1 Consensus and Divergence of Human Dignity in the Postwar Era
The concept of human dignity, as one commentator observes, is “here, there, and everywhere”Footnote 1 in contemporary human rights discourse. Its prominence, however, has generated ever more controversies in recent years. The contemporary debate is driven by the paradoxical prominence and elusiveness of this concept in judicial interpretation. Its meaning is notoriously hard to pin down, as manifested in the easy appropriation by both sides of such controversies as abortion, euthanasia, same-sex marriage, and other heated issues in bioethics. Some have argued that the elusiveness of the concept of human dignity should raise no more concern than other seriously contested normative concepts such as liberty, justice, and equality.Footnote 2 Others have considered it especially troubling.Footnote 3
It is generally agreed that, when this concept was adopted in the United Nations Charter and the Universal Declaration of Human Rights, it served as a placeholder to allow countries of widely divergent cultures to agree on the underpinnings of the universal human rights. In the immediate postwar era, dignity jurisprudence first developed in particular jurisdictions such as West Germany and the United States. It then underwent a significant growth driven by the development of international human rights regimes since the 1970s and then by the spread of constitutionalism and judicial review during the third-wave democratization in the 1980s and 1990s. The growth of dignity jurisprudence and its spread around the globe ensures that it can no longer serve merely as a placeholder in international human rights instruments or a directive value in domestic constitutions. Rather, it is expected to guide judicial decisions on controversial legal and political issues on all levels of tribunals. Further, human dignity as a legal concept has come under increasing stress, as the ius commune of transnational human rights law emerges.Footnote 4 As courts around the world look to each other for guidance and inspirations, the diversity of construal and contexts poses a challenge for principled adjudication that takes comparative legal sources seriously.
The diversity, however, should not obscure the common ground that emerged after World War II. It is now generally acknowledged that the career of human dignity as a legal concept began mainly after the war. Its immediate origin may be traceable to the interwar period, when the Catholic Church and intellectuals employed it to revive the natural law tradition, with an aim to resist the collectivistic excess of fascism and communism.Footnote 5 Nevertheless, human dignity’s postwar prominence in such foundational documents as the United Nations Charter, the Universal Declaration of Human Rights, and German Basic Law was a solemn response to the Holocaust and other state atrocities that the great Enlightenment ideas of liberty and equality alone seemed unable to deflect. As “life, liberty, and the pursuit of happiness” and “liberté, égalité, fraternité” symbolize the spirit of human rights at the dawn of modernity in the late eighteenth century, the image of man emancipated from the ancien régime came to be encompassed in corporate ideologies, such as nationalism, fascism, and communism in the nineteenth and early twentieth centuries.Footnote 6 As Hannah Arendt aptly remarked, “As mankind, since the French Revolution, was conceived in the image of a family of nations, it gradually became self-evident that the people, and not the individual, was the image of man.”Footnote 7 Postwar human rights discourse responded to this tragic development, and human dignity is employed to convey the emotional gravity and the axiological significance attached to the personal or the individual against its dissolution in corporate identities.
The postwar human rights leitmotif shaped what Christopher McCrudden calls the “minimum core” of the content of human dignity.Footnote 8 This conceptual core has three elements. The first is the “ontological claim”: every human being possesses an intrinsic worth, merely by being human. The second is the “relational claim”: this intrinsic worth should be recognized and respected by others. The third claim is the “limited state claim”: the intrinsic worth of the individual requires that the state should be seen to exist for the sake of the individual and not vice versa. Similarly, James R. May and Erin Daly identified four elements in the overlapping consensus of the definition of human dignity: 1) dignity is inherent in the human person; 2) everyone has equal dignity; 3) dignity means human worth; 4) dignity is universal.Footnote 9 These formulations demonstrate that the concept of human dignity bears strong connections with liberty and equality. In other words, human dignity crystalizes and enhances these foundational political values, while adding its own weight to the postwar understanding of legitimate international and domestic political order. Jeremy Waldron’s idea of dignity captures the intricate dynamics well: as he says, “The modern notion of human dignity involves an upward equalization of rank, so that we now try to accord to every human being something of the dignity, rank, and expectation of respect that was formerly accorded to nobility.”Footnote 10 Waldron’s conception of human dignity as elevated rank, however, does not give sufficient weight to the alternative conception of human dignity as worth, the precious value inhering equally in every person. The two conceptions, namely elevated rank and worth, together entail another important conception, namely dignity as anti-humiliation.Footnote 11 All these conceptions contribute to theorization of the core content of human dignity. The core areas of application cover cases involving cruel, inhuman, and degrading treatment or punishment, as well as constitutional protection of human life and physical and mental integrity.Footnote 12 Further, it is uncontroverted when it is used to condemn colonialism, slavery, human trafficking, and racial discrimination.
Beyond the core, however, the meaning of human dignity diverges, and the need to conceptualize the complex meanings of human dignity grows. While conceptualization is needed to identify common grounds, it is needed even more to understand divergence and facilitate constructive engagement across jurisdictions. For example, commentators have noted the difference between the heavily liberty-and-rights-oriented American constitutionalism and the comparatively communitarian and value-oriented European dignity jurisprudence.Footnote 13 Further, since the 1960s and 1970s, arguably reflective of social changes in the West toward so-called “expressive individualism,”Footnote 14 dignity has increasingly been associated with privacy, autonomy, self-fulfillment, and self-realization. This particular conception of human dignity has played a significant role in undermining legal moralism by lifting bans and restrictions on abortion, contraceptives, sodomy, and pornography and enhancing equal protection and anti-discrimination of formerly marginalized groups such as the gay, lesbian, and trans-gendered. The relatively new development of dignity as autonomy and privacy has global influence, but it has progressed the farthest in the West compared to other parts of the world. Still another development that has wide and yet uneven influence conceives of dignity as a judiciable right to dignified living, a right to subsistence, or a right to life with dignity. This socioeconomic strand of dignity has been applied in various jurisdictions to basic needs of life such as employment, housing, health, food, water, and healthy environment.Footnote 15
To facilitate dialogue across the divergent strands of dignity jurisprudence, it is necessary to investigate what this concept means and does in various jurisdictions. The current international literature has already probed widely across regions, but the development in Asia is rarely reported and analyzed.Footnote 16 This book aims to fill this gap. It first investigates how human dignity as a legal and constitutional concept features in judicial and political discourse in Asian jurisdictions, which include India, Japan, South Korea, Taiwan, the Philippines, Indonesia, and Hong Kong. These jurisdictions are selected for the following reasons. First, all of them are Asian constitutional democracies or, in the case of Hong Kong, an autonomous region with an established tradition of rule of law, though the latter is a tradition that has eroded during the course of writing this book. They have functional judiciaries exercising meaningful degree of judicial review in protection of constitutional rights. Second, all the courts in these jurisdictions have adopted human dignity in their constitutional jurisprudence. In most jurisdictions, human dignity is based on constitutional texts, as in South Korea, Japan, the Philippines, Indonesia, and India. Hong Kong channeled this concept into its jurisprudence through the linkage in its Basic Law to ICCPR. Taiwan adopted it through judicial interpretation. Next, this book includes two additional jurisdictions – Singapore and China – that are surveyed not because of the judicial usage of human dignity but because of its roles in statutes, executive order, policy papers, or official and public discourse. Singapore is the banner country of the Asian values debate of the 1990s. How human dignity is positioned in its political culture is of great significance in how we understand this concept in Asia. Even though human dignity as a legal concept is rarely used by the Singaporean courts, the Singaporean political leadership has deliberately employed this idea in their formation of the political culture as a multiethnic secular state to balance individual well-being and common good. In the case of China, its 1982 Constitution encompasses, for the first time in history, the concept of dignity. Article 38 of the Chinese Constitution reads: “The personal dignity of citizens of the People’s Republic of China is inviolable. Insult, libel, false charge or frame-up directed against citizens by any means is prohibited.” It is generally acknowledged among Chinese scholars that this Article is meant to address the atrocities during the Great Proletariat Cultural Revolution of 1966 to 1976.Footnote 17 As will be demonstrated in this book, the idea of “personal dignity” has exerted influence on legislative deliberation and public discourse.
This book goes beyond human dignity as a legal concept by engaging cultural and religious traditions of this region. In addition to those chapters dealing with human dignity as a constitutional or political concept, there are six chapters addressing human dignity in the contexts of Asian cultural and philosophical traditions. There will be three chapters addressing how human dignity can be understood in three religious or philosophical traditions heavily concentrated in Asia: Confucianism, Buddhism, and Hinduism. Further, Christianity and Islam have significant presence in Asia. In view of the already abundant literature on human dignity in the doctrinal or philosophical systems of these religions, alternatively we investigate the meaning of human dignity via representative voices of these religions in particular societies. They include Islam in Indonesia, Protestantism in South Korea, and Catholicism in the Philippines. This part of the book does not aim to give a comprehensive picture of the tremendously diverse religious and cultural landscape in this region. Rather, it aims to showcase representative patterns of thinking regarding the idea of human dignity in Asian cultures.
2 Human Dignity and Human Rights since the Asian Values Debate
It is a significant fact that human dignity as a legal concept has not only made its way into the constitutional jurisprudence of multiple Asian jurisdictions but also begun to play effective roles in them. It reminds us of how far we have come from the “Asian values” debate of the 1990s. In that debate, Southeast Asian national leaders such as Lee Kuan Yew of Singapore and Mahathir Mohammed of Malaysia, echoed by the Chinese government, challenged the universalism of human rights and championed cultural relativism, which was epitomized in the 1993 Bangkok declaration. When the Bangkok declaration was issued, the third-wave democratization was making its way into East Asia. It is precisely in the ensuing era that human dignity as a constitutional concept entered most of the jurisdictions surveyed in this book, with the exceptions of Japan and India, whose new constitutions acquired the concept not long after WWII. The People Power Revolution in the Philippines in 1986 set democratization in motion, and human dignity was written into the 1987 Constitution. South Korea and Taiwan began democratization in the late 1980s. In South Korea, human dignity was written into the 1962 Constitution but was given a new life in the 1987 Constitution, as the Korean Constitution Court was established and human dignity became a judiciable right. In Taiwan, the concept of human dignity was adopted into constitutional jurisprudence in 1995 through judicial interpretation. Hong Kong Basic Law went into effect in 1997, adopting the concept of human dignity through its connection with ICCPR. The 1997 Asian financial crisis struck hard in Northeast and Southeast Asia, which undermined the self-confidence boosting the Asian values claim. In 1998, Indonesian President Suharto resigned and democratization began in earnest. Human dignity was incorporated into the bill of rights of the Indonesian constitutional amendments in 2000. Moreover, by the second decade of the twenty-first century, Taiwan and South Korea became widely considered to be consolidated liberal democracies. In 2009, the primary regional organization of Southeast Asia, the Association of South East Asian Nations (ASEAN), established the ASEAN Intergovernmental Commission on Human Rights, and in 2012 it adopted the ASEAN Human Rights Declaration, which, in its first general principle states: “All persons are born free and equal in dignity and rights.”
2.1 Populism and Authoritarian Threat of Democracy
Despite notable progress, this region has not been immune from the recent rise of populism, democratic recession, and the threat of authoritarianism. Notably, the election of Rodrigo Duterte in 2016 to the Philippines presidency led to unaccountable extrajudicial killings in his war on drugs. His pursuit of “independent foreign policy” encompasses a fiercely anticolonial bent directed at the United States.Footnote 18 Moreover, he has considered human rights advocacy groups as impediments to his war on drugs and anti-terrorism measures.Footnote 19 Despite all this, he continues to enjoy consistently high approval ratings. Similarly, under the highly popular Prime Minister Narendra Modi, India regressed from “free” to “partly free” under the Freedom House rating in 2020, for the first time since the late 1990s. Modi consolidated a “Hindu-majoritarian brand of politics, concentrated power excessively in the hands of the executive, and clamped down on political dissent and on the media.”Footnote 20 In Indonesia, President Joko Widodo faced the challenge of rising Islamist politics by “fighting illiberalism with illiberalism,” in order to preserve religious pluralism as upheld in the 1945 Constitution.Footnote 21 As Herlambang P. Wiratraman remarks, this “authoritarian turn” has been “characterized by state-led attacks on freedom of expression, criminalization, and the shirking space for civil liberties. In addition, the ever-expanding state surveillance, extra-judicial killings in Papua and alleged cases of human rights abuses by those linked to the state’s circle of power are all manifestations of growing impunity in Indonesian politics and governance.”Footnote 22
In addition, the sharp power of China has cast a long shadow in this region. The collapsing of the “one country, two systems” framework in Hong Kong is Beijing’s blunt response to the loud clamor of the people of Hong Kong for genuine democracy. It resulted in rapidly shrinking spaces for freedom of speech, the press, assembly, and association, as well as rising threats to the personal security of political dissidents under strained judicial independence. China’s ambition toward Taiwan has not only posed future military threat; it has already initiated aggressive misinformation warfare to meddle with Taiwan’s electoral integrity and domestic policy formation.Footnote 23 The threat has also led to further polarization of Taiwan democratic politics. China’s rise has provided the background against which the serious controversy on Article 9 of the Japanese Constitution occurred. In 2014, Prime Minister Shinzo Abe’s government offered a constitutional reinterpretation to allow its Self-Defense Forces to defend other allies in case of war being declared on them. The geopolitical challenge in an increasingly multipolar world further consolidated the dominance of the ruling Liberal Democratic Party, which, under the Abe administration, may have eroded informal rules guarding its liberal democracy.Footnote 24 Moreover, the dominance of institutional power in Japan has undermined vertical accountability on human rights issues involving gender gaps, same-sex marriage, the LGBTQ, anti-discrimination legislation, national human rights institution, migrant workers, environmental rights, and more.Footnote 25
2.2 Human Dignity and Cultural Continuity and Change in Asia
The actual protection of human dignity and human rights may wax and wane under the vicissitude of geopolitics and domestic sociopolitical dynamics. Ideally, however, the core understanding of human dignity as embodied in government measures and judicial interpretation should serve as an anchor of government actions, especially in times of uncertainty. Yet what is the core content of human dignity as understood in these jurisdictions? Will it withstand the test of time? To what extent does it converge and diverge with those in other parts of the world? These are the background questions of this book. Here I offer my preliminary thoughts to consider these issues.
To begin with, it is important to understand the times as the past has shaped them. In the immediate postwar era, when a large part of the non-Western world was striving for decolonization, human dignity as enshrined in the UDHR was not understood to mean constraining state authority alone. To those societies still colonized by Western powers or threatened by them, it primarily meant national self-determination aspiring for a competent statehood to be treated on equal terms. Further, as most of these nations were underdeveloped, human dignity also meant national development and elevation of socioeconomic well-being. Both goals required nation-building and state-building, which mandated establishment and strengthening of a nation state aspiring for modernization. To the extent that the idea of human dignity was received into these societies through constitution-making after WWII, as Albert H. Y. Chen remarked, human dignity was initially embedded in constitutions aiming to limit and control the state, while, paradoxically, legitimizing and enabling it to withstand domestic and external challenges.Footnote 26 The situation is similar in other parts of non-Western world. Yet in much of sub-Saharan Africa, tribalism and kinship loyalties were never replaced by modernized nonpatrimonial political authority.Footnote 27 In Latin American and the Middle East, European-style state structures always had limited reach over indigenous societies.Footnote 28 By contrast, Northeast Asian and Southeast Asian societies pursued modern states on the basis of a tradition of a strong state, capable of governing through a centralized bureaucracy over tribes, kinship groups, ethnicities, and other social groups. As Francis Fukuyama forcefully argued, China developed the world’s earliest modern state, one millennium earlier than Europe. Neighboring countries such as Korea, Japan, and Vietnam borrowed heavily from Chinese ideas of statecraft.Footnote 29 In Southeast Asia, the legacy of the Western colonial government, complemented by that of indigenous proto-states such as the Malayan Malacca Sultanate and the Javanese Mataram Sultanate, has continued to shape contemporary political practice and imagination of legitimate political authority over the individual and a tremendous diversity of ethnicities and religions.Footnote 30
As mentioned, human dignity entered most of the Asian jurisdictions, except India and Japan, during the third-wave democratization of the late 1980s and 1990s. It was also a time when human dignity as individual autonomy and self-realization ascended upon other layers of meanings of dignity in the West, and its influence has gradually spread to Asia in the following decades. The question then arises as to whether this new conception was an unavoidable logical extension of other conceptions and whether its prominence would prove normatively desirable for Asian societies. This question parallels the recent controversy in revisionist human rights history that also prompts us to consider whether a qualitative break in the concept of human rights occurred in the last quarter of twentieth century. For example, Samuel Moyn argued that there was indeed such a break in the idea of human rights in the 1970s. He argued that the idea of human rights as solely borne by the individual unembedded from the state was formed at that time.Footnote 31 Daniel J. Elazar remarked that the 1970s marked the rise of a “postmodern conception of rights.”Footnote 32 Seth D. Kaplan considers the UDHR to be more accommodative of both “thin and thick” societies, while the idea of rights in the West has evolved after the 1970s toward one that is more acceptable by thin Western societies than by thick non-Western counterparts.Footnote 33 This book does not engage the debate directly. Yet the debate poses interesting questions useful for framing our investigation of Asian understanding of human dignity and human rights. Since human dignity is the conceptual hallmark of the contemporary idea of human rights, competing understandings of human rights would be embodied in competing conceptions of human dignity.
2.3 Cultural Development or Cultural Conflict?
This inquiry is further related to contemporary reflections on the idea of human rights in an age of polarization and populism. As Ronald Inglehart and Pippa Norris argue, the rise of populism and polarization within the Western countries may be attributable not only to economic disruption and inequality caused by globalization but also to what they call populist “cultural backlash” against the cultural transformation since the 1970s.Footnote 34 Their argument implicates a developmental view of Western culture toward individualistic liberal values. Similarly, Edward Rubin argues that the West is moving from a “morality of higher purposes” to a “morality of self-fulfillment,” and the transformation seems irreversible.Footnote 35 However, what if the backlash is rooted in a deeper cultural conflict that is irresolvable, and the best a society can hope for is an ideology that is broad and flexible enough to accommodate the conflicting visions? This alternative interpretation of the cultural conflict is implicated in Jonathan Haidt’s finding that the political division in the United States is deeply rooted in moral psychology.Footnote 36 Thomas Sowell explains political conflicts with two conflicting visions stemming from two different understandings of human nature, one he calls “constrained vision” and the other “unconstrained vision.”Footnote 37 These are but examples of two competing cultural interpretations of the crisis of Western democracies. One is the developmental view and the other the conflictive view. Which view offers a better explanation of the challenges in Western democracies will have significant impact on how we understand the future of dignity and rights in general – and how the Asian societies that embrace human rights should chart their course.
From the perspective of Asian societies, the earnest reception of human dignity as a legal concept during the third-wave democratization means reception of the new conception as well as the old ones. It is hence worthy of investigation how this new conception of human dignity interacts with other conceptions of dignity in Asian societies on concrete issues. The conceptual evolution of human dignity in these Asian jurisdictions would involve complex dynamics of legal transplant. As Alan Watson indicated, legal transplantation does not require congruence of the received norms with local culture and tradition. For it to happen and even endure, all it takes is a reasonable degree of congruence between the cultures of legal or governing elites of both the exporting and importing societies.Footnote 38 In other words, it is not uncommon that there is a “divergence of law and society” when legal transplants occur.Footnote 39 There may hence be a gap between the legal elite culture and the culture surrounding the legal system.
This claim, however, should not be overstated. Democratization brought about not just political transformation but also profound social transformation. Despite variations in practice, the wide acceptance of the ideas of democracy and human rights protection, along with genuine improvement in certain countries, greatly transformed the political landscape upon which the claim of Asian values relied. To varying degrees, the political systems in this region have become more sensitive to popular perceptions of legitimacy and social movements. The legal and political elite as local agents may “localize” or “translate” these norms through local “language and sets of meanings rooted in their own particular cultural and normative milieu.”Footnote 40 Political and social transformation in major Asian countries undermined the view that culture is a unitary, stable “set of values, psychological dispositions, and behaviors (both individual and social) that gave a group of people a common identity and way of life,” a view presumed in the claim of Asian values. Instead, it gave credibility to the alternative view that culture is “a congeries of ways of thinking, believing, and acting that are constantly in the state of being produced; it is contingent and always unstable.”Footnote 41
Nonetheless, even as we recognize culture as an unstable field of constant contestation, we do not have to take culture and tradition as always being fluid in its entirety. Culture and tradition constitute the epistemic backdrop against which all agents acquire their interpretive horizon.Footnote 42 Even when particular practices or beliefs of a culture are contested, it does not mean that the underlying layers of symbols, meaning, and values are not at work in framing and guiding the contestation. The “first round” of Asian values debate may have waned and its static view of culture undermined. Yet this does not mean that there remains nothing distinct about Asia, even considering the diversity within. The global diffusion of human rights brings not only convergence but also consciousness of difference. Economic development and modernization have brought significant social changes to many of the East and Southeast Asian societies. The developmental success not only gave some East and Southeast Asian societies the self-confidence to assert their own cultural distinctness against the West; it also unleashed social forces moving these societies toward a higher degree of gender equality, the rise of expressive individualism, changes of family structure and power relationships, and higher protection of individual rights. However, cultural legacies such as stronger family ties, a paternalistic model of governance, patrimonial patterns of social networks, and greater emphasis on social harmony may continue to shape a modernized, yet not necessarily Westernized, Asia. As Ronald Inglehart and Christian Welzel argue, socioeconomic development tends to bring substantial changes in people’s worldviews toward self-expression values, and yet such changes are path-dependent. Cultural traditions continue to influence the trajectory of cultural changes.Footnote 43 Investigation of Asian understanding of human dignity must be conducted against this more nuanced idea of modernization and cultural change, transcending the rather blunt “universalism versus particularism” framework. The questions are: to what extent does human dignity serve as a conceptual arena in which human rights negotiate with cultural changes? To what extent does human dignity feature universal values and Asian distinctness? This book does not claim to resolve these questions. But it takes important steps to address these questions.
3 Overview of the Book
Instead of introducing the chapters in the order they appear, I present them here in an order that weaves the overarching themes throughout the book and highlights the dialogical elements in it. For this purpose, I begin with Chapter 8, “Human Dignity and Relational Constitutionalism in Singapore,” written by Li-ann Thio. Thio’s contribution bridges the legal part of the book with the cultural part, by representing human dignity in the context of a philosophy of governance consciously held by the Singapore government, as evidenced in laws regulating political defamation and the treatment of migrant workers. She contrasts two primary conceptions of human dignity: one is liberal, individualistic, and egalitarian, most prominently embraced in the West; and the other communitarian, relational, and elitist. The Singapore government, dominated by the People’s Action Party since the nation’s founding, has been able to articulate and practice a communitarian conception of human dignity. This conception prizes mutuality and reciprocity among the state, the society and the individual – hence “relational constitutionalism” – instead of one that solidifies individual rights as the sole anchor in such relationships, even though recent development shows signs of the elitist culture abating.
Such a level of coherence in governing philosophical and practice, however, can hardly be seen in larger, more competitive and pluralistic democracies in this region. A more common pattern is conflict and incoherence in the idea of human dignity as manifested in judicial decisions. In Pritam Baruah’s Chapter 1, “Human Dignity in Indian Constitutional Adjudication,” he meticulously documents and analyzes the idea of human dignity as employed by the Indian Supreme Court. He indicates that, in the Preamble of the Indian Constitution, human dignity is closely related with fraternity. Human dignity could be interpreted as “rights generating,” to be balanced by the “duty-apt” fraternity. Notably, while dignity is found in the Preamble, the Directive Principles, and the Fundamental Duties, it is not textually based in the chapter on Fundamental Rights. This may suggest an understanding of dignity similar to the Singaporean conception. However, the Indian Supreme Court has given the concept a life that goes far beyond the limited textual base, first through association with the right to life in Article 21 as “a right to life with dignity” and then to be unleashed as a core value underpinning all fundamental rights. The flourishing of unanchored dignity jurisprudence, however, has raised concerns about arbitrariness and incoherence in the Court’s uninhibited interpretation that masks value conflicts, for example between individualistic and communitarian conceptions, that went seriously under-reasoned.
The concern of conceptual vagueness and interpretive inconsistency can be seen in other jurisdictions too. In Chapter 3, “Constitutional Discourse on Human Dignity in South Korea: A Critical Appraisal,” Chaihark Hahm points out that the “human dignity and worth” clause in Article 10 of the 1987 Constitution has been subject to abuse and overuse by claimants and that it has generated interpretive difficulties such as the relationship between dignity and worth, as well as whether it is a goal or value whose justiciability has to be mediated through other rights. Interpretive issues notwithstanding, the Korean Constitutional Court has produced a significant body of dignity jurisprudence that embodies liberal democratic values and reflects social change in family structure and sexual relations. In effecting social change, dignity as individual autonomy and self-determination has played a significant role. For example, it has facilitated the Court’s decisions to recognize the terminally ill patient’s right to refuse life-sustaining treatment, decriminalize adultery, liberalize marriage between persons of same surname and ancestral origin, and decriminalize a man’s seducing a woman into sexual relations through a false promise of marriage. It should be noted that comparative dignity jurisprudence, especially that of Germany, has been influential in the Korean Court and legal academia. Still, foreign influence has to be negotiated with a strong Confucian tradition in the Court’s management of social change. Arguably influenced by the Confucian conservative tradition, for example, the Court has upheld criminalization of prostitution, enhanced punishment of physical crimes committed against “lineal ascendants,” and, most controversially, capital punishment per se, despite extended executive moratorium.
The theme of negotiating between individual autonomy, social change, and social conservatism is also prominent in Keigo Obayashi’s contribution in Chapter 2, “The Development of Individual Dignity in Japan: Overcoming Constraints in Law, Family, and Society.” The postwar Japanese Constitution was drafted by the Supreme Commander for the Allied Powers with an aim to free the individual from the statist system of Kokutai, which, under the divine authority of the emperor, forged all subjects into one national family with individuality dissolved. The Kokutai system is underpinned by Iye, the patriarchal family system that grants authority over family affairs to the head of the household. To reform the Japanese political system and society, it was necessary to tackle both. To that end, the postwar Constitution enshrines individual dignity in Article 13 and prescribes gender equality and individual autonomy on marriage and family affairs in Article 24. Obayashi indicates that the Japanese dignity jurisprudence promotes individual privacy, such as the right not to have one’s photo taken without permission, the right not to be fingerprinted without reasonable cause, and the right not to have one’s private life exposed in a novel. It also deals with constraints on individual autonomy on marriage and family matters. The Court sometimes liberates individuals from social restraints, such as equalizing the status of legitimate and illegitimate children on inheritance and invalidating penal enhancement of parricide. At other times the Court preserves long-standing social customs, such as upholding the requirement that a married couple adopt one surname for the family. Obayashi argues that the Court has been deferential to the mainstream public opinion, unless it is sure that a social change is taking place in a certain direction.
A similar pattern of social change can also be witnessed in Taiwan. In my own Chapter 4, “Human Dignity in the Jurisprudence of Taiwan Constitutional Court,” I observe that preservation of individual autonomy emerged as a constitutional value in the jurisprudence of Taiwan Constitutional Court (TCC), and it has been associated with human dignity increasingly after 2003, when a new group of Grand Justices are appointed. The increasing juxtaposition of human dignity and individual autonomy by TCC was mainly devised for the purpose of generating new unenumerated rights, such as the right to privacy, right to reputation, right to personality, and the right to same-sex marriage. In this chapter, I narrate the trajectory of the concept of human dignity in TCC’s jurisprudence during Taiwan’s democratic transition. Unlike South Korea’s new 1987 Constitution, which guided its democratic transition, Taiwan waded into transition through incremental constitutional amendments to its original 1947 Constitution, which never incorporated human dignity in its text. The TCC deftly introduced the concept in its interpretation and gradually expanded its institutional use. It was first used to reinforce fundamental rights and dismantle authoritarian remnants. Then it has been used to expand the scope of fundamental rights and to negotiate and effectuate social change, including legalization of same-sex marriage.
In Chapter 5, “The Human Dignity Factor: Interpreting the Philippine Constitution,” J. R. Robert Real traces the evolution of the Philippine Supreme Court’s dignity jurisprudence to its founding in 1901, when Spain was ousted by the United States as the new colonizer after the Spanish-American War. Real identifies important historical, cultural, and international factors that shaped how human dignity has been developed by the Court. He first indicates that the Philippine dignity jurisprudence has been shaped by three traumatic historical events: namely, more than three centuries of Spanish colonial oppression, the Japanese wartime atrocities, and the authoritarian rule of President Ferdinand Marcos. Before WWII, the Court already began to employ dignity language to alleviate the social and economic conditions of the poor and the marginalized, as well as to promote women’s suffrage. After the Philippines gained independence in 1945, the Court applied the egalitarian and humanitarian senses of human dignity to ensure that Japanese war criminals were treated with respect. In the 1973 Constitution, human dignity was first given its textual base in the Declaration of Principles and State Policies. Human dignity has been given the most prominent place in the 1987 Constitution, which marked a new democratic era in the wake of the People Power Revolution that ended Marcos’ dictatorship. Real then analyzes four areas of issues, including national security, criminal punishment, informational and decisional privacy, group identity and culture, and satisfaction of essential needs. On these issues, the Court developed its dignity jurisprudence under the multifarious influences of the Catholic Church, US constitutional law, and a society increasingly prizing individual dignity and autonomy.
In Chapter 6, “Human Dignity in the Jurisprudence of Indonesian Constitutional Court,” Nadirsyah Hosen offers a narrative quite distinct from that of the Philippines. Instead of being marked by breaks of constitutional identity, the Indonesian Constitution maintains surprising continuity with its 1945 Constitution despite significant constitutional amendments, the most consequential of which took place in 1999 to 2002 when the country transitioned to democracy. The continuous constitutional identity places the new bill of rights under the weight of the founding ideology of Pancasila, which includes: belief in one God, humanitarianism, national unity, representative democracy, and social justice. Hosen analyzes the Indonesian Constitutional Court’s dignity jurisprudence, which is marked by the tension between Article 28 I and Article 28 J. The former gives unlimitable protection to the right to life, the right to be free of torture, and several other rights, while the latter subjects rights in general to limitations determined by law. The (un)limitability of the right to life with regard to the death penalty has given rise to a series of cases in which the Court upheld the death penalty per se. This highlights a distinct aspect of Asian dignity jurisprudence. Except the Philippines – under heavy Catholic influence and Hong Kong under British colonial rule – all jurisdictions surveyed in this collection retain the death penalty in law or in practice, irrespective of regime types, level of liberalness, or stages of development. In addition, Hosen analyzes how the Court limited those “unlimitable” rights in face of challenges posed by anti-terrorism and domestic political strife, as well as how the Court continued to promote social, economic and cultural rights, all in dynamic interaction with the concept of human dignity.
In Chapter 7, “Dignity as a Constitutional Value in Hong Kong: Toward a Contextual Approach?”, Kelley Loper introduces how the dignity jurisprudence has developed under the Hong Kong Basic Law, a mini-constitution under the People’s Republic of China’s “one country two systems” framework, and the Bill of Rights Ordinance, which incorporates the ICCPR into the Hong Kong legal system. Loper observes that dignity jurisprudence in Hong Kong is still at its nascent stage of development. The courts have invoked dignity in a small number of cases and involved limited types of rights, which may lead to an impression that dignity is relevant only when serious breaches of fundamental rights are involved. The courts have referred to dignity in cases involving, for example, the right to be free from cruel punishment in non-refoulement claims, the right to equality and nondiscrimination in social welfare distribution, and the right to be treated with dignity in prison. Still, Loper aptly argues that dignity jurisprudence in Hong Kong could expand if the courts take a more holistic approach by wedding dignity as a universal value to contextual conditions, thus enabling a more “spacious” view of dignity that cuts across civil, political, economic, social, and cultural rights. Hopefully, such development may establish a bulwark to preserve liberty and dignity in Hong Kong.
China is a rising regional hegemon of Asia. The development of dignity in China has far-reaching implications, not only for Hong Kong but for the whole region and beyond. In Chapter 9, “Personal Dignity under Chinese Constitutional Law,” Xiaobo Zhai offers an in-depth analysis of the dignity clause in the Chinese Constitution. Article 38 of the 1982 Chinese Constitution reads: “The personal dignity of citizens of the People’s Republic of China is inviolable. Insult, libel, false charge or frame-up directed against citizens by any means is prohibited.” Zhai indicates that it is widely agreed that this provision is a direct response to the Great Proletarian Cultural Revolution (1966–76), in which Mao Zedong mobilized tens of millions of Chinese people to engage in an orgy of violence and destroyed public institutions and social trust. Zhai argues that this Article should not be regarded as a narrow social right but as a fundamental constitutional value and principle undergirding the 1982 Constitution. Even though it is not a justiciable right under the Chinese legal system, notable progress has been made in legal protections of dignity and improvement of the socioeconomic well-being of the people. Zhai also documents wide usage of personal dignity in legislation and public policy papers. Despite such progress, Zhai cautions that the major problem with personal dignity in China lies in its implementation, and there is still a long way to go to achieving fuller protection of this fundamental right.
From the next chapter on, we enter the philosophical and cultural part of the collection. In Chapter 10, “Virtue, Dignity, and Constitutional Democracy: A Confucian Perspective,” Sungmoon Kim provides an intricate analysis of contemporary Confucianist scholarship’s exploration of the idea of human dignity in classical texts. Kim identifies two contending accounts of human dignity, namely meritocratic dignity versus egalitarian dignity. The former understands human dignity as a moral achievement, attainable only through a long process of moral self-cultivation, while the latter, inspired by Mencius who believes that human nature is good, is based on universal, heaven-endowed moral potential. Kim recovers the moral potential aspect of Xunzi, who traditionally has been regarded as holding a meritocratic conception of dignity. By this move, Kim reinforces the egalitarian conception of dignity, which supports constitutional democracy and a strong judiciary protecting universal human rights. Kim’s argument is an admirable attempt to recover the egalitarian potential of Confucian human dignity. Nevertheless, his engagement in the debate also reveals how strong a tradition there is in Confucianism to view dignity meritocratically, since at the center of its virtue ethics is the ideal of moral self-cultivation, which necessarily prizes the result of self-cultivation and uses it to measure individual moral attainment.
Confucianism is an important part of the cultural traditions in the several jurisdictions surveyed in this book, including Japan, South Korea, Taiwan, Hong Kong, China, and Singapore. Singapore’s pattern of governance under the PAP self-professedly echoes the Confucian meritocratic tradition. The variety of regime types and liberalness may undermine the relevance of “culture” in understanding conditions conducive to democratization and liberal democracy of Asian countries. Yet this is the case only if one holds a rigid and static idea of culture. As aforementioned, we do not have to marginalize the relevance of culture even if we hold a dynamic and contestable idea of it. Even in liberal democracies such as Japan, South Korea, and Taiwan, we can identify distinct aspects of human rights development – such as retention of the death penalty, permissiveness of abortion, state support of familial relations, and acceptance of a strong state responsible for the socioeconomic well-being of the people – that may be explainable at least in part by cultural factors properly understood. Although this book has yet to engage specific rights more closely with the cultures in which they are embedded, the dialogical attempts in this book reveal important questions not clearly raised before.
In Chapter 11, “Buddhist Philosophical Approaches to Human Dignity,” Anton Sevilla-Liu discusses human dignity in early Buddhism and schools of Mahayana Buddhism, which has tremendous influence in East Asia. On early Buddhism and human dignity, Sevilla-Liu engages with contemporary Buddhist thinkers and points out that the Buddhist noble truths on human potentiality to liberate oneself from suffering could lead to inner dignity but not necessarily to inherent dignity, since for such potential to be realized it requires a lifetime of practice that is not necessarily attainable by everyone. Further, it is not clear why one person’s potential for liberation from suffering imposes duty of respect on others. Note that this line of inquiry echoes Sungmoon Kim’s discussion of Confucian meritocratic conception of dignity, which together contrasts with the inherent dignity grounded on imago dei in Christianity. Sevilla-Liu believes that the questions legitimately posed for early Buddhism could only be addressed by Mahayana Buddhism. He then explores schools of Mahayana Buddhism in Japan. In Nishitani Keiji’s Zen philosophy, dignity can be grounded on an ability to free everyone from suffering that is ontologically shared by everyone; in Tanabe Hajime’s view of Pure Land Buddhism, dignity can be found in the way of repentance and serving as the mediator of salvation; in Watsuji Tetsuro’s Confucian Buddhism, dignity rests with the potential to free oneself from egotism for the sake of one’s community. Toward the end, Sevilla-Liu remarked that these schools of Buddhism, despite their variance, are all a long way from the modern understanding of dignity, which means freedom of a rational subject to maximize utility. Instead, they all point to the moral freedom from egoistic desire. This remark resonates with Oliver Sensen’s distinction between the traditional and contemporary paradigms of human dignity in the West, as dignity in Buddhism echoes the Western traditional dignity paradigm, which primarily entailed duty on dignity-bearers to live up to a certain moral standard.Footnote 44 This aspect of dignity may be relevant to contemporary discussion on the right-constraining function of dignity.
In Chapter 12, “Dignity and Status in Ancient and Medieval India,” Timothy Lubin explores ancient and medieval Hindu sources to see whether a concept of human dignity can operate within an inegalitarian social order. Lubin draws on Jeremy Waldron’s idea of human dignity as a status claim that levels up people of low social status to enjoy treatment once reserved for the privileged. Lubin found that while the Brahmanical Sanskrit sources generally affirmed the special dignity and privileges (and duties) of Brahmin status, ascetic movements and medieval devotional bhakti literature provides countervailing resources for an egalitarian view of spiritual enhancement. Note that it is precisely from the ascetic movements that Mahatma Gandhi drew inspirations to advocate social reform in India. Also, Sanskrit texts on good governance and legal process formulate universal standards of justice and equity that could cut across ranks. As all these divergent views of human worth and status could coexist and even be cited side by side, Lubin observes that, in practice, social customs and legal order find ways to compartmentalize the universalistic human traits and sort people into hierarchical social ranks. The dire consequences and tenacity of the caste system constitute the social background against which to understand Pritam Baruah’s analysis of the Indian Supreme Court’s dignity jurisprudence. Lubin’s observation also offers precious lessons to recent philosophical analysis of human dignity, in that it is not enough just to point out common traits in humanity, be it rationality, autonomy, and so on. Rather, human dignity demands inclusive and egalitarian practice grounded on social imagination that obligates people to value commonality higher than difference or tribal hostility.
From the next chapter on, we enter the last section of the book that introduces the idea of human dignity and its relations with a religious tradition in the sociopolitical contexts of a particular society. Etin Anwar’s Chapter 13, “Human Dignity, Pancasila, and Islam: Contexts and Contestations in Indonesia,” could well be read alongside Nadirsyah Hosen’s contribution in Chapter 6. Anwar takes a genealogical approach to narrate the shaping and contesting of human dignity through modern Indonesian history. The narration centered on the complex relations between Pancasila, the founding principle of the Indonesian state, and Islam, Indonesia’s largest religion. During the colonial era of over three-and-a-half centuries before Independence, the Dutch colonizer adopted race-based governance policies. For indigenous social and political activists, human dignity primarily means national autonomy and the aspiration to be treated as equals to the Western powers on the basis of a united and equal humanity. Human dignity in the public discourse at this stage also involved an agenda for social justice to address the poverty and injustice caused by exploitive colonial policy. The ideas that inspired the national independence movements crystallized in the Pancasila. After Independence, the (re)interpretation of Pancasila became the primary political discursive arena to interpret human dignity. Through the Old Order and Suharto’s New Order, development was the state’s primary concern, and the cultural and social changes needed for development solidified the state’s power. The New Order under Suharto used Pancasila to homogenize diverse ethnicities and marginalize political-oriented Islamists. The tension between Pancasila as a secular political ideology and Islamism continues to this day. Anwar argues that while Islamist political agenda and the authoritarian tendency of Indonesian state elites are the sources of social and political tension, Islam as an ethical framework and Pancasila are actually mutually reinforcing, and together they could provide robust foundations for understanding and furthering human dignity in Indonesia.
Jonathan T. Chow’s contribution in Chapter 14, “Catholicism and Human Dignity in the Philippines,” provides an excellent companion to Robert Real’s Chapter 5 on the Philippine Supreme Court. Chow reviews Catholic teachings regarding human dignity and how the Catholic Bishops’ Conference of the Philippines (CBCP), the official representative of the Catholic Church, has interpreted dignity on issue areas such as electoral politics, labor and poverty, contraception, and capital punishment. Chow introduced how the Catholic Church came to acquire a deeply embedded societal role in the Philippines through the Spanish and American colonial era all the way to the democratic era. The Catholic Church has employed dignity language in its social teaching and public discourse to address poverty, economic inequality, and political corruption, against the political background of economic inequality, underdevelopment, and concentration of power and wealth in oligarchic landowning dynasties. The Church’s political influence reached its peak during the 1986 People Power Revolution but has diminished ever since. This is evidenced by the Church’s recent loss of political and popular support for its condemnation of legislation mandating universal access to reproductive health services, for which the Church invoked human dignity to implement the Vatican’s teaching against contraception and to oppose abortion. The Catholic Church’s dwindling political influence, Chow argues, has enfeebled its criticism of and opposition to the war on drugs of President Rodrigo Duterte, who has consistently enjoyed high popular support.
In Chapter 15, “Protestantism and Human Dignity in South Korea,” JinHyok Kim examines the relationship between human dignity and Protestantism, one of the largest religions in South Korea, through the country’s modern history. Kim divides the history into three periods. The first is from early Protestant missions in the late nineteenth century through the end of Japanese colonization in 1945. In this period, Protestant missionaries from the West introduced the idea of human dignity through their missionary practice of medical aide, education, and famine relief, to dignify and enhance the lives of the miserable and the oppressed in a highly hierarchical premodern society. The second period is from postwar independence to the end of Korean War (1945–53). This was a time of civil strife and war between the North and the South. The brutal persecution of Christians by the communist North resulted in serious fear of communist invasion and conquest in the South. This caused the Protestant churches, joined by a large number of Christian refugees from the North, to offer firm support for President Rhee Syngman to fiercely oppress and purge suspected communists, sometimes resulting in tragic bloodshed, such as in the Jeju 4.3 incident. The third period is national reconstruction to the eve of democratization (1953–87). In this period, politically attentive Protestant churches were roughly divided into those who supported the authoritarian governments for economic development and fear of communism, and those dissident churches who opposed authoritarianism and advocated for human rights and human dignity. Kim’s chapter is a useful companion to Chaihark Hahm’s Chapter 3 on the post-democratization Korean Constitutional Court. Further, the tragedies leading up to the Korean War and the authoritarianism during the Cold War remind us how fragile human dignity can become when people are driven by insecurity, fear, and hate.
