Human rights and human dignity are important but also highly contested notions in ethics. This is particularly true in bioethical discourses, where the concepts’ vagueness often precludes focused ethical conclusions. For example, it is a matter of debate “whether there is widespread agreement that all human beings have human rights simply because they are human beings”. Here, it is fair to say that “there is currently no common ground with regard to the moral and legal justification or the ontological and epistemological status of human rights” (Gordon 2013). The situation concerning human dignity is even worse. While the idea of human rights ¾despite the above-mentioned problems¾has become a widespread political and legal issue, the notion of human dignity is instead suffering from severe application problems by virtue of its different meanings (Schroeder 2012, Schroeder 2010) and highly abstract, confusing nature. It is not surprising that the Canadian Supreme Court decided that the notion of human dignity was "confusing and difficult to apply". In this regard, one could reasonably argue that it would be unsound to derive human rights from the shaky grounds of human dignity, because we are simple left with a case of obscurum per obscurius.
In his article ‘Human Rights and Human Dignity: A Reply to Doris Schroeder’, Peter Schaber (2013) examines Schroeder’s three main arguments against deriving human rights from human dignity (Schroeder 2012). Her article ‘Human Rights and Human Dignity: An Appeal to Separate the Conjoined Twins’ (2012) was published in a special issue of the journal Ethical Theory and Moral Practice, entitled Human Rights in Bioethics in (Gordon 2012).
However, here I intend to show that Schaber’s critique of Schroeder’s view does not provide any serious threat to Schroeder’s main line of reasoning. The first part of this article examines Schaber’s objections and shows why his arguments fail; the second part offers a brief critique of Schaber’s own account of human dignity as “normative authority”. In this response, I shall not attempt to provide my own account of human dignity.
1. Evaluating Schaber’s Critique
1.1. Human Dignity and Religious Authority
Schroeder (2012) distinguishes between religion-based and secular accounts of dignity and notes that religious justification has become problematic in contemporary societies, which have become increasingly secular. If God is no longer acknowledged as a sound basis for human dignity, then one cannot take human dignity as the basis of human rights. In a nutshell, secular societies need convincing secular justifications.
Schaber offers three reasons why a religious understanding of human dignity might not undermine the concept’s normative force: First, if the “religious understanding of dignity” is correct, then according to Schaber it would “provide us with the right reasons as to why human beings have certain rights” and thereby establish the “normative work” even if non-believers are unconvinced. Simply put, “the cognitive limits of the non-believers” would be “no reason to reject dignity as a justificatory basis for human rights” (Schaber 2013:2). Secondly, Schaber argues that even if human dignity is justified by virtue of God, it can be the case that the very meaning of human dignity could be framed in “purely secular terms” (Schaber 2013:2). Here, Schaber appeals to Leon Kass (1998), a conservative bioethicist with a strong religious background. Kass claims that “to regard life as sacred means that it should not be opposed, violated, or destroyed, and, positively, that it should be protected, defended, and preserved” (Schaber 2013:2). Third, Schaber states that even if the religious appeal to ground human dignity were insecure, as claimed by Schroeder, it is nonetheless possible that one of the other four non-religious accounts of human dignity that Schroeder mentions might be a good foundation for human rights (Schaber 2013:3).
a. The Non-believers Cognitive Limits
Schaber is correct in claiming that the epistemological limits of the non-believer do not extend to the ontological issue, that is, whether there is a God who has bestowed human beings with human dignity. Of course, it might be the case that the non-believer is wrong and that the true foundation of human rights is in a religious account of human dignity. Of course, neither position can be proven, either by believers or non-believers. In other words, if Schaber wants to derive human rights from the religious account of human dignity, he has to provide a sound and convincing justification for God’s existence, because in this model God himself justifies human dignity.
Furthermore, according to my understanding of Schroeder, for her the non-believer who wants to establish meaningful human rights for all may be well advised to avoid reference to religious authority in a world of increasing secularism. Hence, we should return to Schroeder’s pragmatic claim that human rights scholars and activists would be better off justifying their efforts without reference to dignity at all, unless, of course, a secular concept of dignity could be found, which would then carry the burden.
b. Framing God-given Dignity in Secular Terms
Regarding life as “sacred”, and hence claiming that one should protect it from violation or destruction, only makes sense in a religious context. The doctrine of the sacredness of human life is decidedly non-secular. By appealing to Kass, Schaber wants to show that even if the source of human dignity can be found in religion, dignity nonetheless can be framed in a non-religious way that might appeal to non-believers as well. In this respect, Schaber claims that proponents could argue “that human life is sacred due to the fact that human beings are pursuing their own good” (2013:2). This claim is fallacious. The reason why human life is sacred is precisely because God has given human beings dignity, and not because they pursue their own good. To disentangle the meaning of human dignity from its justificatory religious basis is to throw the baby out with the bathwater.
c. The Other Non-religious Accounts of Human Dignity
Schaber refers to the fact that Schroeder gives five concepts of dignity, yet only one of these is motivated by religion. In this respect, Schaber states that, “If there is a problem with the latter, then those who look for a dignity foundation of human rights could rely on one of the other non-religious understandings of dignity” (Schaber 2013: 3). Yet Schaber does not seem to take into account the essential difference between aspirational and inherent dignity. According to Schroeder, only inherent concepts of dignity can form the foundations of human rights. The four remaining concepts of dignity are Kant’s concept of inherent dignity and three further aspirational concepts. Comportment dignity focuses on society’s expectations of demeanour and bearing, and includes topics as mundane as incontinence at the end of life. Meritorious dignity, which only very few can achieve, subsumes the four cardinal virtues and self-respect. Lastly, the somewhat dated Aristocratic dignity refers to status and honour. It seems crystal clear, therefore, that human rights cannot be based on aspirational dignity. This leaves Kant’s approach to dignity, as discussed in Schroeder’s analysis.
1.2. Kant’s Approach to Human Dignity
Schroeder (2012) argues that one should not rely on Kant’s notion of human dignity because it cannot provide all human beings with human rights. Kant famously argues that only rational beings, who have the capacity for moral self-legislation (i.e. autonomy), have human dignity. Other human beings, for example people in a permanent vegetative state or human beings who, for whatever reason, will never possess the capacity to act autonomously, cannot be granted Kantian dignity without undermining the concept itself. If the foundation of human rights is Kantian human dignity, then such rights cannot be granted to human beings as a species.
Schaber’s response is somewhat unclear and partly misleading. He seems to suggest that Schroeder is rejecting Kant’s notion of dignity when he argues the following:
It may be true that a Kantian justification does not provide all human beings with rights, and this seems to be incompatible with what we find in the official declaration of human rights, namely that certain rights protect all members of the human family (Preamble). This, however, does not seem to be a decisive reason to reject Kant’s concept of dignity. (Schaber 2013: 3).
First, Schroeder only claims that through using Kant’s notion of human dignity one cannot ascribe human rights to all human beings. As such, according to Schroeder, one cannot use Kant in order to defend human rights for all human beings. Second, Schroeder applies and defends Kant’s concept of dignity in other articles, (see, for example, Schroeder 2006) and hence Schaber’s rather broad claim is misleading.
Furthermore, Schaber seems to suggest that even if “people in a permanent vegetative state should be cared about” they do not have the same “rights which adults have”, so that one could claim that “dignity might be the basis for the rights of those who have the capacity for moral self-legislation, while something else might be the basis of the rights of those who are in a permanent vegetative state” (Schaber 2013:4). This sounds rather like a pick-and-mix strategy for a foundation of human rights, where if one foundation doesn’t fit, one simply chooses another one. As Schroeder convincingly argues in her article, quoting Tiedemann, “The foundation of a concept cannot be dependent on wished-for results. Otherwise one does not provide a foundation, but instead utters more or less concrete … intuitions, whose justification remains open” (Schroeder 2012: 331).
In addition, Schaber’s strategy is apparent in another part of the article, where he elaborates on why further work on dignity is needed. He argues that, “one should ask, how dignity must be understood, if it is supposed to give us reasons for assigning to humans the right not be enslaved, the right not be degraded and the right to an adequate standard of living. Is there a way of conceiving of dignity that provides us with reasons for such rights?” (Schaber 2013:5). Taking Schroeder’s starting point¾namely to strengthen human rights advocacy by disassociating human rights from human dignity¾should one really tailor the meaning of dignity in such a way that it could give us reasons for human rights? Schaber himself says that “it might even turn out that no concept of dignity is available which could provide us with such reasons; the concept of dignity would then indeed be useless for the justification of human rights” (Schaber 2013: 5).
1.3. The Many Meanings of Dignity
Schaber argues that Schroeder wants to give up any attempt to derive human rights from human dignity because “dignity can be understood in too many different and incompatible ways to provide us with a foundation for human rights” (Schaber 2013:4). However, this is not what Schroeder has in mind when she tries to disentangle human rights from human dignity. As we have seen, Schaber does not pay proper attention to the essential difference between inherent and aspirational dignity; the latter is unworkable as a foundation for human rights. The former is, in principle, able to justify human rights, but the religious account and Kant’s approach fall short of giving a sound foundation, according to Schroeder. As such, she attempts to show that it makes more sense for human rights scholars and activists to be pragmatic and stay away from dignity, in order to avoid the difficult problems inherent in the concept.
Furthermore, Schaber’s argument that the mere existence of “various understandings of dignity” (2013:4) cannot be a good reason to give up on human dignity because many normative and descriptive notions are contested. This, however, is not in disagreement with Schroeder (2012), who writes that “concepts can be clarified significantly”.
2. Schaber’s Concept of Human Dignity as Normative Authority
After defending the idea that human rights can be derived from human dignity, Schaber briefly outlines his own account of human dignity as normative authority, which he thinks is able to withstand Schroeder’s objections. He believes that his notion of human dignity not only informs us about the content of human rights, but also acts as a justification for such rights. His notion is not based on religious beliefs and is, he believes, sufficiently clear; while he admits that his notion of dignity “is not supposed to account for rights which all humans have” (Schaber 2013:7). In particular, Schaber claims that the violation of the normative concept of inherent human dignity is a “severe wrongdoing” that is “related to the moral status of human beings” (2013:5). He assumes that humiliating and degrading treatment is the paradigm example of violation of dignity because it “consists in treating others as if they had no normative authority over themselves and over how they are treated. I think that it is this normative authority which is meant by dignity and which is paradigmatically disrespected by acts of degradation and humiliation” (2013:6). According to Schaber, basic needs and interests are less central to an understanding of human rights than his idea of normative authority. Put simply, “normative authority […] is not simply the capacity to do what one wants, but the right to do so, and so encompasses the right not to be obstructed in one’s actions as carried out within the sphere of one’s authority” (2013:6).
As a matter of fact, nothing in Schaber’s brief outline would distinguish dignity from liberty (encompassing negative and positive liberty). All his examples, such as the right to marry and access to food, fall under the concept of liberty and therefore his term “dignity as normative authority” adds nothing to dignity debates, as it simply replicates long-standing liberty debates. Schroeder, on the other hand, shows clearly why dignity, or, to be precise, indignity, is important for refining the content of human rights. Her examples cannot be captured by liberty. She argues that:
Instances of humiliation and degradation are difficult to capture with a list of human rights, because they are context dependent. Wearing a yellow star could be a fashion fad or something much more sinister and dehumanizing, as in the case of Nazi Germany. It is here that the main benefit for human rights proponents lies when evoking the concept of dignity. Describing attempts at degradation and humiliation, which are often referred to as affronts to dignity or instances of forced indignity, could help in specifying individual human rights and developing measures to protect them. (Schroeder 2012:334)
Schroeder convincingly claims that “empirical instances of dehumanization” should inform us about the content of human rights (Schroeder 2012:334). In other words, it is not inherent dignity but acts of indignity that can provide content to human rights, in so far as one should avoid these acts and attempt to protect all human beings from such treatment. One major difference between Schroeder and Schaber concerns Schaber’s view that human rights do not, strictly speaking, concern, for example, human beings who are in a “permanent vegetative state” even though they “should be cared about” (Schaber 2013: 4). In this respect, he claims that “dignity might be the basis for the rights of those who have the capacity for moral self-legislation, while something else might be the basis of the rights of those who are in a permanent vegetative state” (Schaber 2013: 4). It seems clear that Schaber wants to follow Kant here. Schroeder, however, has convincingly shown in her article that Kant’s line of reasoning is insufficient for a proper foundation of human rights that accounts for all human beings. For example, human beings with severe mental impairments are certainly not able “to do what one wants with regard to whatever falls within the purview of one’s authority” (Schaber 2013:6) because they simply lack what Schaber calls “normative authority”. That means, in consequence, that also people with severe mental impairments are not protected by human rights, but only “should be cared about” (2013:4). This, however, is in striking contrast to common sense, international human rights law, and the convincing claims brought to the fore by proponents of disability studies such as Quinn and Degener (2002) and Degener (2005).
In conclusion, Schaber fails to prove that Schroeder’s objections are misleading. He also fails to offer a convincing account of human dignity that is able to solve the above-mentioned problems. I agree with Schroeder that it would be wise for human rights scholars, and particularly activists, to be pragmatic, and to stay away from dignity as a foundation for human rights.
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 R. v. Kapp, 2008, Supreme Court Canada, 41 at § 22: “[…] human dignity is an abstract
and subjective notion that, even with the guidance of the four contextual factors, cannot only
become confusing and difficult to apply; it has also proven to be an additional burden on
equality claimants, rather than the philosophical enhancement it was intended to be”.
 “That human beings have normative authority over these things means that they have the right to determine who they live with, who they marry, etc., and that they may not be hindered in their enjoyment of these rights.” (Schaber 2013: 6)
 For example: UN Declaration on the Rights of Mentally Retarded Persons (1971), UN Declaration on the Rights of Disabled Persons (1975), UN Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care (1991), and UN Convention on the Rights of Persons with Disability (2008).