Riley - Dignity and the Limits of Political Theology

8/12/2019 Riley - Dignity and the Limits of Political Theology

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precisely that it is possible to lose dignity and decency beyond imagination, that there

is still life in the most extreme degradation.

Giorgio Agamben, Remnants of Auschwitz, 69.

[T]ailors, cobblers, carpenters, blacksmiths, bricklayers; such people, resuming their

customary activity, recovered at the same time, to some extent, their human dignity.

Primo Levi, The Drowned and the Saved, 97.

THE MIRACLE OF DIGNITY

Dignity is a concept with miraculous powers. It both animates and

transcends the ethical. It is not commensurable with positive law and

is not susceptible to politico-legal cost-value calculations. It plays a

foundational and constitutional role in ethics and law through con-

ferring inviolable status on the individual. It floats freely between

principle, value and property, serving to privilege and elevate the

mundane. It elevates humans and humanity and this elevation in turn

invokes divine elevation.

Given laws close relationship with theology it is not surprisingthat dignity at the borderline of the sacred and the profane

continues to have currency in legal discourse. However, the persis-

tence of dignity is noteworthy insofar as law and ethics, in liberal

traditions at least, have been suspicious of such claims to transcen-

dence, and because critical thought has long since disrupted terms

with a similarly theological pedigree. While respect, for instance,

forms part of mainstream ethical, political and legal discourse, a

politics of dignity could easily be synonymous with liberation the-ology and its uneasy marriage of the critical and the canonical.

Consequently, critical analysis of dignity serves a two-fold function.

The first is to decide whether dignity should continue to play the role

that it does in liberal legal theory. Dignity is a vulnerability for,

amongst others, human rights theorists. It plays a foundational role,

which is essential to privilege human rights above other laws, but is

redundant in the application of substantive law and gives rise to

suspicion of an illicit reliance on natural law.1 At worst dignity is

1 Illicit, that is, unless the natural law tradition is embraced, see Costas Douzinas,

The End of Human Rights: Critical Legal Thought at the End of the Century (Oxford:

Hart Publishing, 2000). See also Ernest Bloch, Natural Law and Human Dignity,

Dennis J. Schmidt, trans. (Cambridge, MA: MIT Press, 1988), hereafter: Natural

Law and Human Dignity.

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simply vacuous: it shores up liberal theory by intimating a conception

of the person which is much thicker than the thin Kantian indi-

vidual, but does this through ambiguity and uncertainty.2

A second motive for a critique of dignity is its uneasy relationship

with those postmodern ethics wherein the quasi-theological elevation

of the individual is seen as symptomatic of a conception of humanity

disproved by the Holocaust.3 Dignity is at the core of the Enlight-

enments conception of the person, a conception that, lauding a

rationality tainted by the will to dominate, was unable to protect us

from the unprecedented hell of bureaucratised corpse manufactur-

ing.4 From this perspective dignity is at best awaiting radical critique.

At worst it is the embodiment of a moribund morality enthralled todomination.

Potentially uniting both the liberal and postmodern analyses of

dignity is criticism informed by political theology. Political theology

acknowledging the persistence of theology in politics and philosophy;

displacing the normative with the liminal figure of the sovereign

offers a form of critique that is both genealogical and analytical.5 It

offers critique in the fullest sense through questioning the very pos-

sibility of a notion like dignity (which is of law, but seeks to transcendlaw) and thereby exposes the limits of its use and (re-)appropriation.

Political theology offers a particularly acute critique insofar as dignity

mirrors the structure that Carl Schmitt attributes to the sovereigns

decision: it is both inside and outside law, it resembles a miracle by

appearing within, and in spite of, a (scientific and legal) positivist

worldview.6 Radicalising this critique, we could argue that dignity

persists in liberal and postmodern theory by substituting and imi-

tating the sovereigns decision. Dignity persists only by virtue of a

mimetic power to confuse the individual (the subject of law) with the

sovereign (the limit of law).

2 Mirko Bagaric and James Allan, The Vacuous Concept of Dignity,Journal of

Human Rights 5/2 (2006), 257270.3 Zygmunt Bauman, Modernity and the Holocaust (London: Polity Press, 1989).4

Max Horkheimer and Theodor W. Adorno, The Dialectic of Enlightenment,Edmund Jephcott trans. (California: Stanford University Press, 2002). Hannah

Arendt, Social Science Techniques and the Study of Concentration Camps, Jewish

Social Studies 12 (1950), 4964.5 Carl Schmitt, Political Theology: Four Essays on Sovereignty, George Schwab

trans. (Chicago: Chicago University Press, 2005).6 Ibid., at 36.

OBSERVING THE BREACH: DIGNITY AND THE LIMITS 117


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While acknowledging the force of these arguments, this article,

centralising the phenomenology of dignity, suggests that the vacuity

of dignity is matched by its usefulness in denoting loss and per-forming solidarity. Dignity is used to denote loss of capabilities and

loss of recognition, and its deployment represents an act of solidarity

in response to this loss or diminution. This conclusion is accom-

plished in three steps. First, by considering clinical and legal litera-

tures on dignity where this loss or breach of dignity is charted.

Second drawing upon Wittgenstein suggesting that language-

games invoking dignity should be understood in terms of a negative

capacity to foreclose comparison and thereby perform solidarity by

insulating an individual from further comparison. Third, turning tothe work of Ernst Bloch, by arguing that dignity can be salvaged for,

and does not generate anaporiain, law and ethics so long as dignity is

seen as rooted in a dialectic of breaches of the human and protean

human happiness, rather than being a trace of a pre-legal solidarity or

a species-based ontology. Finally, the paper reflects on the possible

contribution of political theology in the light of these conclusions. In

sum, the paper will seek to justify tentatively some deployments of

dignity and it thereby submits that analysis via political theology doesnot always yield a rounded reading of theologically conditioned

terms. Before turning to deconstruction and political theology the

paper will consider (respectively) dignitys etymology, analytical

debates in philosophy, and phenomenologies of dignity.

DIGNITY: ONTOLOGY, BEHAVIOUR, RELATIONSHIP

The etymology of dignity is important because it reveals an equivo-cation at work in English. This equivocation is based on two related

pairs of terms, value and worth, and grandeur and elevation.7 Its

earliest Latin root, dignitas, indicates three separable sets of conno-

tations all close to grandeur/elevation. The noun dignitas denotes a

Roman religious role, from which we derive our term dignitary.8

Second, dignitas designated the metaphysical, rather than temporal,

qualities of the ruler:dignitas non moritur[dignitas, unlike the body of

the ruler, does not die].9 Third, dignity more broadly connoted the

7 Oxford English Dictionary.8 Ibid.9 Giorgio Agamben, State of Exception, Kevin Attell trans. (Chicago: University

of Chicago Press, 2005), at 83.

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bearing associated with the role ofdignitasor ruler.10 This endures in

modern English as behaviour that is dignified. Ciceros discussion of

dignity conducted largely negatively by identifying what dignitydoes not denote highlights an important negative dimension to

dignity-as-behaviour.11 That is, dignified behaviour is often for-

bearance i.e. resistance to action rather than a distinctive set of

behaviours.12

In the modern era dignity ceased to be exclusively linked to the

grandeur of a role or status and gained a wider, and more flexible,

meaning of worth or value. This remains a form of elevation. To

have worth or value is to be elevated above something else (the

worthless or valueless). In the Abrahamic religions human activity iselevated in relation to the rest of Creation.13 However, we can

attribute elevation without necessarily attributing grandeur. More-

over, the worth or value associated with dignity can and does func-

tion in isolation from elevation. In other words, dignity denotes

worth or value by denying comparison: an individual or act has

worth or value even where, in comparison, it might be thought that

value is lacking.

Consequently, dignity carries with it from classical and earlymodern thought into modernity the sense of unconditional value or

immutable intrinsic value. Because of this movement from relational

to intrinsic meaning, it is common from at least the Eighteenth

Century (in German as well as English) to appeal in ethical discourse

to the compound human dignity as opposed to simple dignity

thereby indicating an intrinsic or inalienable value that humans

possess but commodities do not.14 What this intrinsic property con-

sists of and whether it is a purely intrinsic property is a question

10 Giorgio Agamben,Remnants of Auschwitz: The Witness and the Archive, Heller-

Roazen trans. (New York: Zone Books, 1999), at 67.11 Cicero contrasts dignity with the obscure, dirty, ugly, contemptible. See David

Kretzmer and Eckart Klein, eds., The Concept of Human Dignity in Human Rights

Discourse (The Hague: Kluwer Law International, 2000), at 23.12 On nobility and resistance to stimulus see Hamiltons work on Nietzsche.

Christopher Hamilton, Nietzsche on Nobility and the Affirmation of Life, Ethical

Theory and Moral Practice 3 (2000), 169193.13 Herschal Baker, The Dignity of Man: Studies in the Persistence of an Idea

(Harvard, MA: Harvard University Press, 1947).14 Hume uses dignity exclusively, while Kant uses the German Menschliche

Wurde human throughout his ethical works. Dignity of Man has stoic origins

while human dignity (as humana dignitas) is used,inter alia, by Aquinas (Kretzmer

and Klein eds., supra n. 11 at 36).



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that has engendered a line of philosophical debate that can be traced

from Hume to Marx, via Kant and Hegel.

Hume, in characteristically agnostic fashion, takes to task boththose who see grandeur and elevation in humans and those who deny

this.15 Neither the exalters of humanity nor the denigrators of

humanity are consistent or coherent: humans en masse exhibit in

equal measure both bestiality and divinity, and as such taking either

as axiomatic serves only rhetorical ends. Hume criticises those eager

to attribute or deny elevation and grandeur, but Hume is far from

denying human worth or value. Humans do instil their life with value,

and their actions do have worth, and to that extent humanity is

synonymous with dignity. This is a position that is clearly conform-able to contemporary understandings of dignity. Dignity as gran-

deur/elevation is meaningful to the extent that humans are indeed

capable of great things, but we attribute dignity to everyone, not just

royalty, because dignity means a minimum level of value rather than

semi-divinity.

A second key philosophical account is provided by Kant. Kant

uses dignity to denote value or worth derived from our privileged

metaphysical status as autonomous and rational beings. It is ourunique capability to exercise rationality and autonomy that allow

humans to be both moral agents and moral subjects.16 These basic

characteristics are together the grounds for affording respect to

others, calling upon us to treat others, never simply as a means, but

always at the same time as an end.17 At root, Kant sees our ratio-

nality and autonomy as synonymous with our not having a price;18

that we are outside any instrumental relationships or valuations (be

they commercial or consequential). We are of incalculable value and

we admit of no equivalent.19

Dignity for Kant is intrinsic worth. This intrinsic worth, reflecting

our noumenal selves, is outside the relative values of the phenomenal

world and located within reality in-itself. Hegel did not contest this

15 David Hume, Of the Dignity or Meanness of Human Nature, in Thomas H.

Green and Thomas H. Grose eds., Hume: The Philosophical Works (Germany:

Scientia Verlag Aaalen, 1964).16 Immanuel Kant, Groundwork of the Metaphysics of Morals H. J. Paton trans.

(London: Harper and Row, 1964), at 101.17 Ibid., at 91, emphasis in original.18 Ibid., at 96.19 Thomas E. Hill, Dignity and Practical Reason in Kants Moral Theory (New

York: Cornell University Press, 1992).

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worth, but contested the location of it, placing dignity and ethics as

a whole in recognition.20 This recognition is in part self-recognition,

and Koje` ves account of Hegels Phenomenology invokes dignitywithin its opening sentences: Man is Self-Consciousness. He is con-

scious of himself, conscious of his human reality and dignity [].21

Hegel avoids equivocation between the intrinsic (our value as indi-

viduals) and the extrinsic (recognition of that value) by seeing the

synthesis of the two in concrete practices that realise abstract free-

dom: that dignity would be achieved in circumstances where the ra-

tional state affords the grounds for living rationally and offers

concrete realisation of dignity. To this extent Hegels position, and

indeed Hegels critique of Kant, can be summarised by Schiller:

Nichts mehr davon, ich bitt euch. / Zu essen gebt ihm, zu wohnen. / Habt ihr die

Blo sse bedeckt, giebt sich die Wu rde von selbst.

[No more on this, I pray you. / Give him food and shelter. / When you have covered

his nakedness, dignity will follow by itself.]22

Schiller, like Hegel, locates dignity in a concrete relationship where

another is recognised as both an object of ethics and an ethicalsubject (deserving of food, shelter and clothing, etc.). Note that

Schillers irascibility (no more on this) is also instructive: the po-

tential obfuscation of debate that dignity creates is, and should be,

replaced with concrete human relationships.

If Kants dignity claim can be summarised as humans lacking the

status of a commodity (having no price) and Hegel relocates ethics at

the intersection of abstract and concrete, it is in the Marxist approach

to the individual that we find both the fullest exploration of the indi-

vidual as an agent who does have a price, their labour, and where

Hegels purported synthesis of abstract and concrete is given flesh. In

this context we encounter the dignity of labour. One example:

[Work was a form of defence] for the few in the Lager [i.e. Auschwitz] who were

made to exercise their own trade: tailors, cobblers, carpenters, blacksmiths, brick-

layers; such people, resuming their customary activity, recovered at the same time, to

some extent, their human dignity.23

20 Douzinas,supra n. 1, particularly Chapter 10.21 Alexandre Koje` ve, Introduction to the Reading of Hegel, James H. Nichols

trans. (New York: Basic Books Inc., 1969), at 3.22 Kretzmer and Klein, eds., supra n. 11, at 36.23 Primo Levi,The Drowned and the Saved(London: Abacus Books, 1991), at 97.



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In terms of the early (Hegelian) Marx this is recognition ofhomo

laborans, labouring man realising his species being; in terms of the

later Marx this is perception of man within a relation of productionand an ensemble of human relations.24 The passage itself, from

Primo Levi, describing the restoration of dignity in the face of the

death camp (and its ostensive rejection of the impossibility of dignity

in Auschwitz) is a source that will be returned to. Suffice it to say,

Levi and Marx together represent a final, analytical, turn in philos-

ophy from intrinsic to extrinsic conceptions of dignity. Dignity for

Marx and Marxism is part of material conditions constituted by la-

bour rather than a reification of metaphysical elevation.

This strand of philosophical debate generates more questions thanit answers. If dignity is ontological, this explains why it is universal or

inexorable, but it is not clear why or how we could say that people are

capable of losing their dignity through the acts of others. If dignity is

wholly relational we can make sense of how dignity can be withheld,

but this possibility does not sustain the universality of dignity. If

dignity is behavioural this makes sense of how it is potentially uni-

versal and capable of being lost, but this problematises attributing

dignity to those who are incapable of autonomy or who have aconstrained repertoire of behaviours (the foetus, the disabled, the

excluded, the disenfranchised etc.). One possible answer is to distin-

guish human dignity as ontological, from dignity simpliciter as

behavioural. However, this is problematic as the two terms are not

used consistently in these senses.25 We can, alternatively, cut through

these debates pragmatically by asking which is the most useful ana-

lytical approach to dignity. Recognition of dignity seems the most

plausible account from a position of postmodernity. In a number of

strands of contemporary ethics recognition is an interpersonal but

not heterogeneous foundation for ethics,26 recognition becomes the

basis of those ethics that seek to avoid the twin dangers of empty

formalism and authoritarianism. What precisely is being recognised

when we talk of dignity is more problematic. If it is the other (in their

24 For an account of the transition between the two see Norman Geras, Marx and

Human Nature: Refutation of a Legend (Thetford: Verso, 1983).25 This is true of Bloch (see below). Inconsistency is discussed by Gerald L.

Neuman in his On Fascist Honour and Human Dignity: A Sceptical Response, in

Christian Joerges and Navraj Singh Ghaleigh, eds., Darker Legacies of Law in

Europe: The Shadow of National Socialism and Fascism over Europe and its Legal

Traditions (Oxford: Hart Publishing, 2003), at 267273.26 Ernest Levinas, The Levinas Reader (Bodmin: Blackwell Publishers, 2000).

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alterity or particularity) it is not clear what the language of dignity

adds to this. Recognition also seems plausible from the perspective of

liberal theory, although, again, what is being recognised could besummarised more directly as the rights-holding status of the indi-

vidual.

Aside from the demands of liberal and postmodern theory, natural

language and colloquial English would suggest that behavioural ac-

counts of dignity are the most readily intelligible for example,

dignified behaviour/acting with dignity/treated with dignity and

to that extent are preferable to philosophical discourse. Conversely, a

behavioural understanding of dignity threatens to be identified with

grandeur in behaviour. Although dignity has been construed nega-tively and more interestingly as forbearance it seems unable to ex-

plain the kind of work that dignity does, not least that it is providing

a foundation for ethics and law. Indeed, the difficult question of

whether a behavioural account can avoid triviality will be discussed

below with reference to the work of Ernst Bloch. Suffice it to say at

this point, behavioural dignity falls short of analytical usefulness

unless it can offer something more universal than grandeur, more

particular than forbearance, and more individual than distinctivelyhuman characteristics.

If there is no simple pragmatic or natural language answer to the

best analytical account of dignity, the philosophical tradition (Hegel

and progeny notwithstanding) has generally stipulated that dignity is

an ontological characteristic of humanity. Ontological accounts are

recognisable from strongly rhetorical uses of dignity. For example,

the Dignity of Man is ponderous, if not entirely unintelligible.

Should we simply accept this ontological reading? Unfortunately,

there is reason to question the value of this philosophical inheritance,

not least because an ontological claim is non-cognitivist (i.e. it gives

ethics a concrete grounding in reality) bringing with it a multitude of

other ontological problems, not least the question of precisely what

features of reality correspond to it. Alternatively, a form of cogni-

tivism might be preferable, perhaps in the form we perceive the

dignity of man and this forms a self-contained, cognitive, foundation

for ethics. In turn, dignity as cognitive foundation for ethics may

ultimately lead us to other reductive or meta-ethical conclusions.First, its use may be purely rhetorical: we may be stipulating some-

thing that has no meaningful correlates in reality. While this is pos-

sibly true it is also question-begging: on what basis does this rhetoric

have efficacy? Second, dignitys use might be reduced to a perfor-



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mative function; dignity may be performing rather than indicating.

The work of the road sweeper has its own dignity may not only

express the common humanity that is felt with the cleaner, but per-form it simply by virtue ofbeingan act of solidarity. This possibility,

again, will be returned to below. In sum, analytical, pragmatic and

natural language discourses surrounding dignity indicate that it

would be better to approach dignity in cognitivist terms and with

close attention to meta-ethical, rather than ethical, questions. At the

same time, the rhetorical efficacy of dignity, and its potentially per-

formative function, means that enquiry cannot terminate with natu-

ral language. Consequently turning to the dialectic between the law

and the phenomenology of dignity I will seek first to considerauthorised accounts of dignity found in contemporary legal dis-

course. Second, by contrasting this with phenomenology, I seek to

make sense of its rhetorical and performative potential and prevent

too ready an abandonment of dignity to (logical and legal)

positivism.

THE LAW AND PHENOMENOLOGY OF DIGNITY

For all of the nuances generated by analytical debate, we can easily

see the appearance of dignity. We can see the dignity of dignitaries

their grace, forbearance, thoughtfulness, caution and we can also

see the dignity of the bereaved when they refrain from (or spare the

non-grieving) strongly affecting public displays of emotion. We also,

however, need to grapple with more difficult cases: whether we sim-

ilarly see death with dignity, the dignity that animates human

rights, or the dignity that prefaces constitutions. The constitutionalimportance attached to dignity certainly indicates a singular, if not

profound, importance in law. Dignity is the founding principle in a

number of actual constitutions (inter alia Israel, Germany, South

Africa) and was intended to be a founding principle in the European

Unions constitution.27 In each of these cases dignity elevates and

makes inviolable the individual; it also animates the constitution

through premising the instrument on humanity generally, and those

humans in particular that fall within the constitution (no doubt a

reflection of the contractarianism at work in modern constitutionallaw). Dignity also plays this role in international human rights

27 See generally, J.A. Frowein, Human Dignity in International Law (in

Kretzmer and Klein, supra n. 11, at 121132).

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instruments, though with an added complication.28 Like constitu-

tional dignity, dignity in the preamble of a human rights instrument

invokes concrete humans, it denotes the very humans that privilegehuman rights over other rights. In terms of the orthodox rights

theories of Dworkin or Rawls it privileges these humans by placing

constraints on the means that may be employed to achieve social

ends. However, in addition to this, dignity in human rights instru-

ments simultaneously serves as a synecdoche for human rights: the

realisation of dignity is (it is suggested) the total realisation of human

rights. Dignity indicates a holistic understanding of human rights

linking them with a social, legal and political milieu in its entirety.

This positive, constitutional, construction of dignity also offers adeontological principle, which is not susceptible to consequentialism.

In actual fact, in some legal contexts it comes close to a categorical

imperative in the form of a non-derogable principle that cannot be

contracted out of.29 At the same time this leaves unclear the crucial

question of what positive correlates, if any, dignity has with humans

and behaviour. A constitutional dignity has no clear relationship

with behavioural dignity.

However, if we concentrate on what constitutional dignity seeks todo negatively i.e. constrain the use of particular means; prevent the

piecemeal implementation of human rights then overlap with

concrete human behaviour becomes clearer. Most importantly, dig-

nity is often observed in the breach rather than denoting a positive

or verifiable set of characteristics. Torture is a prime example of how

dignity appears in this way. Torture involves substantial harm both

physical and psychological and enduring harm that diminishes the

individual through reducing or destroying certainty, security and

autonomy.30 The loss of dignity that torture involves is not easily

explicable in (positive) terms, but more easily in (negative) terms of

loss: loss of autonomy, of value, of rights, perhaps of worth and

value, perhaps of grandeur and elevation. The absence or loss can be

construed in terms of the legal standing of the individual as an

autonomous rights-holding individual. It is also perhaps, and

28

See the Preamble to, and Article 1 of, the Universal Declaration of HumanRights (1948).29 Supra, n. 27. The problem with attributing this jus cogens status to dignity is

that without clear substantive formulation it is not clear what has been contracted

into in the first place.30 George Kassimeris, Barbarisation of Warfare: Barbarity, Morality and Torture

in Modern Warfare (London: Ashgate, 2006).



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differently, a loss of humanity, i.e. a loss of distinctive human char-

acteristics and behaviours including self-awareness and self-control.

Accordingly, dignity is recognised as a fundamental principle in thepreamble to the Torture Convention.31 Ratification of the Conven-

tion entails: Recognizing that those rights derive from the inherent

dignity of the human person []. International humanitarian law,

which we would expect to echo law on torture, is different in pro-

viding a substantive legal provision. Outrages upon personal dignity

is found in common Article 3 of the Geneva Conventions32 and is

generally understood to prohibit degrading treatment that grossly

impacts on the psychological or physical well being of the individ-

ual.33 Here, in some case decisions, and in secondary literature,34

there is an elision between torture and inhuman and degrading

treatment.35 It is tempting to see loss of dignity as synonymous with

gross injustice and certainly appeal to the inherent dignity of the

human person draws attention to the distance between human

inviolability and the gross violation of torture. Nonetheless, this does

not concretise dignity itself it leaves dignity to be glossed and elided

with substantive law and in large measure the paucity of evidence

and jurisprudence surrounding dignity is more revealing than its legaldeployment. In sum, the weight attached to dignity in the legal

context of torture is less revealing than the phenomenology of

dignity.

Clinical and medical literature on dignity provide a similar picture.

Dignity plays a role in bioethics because it usefully combines dis-

cussion of patient autonomy, patient rights, and in particular, the

potential loss of patient autonomy within clinical settings and deci-

sion-making processes.36 The maintenance of dignity in clinical set-

tings demands the recognition of the potential for the individual to be

diminished by both natural causes and through the negation of the

31 UN Convention Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment (1984).32 Also, Article 75 of Protocol Additional to the Geneva Conventions (#1) (1977).33 It has been claimed in this context that humanitarian law and international

human rights law are linked by the fact that they both arise from dignity: see

Prosecutor vs. Anto Furundzija, (1995) ICTY Case No. IT-95-17/1, para. 183.34 For example, Human Rights Watch 2004, The Legal Prohibition Against

Torture, http://hrw.org/press/2001/11/TortureQandA.htm#. Accessed 10 January

2008.35 For example, Ireland v UK(1976) 2 E.H.R.R. 25.36 Deryck Beyleveld and Roger Brownsword, Human Dignity in Bioethics and

Biolaw (Oxford: Oxford University Press, 2001).

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individual in clinical decision-making. This is highlighted perfectly in

discourses of death with dignity: invoked where diminution through

natural causes is inevitable but where, crucially, steps can be taken toensure that distinctive needs are recognised and that recognition of

the individual that is dying is not lost.37 Loss of recognition is crucial.

Recalling the Hegelian account of dignity, recognition as an ethical

agent and as a rights-holder is the concretisation of ethics; clinical

environments can involve the loss of this recognition particularly

where an individual is diminished through age. Again, this is dignity

as holistic, linking rights and law together with the individual and

the social.

The rhetorical function of the invocation of dignity in legal andclinical contexts should by now be clear: the inviolable, elevated,

individual on the one hand, and a holistic understanding of the

individual and of human rights on the other. The creative use of

dignity by scholars as a potential constitutional principle for the

international arena,38 or as a heuristic for guiding justified humani-

tarian intervention39 replicates, without clarifying, this bivalent

function. International law, they suggest, should be both individual-

focussed and holistic. The jurisprudential significance of dignity iseven less clear. In substantive terms dignity can always be cashed-out

into rights violation, clinical governance, recognition of human

rights, inhuman or degrading treatment and other clearer princi-

ples. This generates a crucial weakness fuelling a potential critique via

political theology. First, by allowing dignity to be an animating

principle, but not a component of, constitutional and human rights

instruments, we isolate it from substantive formulation and therefore

critical scrutiny. It is encompassed within law in order to found the

law rather than be explained by the law. Second, by intimating

something more holistic than positive law we connect the inside

and outside of law: whether in legal or clinical settings, dignity

straddles interiority and exteriority. Third, by placing this shifting

principle at the heart of a constitution we inchoately acknowledge the

essence of sovereign power (both within and without law) but do this

without making an explicit link with the raw power of the sovereign

37 Ibid., 233f.38 Myres S. McDougal, Harold D. Lasswell and Lung-Chu Chen, Human Rights

and World Public Order: The Basic Policies of an International Law of Human Dignity

(New York: Yale University Press, 1980).39 Nikolaos K. Tsagourias,Jurisprudence of International Law: The Humanitarian

Dimension (New York: Juris Publishing, 2000).



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to suspend law. Like the sovereign, dignity is a self-contained, suffi-

cient, explanation of the relation of law and non-law; unlike sover-

eignty, dignity invokes the implied consent of the social contractrather than the fiat of a single ruler.

What, though, of dignitys undeniable power to articulate loss or

breach? Dignity as only perceived when it is lost or as observed in

the breach articulates something valuable. There is certainly some

consensus in the literatures of torture, healthcare and bioethics that

dignity appears in limit situations where humanity is potentially

diminished or destroyed. The deployment of humanity is undoubt-

edly contentious and I will return to this below in discussion of

political theology. A more immediate line of enquiry, however, iswhether the diminution that dignity denotes can be unpacked into

clearer sets of characteristics or capabilities.

DIGNITY: LOSS, BEARING, SOLIDARITY

Following the forgoing discussion we should replace the analytical

tripartite division (ontology, behaviour, or relation) with a phe-

nomenological schema of loss-bearing-solidarity. This follows di-rectly from the fact that the tensions and discrepancies between a

phenomenology of dignity and the legal construction of dignity

cannot be resolved by appealing to the analytical debates with which

we commenced. Rather, the endurance of dignity must be recon-

ceived in terms of meaning that is negotiated and accomplished in the

whole range of discourses in which it is deployed. This range of

discourses has already been alluded to (clinical, ethical, legal) as have

the core of meanings (loss, bearing and solidarity). The question ofdignity then becomes whether, even if we have a phenomenologically

robust analytics of dignity, we can separate meaningful and mean-

ingless uses of dignity and how this should be redirected back to-

wards the philosophical tradition.

Is the use of dignity rule-governed? The structure of its use is

certainly not constrained by its etymology. It can be substituted for

value, worth, grandeur or elevation in many circumstances,

bringing with it both intended and unintended theological connota-

tions. At the same time, its use is roughly, though not definitively,determined by the tripartite phenomenological division. Dignity is

primarily used to foreclose comparison, indicating that a negative

comparison, with other people or between the human and the non-

human, should not be made. This closure of comparison is itself an

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act of solidarity, elevating or dignifying another by indicating that

valuation and comparison have to cease. More specific connotations

lie in loss (the loss of human capacities) and bearing (an uncertainclass of human behaviours). If solidarity, loss and bearing appear

together at all it is in the breach. This breach is the diminution of the

individual but note that the term breach should also be read as

serving a meta-ethical function: breach connotes the existence of a

boundary in ethical discourse, a boundary where valuations should

cease.

Both of Wittgensteins accounts of meaning allow us to make

sense of the fact that dignity is simultaneously rule governed and not

bound by its etymology. Meaning is forged within social interaction the intertwining of the threads of language from one register to

another40 and social interactions including dignity involve the

ending of debate, the cessation or end-point of discussion. Dignity

therefore appears particularly laden with meaning not only because

of its etymology but because of its being a limit point to meaning

where explanation ends. By performing solidarity through indicating

an end-point of debate, dignity (in terms of the early Wittgenstein)

shows what cannot be said: it becomes an ethical term simply bydisallowing further comparison, thereby performing that the object

dignified admits of no comparison. As such, a Wittgensteinian

language-game of dignity gives us Kants conclusion without the need

for any further metaphysical or deontological assumptions. Humans

are placed outside of valuations and valuation relationships not be-

cause of metaphysical status but because we can choose to perform

this cessation of valuation through the deployment of a single term:

dignity. On this basis alone we have made a small but significant

concession to the maintenance of dignity. As part of language games,

be they medical, clinical or meta-ethical, dignity has a grammar and

has a function in eliding loss and diminution (in sum, the breach of

the human) with the performance of ethics.

Once we take statements as performatives [] they must be analysed in terms of the

full context of utterance, and we must take into account all the situational con-

straints that determine whether the speech act has been properly performed or not (in

Austins terms, whether it is happy or unhappy).41

40 Henry Staten, Wittgenstein and Derrida (Oxford: Blackwell, 1985), at 94.41 Ibid., at 113.



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There are forms of life where dignity functions predictably and to that

extent it is meaningful. This simple point means that the language of

dignity can and should be seen as a meaningful component of ethics,one that still resonates with Kantian ethics but one that is potentially

separable from Kantian deontology and metaphysics. This concession

serves as an important prelude to a richer textual analysis of dignity.

In Ernst Blochs Natural Law and Human Dignity we find a

reading of dignity bringing together bearing, loss and solidarity.

Bloch saw dignity as the realisation of both human solidarity (in the

Marxist sense) and human respect and autonomy (in the Kantian

sense).42 Moreover, Bloch portrays the minimal claims of dignity as

arising perennially in natural law as the claims of the disenfranchisedto legal recognition through law. [A] truly radical principle [] of

natural law [is] The world without arbitrariness, with human

dignity.43 The challenge is to appropriate natural law discourse,

rejecting its reactionary shell, and synthesising its minimal postu-

lates with full-blooded Marxism.

Whereas the social utopias developed the postulates of human happiness, Bloch

argues that the postulates of human dignity were developed, in most cases, by natural

law. Moreover, in some respects, natural law was more radical than the social uto-

pias, in that it provided general postulates rather than abstract detailing.44

Bloch seeks to naturalise socialism through its relocation into the

history of natural law. This is accomplished, in part, through

exploration of the consequences of nature being compatible with

both nomos and physis, both human conventions and natures laws.

In turn this allows an alternative genealogy of ethics. That is, an

alternative to histories of ethics that cleave the eudaimonistic from

the nomological, acknowledging thenaturallaw in both. Natural law

condenses those minimal claims to recognition and status that are

perennially made by the excluded. Accordingly, Blochs history is

grounded in the perception of injustice, a perception that there is

injustice in small, avoidable situations of degradation, and that there

is, conversely, justice in an (otherwise mundane) upright carriage.

Fundamentally, dignity is a necessary, but not sufficient, condition

of utopia. Utopia requires human happiness in its multiplicity of

42 Natural Law and Human Dignity, at 207208.43 Ibid., at 84.44 Wayne Hudson, The Marxist Philosophy of Ernst Bloch (Salisbury: The Mac-

millan Press, 1982), at 165.

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possible forms, and a historical dialectic of minimal dignity and ful-

some human happiness is the core structure that Bloch bestows to a

discussion of dignity. But Blochs utopianism is far from Panglossian.Blochs philosophy is philosophy of the not yet, the continual

deferral of the possible, which recognises the potential for oppression

in any presently conceivable political order. Blochs work is future

orientated, finding the seeds of the future in the conscience of the

past, including natural law. Blochs position is also cautionary: the

realisation of universal dignity would be the realisation of all of those

features thought desirable in a political order (respect, order, consent

and justice) but through the continual violation of dignity (on one or

all of these grounds) this ultimate synthesis is, at best, not yet.Blochs Marxism is idiosyncratic, not least in that he does not

presuppose the existence of a pre-legal solidarity. Pre-legal solidarity

in the double sense of predating and forming the foundation of law

implicit in many Marxisms, relies heavily on humanity, human

nature, and the human condition. Bloch on the other hand sees a

complex relationship between law, ethics and solidarity, which is not

dismissive of the role of law in the trajectory of social change.

Radicalsubjective natural law and its claim each according to hiscapabilities, each according to his needs andradicalobjective natural

law,solidarity, suffice as postulates for steering laws, and they suffice

concretely.45 Moreover, a pre-legal solidarity based on species (or

any other basis) fails to acknowledge the evolution of human nat-

ure. Radical natural law can only be founded upon a view of human

nature that is not yet closed and determined to its end.46 To this

extent Blochs work precisely anticipates and avoids some dangers

exposed in Derridean deconstruction and its exposure of the privi-

leging of, present, settled, Being in Western Metaphysics.

Blochs work as a whole is subject to a Derridean critique; it also contains elements

for a positive deconstruction of Western metaphysics against Derrida, based on the

insight that the meaning which is never completely present has positive rather than

negative connotations.47

That meaning (in the context of dignity) is the perennial breach of

dignity and the remedy ofhope, a remedy that is only partially present

or not yet in an eschatological sense. [T]he eschatological now and

45 Natural Law and Human Dignity, at 237, emphases in original.46 Ibid., translators intro. xviii.47 Hudson,supra n. 44, at 216.



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not yet, which implies that the end is, present now in an unprob-

lematic manner, but still to come in its actual realisation.48 In this

sense Bloch already anticipates certain deconstructive manoeuvres.49

By resisting conventional epochal readings of history or of the future,

and by premising his analysis on an unsettled ontology, Bloch resists

feigning the presence or simple modalization of presence.50 By

recognising the presence of the possible, and the contingency of the

necessary, Bloch anticipates the deconstructive attack on metaphys-

ics, which denigrates the possible and the contingent in favour of the

necessary and present. Dignity is part of this unfolding of the not

yet: the perception of injustice and the absence of dignity is the spur

to hope. The bent back, negating the upright carriage, bespeaks itsopposite human dignity but recognising that this dignity will not

be fully realised with the restoration of the single individual. The

conditions for a universal human dignity have not yet been realised.

From the outset, Bloch is not reluctant to use a behavioural

understanding of dignity, not least because this behavioural under-

standing was also amenable to Marx. There is just as little human

dignity without the end of misery as there is happiness without the

end of all old and new forms of subjugation. [Natural Law and Hu-man Dignityconcerns] what is right and just and yet still outstanding:

the problem of the upright carriage.51 Rather than dwell directly on

this behaviourism, however, it is interesting to note the use in Blochs

work of both dignity and human dignity. Bloch does not neatly

divide ontological human dignity from relational or behavioural

dignity; the two are interchangeable and reflect, at different times,

all three analytical possibilities. Occasionally Bloch is tempted by an

intrinsic or ontological definition: the condition that is best for

mankind and worthy of its dignity.52 At other times he prefers

reification: the pathos of human dignity.53 Human dignity, with its

species quantifier, is significant for the distancing effect it entails.

After the immediacy of the upright carriage, a species quantified

48 Ibid., at 24.49 Tarik Kochi, Anticipation, Critique and the Problem of Intervention:

Understanding the Messianic: Derrida Through Ernst Bloch, Law and Critique 13

(2002), 2950.50 Jacques Derrida, Force of Law: The Mystical Foundation of Authority,

Cardozo Law Review 11 (1990), 9191045, at 991.51 Natural Law and Human Dignity at xxx.52 Ibid., at 10.53 Ibid., at 6.

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dignity restores the ponderous, theologically laden tones of Roman

dignitas(although, simultaneously, there is undeniably an intimacy in

this pathos of human dignity). Furthermore, Bloch is clearly notreluctant to embrace the theological connotations of dignity in his re-

appropriation of dignity and human dignity is clearly part of this

inheritance. But the species quantified human dignity invokes Kant

(human dignity is humans and humanity outside commodity rela-

tions) when Bloch only really requires the performative dignity of

Wittgenstein and the dialectics of Marx. Dignity is part of a dialectic

of the negative (dignity and the breach and diminution of individuals)

and the positive (hope and happiness). Within this dialectic there is

simply no need for species being.In sum, Bloch leaves us with two positions: dignity as part of a

dialectic within realitys unsettled ontological categories, and dignity

perceived in the diminution of a reified humanity. In the first case

dignity concerns apromiseof solidarity: that in the future there will

be conditions such that everyone can be recognised as human. In the

second we see a hint of the performative but with an otherwise

unnecessary invocation of humanity. Again, Blochs account, by

deploying the species-quantifier, re-introduces the deontologicaldimension of Kant with both its thin conception of the person, and

the kingdom of ends. Kants kingdom of ends is precisely what Bloch

needs to avoid accepting as the exclusive meaning of a future-orien-

tated ethic of hope, maintaining the more negative potential to simply

foreclose debate. In essence, human dignity restores the Kantian

conception of dignity, a conception that contains metaphysical and

deontological commitments that Bloch can, and should, otherwise

avoid. The continuing attraction of Blochs account is its reconnec-

tion of dignity with law, core values, and Marxist solidarity. How-

ever, by emphasising dignitys genealogy, Bloch drowns the simple

ethical intuitions that otherwise forms such a strong component of

his work in Kants ontologically static dignity-as-value.

POLITICAL THEOLOGY: LAW, DIGNITY AND THE CAMP

Having considered both Blochs merits and deficiencies we should

discount one immediate, but disingenuous, line of response frompolitical theology: that by accepting aspects of Blochs natural law of

dignity we are explicitly committed to a theology and messianism

which is acceptable in neither liberal theory nor in postmodern ethics.

Suffice to say, Blochs ontology involving the evolution of the real,

and concomitant deferral of the ultimate synthesis of happiness and



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dignity owes little to conventional theology. Further, his eschatol-

ogy is separable from messianism. Compare another work of future-

orientated MarxistJewish messianism, Walter BenjaminsCritique ofViolence.54 Behind Benjamins account of violence is a suspension of

assumptions from both natural law and positivism. Both foreclose

analysis of violence with their own assumptions concerning the

relationship of means to ends. Similarly, if we allow dignity to be

dismissed immediately in simple theological terms we lose sight of

any possibility of re-appropriating it.

How can even minimal uses of dignity be justified in the face of

critique via political theology? The minimal use of dignity denoting

and connoting breach, and the continuing temptations of Kantianism(illustrated by Bloch), have already indicated that dignity may at times

be overwhelmed by its genealogy and enormous demands made upon

it by law and ethics. This is never more apparent than in the rela-

tionship between political theology and post-Holocaust ethics where

dignity, precisely because of its complex pedigree, has become the

fulcrum of questions concerning the existence of an ethical or legal

rupture wrought by the Holocaust.55 Is what Kenneth Reinhard says

about Schmitts friendfoe distinction, equally true of dignity?

The friendenemy distinction remains significant when we understand it as a

symptomof political theology, an attempt to formalize the political against the threat

of the theological that is, as the politicals defense against destabilizing aspects of

its own theologism.56

If dignity is politics self-defence it is an even more insidious form

of self-defence than the friendenemy distinction insofar as it is both

ostensibly compatible with liberal thought and insulated from legal

and ethical interrogation. Importantly, the language of dignity has

played a recurrent role in discussion of the Holocaust and it is these

discussions that will form the basis of a counter-critique.

The Muselmanner the walking dead of the death camps, defined by

their bent backs, their lack of upright carriage are the negation of

dignity. If there is solidarity in the possibility of recognising dignity,

and dignity in the recognition of solidarity, then the bowed back of the

54 Supra n. 50, at 985.55 See J.Q. Whitman On Nazi Honour and the New European Dignity, (in

Joerges and Ghaleigh, eds., supra n. 25).56 Slavoj Zizek, Eric Santer and Kenneth Reinhard,The Neighbor: Three Inquiries

in Political Theology(Chicago: University of Chicago Press, 2005), at 11, emphasis in

original.

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remnants of Auschwitz, whose faces do not admit of recognition,

demonstrate that there is a point at which recognition and solidarity are

rendered impossible. In terms of the human, when it becomes possible,with Levi, to pose the question ifthisisamanthenitispossibletohave

human life which is not dignified by humanity. This assault on dignity,

which can be clearly levelled at Blochs messianism, hinges on Agam-

bens readings of Aristotle and Foucault, and his biopolitical charac-

terisation of the camps. Under certain circumstances including the

reduction to bare life manifest in Auschwitz the claim to dignity

becomes meaningless, as any claim hinging upon membership of a

species becomes meaningless. With this, says Agamben, the ethics of

the norm also becomes impossible. The species is nothing more thanbare life and the norm is life itself rather than any nomos. Neither law

nor humanity are at work in the space where individuals are reduced to

bare life, and the miracle of the sovereign the suspension of law and

the creation of the exception is made manifest through its absence. In

other words, the sovereign is felt to be everywhere in the death camp

precisely because of the suspension of the law.57

With the deployment of dignity comes ethical aporia and legal

closure. Conventional ethics has to cease where human commonalityis no longer present; law is suspended, awaiting re-animation by the

sovereign.58 The species quantified human dignity only emphasises

the cleavage between the bare life present in the camp and the species

being which has fallen away from the individual. For Agamben,

Blochs politics of dignity fails to recognise the construction of pol-

itics out of sovereign will. Further, Bloch would be seen as replacing

law with the reification humanity while isolating it from interroga-

tion in constitutional and natural law forms. In sum, the species

quantified human dignity bespeaking a potentially universal up-

right carriage is manifestly negated by the camps where the human is

clearly not dignified by association with the species and distinctively

human bearing. To the extent that Bloch allows his account of dignity

to be signified by the upright carriage Agambens critique hits home.

However, as suggested, there is more to Blochs account than this,

including the equivocation of dignity and human dignity which

disallows a simple disproval of Blochs account via Agambens

discussion of the camp and the Muselmanner. Moreover, Blochscomplex ontology protects him from a simple charge that either

57 Agamben, supra n. 10.58 Agamben, supra n. 9.



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dignity or human dignity depend on a simple defeasible account of

humanity. The problem rests more with dignitys equivocation be-

tween dialectics on the one hand, and Kantian deontology on theother. Blochs use of dignity and human dignity may, at times, be

unstable, but at no point is he committed to a simple notion of an

unchanging humanity from which law and ethics flows.

Political theology gives rise to one further form of analysis,59 that

dignity continues to play a miraculous role. Dignity both within and

without law, both foundation and construction, neither wholly

appearance nor essence is precisely the kind of naturalised miracle,

like the suspension of law in emergency, that law and politics cannot

function without. And, admittedly, dignity does serve simultaneouslyas a foundation (of constitutions), as a construction (of legal and ethical

agency), as a synecdoche (of human rights), and as a holistic principle

(uniting law and non-law/inside and outside law). Nonetheless, the

miracle of dignity is nothing more than a language game connecting

loss, diminution and axiological discussion. While it may, at times,

appear to imitate the sovereign decision by being isolated from full legal

conceptualisation, it can be stripped of the miraculous by being put in

phenomenological terms (loss, diminution) or in the substantive, butminimal, legal terms of international humanitarian law. The holistic

principle where dignity represents all of the life inside and outside a

constitution, or represents the full realisation of human rights prin-

ciples does not bear close scrutiny in the terms with which I have

conceptualised dignity nor in substantive legal terms. As such, if this is

the miracle of dignity it is a poor miracle.

In sum, the use of dignity is a performance of solidarity through

the foreclosure of negative valuation. To this extent dignity is not a

borderline concept, indicating the outermost sphere,60 but an ethical

concept, albeit one with a distinctive performative function rather

than a normative function. To the extent that dignity appears as a

norm61 and appears as miraculous, an investigation of political the-

ology is apposite. Indeed, settling for these appearances dignity

would be mimetic: a poorly formed norm or miracle mimicking the

sovereigns liminal status. But dignity also appears in the breach in

59 Schmitt,supra n. 5, at 36.60 Ibid., at 5.61 Oscar Schachter treats dignity as a norm of international law, but his account

rapidly translates dignity into a synonym of respect within additional communi-

tarian connotations. Oscar Schachter, Human Dignity as a Normative Concept,

American Journal of International Law 77/4 (1983), 848854.

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loss, in diminution and at these points its utterance is intended to

indicate neither norm nor miracle, neither ethical aporia nor inevi-

table closure of law, but a deliberate endpoint of ethical and legaldiscourse.

REMNANTS OFTHEOLOGY

Drawing upon its genealogy, its philosophical complexity, its phe-

nomenological richness, and its meta-ethical properties, I have sought

to demonstrate that there is some justification for the use of dignity

in ethical and legal discourse. Accounts of dignity often allow it toequivocate between the intrinsic and extrinsic andbetween the sub-

stantive and the broadly holistic. Taken alone, both of these lines of

enquiry are deceptive. More fundamentally and, phenomenologically,

dignity is something that appears in the breach: we see the diminution

of dignity in those who are tortured, as well as those who are

diminished by illness or old age. What we see is an admixture of the

loss of autonomy, individuals being treated instrumentally, people

being denied recognition as rights-holders, etc. By denying that

individuals in this position should be the subject of negative com-parison we perform an ethical act, we insulate from negative valua-

tion and we thereby exercise solidarity.

Consequently, dignity can be said to play a role in articulating

what we see happening when others are abused or diminished. And it

may be the case that through the use of dignity we see revealed

something fundamental about the human condition. However, we do

not thereby reveal something that can be clearly or consistently

correlated with the languages of law or ethics. The languages of lawand ethics require us to identify the author of an act or the holder of a

property, and appeal to dignity often only obscures these authors and

properties rather than articulating them clearly through behaviours,

relationships or properties. At the same time, if we concentrate on

what is performedwith the utterance of dignity we see a different set

of possibilities including the performance of solidarity and, with

Bloch, the association of basic legal principles with wider eudaimo-

nistic ethical discourses.

Haunting this analysis is dignitys difficult inheritance from the-ology. Elevation of the human elicits a sneer from Hume who sees

nothing but a theological obfuscation. In Hegel and Marx dignity

requires conscious assertion of the priority of the mundane over the

divine. Dignity as an echo of divine valuation is at the heart of Kants



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Riley - Dignity and the Limits of Political Theology

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