Uplift Human Personality

The Connotations and Denotation of Dignity

By Dieter Lubbe

This article, is a part of the Pinion Project research done in preparation for the Media Campaign Against Human Trafficking (MeCAHT) conference 2018.

Connotations

The United States historic pioneering experiment in democracy, demonstrates the messy journey from the claim in the Declaration of Independence ‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness’. Then only to see, many years later that is, the structural emancipation of slaves with the enactment of the 13th amendment (from 1776 to 1865). The government, for and by the people, turned out to be a project fraught with challenges against factionalism from both grass roots and within the halls of authority. What is important to recognise in a general understanding of the connotations historically associated with the word dignity, is this connection between individual dignity and the democratic regime. Dignity in this frame, stems from the development of the west and particularly our efforts to avoid such horrors as found in the Nazi concentration camps.

‘the Holocaust shocked the moral consciousness of all civilised peoples into an increased awareness of the inherent dignity of every human being,” Johannes Morsink, Inherent human rights: philosophical roots of the Universal Declaration.

It is true that the idea is not unique to this moment in history or even the west. Still, I find this formulation of the historical intervention seen in both the American experiment and later in the Nazi crimes against humanity, instructive with respect to the warrant for the word dignity being included in the Universal Declaration of Rights (1948) affirmation of human rights. This historical perspective also speaks to the method of compromise adopted in order to reach consensus in this regard. To jump ahead a little in history, to the former justice of the Constitutional Court of South Africa, 1994 to 2004, Laurie Ackermann. In his book Human Dignity: Lodestar for Equality in South Africa, Ackermann captures, a nuance perspective of the developed essence of the compromise.

‘…in the Abrahamic religious writings and in secular philosophy,… there is the explicit recognition that human worth (dignity) — or something closely resembling it – is the necessary criterion of attribution when considering issues of equality. Not only do these religious and secular philosophical views, as part of the general history of ideas, inform the legal meaning of equality and human worth, but they quite independently form part of an ‘overlapping consensus’ in the sense that the political philosopher John Rawls uses this concept,… An overlapping consensus of this nature can be constituted although different premises are used by different people to reach the same conclusion, in our case the same legal conclusion regarding dignity and equality.’

What is clear from this observation by Ackermann is, ‘overlapping consensus’ or something closely resembling it, has played an important role in how the term dignity came to be understood in legal terms. Likewise, the debate pertaining to the soundness of competing worldview premises in support of this idea, Kantian, Aristotelian or Utilitarian for example, remains alive to be debated. We see something of this idea from the pen of Martin Luther King, Jr in his Letter from a Birmingham Jail,

‘How does one determine when a law is just or unjust? A just law is a man-made code that squares with the moral law, or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas, an unjust law is a human law that is not rooted in eternal and natural law. Any law that uplifts human personality is just.

In Constitutional Law by Rautenbach-Malherbe, we read, ‘Constitution-makers and those who interpret and apply constitutions do not create and cannot obliterate human dignity by their definitions’. Human dignity in this frame is an ontological claim, suggest Professor of equality and human rights law Christopher McCrudden in his article entitled Human Dignity and Judicial Interpretation of Human Rights, that is it purports to tell to how things are. Much more can be said at this junction. Still, for the purpose of this article, dignity so understood, makes a relational claim, that is we are to recognise the dignity in others. Furthermore, dignity collectively, calls for limited state authority [McCrudden]. ‘As a legal concept, human dignity functions not only as a moral value but also as a universal right that guarantees in principle the respect and protection of humanity per se’. [Steinmann AC, The legal significance of human dignity]

Morel Warrant

Ackermann J in the Sodomy case said, ‘The enforcement of the private moral views of a section of the community, which are based to a large extent on nothing more than prejudice, cannot qualify as such a legitimate purpose.’ Ackermann J ruled that the Constitutional Court could not rule on moral claims without sufficient warrant. Still, the dismissal of moral claims by the court in the Ackermann J ruling, is not to suggest that the court cannot rule on moral claims at all.

State v Jordan [104] All open and democratic societies are confronted with the need to determine the scope for pluralist tolerance of unpopular forms of behaviour. To posit a pluralist constitutional democracy that is tolerant of different forms of conduct is not, however, to presuppose one without morality or without a point of view. A pluralist constitutional democracy does not banish concepts of right and wrong, nor envisage a world without good and evil. It is impartial in its dealings with people and groups, but it is not neutral in its value system. Our Constitution certainly does not debar the state from enforcing morality. Indeed, the Bill of Rights is nothing if not a document founded on deep civic morality.

The essence then of the argument rests on which moral claims are warranted? Professor Robert P. George, McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton explains his understanding of moral reasoning this way,

‘…whether in St. Paul or Aquinas—or in Plato, Aristotle, Musonius Rufus, and others untouched by Jewish or Christian thought—not because it tries to read premises or conclusions off biological or sociological facts. It doesn’t. Instead, it considers what are the basic forms of human flourishing: conditions or activities that are good for us in themselves: friendship, knowledge, life and health, and the like. The identification of these of course takes into account biological and other cause-and-effect facts. But it is focused not on those but on the intrinsic goodness of the various elements of human fulfilment. We can then reason to the moral goodness and badness of types of choice and act by considering which choices are consistent with love and respect for ourselves and all others in regard to each of these basic dimensions of fulfilment. A choice consistent with love and respect for all the goods in all persons is morally upright; one that isn’t, is immoral. That determination of consistency must take into account the fundamental circumstances of all our choices and acts. The basic goods for which we can act are many and various, so we cannot realise them all at once. But they all remain always goods, and each in its own irreplaceable way. So in pursuing some, we ought not to choose to denigrate or damage any of the others. And as they are goods for all people, we ought not to let our choosing be deflected by prejudice, wayward passion, and the like. [Public Morality, Public Reason, November 2006]

With this said we can observe that claims that reports something to be unjust are inescapably moral claims and are hence not immune to questions regarding there warrant. Furthermore, postmodern claims — that ideas and beliefs are not true but only useful for controlling the environment, are self refuting. That is when applied to the idea of postmodernism itself, as only useful for controlling the environment, the argument cuts off the branch it is sitting on, so to speak. Likewise, not every interpretation of what is the case is compatible with the world in which we live.

Rawls, in effect, says look religious people have a legitimate complaint against what has gone by the name liberalism to the extent that liberalism allows metaphysical ideas so long as they’re secular to be introduced into public discourse and account as valid reasons for public policy without giving religious reasons the same standing and permission. But instead of saying, therefore, we need to broaden the permission in theory for reliance Rawls narrowed it [Robert P. George]

Denotation

Dignity is that whereby a person excels, and merits respect or consideration from other persons. ‘People qualify to be bearers of this right simply because they are human. The right protects the worth that attaches to the actuality of being human’ Rautenbach-Malherbe. The Afrikaans word, menswaardigheid captures the sense in which the word is being used (in terms of worth). This is important when it comes to questions of equity. In what sense are all people equal? The notion of dignity provides criteria from the actuality of being human.

Immanuel Kant’s influence on ideas regarding the objectification associated with prostitution is relevant I believe. Not only has Kantian thought influenced feminists like Catharine MacKinnon and Andrea Dworkin but it can be argued, has influenced the Constitutional jurisprudence as exemplified in the Jordan matter. Kant held, that to allow others to use your body sexually in exchange for money resulted in the loss of humanity and becoming an object. ‘to allow one’s person for profit to be used for the satisfaction of sexual desire, to make of oneself an Object of demand, is to dispose over oneself as over a thing’ [Kant Lectures on Ethics].

Andrea Dworkin argues, ‘When objectification occurs, a person is depersonalised, so that no individuality or integrity is available socially or in what is an extremely circumscribed privacy. Objectification is an injury right at the heart of discrimination: those who can be used as if they are not fully human are no longer fully human in social terms; their humanity is hurt by being diminished’ .

Of course Kant held that the only relationship choice, consistent with love and respect for ourselves is monogamous marriage. Equality after all must have a criterion of attribution namely human dignity (equality in dignity). The spouses exclusively yield their persons to each other, so neither of them is at risk of losing his or her person and becoming an object. Recently, the United States Court of Appeals for the Ninth Circuit unanimously affirmed that prostitution is not a constitutionally protected fundamental right. The Court ruled that prostitution as a commercial activity is fraught with dangers that the state has a “substantial interest” in preventing.

‘…panel held a relationship between a prostitute and a client is not protected by the Due Process Clause of the Fourteenth Amendment, and therefore laws invalidating prostitution may be justified by rational basis review…relationship between a prostitute and a client does not qualify as a relationship protected by a right of association. The panel further rejected plaintiffs’ assertion that Section 647(b) violates their substantive due process right to earn a living. The panel held that there is no constitutional rights to engage in illegal employment, namely, prostitution. Finally, the panel held that Section 647(b) does not violate the First Amendment freedom of speech because prostitution does not constitute protected commercial speech and therefore does not warrant such protection.’

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