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

• Author: Tom Lowenthal
• Position: BCL Candidate, Balliol College, Oxford
• Pages: 56-83

© Tom Lowenthal and Dublin University Law Society

THE ROLE OF DIGNITY IN HUMAN

RIGHTS THEORY: CONSTITUENT OR

TELEOLOGICAL?

TOM LOWENTHAL

Introduction

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.

1

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.

1

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.”

2

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

2

Infra, at 10.