Employing moral values as justifications in judicial decisions has been controversial. At present, there is increasing controversy over the application of human dignity. Contemporary debates on the role of dignity in law and adjudication are heavily influenced by Christopher McCrudden’s account of dignity as a placeholder, and much thinking on the contested nature of values is influenced by WB Gallie’s idea of Essentially Contested Concepts. In this paper I argue that both these accounts have limited explanatory and normative potential. McCrudden’s account is illuminating in terms of the role of dignity in the UDHR, but weak in terms of explaining why employing dignity in adjudication yields diverging conclusions, and why dignity should be understood to be a placeholder. His reliance on Gallie’s idea of Essentially Contested Concepts is also misplaced. Gallie’s views often serve as a philosophical basis for understanding the contested nature of values generally. I argue that his account is an external-descriptive one, which cannot explain why persistent disagreement ensues because of the peculiar nature of some concepts. Neither does it point out any property of essential contestability that is unique to some concepts. Thinking on how values such as dignity can figure as justifications for decisions, therefore, must explore other alternatives.
Thanks to James Penner and Jeff King for their comments and criticism of earlier drafts of the paper. The paper has also benefited from comments by Professor Alison Diduck, participants at the UCL staff lunch seminar, and participants at the civil liberties section of the Society of Legal Scholars Conference (Bristol) 2012. Responsibility for mistakes is of course mine. I am also grateful to Christopher McCrudden for access to valuable materials on human dignity.
1. McCrudden, Christopher, ‘Human Dignity and the Judicial Interpretation of Human Rights’ (2008) 19: 4 EJIL 655. (For a detailed account out of the problematic issues involving dignity in adjudication.)
2. Rao, Neomi, ‘On the Use and Abuse of Human Dignity in Constitutional Law’ (2008) 14 Colum J Eur L 201 ; Carozza, Paul, ‘Human Dignity and the Judicial Interpretation of Human Rights: A Reply’ (2008) 19: 5 EJIL 931 (arguing against McCrudden’s view that the content of dignity is largely culture-relative); Moller, Kai, ‘On Treating Persons as Ends: The German Aviation Security Act, Human Dignity, and the German Federal Constitutional Court’ (2006) Public Law 457 (arguing that the application of the Kantian notion of dignity is problematic in the public sphere); Feldman, David, ‘Human Dignity as a Legal Value: Part I’ (2000) Public Law 682 (expressing scepticism about using dignity in adjudication, especially as a right); Feldman, David, ‘Human Dignity as a Legal Value: Part II’ (2000) Public Law 61 (providing an analysis of the many ways in which dignity has been used in English law, yet expressing scepticism about its use); Kretzmer, David & Klein, Eckart, eds, The Concept of Human Dignity in Human Rights Discourse (Hague: Kluwer Law International, 2002 ) [Kretzmer & Klein, The Concept of Human Dignity]; Hennette-Vauchez, Stephanie, ‘When Ambivalent Principles Prevail: Leads for Explaining Western Legal Orders’ Infatuation with the Human Dignity Principle’ (2007) 10: 2 Legal Ethics 193 .
3. See Waldron, J, ‘Is Dignity the Foundation of Human Rights’ NYU School of Law, Public Law Research Paper No. 12-73 at 1 , available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2196074 (last visited 10/08/2013); O’Mahony, Conor, ‘There is No Such Thing As a Right to Dignity’ (2012) 10: 2 I. CON 551 ; White, Emily Kidd, ‘There is No Such Thing as a Right To Human Dignity: A Reply to Conor O’Mahony’ (2012) 10: 2 I. CON 575.
4. Rawls, John, A Theory of Justice, rev ed (Oxford: Oxford University Press, 1999) at 5 ; Dworkin, Ronald, Taking Rights Seriously (London: Duckworth, 1977) at 103 .
5. Gallie, WB, ‘Essentially Contested Concepts’ (1956) Proceedings of the Aristotelian Society 167.
6. Waldron, , ‘Is Dignity the Foundation of Human Rights’, supra note 3 at 8 ; Ehrenberg, Kenneth, ‘Law is not (Best Considered) an Essentially Contested Concept’ (2011) 7: 2 IJLC 232 ; McCrudden, , supra note 1 at 679–80 ; Tersman, Folke, Moral Disagreement (New York: Cambridge University Press, 2006) at 113 ; Dworkin, Ronald, ‘Thirty Years On’ (2002) 115: 6 Harv L Rev 1655 at 1686; Hurley, Susan, Natural Reasons: Personality and Polity (New York: Oxford University Press, 1999) ch 3; Dworkin, Ronald, Taking Rights Seriously, supra note 4 .
7. Dworkin, Ronald, Justice for Hedgehogs (Cambridge: Belknap Press, 2011) at 102.
8. Recent philosophical thinking about dignity has developed many such proposals: Waldron, , ‘Is Dignity the Foundation of Human Rights’, supra note 3 ; Waldron, J & Dan-Cohen, Meir, Dignity, Rank, and Rights (New York: Oxford University Press, 2012 ); Rosen, M, Dignity: Its History and Meaning (Cambridge: Harvard University Press, 2012 ); Habermas, J, ‘The Concept of Human Dignity and the Realistic Utopia of Human Rights’ (2010) 41: 4 Metaphilosophy 464.
9. Tarunabh Khaitan has criticized McCrudden’s account on the ground that dignity’s function in human rights adjudication is best understood as an expressive norm, and not as a placeholder. His account, however, does not evaluate the conceptual foundations of McCrudden’s account. Rather his claim is that only an expressive conception of dignity allows it to play any meaningful role in law, distinct from the role of other values, such as autonomy or equality. See Khaitan, Tarunabh, ‘Dignity as an Expressive Norm: Neither Vacuous Nor a Panacea’ (2012) 32: 1 Oxford J Legal Stud 1.
10. Pinker, Steven, “The Stupidity of Dignity”, The New Republic (28 May 2008), online: The New Republic http://www.tnr.com/story_print.html?id=d8731cf4-e87b-4d88-b7e7-f5059cd-0bfbd; Bagaric, M & Allan, J, ‘The Vacuous Concept of Dignity’ (2006) 5: 2 J Hum Rts 257 ; Macklin, Ruth, ‘Dignity Is A Useless Concept: It Means No More Than Respect For Persons Or Their Autonomy’ (2003) 327: 7429 Brit Med J 1419 ; Brownsword, R, ‘Bioethics Today, Bioethics Tomorrow: Stem Cell Research and the “Dignitarian Alliance”’ (2003) 17: 1 Notre Dame JL Ethics & Pub Pol’y 15 ; Gibbins, R, ‘How in the World can You Contest Equal Human Dignity?: A Response to Professor Errol Mendes’ “Taking Equality into the 21st Century: Establishing the Concept of Equal Human Dignity” (2000) 12 NJCL 25.
11. Moon, G & Allen, R., ‘Dignity Discourse in Discrimination Law: A Better Route to Equality?’ (2006) 6 EHR L Rev 610; Waldron, & Dan-Cohen, , Dignity, Rank, and Rights, supra note 8, Lecture 1.
12. Carozza, Paulo G, ‘“My Friend is a Stranger”: The Death Penalty and the Global Ius Commune of Human Rights’ (2002) 81 Tex L Rev 1031; Moon, G, supra note 11 ; Klein, Eckart, ‘Human Dignity in German Law’ in Kretzmer and Klein, The Concept of Human Dignity, supra note 2 at 145 ; Chaskalson, Arthur, ‘Human Dignity as a Constitutional Value’ in Kretzmer, & Klein, , The Concept of Human Dignity, supra note 2 at 133 .
13. Supra note 9 .
14. O’Mahony, , supra note 3 (arguing that dignity makes more sense as a foundational principle of constitutional law rather than as a right in itself). For a reply see White, Kidd, supra note 3 . O’Mahony has a rejoinder to White in the same edition of the journal.
15. Dupre, Catherine, ‘Unlocking Human Dignity: Towards a Theory for the 21st Century’ (2009) 2 EHR L Rev 190; Baer, Susan, ‘Dignity, Liberty, Equality: A Fundamental Rights Triangle of Constitutionalism’ (2009) 59: 4 UTLJ 417.
16. For a mapping of this evolution see Cancik, Hubert, ‘Dignity of Man and Persona in Stoic Anthropology: Some Remarks on Cicero, De Officiis I’ in Kretzmer, & Klein, , The Concept of Human Dignity, supra note 2 at 105–07 [Cancik]. Most scholars who have referred to the history of the idea do not disagree with this account. See also: Sensen, Oliver, ‘Human Dignity in Historical Perspective: The Contemporary and Traditional Paradigms’ (2011) 10: 1 European J Political Theory 71. For a recent and more detailed history of dignity that affirms most of this account, see Rosen, supra note 4 at chs 1 and 2.
17. Whitman, James Q, ‘On Nazi “Honour” and the New European “Dignity”’ in Christian Joerges &Navraj Singh Ghaleigh, eds, Darker Legacies of Law in Europe: The Shadow of National Socialism and Fascism Over Europe (Oxford: Hart, 2003 ) 243 at 243 (arguing that there is such a continuity). For a contrasting view: Neuman, Gerald L, ‘On Fascist Honour and Human Dignity: A Skeptical Response’ in Joerges, & Ghaleigh, 267 . Riley, Stephen, ‘Human Dignity: Comparative and Conceptual Debates’ (2010) 6 Int’l JL Context 117 at 119-20 (For a discussion of the debate between James Whitman, Gerald Neuman and Roger Cotterrell on whether there is continuity between ‘aristocratic dignity’ and ‘contemporary dignity’ in nineteenth and twentieth century German Law).
18. McCrudden, , supra note 1 at 656–64 .
19. Cancik, , supra note 16 at 19 .
20. Ibid at 23.
22. Ibid at 24.
23. McCrudden, , supra note 1 at 658 .
24. Arieli, Yehoshua, ‘On the Necessary and Sufficient Conditions for the Emergence of the Doctrine of the Dignity of Man and His Rights’ in Kretzmer, &Klein, , The Concept of Human Dignity, supra note 2 at 10 .
25. Cancik, , supra note 16 at 30 .
26. Ibid at 30-36.
27. McCrudden, , supra note 1 at 661 .
28. Ibid at 662.
29. Ibid at 663.
30. Ibid at 664.
31. Ibid at 664-74.
32. Ibid at 673-74.
33. Ibid at 678, quoting Schultziner.
34. Ibid at 679.
35. Ibid at 679-80.
36. Ibid at 679.
37. Ibid at 698.
38. Ibid at 699.
39. Ibid at 702.
40. Ibid at 706.
41. Ibid at 707.
42. Ibid at 707-10.
43. Ibid at 713 [citations omitted].
44. This includes mediating between incommensurable rights, incommensurable values, and be-tween incommensurable rights and values.
45. McCrudden, , supra note 1 at 720 .
46. Ibid at 722: ‘My only purpose, I repeat, is to identify what seems to me to explain the increasing popularity of the concept of dignity among judges and advocates’.
47. Klaus Dicke argues that even the founding function of dignity under the UDHR depends on relations between dignity and single human rights. Though Dicke’s arguments are towards demonstrating a universal, foundational function of human dignity, he argues that dignity can play its legitimizing function in legal reasoning only if a relationship between dignity and rights is applied. See Klaus Dicke, ‘The Founding Function of Human Dignity in the Universal Declaration of Human Rights’ in Kretzmer, &Klein, , The Concept of Human Dignity, supra note 2, 111 at 118–19 .
48. Fuller, Lon, ‘The Forms and Limits of Adjudication’ (1978) 92: 2 Harv L Rev 353.
49. Schauer, Frederick, ‘Giving Reasons’ (1995) 47: 4 Stan L Rev 633.
50. See Perry, AD & Ahmed, F, ‘Expertise, Deference and Giving Reasons’ (2012) 2 PL 221.
51. Edward White, G, ‘The Evolution of Reasoned Elaboration: Jurisprudential Criticism and Social Change’ (1973) 59: 2 Va L Rev 279; Melvin Aron Eisenberg, , ‘Participation Responsiveness, And The Consultative Process: An Essay on Lon Fuller’ (1978) 92: 2 Harv L Rev 410; Schauer, Fredrick, supra note 49 ; Glen Staszweski, , ‘Reason-Giving and Accountability’ (2009) 93:4 Minn L Rev 1253; Schwartzman, Micah, ‘Judicial Sincerity’ (2008) 94: 4 Va L Rev 987; Perju, Vlad, ‘Reason and Authority in the European Court of Justice’ (2009) 49: 2 Va J Int’l L 307; Cohen, Mathilde, ‘Sincerity and Reason-Giving: When May Decision Makers Lie’ (2009) 59: 4 DePaul L Rev 1091.
52. Kumm, Mattias, ‘Institutionalising Socratic Contestation: The Rationalist Human Rights Paradigm, Legitimate Authority and the Point of Judicial Review’ (2007) 1: 2 EJ Legal Stud 1; Kumm, Mattias, ‘The Idea of Socratic Contestation and the Right to Justification: The Point of Rights-Based Proportionality Review’ (2010) 4: 2 L &Ethics HR 142.
53. For a comprehensive round-up of the various view points and issues in the debate: Lucy, William, ‘Adjudication’ in Coleman, Jules & Scott Shapiro, , eds, The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford: Oxford University Press, 2002 ) at 206. For a detailed treatment see Lucy, William, ‘Adjudication for Pluralists’ (1996) 16: 3 Oxford J Legal Stud 369.
54. Fuller, , supra note 48 at 363 .
55. Ibid at 365. For my purposes in this paper, the spotlight is on appellate adjudication, particularly constitutional adjudication, where the considerations for non-reasoned decisions identified by Fuller do not apply.
56. Ibid at 366.
58. Ibid at 381.
59. For criticism of Fuller’s claim see Nagel, Thomas, ‘On the Fusion of Fact and Value: A Reply to Professor Fuller’ (1958) 77: 3 Nat LF 77.
60. See Lucy, William, Understanding and Explaining Adjudication (Oxford: Oxford University Press, 1999) at 1 .
61. Ibid at 5-6.
62. I adopt Dworkin’s definition of hard cases. See Lucy, , Understanding and Explaining Adjudication, supra note 60 at 5 and Dworkin, Ronald Taking Rights Seriously, supra note 4 at 83 .
63. Ibid at ch 4; Dworkin, Ronald, Law’s Empire (Cambridge: Harvard University Press, 1989 ) ch 7; McCormick, Neil Legal Reasoning andLegal Theory (Oxford: Clarendon Press, 1978 ) ch 5.
64. Ibid at 100-01: ‘A ruling is a universal and generic justification of a decision that judges develop to decide hard cases.’
66. Dworkin, , Taking Rights Seriously, supra note 4 at 126–27 ; Dworkin, , Law’s Empire, supra note 63 at 255–56 .
67. Dworkin, , Taking Rights Seriously, supra note 4 , ch 4; Dworkin, , Law’s Empire, supra note 63 , chs 3, 7; Dworkin, Ronald, Justice in Robes (Cambridge: Harvard University Press, 2006) ch 6. For a reiteration of his views vis-a-vis judicial minimalism: Dworkin, Ronald, ‘Looking for Cass Sunstein’, The New York Review of Books (30 April 2009 ), online: The New York Review of Books http://www.nybooks.com/articles/archives/2009/apr/30/looking-for-cass-sunstein/?.
68. Raz, Joseph, ‘Law and Value in Adjudication’ in The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press, 1979) 180 at 186–88, 203 .
69. Ibid at 205 [emphasis added].
70. Sunstein, Cass, Legal Reasoning and Political Conflict (New York: Oxford University Press, 1996 ) ch 2.
71. Ibid at 35.
72. Ibid at 36-37.
73. Ibid at 37 [emphasis added].
74. Ibid at 48-58.
75. Dworkin’s reply to Sunstein provides a sample of how some reason-giving accounts may respond to Sunstein’s arguments. Dworkin, , ‘Looking for Cass Sunstein’, supra note 67 .
76. McCrudden, , supra note 1 at 697 .
77. Ibid at 722 (mentioning the possibility of such an allegation but distances himself from it).
78. Ibid at 680-81: ‘In its thicker sense, dignity is a value on which human rights are built and thus helps in the identification of a catalogue of rights’.
79. McCrudden, , supra note 1 at 724 .
80. I thank Jeff King for pointing out this possible objection.
81. McCrudden, , supra note 1 at 679–80 .
82. Gallie, WB, supra note 5 at 169 . Some commentators on Gallie take ‘proper use’ to mean ‘correct use’ of the concept. See Gray, John, ‘On the Contestability of Social and Political Concepts’ (1977) 5: 3 Political Theory 331 at 331. Others take Gallie to be speaking of a ‘best interpretation’, see Swanton, Christine, ‘On the “Essential Contestedness” of Political Concepts’ (1985) 95: 4 Ethics 811 at 813-14. For my purposes reading it either way does not make any significant difference, as I am not testing Gallie’s accuracy in capturing the feature of essential contestedness.
83. Gallie, , supra note 5 . He uses the two synonymously.
84. Ibid at 167 [emphasis in the original].
87. Hurley, , Natural Reasons, supra note 6 at ch 3.
89. Wittgenstein, Ludwig, Philosophical Investigations, 3d ed, translated by Anscombe, GEM, Hacker, PMS & Schulte, Joachim (Oxford: Wiley-Blackwell, 2009 ) at §§ 23, 241.
90. Hurley, , Natural Reasons, supra note 6 at 31 . For Wittgenstein’s discussion on strange ways of going on see Wittgenstein, , supra note 89 at §§ 185-90.
91. Hurley, , Natural Reasons, supra note 6 at 34 .
92. Hurley also identifies other kinds of concepts that host disagreements within a form of life: uncontested concepts, and conceivably contested concepts. Ibid at 43-45. Samantha Besson has used the term ‘conceptual disagreement’ that is akin to Hurley’s use of ‘substantive disagreement’. She uses it in contrast to ‘verbal or semantic disagreement’ and states that conceptual disagreement is about meaning. I follow Hurley’s use here as it is clear that in disagreeing about how a concept is to be employed we must have some agreement on its meaning. Thus calling such disagreement ‘conceptual disagreement’, which is about the meaning of the concept, creates space for confusion. Besson therefore has to distinguish later between degrees of disagreement about meaning. See Besson, Samantha, The Morality of Conflict: Reasonable Disagreement and the Law (Oxford: Hart, 2005) at 48–49 .
93. Gallie, , supra note 5 at 169 .
96. Gallie does not employ the term unreflective. It is my own formulation of what Gallie means.
97. Gallie, , supra note 5 at 169 .
98. Ibid at 171.
100. Ibid at 171-72.
101. Ibid at 172 n 1.
102. Ibid at 172.
104. Gallie, , supra note 5 at 176 . Brian Bix speaks of Gallie’s reference to paradigm cases as an instance of ‘guidance by ostensive definition.’ He thinks, and rightly so, that this criterion of Gallie’s offers nothing new to explaining disagreement. What it does is to push the problem of disagreement one step back. See Bix, Brian, Law, Language, and Legal Determinacy (Oxford: Clarendon Press, 1993 ) at 57. Bix adds that Gallie fails to explain the reasons why we agree on a paradigm and yet have different understandings oi it. I arrive at a conclusion similar to Bix s about Gallie not being able to explain why disagreement ensues. The difference between mine and Bix’s enquiry is that Bix is interested in what causes disagreement, and valuably points out that Wittgenstein’s remarks on rule following have probably been over read to suggest that it sheds light on the issue. My project, on the other hand, is to point out that Gallie’s account does not explain the perspective of participants when they disagree. Though this overlaps to some extent with Bix’s conclusions, I part ways with Bix to investigate a different feature of the implications of this inability to explain the participant’s perspective. I explain this towards the end of the next section. Infra note 129.
105. Gallie, , supra note 5 at 180 .
106. Hurley, , Natural Reasons, supra note 6 at 46 ; Bix, , supra note 104 at 55–56 .
107. McCrudden, , supra note 1 at 698 .
108. Gallie, , supra note 5 at 189 .
109. Ibid at 190.
111. McCrudden, , supra note 1 at 679–80 .
112. Rawls, , A Theory of Justice, supra note 4 at 5 . Rawls however does not associate his comments with essential contestability. He also remarks that the concept-conception distinction does not answer any important questions about justice.
113. Supra note 34.
114. McCrudden, , supra note 1 at 679–80
115. If it were a concept, then it would be akin to an internally complex concept. See Ehrenberg, , supra note 6 at 222 . Ehrenberg suggests, that some concepts can be over aggregated and disaggregation should therefore precede any saddling of the concept with the feature of essential contestability.
116. For an analogous argument on how there might be plural sources of human rights: Tasioulas, John, ‘Taking Rights out of Human Rights’ (2010) 120: 4 Ethics 647; Nickel, James W, Making Sense of Human Rights, 2nd ed (Malden, MA: Wiley-Blackwell, 2006 ) ch 4. Though Tasioulas’ and Nickel’s views are on the plural foundations of human rights, my argument here (that there might not be one foundational value that determines the appropriate relationship between the state and the individual) bears strong resemblance to theirs. There might be various reasons that strengthen the claim that the state exists for the individual and not vice-versa, and there is no compulsion to presume that all such reasons emanate from intrinsic worth.
117. Gallie, , supra note 5 at 168, 169 : ‘…[T]here are concepts which are essentially contested, concepts the proper use of which inevitably involves endless disputes about their proper uses on the part of their users.’
119. Gallie, , supra note 5 at 172 n 1.
120. Ibid at 169.
121. Margolis, Eric & Laurence, Stephen, eds, Concepts: Core Readings (Cambridge: MIT Press, 1991 ) ch 1 (for a discussion of leading theories of concepts, each claiming that a concept is a particular sort of mental particular).
122. Fodor, Jerry, Concepts: Where Cognitive Science Went Wrong? (Oxford: Oxford University Press, 1998 ) ch 1 (for a discussion of what concepts are and how they relate to beliefs).
123. I am grateful to James Penner for pointing me towards the literature on concepts, and that it might bear upon Gallie’s account. Responsibility for the claims here are, of course, mine.
124. Gallie himself takes his first five criteria to be ‘formally defining criteria’ of ECC. Gallie, , supra note 5 at 180 .
125. Endicott, Timothy, Vagueness in Law (Oxford: Oxford University Press, 2000 ) at 54.
126. Gray, , supra note 82 .
127. Clarke, Barry, ‘Eccentrically Contested Concepts’ (1979) 9: 1 Brit J Political Sci122 at 125-26.
128. Mason, Andrew, Explaining Political Disagreement (Cambridge: Cambridge University Press, 1993 ) ch 2.
129. This is where I part ways with Brian Bix, as I mentioned in note 104 above. While Bix goes on to enquire what makes disagreement possible, I conclude that the lack of an account of reasons for disagreement in Gallie’s account makes it unsuitable for explaining how participants reason with ECC.
130. Khaitan, , supra note 9 at 14 .
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