What We Can Learn about Human Dignity from International Law
Rabkin, Jeremy, Harvard Journal of Law & Public Policy
International law was once assumed to regulate the rights and duties of states in their mutual interactions. As such, it might seem far removed from philosophic reflection on human dignity. In the contemporary world, however, "human dignity" has been proclaimed a central concern of international law. The Preamble to the United Nations Charter proclaims "faith in fundamental human rights, in the dignity and worth of the human person." The first sentence in the Universal Declaration of Human Rights appeals to "the inherent dignity and ... the equal and inalienable rights of all members of the human family." (1) Article I of the Universal Declaration affirms that "[a]ll human beings are born free and equal in dignity and rights." (2)
Advocates for the "international human rights movement" often claim that it is grounded in a body of thought that found earlier expression in the framing of the American Constitution. (3) International human rights proclamations are, in this view, simply the contemporary culmination of America's own founding vision.
This claim is, at best, highly distorted. The American Founders, while acknowledging "the law of nations" in the Constitution's grant of congressional power "to define and punish ... offenses against" it, (4) did not indicate that international law could directly secure "human dignity." One reason, surely, is that they understood international law to have a much more confined role than that which is now implied by the Universal Declaration of Human Rights. Perhaps a more important reason is that the Founders also had a rather different notion of human dignity.
In what follows, I want to explore what international law teaches us about human dignity. I will argue that contemporary ideas about the role of international law are grounded on a very misplaced notion of what human dignity is. The classical scheme of international law, as it was known to the American Founders, did not aim at promoting human dignity. The Founders embraced this more limited conception of international law because they understood that human dignity was not something that could be assured by government, let alone by international understandings.
I. DIGNITY IS NOT EQUALITY
To start with, we might notice that the U.N. texts associated "dignity" with equality. This is curious, since "dignity" normally implies a point of distinction: what is dignified is in some way distinguished from the ordinary--or at least from the undignified. When the American Founders talk about "dignity," it is most commonly in relation to the dignity of office, which involves a claim to special respect.
The Founders did speak about equality, but they did so in reference to "rights." (5) The most famous claim about equality in the American founding is the assertion in the Declaration of Independence that "all men are created equal ... endowed by their Creator with certain unalienable Rights ...." The U.N. texts also speak about equal rights, but their drafters evidently supposed that something would be added to claims about rights by linking them to claims about "dignity." On the other hand, the U.N. texts suppress the appeal to divine authority in the American Declaration. (6) Perhaps this omission in the U.N. texts reveals something about the inner logic of internationally approved notions of "human dignity."
It is true that some religious thinkers, in recent times, have embraced the phrase "human dignity." There is dispute, however, about whether this usage comes out of actual religious traditions or is simply a borrowing from secular philosophy. (7) Certainly, the claim about human dignity, as it appears in U.N. documents, does not seem to rest on a religious foundation.
The most famous and influential secular characterization of "human dignity" was offered by the Prussian philosopher Immanuel Kant. (8) Kant certainly linked "human dignity" with equality. He grounded the claim of human dignity in human free will, in the capacity for moral choice. …