) to thank my helpful neighbor than it does to say that my neighbor has a right to this. This is one manner in which respect for someone’s moral standing involves more than just respect for their

11 Charles R. Beitz, “Human Dignity in the Theory of Human Rights: Nothing But a Phrase?”

in Philosophy and Public Affairs (2013), Vol. 31, No. 3, pp. 279-280. 12 Feinberg 1970, pp. 243-244; Nickel 2007, pop. 25-26.

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rights; I may owe lots of things, including lots of morally important things, to lots of people but in a non-mandatory way that escapes description in the language of rights.

Second, as Kant and Mill observed, we may also owe something to others in a mandatory sense – i.e., as a matter of obligation or duty – without any particular individual having a right to it. For instance, even though I have a moral duty to give charity, it may be in some sense “up to me” to choose whom or what I give charity to; there may not be any one person, group, cause, or charity organization that has a special right or claim to this.13 This is another way in which questions about what we owe to others on account of their moral standing cannot be answered solely by appeal to their rights.

When Feinberg equates respect for human dignity with respect for rights, then, in a sense he is taking (or is at least able to take) Beitz’s observation about the moral particularity of violations of human dignity on board. On Feinberg’s view, there are all sorts of ways in which one might be mistreated that do not count as violations of their dignity. I may deserve thanks, praise, or even a reward for saving a drowning child or for helping my exasperated co-worker, but as long as I (quite plausibly) don’t have a right to any of this, being wrongfully deprived of it would not be a violation of my human dignity, on Feinberg’s view. Similarly, I may seriously mistreat others (particularly the needy) by ignoring any duty to give charity, but if we are correct in thinking that no particular person or organization has a right to my charity, such mistreatment would also fall short of being a violation of human dignity. Feinberg’s thesis does tell us something about what’s morally special about violations of human dignity, then. The demands of human dignity are not co-extensive with the demands of morality; they are a subclass of those demands. Violations of human dignity occur when there are violations of moral rights, i.e., when individuals or groups do not get what is owed to them as a matter of moral duty. The question I want to explore in the following section is whether this circumscription is the right one. Is human dignity violated whenever our moral rights are violated? Or is the relevant class of wrongs narrower than that?

III. SOME EXAMPLES OF RIGHTS VIOLATIONS There are different ways of testing Feinberg’s thesis. One is to see whether we can think of clear cases of individual rights violations that are not clear violations of human dignity. Surely, if there are such cases, and (as I’ll explain in just a moment) I think there are, they would constitute good evidence against Feinberg’s view, at least as it is presently understood. Another test is to see whether there are variations in our intuitions about human dignity across different cases of rights violations – and, in particular, whether Feinberg’s thesis can adequately account for these variations. For instance, as I’ll suggest below, some cases of rights violations seem like more obvious or striking violations of human dignity than others, and if Feinberg’s thesis is correct, it should presumably be able to account for this fact. In the end, Feinberg’s thesis seems to me to fare poorly in this respect. Our sense that some wrong is (or isn’t) a violation of

13 About such “imperfect duties,” Mill writes: “though the act is obligatory, the particular occasions of performing it are left to our choice, as in the case of charity or beneficence, which we are indeed bound to practice but not toward and definite person, nor at any prescribed time.” John Stuart Mill, Utilitarianism (Indianapolis: Hackett Publishing, 2001), ed. George Sher, p. 49.

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human dignity seems to be triggered (i.e., heightened or lessened) by something more specific than the patency or gravity of its status as a rights violation. That is at least what I take the following cases to show. To start, let me describe what I think are some cases of the first sort, i.e., cases of individual rights violations that do not intuitively register as violations of human dignity.

Imagine something we’ve almost all experienced: bicycle theft. You park your bicycle outside of your home, school, or place of work, responsibly lock it to a lamppost or bicycle rack where plenty of other bicycles are locked, only to find when you return that it’s been mercilessly stolen. Certainly, having one’s bicycle stolen in this way constitutes a rights violation. If you own a bicycle, others have a corresponding duty to respect this by (for one) not running off with it unless you give them your consent. But however obvious it may be that your rights are violated here, it still seems far from clear that your human dignity has been violated. Indeed, I think that most of us would confidently resist understanding this as a violation of human dignity. Or at least, most will agree that establishing that there is any such violation here would require additional work. We would need to tell some further background story to explain why this is so: for instance, perhaps the theft was a malicious attack on a disabled person intended to take away her only means of self-transportation, a bicycle custom built for her at great cost. If this is part of the description of the case, then I think it does indeed raise dignitarian concerns. But that’s compatible with there being other wrongful instances of bicycle theft that do not. If the theft is, for lack of a better word, an ordinary one, it seems like a stretch to think of it as a violation of human dignity. At the very least, that is not how such an event would normally be categorized.

The same is true, I think, of many other common rights violations. Consider, for instance, a common act of vandalism. One evening, after closing hours, a group of adolescents get up to no good and throw a rock through the window of a corner store in their neighborhood. The shop is empty and no one is hurt. Now, certainly, even though no one is physically harmed, this is a violation of rights. Among other things, the adolescents owe a duty to the shop owner not to behave in this way. But does their reckless behavior violate the shop owner’s human dignity? That seems far less clear. Indeed, I take it that most would agree that it does not. Just as in the previous case, there are circumstantial factors that can change this. If we find out that the attack is motivated by racism, and that the (white) adolescents vandalize the corner store as a way of expressing their hatred of its (black) owner and/or employees, this would certainly change things. It suddenly becomes very natural to think of the act of vandalism as a violation of human dignity. But if the act is born in motives more stereotypical of reckless adolescents – i.e., an uncompromising desire to “prove” oneself in front of one’s peers, a youth culture that prizes rebellion and transgression, an understandable naiveté about the real consequences of one’s actions, etc. – it seems inappropriate to think of this as a violation or affront to anyone’s human dignity.

Let me describe one more example of this sort, to solidify the general intuition. Consider an instance of breach of contract. Imagine someone (x) is hired by a prominent hedge fund at a very high salary and promised a corner office within two years as part of the formal employment package. Two years go by and the fund managers ultimately renege on their promise, granting the corner office to someone else instead: a new employee (y) that jumped ship from a competitor fund (partly due to the promise of a

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corner office!). The managers refuse to offer x any compensation for this breach of contract, but otherwise honor its remaining terms. What should we say about this case? It is, on the one hand, a fairly clear infringement of the rights of x. The fund managers are, by stipulation, legally bound to adhere to the terms of contract. And their promise to x most likely generates a moral duty (and corresponding right) too, one that they infringed by granting the corner office to someone else. But do the fund managers violate the human dignity of x when they renege on their promise and refuse to offer compensation? It is certainly not obvious that they do. Again, there are ways of making this more obvious. If we find out that x is denied the corner office because she is a woman and that the fund managers, all of whom are men, give the corner office to a male employee instead, then this brings concerns about human dignity firmly into the picture. But if the motives are less derogatory – born entirely, say, in the (ruthless) effort to lure y away from the competitor fund – and the context less discriminatory towards x in general, then however wrong their behavior may be, human dignity does not really seem to be at issue here.

How does all this bear on Feinberg’s thesis? Well, at the very least it shows that there is some distance between Feinberg’s understanding of the scope of dignitarian moral demands, on the one hand, and our common intuitions about the scope of those demands, on the other. On Feinberg’s view, respect for human dignity just is respect for our rights, leaving us with little room to explain our intuitions about these cases, which suggest otherwise. But surely we should proceed with care here. Perhaps there are ways in which Feinberg, as I’ve understood him, can explain our intuitions. One of the distinguishing features of the cases I’ve highlighted so far is that they involve (relatively) minor harms. In the first case, a bicycle is stolen, and the presumption is that this isn’t all that consequential for the victim. In the second case, a window is broken, under a similar presumption. And in the third case, a well-paid employee is deprived of a coveted corner office. As far as rights violations go, these are relatively minor. Otherwise put, these are not the worst kinds of things that can happen to a person. If the challenge is, then, that there are some relatively inconsequential violations of rights that don’t strike us as violations of human dignity, then perhaps Feinberg has a natural way of accounting for this. He might point out, for instance, that on his theory, minor violations of rights constitute accordingly minor violations of human dignity, and that our intuitions in fact reflect this. What our intuitions register in the cases described above, Feinberg might claim, is not no violation of human dignity, as I’ve been claiming, but rather an exceedingly minor one – one as minor as the rights violations themselves. If that were phenomenologically right, it would be a fact about our intuitions that Feinberg could plausibly account for.

I don’t think this conciliatory strategy works, precisely because our intuitions seem to me more radical than it suggests. In the more benign cases of theft, vandalism, and breach of contract imagined above, human dignity does not seem to me to be at issue at all. And that’s not something that Feinberg can easily explain by appealing to the relatively minor nature of the rights violations themselves: after all, however minor they may be, if these are clear cases of rights violations (and they are) then they should presumably also be clear cases of human dignity violations, on Feinberg’s view. But even if this conciliatory strategy does work, and gets our intuitions right, there is still a further test to be reckoned with, as I mentioned above. On this second test, the point is

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not to see whether we can come up with cases of rights violations that aren’t, or aren’t clearly, violations of human dignity, but rather to look at some of the variations in our intuitions about human dignity, and to see whether Feinberg’s thesis can account for them. There are, I suppose, all sorts of variations that could be explored here. I want to focus on variations of patency or strikingness in particular, which I think are telling. To this end, consider two more cases.

Consider first a case of assault. Someone walks into a Subway restaurant one evening. No other customers are on the premises. As they approach the counter, they reveal a firearm and, pointing it at the clerk, demand that the cash inside the till be handed over. After receiving the cash without any resistance, the perpetrator quickly leaves the premises. Now, like the cases above, this is undoubtedly a violation of rights. Among other things, clearly we owe others a duty not to threaten them with the use of deadly force for the purpose of self-gain; surely we all have corresponding moral rights to freedom from such abhorrent treatment, including moral rights against our governments and other third parties to help protect us therefrom. Unlike the three cases above, however, this is no minor violation of rights. Being held at gunpoint and forced to hand over private property on pain of death is a grave matter indeed. It’s plausibly also a violation of human dignity – I have no real interest in denying this here. Nevertheless, consider how much more obvious this is if (as we did in the cases above) we change some elements of the case. Imagine that the Subway clerk is a young and newly hired Sikh man, wearing his customary turban, who recently immigrated to the United States from India. The perpetrator, a radical conservative born nearby, knows this and assaults the clerk because he hates Sikhs and wants to make sure they don’t feel welcome in America. To communicate this, after demanding that the cash be handed over, he adds, “Ragheads aren’t welcome in this country you know.”

Now, I take it that, in its second form, this crime is a significantly more striking or paradigmatic violation of human dignity than it is in its first, and the question is whether Feinberg’s theory of human dignity can adequately account for this. I don’t really see how it can, at least not as it’s presently understood. Whatever crucial element has changed between these cases, Feinberg’s thesis seems too general to capture it. It’s not as if the second version of the case is a more striking violation of rights than the first: both cases are very obvious infringements of rights. And even if the second crime might involve more infringements of rights than the first (since the second rendition involves not only harming but also offending the clerk) this quantitative change seems unfit to do the necessary explanatory work. The numerical difference (of +1 or +2 rights violations) isn’t dramatic enough to account for the intensity or character of the shift in our intuitions about these two cases. The second version of the crime doesn’t just seem like (+1 or +2 degrees) more of a violation of human dignity than the first; it’s a much more striking violation thereof. I would go even further: unlike the first version of the crime, the second represents the very picture of an affront to human dignity – one of many such pictures. There’s not just a scalar but a qualitative change here. This suggests, I think, that it’s something in the nature of the crime, or rather in the kind of right(s) violated in each case, that seems to be generating the shift.

Perhaps, to return to a previous suggestion, it is the greater harmfulness or gravity of the second scenario that is doing the work. After all, in its second form, the assault is more harmful in some sense. There, the clerk is not only threatened with the use of

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deadly force, he is also made to feel threatened in general, on account of who he is: a Sikh. The implication of the perpetrator’s foreboding statement at the end is that the clerk is very likely to be threatened or attacked again, should he (foolishly) stick around. This is undoubtedly an additional harm of sorts, and a very serious one at that.14 Still, I don’t think it’s the harmfulness of the second crime, or the gravity of the rights violation per se, that’s doing the relevant work here. To demonstrate this, consider yet another case: Late one evening, a young man is walking home. As he nears the doorstep of his apartment building, two armed assailants approach him. The assailants are part of a group of five men involved in a series of neighborhood robberies that evening. After a struggle over his backpack, one of the assailants fires a gun at the young man, striking him once in the chest. The injury proves fatal.

Is this a violation of human dignity? It’s surely plausible to think so – again, I have no interest in denying this here. The point of introducing this example is to explore what, if anything, might make it a more (or less) striking affront to human dignity than it is. There are various ways of generating such a shift, some of which I have already employed above. One way is to build a discriminatory feature into the case. If we imagine, for instance, again, that there is a racist dimension to the crime, and that the young man is targeted because he is African or Middle Eastern or Asian in origin, etc., this greatly changes things. Another way is to alter details about the manner in which the victim is killed. Imagine that the young man is intentionally shot at point blank range in the head (rather than in the chest). Or imagine that he is made by the assailants to sit on his knees before being shot from behind in the style of a summary execution. These excruciating details transform the nature of the crime in a profound way. They inject a kind of offense (or outrage) into it that wholly engages concerns about human dignity. But the reason that these details do so cannot simply be because they make the crime more grave or harmful. In both versions of the crime, the scale of physical and psychological harm is roughly the same. What is it, then, that generates the notable shift in our intuitions? Whatever it is, it has to be something more specific than anything Feinberg’s thesis immediately draws our attention to.

With this in mind, and with all this case work now in hand, it’s worth considering the explanatory potential of other more specific theories of human dignity, i.e., theories that associate respect for human dignity not with respect for rights per se, but with respect for some specific right (or normative consideration), or set thereof. That is certainly the direction in which the cases and intuitions considered here seem to push us.

IV. THE FORMULA OF HUMANITY

Once we begin thinking of respect for human dignity as a matter of respect for only (or at least primarily) certain rights or normative considerations, a rich menu of well-established theoretical options comes into view. Among the most prominent of these is surely Kant’s theory of human dignity. Kant’s influence on the history of philosophical and legal thinking about human dignity has been monumental, even if sometimes

14 For a complex and well-rounded analysis of some of the relevant harms here, see: Jeremy

Waldron, The Harm in Hate Speech (Cambridge: Harvard University Press, 2012).

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overstated.15 And his theory is comprehensive. It includes a conception of the nature, grounds, and practical requirements of human dignity. Given its influence and comprehensiveness, it’s worth considering whether Kant’s theory might provide us with some insight into our intuitions about the cases above. For present purposes, all we’ll need in order to test this is to consider Kant’s understanding of the practical requirements of human dignity. Famously for Kant, at least as he is commonly understood,16 these requirements are associated with the “formula of humanity” – a basic injunction to treat “humanity, whether in your own person or in the person of any other, always at the same time as an end, never merely as a means.”17 I will follow this general tradition of interpretation here.

Unfortunately, it’s not easy to interpret the formula of humanity itself. On one reading, the formula is what I earlier called a gateway concept: it simply requires that we treat others morally, i.e., with due consideration, or as fully-fledged members of the moral community, whatever that might ultimately involve. This is more or less how Forst interprets the injunction. To treat someone “as an end,” in Forst’s view, means treating them in ways that take their basic moral standing (their “right to justification”) into account.18 This is also probably the right way to interpret Kant, given that the formula of humanity is simply one rendition of the “categorical imperative,” the organizing principle of Kantian ethics.19

Nonetheless, Kant’s injunction is often thought of as having a more specific and substantive moral cadence than this. For instance, the esteemed human rights jurist, Oscar Schacter, takes the formula of humanity to prohibit (first and foremost) something like using people in ways that conflict with their independent choices or will. At its heart, he explains, the formula prohibits perceiving or treating individuals “merely as instruments or objects of the will of others.”20 But this turns out to be the central insight behind a specific normative concept in Schacter’s view, that of “human dignity.” The Kantian idea of respect for human dignity, as Schacter understands it, generates a list of specific

15 There is no doubt that Kant’s theory features prominently in philosophical and legal

contexts today. For instance, on the legal side, the German Constitutional Court appealed to a noticeably Kantian understanding of dignity in the 2006 German Airliner Case, which considered whether the armed forces should have the power to shoot down a passenger jet in a 9/11 like situation (For a discussion, see: Rosen 2012, pp. 104-107). That said, in recent work, Samuel Moyn has persuasively drawn attention to the centrality of (not Kant but) Catholicism to the rise of the notion of human dignity in modern times. Samuel Moyn, “The Surprising Origins of Human Dignity” in Human Rights and the Uses of History (London: Verso Books, 2014), pp. 19-35.

16 See: Thomas E. Hill, Jr., “Humanity As an End in Itself” in Ethics (1980), Vol. 91, No. 1, pp. 84-99; Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1977), p. 198; John Rawls, A Theory of Justice: Revised Edition (Cambridge: Harvard University Press, 1971/1999), p. 513; Rosen 2012, pp. 80-90; Oscar Schacter, “Human Dignity as a Normative Concept” in The American Journal of International Law (1983), Vol. 77, No. 4, pp. 848-854.

17 Immanuel Kant, Groundwork of the Metaphysics of Morals (Cambridge: Cambridge University Press, 1785/1997), Translated by Mary Gregor, p. 38 (4:429).

18 Forst 2011, pp. 968-969. 19 Kant 1785/1997. 20 Schacter 1983, p. 849.

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prohibitions – specific rights and duties – in much the same way that normative concepts like equality, fairness, and mercy are thought of as generating their own unique sets of practical requirements.21 Whether or not this is strictly speaking exegetically correct, I at least want to see how much explanatory mileage we can get out of the formula of humanity understood in a more specific sense. The pertinent question is, then, what does the formula of humanity specifically require of us? And are its demands consonant with the various practical intuitions highlighted above?

Taken at face value, the formula of humanity looks a lot like a principle of negative liberty. After all, what better way to avoid using people in ways that conflict with their independent will than by not interfering in the autonomous conduct of their lives, i.e., allowing them to go about their business as they see fit, providing they do the same for us? If this is right, then on the Kantian view, violations of human dignity would occur whenever we “block” or “manipulate” the independent will of another person, say, by using the threat of coercive power to get them to do as we wish. Dignity violations involve infringements of our basic (negative) liberty rights. But when it comes to “positive” obligations that we have towards others – e.g., duties to provide assistance in the form of rescue, aid, care, food, clothing, shelter, protection, etc. – neglecting these would not be a violation of human dignity, on this simplistic rendition of Kant’s view. This is because failing to assist someone in need seems markedly different from forcing them to act against their will. Of course, leaving someone in a state of destitution or danger, when we could reasonably do something to help, may well involve wrongly leaving that person vulnerable to liberty-infringing exploitation by others. But as long as we see this as a different kind of moral wrong than that of directly infringing upon someone’s liberty,22 and as long as we understand the formula of humanity to prohibit only the latter, then we can see how Kant’s theory of human dignity might be tied to a rather specific libertarian demand, i.e., a specific moral right, or set thereof.

There are two problems that immediately rise to the surface here. First, even though I don’t want to restrict the current discussion to exegetically correct interpretations, it’s worth noting that this quasi-libertarian interpretation of Kant doesn’t hold much exegetical water at all. It’s quite clear that Kant himself understands the formula of humanity to require more than just respect for negative liberty. For instance, in the Groundwork, Kant is careful to point out that treating humanity “as an end in itself” is not simply a matter of leaving others alone (i.e., negative duty) but also about trying, as far as one can, to help others achieve their individual goals or ends (i.e., positive duty): “For the ends of a subject who is an end in itself must as far as possible be also my ends, if that representation is to have its full effect in me.”23 So, if respect for human dignity represents a specific moral demand in Kant’s system (and this is a big if already), then it is at least less specific than a mere principle of negative liberty.24

21 Ibid, p. 852. 22 By referring to this as a different kind of moral wrong, rather than as a different degree of

moral wrong, I hope to avoid taking sides in the well-worn debate about whether doing harm is worse than allowing harm here.

23 Kant 1785/1997, p. 39 (4:430). Schacter also associates the formula of humanity with duties of assistance. See: Schacter 1983, pp. 851-852.

24 For a persuasive and well-researched interpretation of the scope of Kantian ethics, as well as the formula of humanity, that includes positive duties as a central element, see: Pablo Gilabert,

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But even if we revise and expand our interpretation of Kant accordingly, there is a second, deeper problem to be reckoned with. As long as we think of the formula of humanity as at least including negative injunctions against the infringement of liberty at its center, or as a major element, then it’s hard to see how it can make much sense of our intuitions about the cases described in the last section. After all, respect for liberty presumably involves respect for private property too. Kant himself grouped these considerations together. He portrays “assaults on the freedom and property of others” as evidence that one intends to “make use of the person of others merely as a means”.25 But if respect for private property is a central dictate of the formula of humanity, this means that the (simple) cases of bicycle theft and vandalism are in theory violations of human dignity on Kant’s view. So too is the (simple) case of breach of contract. By reneging on their promise, and the terms of contract, the fund managers effectively misled x, and in so doing violated x’s autonomy, i.e., x’s ability to lead a genuinely self-directed life. They lured x into a contract that he was unlikely to freely accept had he known their real intentions or character. Kant prohibits this sort of thing precisely on the grounds of the formula of humanity: “he who has it in mind to make a false promise to others sees at once that he wants to make use of another human being merely as a means, without the other at the same time containing in himself the end.”26 So already we can see that an appeal to the formula of humanity is unlikely to help us explain our negative intuitions about the first three cases discussed in the previous section.

What about the variations in our intuitions discussed above? Here too Kant’s theory yields uncertain rewards. If we return to the example of assault, for instance, it’s unlikely that, on a Kantian view, it would constitute a significantly more striking violation of human dignity in its second form than it does in its first. Instead, both cases should look like fairly paradigmatic violations of human dignity; in both instances, the Subway clerk is blatantly treated as a mere means by the assailant, or forced to act in ways contrary to their independent will. The same is true of the example of murder. The act of murdering someone for his or her backpack is a perfectly unequivocal violation of human dignity on Kant’s theory: in many ways it represents the very picture of what it means to treat someone as a mere means. It’s not easy to grasp how or why the cited details about the manner in which the victim is killed would have much of any added effect on our intuitions if compliance with formula of humanity is our yardstick.27 Once we jostle ourselves into an appropriately “Kantian” headspace, perhaps such details will cease to have such an effect. But the initial disconnect here – i.e., the disconnect between (i) our common intuitions about the various cases examined above and (ii) the common intuitions we would expect to have about them if the formula of humanity were indeed at the center of our everyday thinking about human dignity – suggests that Kant’s theory does not have the kind of hermeneutic value we’re after.

This remains true if we adjust our interpretation of Kant once again, and think of him as associating dignity with a general feature of moral rights – their deontological “trumping” character – rather than any individual set of rights in particular. Sometimes “Kant and the Claims of the Poor” in Philosophy and Phenomenological Research (2010), Vol. 81, No. 2, pp. 382-418.

25 Kant 1785/1997, p. 38 (4:430). 26 Ibid, p. 38 (4:429). 27 For some possible thoughts here, see: Hill 1980, p. 94.

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the formula of humanity is associated with the so-called “inviolability” of moral rights, their resistance to trade-offs or subsumption in aggregative cost-benefit analysis.28 And it’s not hard to see why this would be so. Affirming the inviolability of a right is a way of saying that its bearer should not be treated in ways prohibited by the right even if doing so would ultimately serve some genuinely greater good. For instance, if we think of the human right not to be tortured as inviolable, we think that human beings should not be tortured even if this would (somehow) prevent many others from being killed or tortured. Affirming the inviolability of rights, or at least their resistance to trade-offs, then, signals something like the general wrongness or impermissibility of using people in the service of goals both good and bad.29 The Kantian overtones are very clear. But even if we leave Kant aside here, and think of respect for the inviolable character of rights as something intimately tied to respect for human dignity as such, as many prominent thinkers do,30 it’s still not clear how this will help move the current analysis forward.

What we’re looking for, again, is an intellectually charitable way of explaining why (a) some rights violations do not seem like violations of human dignity at all, and (b) why some deeply grievous rights violations present themselves to us as more flagrant or striking affronts to human dignity than others. But on the current view, it looks as if all rights violations – each of which disrespects the inviolable character of our rights, or their strong resistance to trade-offs, in some sense – will count as violations of human dignity. Explaining (a) therefore already seems out of reach. And as for (b), if we allow for the thought that rights can vary in their degree of “inviolability,” then perhaps there is some scope here for explaining why some rights violations seem like more striking affronts to human dignity than others: perhaps the more striking affronts violate the more “inviolable” rights. But this line of analysis doesn’t square up well with the cases discussed above. After all, whatever additional right, if any, is violated in the second iteration of the example of assault (perhaps it is a right against religious insult, and/or against being threatened with future violence), it is unlikely that such a right is any more inviolable than the right against assault itself. The same is true of the example of murder. It’s hard to imagine that we have a right against being unjustifiably killed in shocking ways that is any more inviolable than the right against being unjustifiably killed itself. In general, it’s hard to see how the more offensive or striking versions of the examples of murder and assault described above engage concerns about “inviolability” or “resistance to trade-offs” any more than their less striking counterparts. There doesn’t seem to be any promising way of shedding light on our common intuitions here.

Similar difficulties arise, in different ways, in the context of other autonomy-oriented accounts of human dignity. These include James Griffin’s account, which associates human dignity, or at least the kind of human dignity at issue in human rights discourse, with respect for our “personhood:” in short, our capacity to independently formulate a life plan and then to act on it.31 They also include Martha Nussbaum’s theory, according to which respect for human dignity involves treating people in ways that promote their ability to exercise and develop their “central human capabilities,” such as

28 Dworkin 1977, p. 198. 29 See: Thomas Nagel, “Personal Rights and Public Space” in Philosophy and Public Affairs

(1995), Vol. 24, No. 2, pp. 83-107. 30 Tasioulas 2013, esp. pp. 307-308; Dworkin 1977, p. 198; Rawls 1971/1999, p. 513. 31 James Griffin, On Human Rights (Oxford: Oxford University Press, 2008), p. 33, 249.

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their capacities for health, imagination, thought, sensation, emotion, practical reasoning, friendship, and play, etc.32 Despite their virtues, the most difficult thing for such accounts to explain, it seems to me, is why details of the kind discussed in the example of murder above should have the effect that they do. Why, for instance, does a gunshot to the head strike us as more of an affront to human dignity than, say, a gunshot to the chest, when both are equally likely to result in death and the destruction of agency? Why do considerations like the posture and position of a victim vis-à-vis a perpetrator at the moment of killing so strongly amplify (or relax) our sense that the victim’s human dignity is undermined or violated? Why, when all else is equal, do facts about the attitudes of a perpetrator towards their victim, and whether these attitudes are discriminatory or not, demeaning or not, so strongly affect our sense of whether their crime violates their victim’s human dignity? These questions are not easily answered by theories that make an action’s impact on the autonomy or basic capabilities of those it affects the key measure of its impact on human dignity.

V. DIGNITY AND DEGRADATION

The renowned sociologist, Peter Berger, once published a short essay entitled, “On the Obsolescence of the Concept of Honor.”33 In it, he argued that the old notion of “honor,” understood as a (positively-valanced) measure of something like one’s social standing, has grown outdated, in much the same way that the ideal of “chastity” has. In place of honor, Berger argues, the modern West has rallied around the notion of “human dignity,” which he understands to be a profoundly different concept. Berger explains that the acquisition and maintenance of honor is a social achievement. It requires public display (think, for example, of the very public nature of the honorific “duel”) and conformity to institutional roles or social expectations. Human dignity, by contrast, is a more inward-looking concept, in Berger’s view. It’s something one is meant to possess and pursue outside of the structures of society, as part of a romantic search for something like individual authenticity or self-discovery. In short, the new idea of human dignity is not as connected to the socially oriented notions of pride, good standing, respect, deference, and worthiness as the old notion of honor is. Nor is it as connected to their counterparts: social shame, humiliation, embarrassment, degradation, and rejection. The ideal of human dignity is meant to draw our attention away from all that. And part of the evidence that we have indeed left the premodern notion of honor behind, in Berger’s eyes, is the modern trivialization of “insult.”34 An insult to one’s social honor (e.g., as a “gentleman,” “lord,” man of integrity, or high nobility) was historically a life or death matter in the West. It could very well provoke a duel. Indeed, among the higher classes in particular, dueling was often considered the appropriate and privileged response to insult,

32 Nussbaum 2008a, pp. 351-381; Martha Nussbaum, Frontiers of Justice (Cambridge:

Harvard University Press, 2008b), pp. 76-78 (for the list of such capabilities). 33 Peter Berger, “On the Obsolescence of the Concept of Honor” in Archives europeennes de

sociologie (1970), Vol. 11, pp. 339-347. Reprinted in Revisions: Changing Perspectives in Moral Philosophy (Notre Dame: Notre Dame University Press, 1983), pp. 172-181. Here I shall refer to the reprinted version.

34 Berger 1983, p. 172.

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especially from a peer.35 Today, Berger notes, an insult, barring certain extremes, is simply something we’re supposed to put up with.

The reason I bring all this up is that it helpfully establishes a basic contrast that I think we’re best off rejecting. Unlike Berger, and like some other contemporary theorists,36 I think we’re likely to find it more illuminating to focus on the basic continuities between the old notion of honor and the “new” concept of universal human dignity. This is because the idea of human dignity that preoccupies us in modern times seems to have exactly the kind of social or public dimension that Berger relegates to its predecessor concept. Much like insults to honor, violations of human dignity threaten, undermine, or tamper with something akin to our social standing. Characteristically, such violations humiliate, shame, degrade, and embarrass. They (typically) interfere with our sense of self, our pride, and with our sense of how others see us. This is, in short, what I think is special about human dignity. It presents us with a demand not simply to treat others morally, or to respect their moral rights, or to avoid harming them in grievous ways. What it demands is that we avoid subjecting people to the specific (socially oriented) harm of humiliation or degradation and, more positively, that we help protect them from such harm too.

According to the Oxford English Dictionary, to “degrade” means to “reduce from a higher to a lower rank, to depose from a position of honor or estimation.”37 If we think of human dignity as a normative concept essentially concerned with a harm of this sort, then we can make good sense of our reactions to the cases described in Section III. For instance, part of what separates the dignity-violating case of bicycle theft from its counterpart is not just the former’s greater overall impact on the victim’s life, but its degrading or humiliating character. For one, in the former case, and in it alone, the victim is stripped of something we consider (and that we expect she considers) crucial to her pride or self-respect: her independent mobility. In this respect, the sheer impact of the crime on its victim is degrading in a way that an ordinary case of bicycle theft is not. Another factor is the targeted nature of the theft – the fact that, in its dignity-violating form, it is specifically intended to harm a disabled woman. There are at least two ways in which this makes the theft a degrading one. First, there is something palpably humiliating about being intentionally singled out for attack on account of some basic feature of one’s identity or personhood, particularly when (as in the case of the disabled woman) that feature is already a source of social vulnerability and exclusion for the victim involved. In this respect, the contemplated theft reinforces, or at least forms a part of, a more

35 Kwame Anthony Appiah, The Honor Code: How Moral Revolutions Happen (New York:

W.W. Norton & Co., 2010), Ch. 1. See also: James Q. Whitman, “On Nazi ‘Honour’ and the New European ‘Dignity’” in Darker Legacies of Law in Europe: The Shadow of National Socialism and Fascism over Europe and its Legal Traditions (Oxford: Hart Publishing, 2003), eds. C. Joerges & N.S. Galeigh, pp. 243-266.

36 See: Avishai Margalit, The Decent Society (Cambridge: Harvard University Press, 1998), Translated by Naomi Goldblum; David Luban, “Human Dignity, Humiliation, and Torture” in Kennedy Institute of Ethics Journal (2009), Vol. 19, No. 3, pp. 211-230; Jeremy Waldron, Dignity, Rank, and Rights (Oxford: Oxford University Press, 2012).

37 See: Jeremy Waldron, “Inhuman and Degrading Treatment: The Words Themselves” in Canadian Journal of Law and Jurisprudence (2010), Vol. 23, No. 2, pp. 269-286, esp. 281-284 for a highly valuable discussion.

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general pattern of social exclusion and discrimination that is degrading in its own right. Second, the targeted nature of the theft raises the prospect that it was not simply

intended to harm but, more specifically, to degrade its victim – i.e., to subject her to personal and/or public humiliation – and this (if true) is certainly a relevant factor as well. It is true that the sheer impact of a crime, or even of a natural event, can be enough to render it humiliating or degrading in some sense; losing one’s independence can be an embarrassment however it occurs.38 And an action can be degrading even if it is not specifically intended to be so.39 Nevertheless, just as insults are (typically) meant to insult, humiliating or degrading treatment is standardly intended to be so; and when it is, the degradation is more intense. As Daniel Statman notes:

The pure cases of humiliation are those in which the humiliator explicitly seeks by his actions to reject the victim, to humble and degrade him, to exclude him from a specific group or from the family of man altogether. The weaker these evil intentions are, the weaker the justification is for feeling humiliated. When no such intention exists, humiliation is often out of place.40

By the measure of both its impact and its intentions, then, the dignity-violating instance of bicycle theft is markedly more degrading than its counterpart case. There seems to be a solid positive fit here between the degrading character of the rights violation, on the one hand, and the intuitiveness of its status as a violation of human dignity, on the other.

This observation bears out across the other cases discussed above as well. For instance, the distinguishing feature of the dignity-violating case of vandalism is that, in it, the adolescents target the store because of the race of its owner, or more specifically because they hold people of that race in a low regard, and would prefer not to have to live alongside them. This makes the intent or meaning (if not the pure physical impact) of the attack degrading in a way that its (non-dignity-violating) counterpart is not, and all the more so because it is likely intended not just to harm but to degrade its victim – to make them feel unwanted, excluded, humiliated, and afraid. This is precisely the sort of shift at issue in the contrasting cases of assault as well, where it is religious or ethnic discrimination that is at work. The versions of these cases that strike us as violations of human dignity, or as more obvious instances thereof, are consistently the versions that involve some combination of degrading impact and/or intent. In the dignity-violating case of breach of contract, the fund managers may not specifically intend to degrade or humiliate the female employee, but the sexist nature of their attitudes towards her introduces a strongly degrading element into the case nonetheless – one that is absent from its counterpart. The presence of such attitudes makes her treatment one instance of a more general pattern of social exclusion, dishonor, and vulnerability experienced by women in the workplace, among other central environments.

38 Thus, I see no reason to agree with Avishai Margalit that only humans can humiliate

(Margalit 1998, p. 9). 39 One can imagine an act of rape, for example, that is not specifically intended to degrade or

humiliate its victim, but that does so nonetheless. 40 Daniel Statman, “Humiliation, Dignity and Self-respect” in Philosophical Psychology

(2000), Vol. 13, No. 4, p. 531.

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Our intuitions about the contrasting cases of murder fit this pattern too. The troubling “stylistic” details that strongly amplify our sense that the murder in question is a violation of human dignity present us with strikingly offensive imagery. They also seem to suggest that there is a third way in which an action can be degrading – one that is not so much about its impact or intent, but about the manner in which the action is carried out. After all, the only feature that ostensibly changes across the relevant cases is the way in which the murder is conducted. In the end, I don’t think we need to make room for a third metric here, at least not on the grounds of these cases alone. The reason that the contemplated details about the manner of execution matter so much is, I think, that they signal something about the intent of the wrongdoer or their attitude towards the victim – which brings us back to the second metric. When the assailants make their victim kneel down for formal execution it’s clear that they are interested in more than just a backpack. Their aim is to humiliate; to add insult to injury. By the specifics of their actions, they express a demeaning view of the victim (e.g., as worthless, base, despicable, etc.) and of the relationship between themselves and their victim (e.g., that it is one of subordination and/or antipathy). And it’s ultimately, I think, this manifestly clear intent (to degrade) that makes the case so degrading in character, and so patent a violation of human dignity as a result.

One of the implications of placing concerns about degradation or humiliation at the heart of our understanding of (at least) the practical requirements of human dignity is that, as in the cases of murder, the expressive or symbolic character of our treatment of others becomes a central dignitarian concern. As several of the foregoing cases demonstrate, there are ways of treating others that not only disrespect their rights but that express contempt or disrespect for the victim more generally; degrading treatment typically has this second, symbolic or expressive characteristic. Michael Rosen has recently highlighted this by drawing an interesting distinction between (a) respecting others by respecting their rights in general (“respect-as-observance”) and (b) respecting others by “showing” respect for them in some ostensible way – say, by nodding one’s cap or bowing (“respect-as-respectfulness”).41 Unlike the former kind of respect, which involves a duty to respect all rights, the latter picks out the content of one right in particular: a right to be treated “respectfully.”42 This contrast helps identify the kind of requirement at issue when we think of our duty not to degrade; this is not just a matter of observing rights but of showing respect, often in some socially sanctioned or even ceremonial form. Rosen thinks of human dignity, or at least one important “strand” of it, as the source of a demand to be respectful in this symbolic or expressive sense – a thought very much in line with the present analysis.

As I suggested above, and as Rosen suggests too,43 much of this boils down to a matter of attitude or intent. If we think of human dignity as the source of a demand to be respectful, we think of it as the source of a demand to hold others in high regard, and to express that attitude accordingly. But the focus on symbolism and expression also opens up to a broader point. A murder conducted in the style of an execution manifests (we think) an intention to degrade precisely because of the socially recognized meaning of such stylistic details. Just as words (like “fool”) can become insults by being invested

41 Rosen 2012, p. 58, 61, 115. 42 Ibid, pp. 61-62. 43 Rosen 2012, p. 126, 143.

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with an offensive or degrading meaning by society, actions can be invested with such meaning too, and it’s the reasonable presumption that the assailants know (and know very well) the offensive social meaning of their actions that generates the noted assumptions about their intent. What this indicates is that determining the social meaning of an action or circumstance is generally quite important to determining its impact on human dignity. Paying attention to that meaning helps us determine how degrading the intent and/or impact of that action or circumstance is. This makes violations of human dignity slightly different in character from basic injustices. A simple injustice can usually be read off the brute “objective” facts, as it were: I have a right to my bicycle, and if it is taken from me without my consent, and for no (sufficiently) good reason, this constitutes an obvious injustice or rights violation. Violations of human dignity, by contrast, become visible only when we fit such brute facts into their social context, and look at the meaning that they take on in light of that context – that is at least what our intuitions about the preceding cases suggest.

But how crucial is social context? As Rosen and many others rightly note, “what counts as degrading or humiliating treatment varies drastically from culture to culture.”44 Notoriously, some prisoners at Abu Ghraib were, among other things, literally treated like dogs – dragged or “walked” around by a leash fastened to their neck, and made to obey dog-like commands, such as “sit” and “bark.” We know such treatment to be degrading because of the sort of vision we (and, crucially, the American soldiers and their victims) have of animals and domesticated dogs in particular: these are considered to be “lower” species, pets and subordinates that are here largely for our pleasure and not their own. But if other animals were regarded more highly by human beings, or if the particular animal simulated in this instance were highly regarded by the participants involved (imagine, for example, the different social connotations that Hindus would attach to the prospect of being treated like a cow, which is a sacred and inviolable animal in their tradition), the degradation would not be as obvious. Similar things, I think, can be said about the well-reported forced nudity of some detainees at Abu Ghraib. For members of cultures in which public nudity is a common and accepted practice, such torture tactics would likely make little sense. Thus, there is good reason to think that the duty not to degrade, even if universal, will have a content that varies considerably depending on social context, i.e., depending on locally shared conventions that determine what does and doesn’t count as “respectful” treatment.

Surely there must be some limits to this conventionalism, however. An individual can be degraded without ever feeling or knowing it, or at least it seems plausible to think so – it is easy to imagine instances in which, say, infants, the unconscious, or the uninformed are degraded.45 An individual can (plausibly) also feel degraded without

44 Rosen 2012, p. 127; Waldron 2010, p. 285. 45 This was recently recognized by the English High Court, which ruled that “Treatment is

capable of being 'degrading' within the meaning of article 3 [of the European Convention on Human Rights], whether or not there is awareness on the part of the victim. However unconscious or unaware of ill treatment a particular patient may be, treatment which has the effect on those who witness it of degrading the individual may come within article 3. It is enough if judged by the standard of right-thinking bystanders it would be viewed as humiliating or debasing the victim, showing a lack of respect for, or diminishing, his or her human dignity.” Regina (Burke) v. General Medical Council [2005] Q.B. 424, § 178 (Eng.). See: Waldron 2010, p. 283 for a

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actually being so – sometimes we perceive insults where there are none. The standards we normally use to determine how degrading some treatment or circumstance is, then, have an objective dimension to them. And something like this must be true at the societal level as well. In sexist societies, men may find it degrading to do, or even to be asked to do, work customarily allotted to women, e.g., cleaning, cooking, child-rearing, etc. But do we really want to think of this as a genuine degradation? Would it be an affront to these men’s human dignity for them to do such work? Surely not! So, it seems, not even all socially conventional degradations really count as such. But this raises a puzzle. If local conventions do not determine what is and isn’t truly “degrading” in this instance, why do they do so in others – for example, in the cases of torture discussed just above, where conventional views of animals and public nudity seemed to underwrite the degrading character of the victims’ treatment? These are difficult questions. But without some ordered account of the conditions under which local standards of “respectfulness” lose their grip on our judgment and give way to some more objective yardstick, concerns about degradation (and, ipso facto, human dignity) risk legitimizing all manner of morally unsavory attitudes and cultural traditions.

There is another puzzle to be reckoned with here too. If the degrading character of some treatment or circumstance is not just a function of its psychological impact, nor even simply a function of whether (and to what extent) local conventions deem it to be so, it becomes difficult to figure out what we are even talking about when we talk about degradation or humiliation. One option is to think of ourselves as using the concept in a normative sense. That is, when we say that some treatment or circumstance (x) is degrading, what we are saying is that its victim should – or at least has “sound reason” to – feel humiliated or degraded by x. This is the option favored by scholars like Statman and Avishai Margalit.46 The difficulty with this analysis is that it has an unnatural fit with our normal usage of the term. When we say that the disabled woman, in the example of bicycle theft, was degraded, do we really mean to say that she has sound reason to or should feel degraded? That way of thinking of her situation seems to get something wrong. The woman has been degraded or humiliated, to be sure, but if anyone should feel degraded or humiliated here it is not the victim but the perpetrators themselves: they are the only parties in this equation who would clearly be justified in feeling shame or embarrassment for what has transpired. Another option, then, is to think about talk of degradation as talk about behavior or conditions that are typically regarded as, and (when the victim is someone capable of such experience) typically experienced as, degrading or humiliating.47 This reading has the advantage of avoiding the awkward normativity of the previous one – it doesn’t claim that the disabled woman should feel degraded by her circumstance, but only that she (and others) naturally or understandably would. It therefore seems more promising to me. But in order for it to work it will have to incorporate, as stressed just above, some objectivist component that makes talk of degradation more than just talk of what is conventionally regarded as such. Admittedly, that is a tall (but necessary) order for a reading that is basically conventionalist in spirit.48 discussion. Also: Luban 2009, p. 219.

46 Statman 2000; Margalit 1998. 47 This is the kind of reading alluded to, I think, by the English High Court: see fn. 45 just

above. 48 On a possible way forward here, consider Waldron 2010, pp. 284-286.

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VI. CONCLUSION

This paper has argued that the practical requirements of human dignity are, so far

as our common intuitions are concerned, closely tied to concerns about humiliation and degradation, and I have also tried to highlight some of the implications and difficulties of understanding human dignity in this way. There are many more implications and difficulties to consider going forward. Among them is the question of how this analysis of the practical requirements of human dignity bears, or should bear, on our understanding of its basic conceptual nature. If the basic options, as Rosen has helpfully portrayed them, are to think of human dignity as in essence (a) a kind of value, (b) a kind of social status, and (c) a kind of virtue,49 it seems as if the present analysis compels us to think of human dignity principally as (b) a kind of social status. Concerns about humiliation or degradation are at their heart concerns about one’s social standing and threats thereto. So there is a natural fit between one common conceptual analysis of human dignity and the intuitions about its practical requirements that we discussed here.

But how well does this analysis fit with other common usages of human dignity? For instance, how, if at all, does it fit with the common understanding of human dignity as the foundation of human rights?50 It’s not obvious that it does. For one, it’s highly doubtful that all of the human rights proclaimed even in the ICCPR alone can be seen as formally derived from focused concerns about social standing, degradation, and humiliation, although certainly many of them can: for instance, the right to equality before the law (Articles 2-3), the right against cruel, inhuman, and degrading treatment or punishment (Article 7), and the right against slavery (Article 8), to mention just a few. If we interpret the idea of “derivation” or “foundation” in a looser, more rhetorical sense, however, perhaps there is some way in which human dignity as presently conceived could fulfill this function.51 Even if the content of human rights is not set or justified by considerations about human dignity in each and every instance, appeals to the (special) notion of human dignity may help bring us around to the idea of human rights in general. After all, a core part of that idea is not just the requirement that we respect or observe the rights of all persons, but that we recognize every person as an object of respect in the first place, as a bearer of rights, and honor them as our equal in some fundamental sense. We may not violate the dignity of others by failing to respect one or more of their concrete rights (whether that right is “human” or not), but we certainly do violate their dignity if we fail to even see them as equal rights-bearers in general, and act accordingly. And so perhaps what foundational references to human dignity in human rights discourse do is help us conceive of others in the right way. They set us off on the right foot, as it were, readying our minds for the very idea of human rights itself.

49 Rosen 2012. 50 See e.g., the Preambles of the 1966 International Covenant on Civil and Political Rights

(ICCPR) & International Covenant on Economic, Social, and Cultural Rights (ICESCR): “Recognizing that these rights derive from the inherent dignity of the human person.”

51 See: Jeremy Waldron’s “Is Dignity the Foundation of Human Rights?” in Philosophical Foundations of Human Rights (Oxford: Oxford University Press, 2015), eds. Massimo Renzo, Rowan Cruft, and S. Matthew Liao, pp. 117-138, for some explorations of this sort.

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In a sense, this last point brings generalist accounts of human dignity like those of Forst and Feinberg back into the picture, but it does so in a roundabout way. If we understand these thinkers (however exegetically correct or incorrect this reading might be) to be linking human dignity not so much to a general demand of respect for our rights per se, but rather to a specific demand of respect for our very status as rights bearers, then they touch on something that is indeed core to our intuitive understanding of human dignity. But they do so because, understood in this way, their theories home in on one important facet of the respect we owe to others – one way in which human beings can suffer terrible degradation in the eyes of others and/or themselves.