Electronic copy available at: http://ssrn.com/abstract=1468031
1
A CONCEPT OF DIGNITY*
Meir Dan-Cohen**
The concept of dignity I discuss has two main historical sources: the religious, biblical
idea of humanity’s resemblance to God, and the philosophical, Kantian view of human
autonomy. I offer an interpretation of the two sources that highlights a common ground,
and then point to some aberrations that may result from confounding theological or
metaphysical issues with the concept of dignity and its normative implications.
I. WHAT DIGNITY IS
My assigned topic for this symposium is the concept of dignity, but I doubt that such
a single concept exists. Instead, there appear to be a number of concepts of dignity in
circulation, too dissimilar even to be thought of as different conceptions of one
concept. Take, for example, a recent article, provocatively entitled The Stupidity of
Dignity, in which Stephen Pinker, a well-known American writer, laments the
ascendance of dignity in public discourse.1
Pinker lists some unattractive features of
this concept. First, he claims,
ascriptions of dignity vary radically with the time, place, and beholder.
In olden days, a glimpse of stocking was looked on as something
shocking. We chuckle at … the Brahmins and patriarchs of
countless societies who consider it beneath their dignity to pick up a
dish or play with a child….
Nor is dignity as important as it is made out to be by its proponents, since “every
one of us voluntarily and repeatedly relinquishes dignity for other goods in life.
Getting out of a small car is undignified. Having sex is undignified. … Most pointedly,
modern medicine is a gantlet of indignities.” Finally, he argues, dignity can be
harmful: “Every sashed and be-medaled despot reviewing his troops from a lofty
* This essay is an expanded version of the opening talk given at the Human Dignity and
Criminal Law Symposium held at the Hebrew University in Jerusalem on 5-6 January 2009.
** Milo Reese Robbins Chair in Legal Ethics, University of California at Berkeley School of
Law.
1 Stephen Pinker, The Stupidity of Dignity: Conservative Bioethics’ Latest, Most Dangerous
Ploy, THE NEW REPUBLIC (May 28, 2008, 12:00 AM), http://www.tnr.com/article/the-stupiditydignity.
The subsequent quotes are from this article.
Electronic copy available at: http://ssrn.com/abstract=1468031
2 ISRAEL LAW REVIEW [Vol. 44: …
platform seeks to command respect through ostentatious displays of dignity. Political
and religious repressions are often rationalized as a defense of the dignity of a
state, leader, or creed.”
The features that Pinker associates with dignity, and even more so the examples
he gives, are indeed unappealing. Since I do not share Pinker’s misgivings about
dignity, it would seem that I must disagree with his characterization and reject his
examples. But, as a matter of fact, no such disagreement need exist. As it turns out,
Pinker is talking about what he describes as a psychological concept of dignity:
Dignity is a phenomenon of human perception. … [C]ertain features
in another human being trigger ascriptions of worth. These features
include signs of composure, cleanliness, maturity, attractiveness, and
control of the body. The perception of dignity in turn elicits a response
in the perceiver. Just as the smell of baking bread triggers a desire to
eat it, and the sight of a baby's face triggers a desire to protect it, the
appearance of dignity triggers a desire to esteem and respect the dignified
person.
Pinker juxtaposes this psychological notion of dignity with the distinctly moral
ideal of respect for persons. However, it is precisely the latter notion that many
others identify with the concept of dignity. To assume that there is just one concept
here, and then call it stupid or wise, is a trap we should be careful to avoid.2
I will
accordingly take the liberty of replacing the definite article in my assigned topic
with the indefinite article and speak not about the concept of dignity but about a
concept of dignity. It stands for an affirmation of the equal, or perhaps rather unique,
and supreme moral worth of every human being, an affirmation designed to play a
foundational role in morality and by extension in law as well.
II. TWO SOURCES
The concept of dignity on which I focus has two well-known sources, a theological
one and a philosophical one: respectively, the uplifting biblical idea of imago Dei or,
in the original Hebrew, b’tzelem Elohim, claiming that human beings were created in
the image of God, and the writings of Immanuel Kant. However, tracing the concept
of dignity to these two sources raises some serious difficulties. One concerns the
2 See Remy Debes, Dignity’s Gauntlet, 23 PHILOSOPHICAL PERSPECTIVES 45 (2009). Debes
canvasses a range of different conceptions of dignity and concludes that “there is no single concept
of ‘dignity.’” Id. at 61. He nonetheless maintains that “a conscientious metatheory about what
dignity is, might remedy the manifest ambiguity in how we talk about it.” Id. at 47. I have no
objection to such a project, but pending its successful completion one might prefer to reserve
judgment.
2011] A CONCEPT OF DIGNITY 3
relationship between the sources. Kant himself does not couch his discussion of
human dignity in the ancient imago Dei idiom. Though Kant professes religious
beliefs, his moral theory is resolutely secular. His aim is to provide morality with a
non-theistic foundation; basing humanity’s special moral worth on resemblance to
God would obviously defeat this aim. The two sources thus seem to be in tension
rather than complementary or cooperative. Each source also raises problems of its
own. As to imago Dei, many of those who pledge allegiance to human dignity do so
within a secular liberal worldview; what possible interest can they take in Man’s
alleged resemblance to God? Kant’s appeal to children of the Enlightenment is
clearer, but here too we face a problem. Kant’s own moral theory is grounded in a
metaphysics that few contemporary normative Kantians espouse. It is the metaphysics
of the thing-in-itself and, relatedly, of the noumenal self, whose freedom is a
matter of wholesale exemption from laws of nature, which for this purpose comprise
not just physics but what we ordinarily think of as psychology as well. The Kantianism
absorbed into the liberal canon is a deracinated one, cut off from these metaphysical
roots.
So it not only appears that the sources of dignity we inherited, the religious and
the metaphysical, are at odds but that neither is particularly appealing to us today. I
will argue to the contrary that despite religious misgivings and metaphysical doubts,
the two sources remain viable. Contemplating Kant’s concept of dignity against the
background of the imago Dei idea makes sense and reveals a common ground that is
hospitable to any non-believing humanist, anxious to uphold humanity’s moral
worth without the support of a divine warrant, while also staying away from the
more esoteric aspects of a Kantian metaphysics. In this section, I discuss this common
ground, and in the next section point out some pitfalls.
A. IMAGO DEI
I start by considering the imago Dei idea. To see its relevance to a secular sensibility,
we should distinguish in it two different claims or moments. One, call it the
creation thesis, is the belief that the world in general, and human beings in particular,
are God’s creation. The second, the resemblance thesis, holds that humanity
resembles God. The first thesis does not distinguish humanity from the rest of
creation; rather, it is the latter claim that gives rise to human dignity. The resemblance
can be interpreted in different ways, but one attractive theme sees it in terms
of the knowledge of good and evil. It is in this respect in particular that humankind’s
resemblance to God is said to imply humanity’s divine stature and so its special
worth. Obviously, the creation thesis cannot be accepted by the secular mind. Even
so, my suggestion is that the resemblance thesis can. But how? If man was not
created by God, whence the resemblance? And what is the resemblance a resemblance
to?
4 ISRAEL LAW REVIEW [Vol. 44: …
The key here lies in a tradition of thought, most famously associated with the
German philosopher Ludwig Feuerbach,3
that reverses the creation thesis. The
crucial claim here is that people created God, and indeed created Him in their own
image, by projecting an idealized vision of themselves. We can appeal to this view
to reinterpret the imago Dei idea. The cardinal difference between the religious
standpoint and its secular reinterpretation is that humanity, which from the religious
standpoint is the image, turns out to be the original, reflected in a mirror of its own
creation. On this reinterpretation, the resemblance to God is there all right; the
direction of fit is only different. To be sure, the attributes projected onto God are
contested and not always attractive. He, not surprisingly being male (given who got
to be the dominant projectors) is sometimes depicted as belligerent, irritable, jealous,
vain, and even with long facial hair.4
Though this is unfortunate, as far as the derivation
of human dignity is concerned, it is not a fatal flaw. The important thing in the
imago Dei idea is a formal point. Whatever God’s alleged attributes, we know from
the start that they represent the highest ideals. And so, the idea of God bespeaks a
devotion to an ideal of perfection and a commitment to strive for the realization of
its implications for one’s life. To recognize that the source of the ideal lies in the
believers and that they are the ultimate authority for the imperatives by which they
live is to ascribe to them an uncontestable worth, commensurate with the value they
themselves ascribe to the being they conceive.
This reversal of the imago Dei idea is supported by the realization that the atheist
does not fault the believer for ascribing to God the value that she does. If He existed,
he would be worthy of the reverence the believer displays. Nor need the atheist deny
that resemblance to God, that is to say, the partial possession of His attributes,
would entitle the possessor to a pro tanto measure of the same attitude. The difference
of opinion concerns God’s existence, not the counterfactual constituents of His
sublimity. But in this dispute the atheist should, if anything, invest the imago Dei
idea with greater, not lesser, significance, since, unlike the believer, she is better
situated to trace the divine attributes to their origin in the human mind and heart. For
the believer, reverence is the proper attitude toward God conceived as an absolute
authority. But short of revelation, which is not, after all, an essential aspect of all
religious faith, the way this authority is brought to bear requires that the believer
form her own conception of the divine will. Her resemblance to God offers her a
measure of hope. As seen by the atheist, the religious person’s striving to decipher
and follow God’s will makes entirely good sense, with one crucial difference: God’s
role in this story is that of a placeholder or a regulative idea: potentially useful but
dispensable. And this difference, far from denigrating the believer’s striving to live
3 LUDWIG FEUERBACH, THE ESSENCE OF CHRISTIANITY (George Eliot trans., Harper & Row
1957) (1841).
4 With an apology to my bearded friends.
2011] A CONCEPT OF DIGNITY 5
up to God’s demands, elevates this striving and its subject even further, since it
credits the believer not just with the will to approximate perfection but also with the
wherewithal to conceive of perfection and give it content and shape.
This suggests why, insofar as the value of humanity is concerned, there is not
much gain in dressing up the idea of human dignity in a religious garb. If anything,
the opposite is the case, since tracing the ideals that the believer associates with God
to their human origins serves to elevate humanity and augment its importance. Even
so, religious traces within the discourse of dignity need not be erased within a
secular frame. Instead, they can be fruitfully transposed into a system of thought that
explicitly casts human beings as the origin of all value.5
B. KANT
This takes us straight to the heart of the Kantian conception of human dignity.6
What
Kant says in this regard is brief and merits quoting:
Now I say that man, and in general every rational being, exists as an end
in himself, not merely as a means for arbitrary use by this or that will…
In the kingdom of ends everything has either a price or a dignity. If it
has a price, something else can be put in its place as an equivalent; if it
is exalted above all price and so admits of no equivalent, then it has a
dignity… Now morality is the only condition under which a rational
being can be an end in himself; for only through this is it possible to
be a law-making member in a kingdom of ends. Therefore morality,
and humanity so far as it is capable of morality, is the only thing
which has dignity…
For nothing can have a value other than that determined for it by the
law. But the law-making which determines all value must for this reason
have a dignity – that is, an unconditioned and incomparable worth
– for the appreciation of which, as necessarily given by a rational being,
the word “reverence” is the only becoming expression.7
5 Karl Barth summarizes Feuerbach’s view as holding “that man is not only the measure of all
things, but also the epitome, the origin and end of all values.” See Karl Barth, Introduction, in
FEUERBACH, supra note 3, at x, xxviii.
6 The derivation or, to use Kant’s term, deduction of human dignity that I sketch here is
Kantian even if it is not quite Kant’s. My aim is not to contribute to Kant scholarship (I leave this to
the experts) but to elucidate the concept of dignity. Kantian themes are indispensable tools; no less,
but no more. Also, like many others, I appeal exclusively to Kant’s moral theory, which is where he
develops the idea of human dignity. Consequently, I ignore the difficulties that arise in translating
this moral notion into political and legal terms.
7 IMMANUEL KANT, GROUNDWORK OF THE METAPHYSICS OF MORALS 90, 96-97 (Herbert
James Paton ed. & trans., Hutchinson 1976) (1948/1785).
6 ISRAEL LAW REVIEW [Vol. 44: …
These are undeniably powerful assertions carrying great rhetorical force. But
what is the argument here? We can distinguish three points in these quotations: the
equivalence between the notion of dignity and that of being an end; the view of
people as ends and hence the ascription of dignity to them; and the claim that ascribing
this value to people is the core of morality. To elucidate Kant’s concept of
dignity requires that we understand these three claims and their interrelationship.
Different accounts have been proposed, in part because there may have been more
than one strand in Kant’s own mind. Here I want to sketch a variant of one of these
strands that I find attractive.8
I call it the value of valuation.
The first step is Kant’s insistence on human intelligibility.9
All human action
makes sense, has a point; it is, to use another idiom, meaningful. What makes action
intelligible, what gives it meaning, is that it is done for the sake of something or
other. That for the sake of which an action is taken is its end. But the same idea can
also be expressed in the vocabulary of value. To act intelligibly requires that that for
the sake of which one acts, the end, be deemed worth pursuing, and so valuable. In
this sense all action consists in the projection and attempted realization of purported
values. One goal of a theory of the practical domain is accordingly to account for the
values we pursue. What Kant can be seen as offering in this regard is a theory of
value centered around a binary division between two types of value: price and
dignity. Roughly, price expresses the value of things for us, that is for persons,
whereas dignity expresses our own value: it is the value of persons.
But this is too rough. This classification, as well as the distinction between our
own value and the value things have “for us,” on which this classification depends,
must be clarified and refined. Starting with the classification of values, price is not a
unitary value: Kant further distinguishes between market price and fancy price.
Though he does not elaborate much on this subdivision, commentators tend to
associate the latter with esthetic value.10
Kant accordingly distinguishes three kinds
of value: pragmatic, esthetic, and moral. Building a house or a table is the realization
of pragmatic value; listening to music, visiting a museum, taking a trip to the Grand
Canyon, and playing basketball or soccer are realizations of esthetic value; keeping a
promise, helping a blind person cross the street, and visiting with a sick friend are
realizations of moral value.
It is also evident that all three kinds of value make a claim on us, have a certain
force, though the nature of the claim or the force vary, forming a hierarchy. And this
8 For a particularly acute version of this strand, see CHRISTINE M. KORSGAARD, THE SOURCES
OF NORMATIVITY (Onora O’Neill ed., 1996).
9 For an illuminating discussion of Kant’s uses of “intelligible” in this connection, see HENRY
E. ALLISON, KANT’S THEORY OF FREEDOM 214-29 (1990).
10 See, e.g., HERBERT JAMES PATON, THE CATEGORICAL IMPERATIVE: A STUDY IN KANT’S
MORAL PHILOSOPHY 189 (University of Pennsylvania Press 1971) (1947).
2011] A CONCEPT OF DIGNITY 7
requires a clarification of what it means for something to have value for us. The
italicized expression is ambiguous between (1) serves our interests and satisfies our
desires and (2) is deemed valuable by us. Now some of the things we value, those
that possess what Kant labels market price, are valuable for us in the first sense. But
others are not. We enjoy or admire the Mona Lisa or the Grand Canyon because of
the value they possess; they are not valuable because of the satisfaction they provide.
And this is true, even more emphatically, of moral values. We perceive them
as having, in Kant’s idiom, a categorical force, which is independent of our contingent
needs, desires, and goals. Nevertheless, everything for the sake of which our
actions are performed or toward which they are oriented, and so everything that is
valuable, is valuable for us in the second sense: all the values we pursue, all the ends
that make our actions, and more broadly our lives, meaningful, originate in us.
To view the values that guide our actions and our lives as originating in us, is
also to view ourselves as self-governing, and thus as autonomous. And this interpretation
of our autonomy as a matter of being the authors of our lives naturally leads to
a further idea, of being our own authority.11
To recapitulate: to be intelligible we
must pursue ends, and this is the same as projecting and realizing values. Since we
must deem these values worth pursuing, we must endorse them. This is the sense in
which, in pursuing any value at all, we must recognize ourselves as the ultimate
authority. The key to the authority relationship is the notion of deference: those
subject to an authority are expected to defer to its wishes and demands. Since each
person must recognize herself as a definitive authority, she ultimately defers to
herself. Obeying her own commands, as it were, she expresses her self-respect as
well.
But even if each person is the ultimate authority for the ends she pursues and so
for the values she endorses, the resulting deference and the dignity it implies would
seem to be distributive: I implicitly assert my own dignity; you, yours. But morality
requires first and foremost respect for others’ dignity rather than for one’s own. To
close this gap, and to see why my self-respect (in the appropriate sense) extends to
humanity as a whole, we need attend more closely to the notion of intelligibility.
The key observation, which I can here only state without defending, is that intelligibility
is holistic and universal. To be intelligible to oneself, one must in principle be
intelligible to everyone else. If to encounter a human being is to encounter an intelligible
being, it is to encounter a being with whom communication and, hence, mutual
interpretation and understanding are in principle possible. For this to be the case, I
must be able to see another’s values, no matter how different from mine, as values,
that is as ends capable of making sense of her life in the same way that my values
11 Cf. Colin Bird, Status, Identity, and Respect, 32 POLITICAL THEORY 207, 213 (2004) (“To
recognize persons as self-legislators in a Kantian sense just is to recognize a kind of authority that
they bear.”).
8 ISRAEL LAW REVIEW [Vol. 44: …
make of mine. And this involves a further aspect of intelligibility: its dependence
upon abstraction.
When David puts on a suit and tie, he knows what he is up to: he is going to the
opera, to see Fidelio. These are two possible projections of his immediate end at
different levels of abstraction. But notice that some such abstraction is essential for
the intelligibility of his dressing up. If instead of referring to the “opera” or Fidelio,
David were to conceive of a highly detailed, step-by-step depiction of the route that
leads from his home to the opera house, and of a brick-by-brick description of this
end point, while omitting the designation of his destination as the “opera,” then
despite the abundant detail in which his project would now appear to him, he would
be at a total loss to know what to wear. The situation is similar when making sense
of another person’s conduct. David observes Ruth wearing shorts and a t-shirt.
Why? She explains that she is on her way to a soccer game. But suppose David has
never heard of soccer. At this point, the more abstract idea of a ball game―or,
failing that, just a game―may help him make sense of Ruth’s attire. If this is not
sufficient, however, the explanation of Ruth’s behavior may have to appeal to even
more abstract notions, such as entertainment or edification, which David associates
with his own venture. Why does Ruth put on this casual dress? Because like David
she is “dressing appropriately for the occasion.” What is this occasion? Like in
David’s case, it is a form of entertainment or edification, or, like him, she is going to
have a good time.
Why are these abstract answers possible and appropriate? The reason is that in
order for David and Ruth to be intelligible to themselves and so potentially to each
other, they must be able to see what each of them is up to. And so they must be able
to ascribe to each other ends, and thus values, that they are both able to construe as
ends and values, that is as pertaining to endeavors appropriate for and making sense
of a human life. And so both protagonists must view themselves as respectively
articulating at a relatively high level of detail a cluster of highly abstract meanings
that they both associate with the very idea of a human being and thus have in common.
Whereas the interpretation of “human being” implicit in David’s life will differ
in innumerable ways from the one implicit in Ruth’s, each of them is capable of
pursuing and enacting their disparate interpretations only when conceived as interpretations,
designed to manifest at a higher level of resolution content that at a high
level of abstraction belongs to the category of humanity as such.
To summarize, the particular ends that I espouse and the values that I therefore
endorse define the distinctive content of my life and distinguish it from that of
others. But, in fixing my own identity, I must view myself as enacting and articulating
a more abstract identity: my identity as a human being, which I share with
everyone else. In order for the ends I pursue and the values I endorse to endow my
life with meaning and render me intelligible, they must be, at a high level of abstrac-
2011] A CONCEPT OF DIGNITY 9
tion, your ends and values as well. Our intelligibility, and so our mutual intelligibility,
implies that the meanings constitutive of our separate identities must, at a high
level of abstraction, all converge. But this also suggests that respecting myself (in
the relevant sense) while disparaging others is not an option, since it would involve
me in a contradiction: my attitude toward others would amount to disparaging the
very same cluster of meanings that, when abstracted from my own pursuits, I must
hold in high regard. Respect for humanity cannot be selective along individual lines.
When the attitude one has toward any individual human being addresses that individual
qua intelligible being, and so as a site of meaning, this attitude must extend to
everyone else. And since leading my life requires that I defer to myself and so assert
my own superior worth, this attitude of mine extends to humanity as a whole, and so
to each of its individual manifestations.
As I said earlier, there are other ways, more or less faithful to Kant’s text, of
reaching this conclusion. Whatever the precise route leading to it, the conclusion is
remarkable. One of Kant’s great insights is the idea that moral content can be derived
from purely formal considerations. The very fact that we pursue any ends at
all, and so have any values at all, quite apart from their content, attests to our own
value, and so provides a foothold for a system of moral values designed to acknowledge
this value and give substance to this acknowledgement. This account gives
morality a particularly secure position that other systems of value lack. All other
values are in principle contestable. But as long as we contest them, we are committed
to the validity of some value. And as long as we are committed to the existence
of any value, we are committed to our own supreme value, as the origin, the authority,
and the warrant of that value.
III. SOME PITFALLS
The increasing prominence of dignity-talk is often identified with or seen as part of
what has come to be called the rights discourse. Under the interpretation I have
outlined, however, it is more accurate to see the rise of dignity as having a different
focal point and so as ushering in another discourse―a discourse of values. As a
centerpiece of such a discourse, the concept of dignity offers a platform on which
both secular and religious humanism can meet and a potentially mutually advantageous
dialogue conducted.
But although it is possible to embrace the ideal of human dignity without the
support of a religious warrant or Kantian metaphysics, those sources may not be
easy to escape. A central cluster of issues to which I would like to draw attention
concerns the nature of the person whose dignity we assert. Dignity is the supreme
worth of every human being, but what does that include? The scope of dignity must
track the boundaries of the self, but where do these boundaries lie? When dignity
10 ISRAEL LAW REVIEW [Vol. 44: …
mandates respect for persons, what is the precise target of this respect? The idea of
human dignity inevitably raises such pressing questions of human ontology. Extricating
the concept of dignity from its religious and metaphysical origins, however,
excludes the answers to these questions proffered by religious doctrine and by
Kantian metaphysics and so creates a gap. But unless we are careful, the very same
religious and metaphysical ghosts we hope to exorcise may surreptitiously come to
haunt us through this gap. Three specific pitfalls illustrate this wider theme. I label
them, tendentiously, religious cooptation, choice worship, and body fetishism. I will
briefly discuss each.
A. RELIGIOUS COOPTATION
By religious cooptation, I refer to the possibility that religious doctrines are inadvertently
incorporated into what is supposed to be secular public discourse.
My main exhibit here is the Vatican’s recent missive on the implications of human
dignity, entitled Instruction Dignitas Personae on Certain Bioethical Ques-
tions.12
Much of value can be garnered from this document, but not surprisingly the
document is rife with distinctly Catholic doctrine unrelated to the idea of dignity.
The danger is that this doctrine gets mixed up with the discussion of dignity, thus
borrowing the latter concept’s prestige and rhetorical force to support policies that
from a secular standpoint turn out to be inimical to human dignity. Consider, in this
regard, the document’s opening statement to the effect that “[t]he dignity of a person
must be recognized in every human being from conception to natural death,”13
thus
running together the affirmation of human dignity with a controversial ontological
doctrine, namely that the human person who possesses that dignity begins at conception.
In a similar vein, the document prohibits, again under the guise of a concern for
human dignity, any fertility techniques seen as violating the distinctly religious
doctrine that marital sex is the only permissible form of procreation.
This caveat is reinforced by another recent document: a report entitled Human
Dignity and Bioethics, issued by the President’s Council on Bioethics.14
This document
is the main target of Stephen Pinker’s attack on dignity that I mentioned at the
outset.15
Though the report is hardly the last word on the concept of dignity and a
12 CONGREGATION FOR THE DOCTRINE OF THE FAITH, INSTRUCTION DIGNITAS PERSONAE ON
CERTAIN BIOETHICAL QUESTIONS (2008) available at http://www.usccb.org/comm/Dignitas
personae/Dignitas_Personae.pdf.
13 Id. at 1.
14 HUMAN DIGNITY AND BIOETHICS: ESSAYS COMMISSIONED BY THE PRESIDENT’S COUNCIL
ON BIOETHICS (2008) available at http://bioethics.georgetown.edu/pcbe/reports/human_dignity/
human_dignity_and_bioethics.pdf.
15 See supra note 1.
2011] A CONCEPT OF DIGNITY 11
poor reason to berate the value of dignity as such, the similarity in tone as well as in
substance of the Council’s report to the Vatican’s missive is indeed disconcerting.16
B. CHOICE WORSHIP
The second pitfall, choice worship, relates to a central theme in neo-Kantian liberal
thinking. Kant is enlisted to the liberal cause mostly through the centrality to his
moral theory of the idea of a free will. A liberal sensibility that celebrates individual
choice can easily assimilate Kantian ideas by embracing autonomy as its fundamental
value. The result is a tendency to identify autonomy with choice and to see
choice as the seat of dignity as well. On this line of thought, to respect persons is to
respect their choices. But whatever the attractions of this bit of liberal dogma, it
cannot be sustained on Kantian grounds. The Kantian support for the valorization of
autonomy crucially depends on Kant’s metaphysics and is linked to a rather specialized
conception of autonomy. A wide gulf separates this system of ideas from the
liberal celebration of individual choice.
Doubts that choice as such, as the expression of the individual’s will, is of moral
value arise when we consider that to value choice is to give at least some positive
valence and pay some respect to the will’s determination to kill, rape, or steal. A
choice-liberal need not of course condone such choices: these choices violate other
people’s rights, rights that themselves can be seen as expressing or protecting these
people’s autonomy. But invoking such countervailing considerations is an unsatisfactory
response, in that it implies that the nefarious choices have some moral value,
whereas they have none. The choice-liberal is committed to saying that qua a determination
of a person’s will any choice is pro tanto valuable. But our moral and legal
judgments go the other way. The fact that an act of homicide, rape, or theft represents
the agent’s considered choice and reflects a genuine determination of his will
serves to aggravate the moral and legal severity of the action rather than mitigate
it.17
It will be said in response that the Kantian liberal I describe is a straw man. The
more likely position held by liberals, Kantian or otherwise, is more qualified. They
do not simply value any choice or, for that matter, all displays of autonomy; rather,
they deem choice or autonomy valuable only subject to a limiting generalizing
proviso, i.e. when it is consistent with equal choice or equal autonomy for all. Under
this formulation, choices that strip others of their autonomy lack moral value from
the start. But as an interpretation of the moral injunction to respect people, this
restatement of the liberal position is unsatisfactory for two reasons. First, the valori-
16 This is not surprising in light of the composition of the Council, which, as Pinker points out,
consisted for the most part of religious scholars. Id.
17 See Joseph Raz, THE MORALITY OF FREEDOM 380 (1986).
12 ISRAEL LAW REVIEW [Vol. 44: …
zation of the will must be content independent:18
to defer to people’s wills is to
assign to them at least some prima facie value as they are, no matter what their
content. And, as it turns out, the actual content of the will does not always abide by
the strictures imposed by the generalizing proviso. To insist that only choices
respectful of others’ autonomy have any value at all is to subject the will to an
external evaluative standard, one that is patently at odds with ascribing to the will
intrinsic value of its own. Second, the generalizing proviso does not apply to selfregarding
choices, which are left unfettered. But, at least within a Kantian framework,
not all self-regarding choices are morally permissible. Kant maintains that one
ought to respect not just others’ humanity but one’s own humanity as well. This
gives rise to duties toward oneself, such as a prohibition against suicide. Since these
self-regarding duties may impose constraints on the actual content of the will, they
manifest a conflict between dignity and choice, a conflict which the generalizing
proviso is unable to remove.19
It is easy to see how these difficulties are avoided within Kant’s metaphysics of
the noumenal self. First, the will associated with this self is an idealized will, determined
by the categorical imperative and in accordance with sound moral principles
derived from it. These principles, or maxims, are conceived of as already taking
proper account of others’ humanity as well as the agent’s own, thus avoiding the
problem presented by immoral choices, be they other- or self-regarding. Second,
identifying respect for persons with respect for their will on Kantian grounds comports
with the metaphysical identification of the noumenal self with a free, rational
will. Outside of Kant’s metaphysics, we must recognize that there is more to persons
than their will and, correspondingly, more to the idea of respecting a person than
respecting choice. We must be careful to distinguish here between two different
ideas: respecting a person’s autonomy and respecting a person for or by virtue of her
autonomy.
C. BODY FETISHISM
One way in which we, as actual persons, differ from our noumenal selves is that we
are embodied. So, one natural step toward a more comprehensive conception of the
person that does not focus exclusively on the will involves recognizing the body as
an aspect of persons pertinent to their dignity. But here too we are on slippery
ontological grounds. A narrow but important line separates the idea of respect for
embodied persons from mere body fetishism. Talk, both religious and secular, of the
18 For a discussion of this notion in a different context, see JOSEPH RAZ, THE MORALITY OF
FREEDOM 35-37 (1988).
19 I discuss these issues in somewhat greater detail in MEIR DAN-COHEN, Defending Dignity,
in HARMFUL THOUGHTS: ESSAYS ON LAW, SELF, AND MORALITY (2002).
2011] A CONCEPT OF DIGNITY 13
body’s sanctity and inviolability often crosses this line.20
There is a crucial difference
between exploring the implications of people’s embodiment for permissible
and impermissible ways of treating them and investing the body itself with moral
value as a site of dignity and as worthy of respect.
To be sure, we often do attach value to bodies and their parts. Since I am righthanded,
my right hand is of greater value than my left. It also makes perfectly good
sense to ascribe greater or lesser beauty, say, to Cleopatra’s nose than to Caesar’s. But
notice that such pragmatic and esthetic valuations measure the body’s value for us, in
contrast to the kind of valuation the idea of dignity signifies, our own value. The
suggestion that the body has dignity thus involves a category mistake. The grammar of
dignity and of respect is concerned with what is done to the person rather than to the
body. What is done to the body attains moral significance derivatively and can be fully
revealed only in a language that pertains to persons rather than to bodies and their
parts. Of course, the value that the body has for us does have a bearing on how our
own value ought to be protected and expressed. But the two―the body’s value and our
own―remain separate ideas that should not be confused.
It would help to avoid the confusion if we attend to the difference between our
ordinary body-talk and our person-talk: not everything done to the body is also done
under the same description to the person whose body it is. This is masked by cases
in which the same verb describes both: to kick John’s leg is to kick John. The same
applies to touching and injuring. However, to break John’s leg is not to break John
and to pierce his ear is not to pierce him. These are trivial examples, and the disparity
they reveal between talk of the body and of the person is easily overcome. We
incline to say that what was done to John in these cases is simply that his leg was
broken or his ear pierced. But in other cases this gap between bodily predicates and
personal predicates is wider and not so readily bridged: touching the genitals may be
molesting the person; pouring water on someone’s head, baptizing him; tweaking
someone’s nose, insulting him. In these cases, we can attain to the normative significance
of the respective actions only by replacing the bodily descriptions with such
verbs as molesting, baptizing, or insulting, which pertain essentially and exclusively
to persons, rather than to bodies.
Conflating body-talk with person-talk can have far-reaching and unwelcome implications.
Here are two examples. First, consider Mary who cuts open John’s chest
and mutilates his body in countless other ways. Yet if Mary is a surgeon, and what
she does is surgery, then all of this bodily devastation amounts to curing John.21
By
20 See CONGREGATION, supra note 12, at 3 (“The body of a human being, from the very first
stages of its existence, can never be reduced merely to a group of cells.”).
21 It may be objected that the example does not reveal the gap I claim, since it can be said that
what Mary does, though in some ways injurious to the body, is designed to heal John’s body, and
so does not require a shift from body-talk to person-talk. I do not find this objection persuasive in
14 ISRAEL LAW REVIEW [Vol. 44: …
failing to distinguish between the bodily and the personal, dominant legal doctrine
leads to the absurdity that every medical operation is a prima facie case of battery, to
which the surgeon need plead a lesser-evil defense. The second example concerns a
cluster of practices, most prominently the sale of human organs, which allegedly
exhibit offensive “commodification.”22
I do not mean to advocate a market in body
parts, but only to warn against a facile and overly confident judgment that such
markets violate human dignity. Only if, say, kidneys themselves had a value beyond
price, would their sale be necessarily offensive. Since dignity resides in the person,
to determine whether selling organs violates human dignity requires that we ascertain
the meaning of such a practice and the message it conveys regarding the value
of the persons whose organs are on sale.
IV. CONCLUSION
Being alert to these and other pitfalls in our way is important, but avoiding pitfalls
does not yet give us a sense of direction and guidance in this difficult terrain. It
would be nice to end on a more affirmative note, by at least gesturing in the direction
of an ontology of persons that can serve as a firm foundation for the concept of
dignity and determine the contours of respect. But instead I must conclude with the
suggestion that no such ontological foundation exists. My reference for this dim
view is the thought of another beacon of the idea of dignity, intermediate between
the Bible and Kant: Giovanni Pico della Mirandola and his famous fifteenth-century
Oration on the Dignity of Man.23
Anticipating such modern strands of thought as
existentialism, post-modernism, and communitarianism, Pico proclaims the theme of
human self-creation, declaring that Man has no essence and must create his own. In
his view, this is what distinguishes humanity from the rest of creation and indeed
gives it its special, elevated worth.
In speaking of human self-creation, Pico is of course not suggesting that human
beings create their own organism. The essence that, in Pico’s view, humanity lacks
but the rest of creation possesses is to be understood in teleological terms. We need
not, however, subscribe to a teleological, Aristotelian worldview in order to be able
to accept Pico’s claim about humanity. Our essence or identity, the answer to the
question what we are, is a matter of our pursuing projects, goals and, in the broadest
this case; talk of healing the body is to use “body” as a metonym for the person. But if you are
troubled by the example, think of electrical shocks, psychoactive drugs, and brain dissection, where
the body is interfered with for the sake of healing the mind.
22 For a general discussion of the issues involved, see, for example, MARGARET JANE RADIN,
CONTESTED COMMODITIES (2001).
23 GIOVANNI PICO DELLA MIRANDOLA, ORATION ON THE DIGNITY OF MAN (A. Robert
Caponigri trans., Washington, DC, Regnery Gateway 1956).
2011] A CONCEPT OF DIGNITY 15
sense, values. In other words, we are sites of meaning, and the meanings we create,
create us.
But this by now should have a familiar ring. I have already implicitly adverted to
some such picture of humanity in discussing Kant’s notion of human intelligibility.
What I called the value of valuation and the notion of human self-creation are two
sides of the same coin, the denomination of which is humanity’s moral worth. To
see ourselves as the authors or originators of our values is to see ourselves as selfcreating
as well. And so what we ultimately appeal to when we make a judgment
about such questions as what a body-affecting action amounts to by way of affecting
the person is the meaning of that action, which is the meaning we give it. And as
Pico helped us see, to mark the ontological void in which we operate and that we
must fill is not to lament a handicap that vitiates the idea of dignity but is rather to
identify the source of this idea and its habitat.