The Role of Dignity in Human Rights Theory: Constituent or Teleological?

AuthorTom Lowenthal
PositionBCL Candidate, Balliol College, Oxford
© Tom Lowenthal and Dublin University Law Society
This article will argue for a particular understanding of the role of the
concept of dignity in human rights law. Two core arguments will be
presented. The first is that dignity is best understood as an organising
principle of human rights law. It is a status-based guarantee of moral
equality. Its special contribution to human rights law is expressive, in the
sense that it concerns the moral equality-denying message conveyed by
actions rather than the effect of the actions themselves. The second core
argument is that dignity is one of many organising principles in human
rights theory. In contrast to the first point, this is a relational claim about the
role of dignity in human rights law, which demands that dignity be treated
as a principle rather than as a standard in human rights adjudication.
A common way of approaching the study of the theory of human
rights is to identify the central organising principle that is alleged to hold
the edifice together.
This article will argue that that the assumption that
only one central organising principle is necessary is not plausible, and that
to adopt any single organising principle is insufficient. The central premise
of this article is that human rights theory can best be understood as an
ongoing pluralist tension between two branches of a taxonomy: those
principles based in what a person chooses (“choice-based theories”), and
those principles based in what a person is (which is how this article will
present dignity). It is intended to show, first, that dignity is best understood
as an expressive guarantee of moral status, and secondly that the search for
one unifying principle is problematic, unnecessary and impoverished This
is because on the one hand it excludes ideas which are potentially valuable
per se, and on the other because it excludes argumentation which is valuable
BCL Candidate, Balliol College, Oxford. The author would like to thank Nick Bamforth and
Sandra Fredman for helping him appreciate comparative and theoretical perspectives on human
rights in his BCL classes.
Marie-Bénédicte Dembour, “What are Human Rights? Four Schools of Thought” (2010) 32
Human Rights Quarterly 1, at 6-7.
57 Trinity College Law Review [vol 18
for the contribution to human rights theory which can be made by pitting
competing principles against one another.
I. The Role of Human Rights Theory
Before considering the role of dignity, both in abstract and in relation to
human rights theory more broadly, it is first necessary to ascertain exactly
what the nature of the enterprise is, and clarify some key distinctions;
namely, the distinction between ‘teleological’ and ‘constituent’ approaches,
and the distinction between principles and standards.
A. The Teleological Approach and the Constituent Approach
One clarification must be made prior to considering the substantive content
of the idea of dignity. In argumentation surrounding human rights, there are
often two distinct questions. The first asks why a right is to be protected.
The second asks what the content of that right is. The confusion is easy to
see by way of example. The common assertion that autonomy is a ground
for human rights could mean two things. On one hand, it could mean that
the various human rights guaranteed by law are protected because they are
a constituent part of autonomy, and so autonomy dictates their scope. This
will be referred to as the ‘constituent approach.’ On the other hand, this
assertion could mean that the law extends protection because autonomy
demands it, due to autonomy being a higher order value, which is promoted
by but does not define the freedom the individual enjoys. This will be
referred to as the ‘teleological approach.’ In this context, teleological
principles are merely argumentative. This means that they exclude direct
application or “concretisation.”
It is important to identify the question which human rights theory
seeks to answer. This article will adopt an approach whereby the goal of the
project is to understand the reasoning behind the designation of a given
norm as a human right. This is the role of a central organising principle, and
for this reason, the correct way to see the various proposed central
organising principles is as teleological justifications for rights, rather than
as constituent parts of them. This article will show that adopting a
constituent approach leads to serious confusion. The theory adopted in this
article attempts to understand the organisation of human rights law, not as a
Infra, at 10.

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