Theoretical Approaches to the Human Rights of Marginalized and Excluded Individuals or Groups – Part I: A Short Critique of Human Dignity
Author: Veronika Flegar
In an earlier post on this blog Paul van Trigt pointed to the frequent neglect of viewing human rights in their larger historical context. This is not only true for historians but, arguably, even more so for human rights lawyers. Due to this neglect, human rights lawyers seem to sometimes suffer a bias towards the salience of human rights and seem to be primarily preoccupied with the interpretation of international treaties and case law. Such interpretations often neglect to question the human rights system or its underlying assumptions as such. Yet, a more critical approach towards the central ideas of international human rights law seems necessary in order to build a sustainable system that is to the benefit of all human beings – including persons or groups who are commonly marginalized or excluded.
In a series of four blog posts I therefore aim to shortly introduce and discuss a number of currently popular concepts or approaches that are commonly employed to further the human rights of excluded or marginalized individuals or groups. I do this in order to provide some food for thought as to whether and to what extent associating the human rights framework with some or all of these ideas is suitable for making human rights a reality for everyone, particularly for those individuals or groups who seem to face particular challenges in the realization of their human rights such as, for instance, migrants, disabled persons or minorities. I aim to point out a number of pitfalls as well as the likely relationships and differences between the various ideas. This has the goal of questioning some of the underlying assumptions that are often taken as a given in international human rights law.
The four ideas I will discuss are diverse in their scope, approach and underlying paradigm. Some have been central to human rights for decades while others only recently emerged. Yet, they all seem to share an aspiration for the inclusion of all human beings into the human rights debate. In this blog posts series I aim to pinpoint a few points of concern in that respect.
In this first blog post I focus on the oldest and most well-established concept: human dignity. Subsequent posts will deal with the capabilities approach, intersectionality and, lastly, the notion of vulnerability. The last blog post will pay particular attention to the question of what the, arguably, most recent and currently fashionable notion of vulnerability can or cannot add to the other three ideas.
Since this blog post does not allow for an extensive discussion of human dignity but merely aims to raise a few questions, the concept of human dignity itself is not discussed in-depth. Interested readers can, for instance, refer to the edited volumes by McCrudden (ed., OUP 2013) and Düwell et al (eds., CUP 2014) for more detailed legal and theoretical discussions of the content and role of the concept.
What is human dignity? Human dignity is mentioned in many human rights documents and is often viewed as the main foundation of human rights. Most prominently, the Universal Declaration of Human Rights starts with a reference to “the inherent dignity and of the equal and inalienable rights of all members of the human family”. What seems central to the arguments by proponents of human dignity as the main foundation of human rights is their interpretation of human dignity as emphasizing the empowerment of human beings. This understanding essentially reveals human dignity as a liberal concept that should facilitate an individual’s strive for autonomy and freedom.
Operating under this assumption and referring to human dignity as central guiding principle of human rights can provide a strong moral foundation for human rights and can foster the creation of internal coherence of international human rights law. Yet, growing disenchantment with how little the codification of international human rights law in international treaties has achieved especially for those individuals and groups that are (forced to live) at the margins of mainstream society has led to increasing criticism about the very assumption of an inherent human dignity. In the following I pinpoint three criticisms in this respect that raise questions with regard to the value of the concept as an effective argument for the realization of the human rights of these marginalized individuals or groups.
Firstly, the concept of human dignity has been criticized as overemphasizing “symbolic values” above actual human conditions.1 An emphasis on human dignity is thus considered to be “one-sided” and to not sufficiently take into account “our basic needs and our vulnerability” to which a suitable response would be “compassion without condescension”.2 Human dignity’s focus on individual autonomy and freedom makes it difficult to argue for such compassion or to even acknowledge basic needs and, particularly, inherent vulnerabilities of human beings.
Secondly, the historical record reveals how quickly states, societies or institutions might deny the human dignity of those individuals or groups that do not fit easily within mainstream society. There is no safeguard against redefining who is entitled to inherent human dignity. As Douzinas points out, atrocities such as slavery or the Holocaust painfully reveal that considering other humans as endowed with human dignity is no safe haven and can always be reversed:3
“There is no guarantee that affection will win over fear. Experience tells us however that when the fear of the other, the foreigner, the Jew, the refugee, becomes their institutional logic, human rights lose their protective value against the state”.4
Providing protection or assistance to other human beings on the basis of human dignity can thus easily lose its meaning.
Thirdly, the idea of the existence of an inherent human dignity does not clarify why human rights are justified but rather aggravates the problems secular societies have in finding a justification for human rights: the concept of human dignity is strongly linked to natural law ideas which rely on a higher order and ultimately religious morality.5 Alternatively, the concept of human dignity could be linked to Kant’s philosophy on dignity rather than to religion (although it can obviously be argued to what extent Kant was nevertheless influenced by and relied on Christianity). Yet, the concept would remain problematic: it would then lose its universal character as Kant grounds dignity in the human ability to reason and to be autonomous.6 Especially with regard to groups or individuals whose human rights are still far from being realized, human dignity does thus have little to offer. In the contexts of disability or displacement, for instance, the focus on autonomy neglects structural barriers to empowerment that cannot be overcome individually.
Overall, viewing human rights as founded on an inherent dignity of the human person should thus be reconsidered carefully especially in light of the, hitherto, limited realization of the human rights of those individuals or groups who do not fit this mainstream idea of an autonomous and self-sufficient individual human being. The concept of human dignity is therefore likely to hinder a more progressive and inclusive development of human rights. The next blog posts will pinpoint how three other approaches that can be employed to justify or engage with the international human rights law framework have tried to develop a more inclusive foundation (or at least a pragmatic justification and/or implementation mechanism) for human rights.
This blog post benefitted from discussions with colleagues at the University of Groningen and I would like to particularly thank Marie-Elske Gispen for sharing her views and work on human dignity with me.
1 Govert den Hartogh, ‘Is human dignity the ground of human rights?’ in Marcus Düwell, Jens Braarvig, Roger Brownsword and Dietmar Mieth (eds.), The Cambridge Handbook of Human Dignity: Interdisciplinary Perspectives (CUP 2014), 205-206.
2 Ibid., 205-206.
3 Costas Douzinas, The End of Human Rights (Hart Publishing, 2000), 372.
4 Ibid., 376.
5 Doris Schroeder, ‘Human Rights and Human Dignity: An Appeal to Separate the Conjoined Twins’, Ethical Theory and Moral Practice 15:3 (2006), 323.
6 Ibid., 323, 329-330.