What we can learn about human dignity from international law.

• Author: Rabkin, Jeremy

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.

1. 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. According to Kant this capacity is the same, in principle, in the most degraded and the most exalted of human beings. Kant made the claim to "autonomy" a central aspect of human dignity--the notion that each person makes his own moral law for his own life. One version of Kant's "categorical imperative" for moral action is that one must act in accord with a law one could conceive as a universal obligation, or, in other words, on the principles that each of us could and would endorse as a legislator for mankind. (9)

   As a moral philosophy, Kant's formulations may have no necessary connection with a political program. Kant's own political prescription, set out in very sketchy form, holds that a just government must respect the rights of individuals, though it emphasizes a rather formalistic version of the rule of law more than any particular rights claims and more than any element of democratic accountability or constitutional checks. It may be contrary to Kant's own intentions to extrapolate from Kantian moral philosophy to any particular political agenda. (10) But it is surety more than coincidence that Kant also advanced a plan for securing perpetual peace through a federation or league of states. (11) Kant is often considered to be a chief source of philosophic inspiration for twentieth century efforts in international organization--where talk of "human dignity" now plays such a prominent role. (12) In trying to grasp what is new and strange in contemporary international appeals to "human dignity," then, it may be appropriate to start by noticing what was already very odd--or at least, compared with American views, very different--in Kant's formulations.

   At first glance, the Kantian formula seems quite sentimental: I can be a legislator for mankind, you can be a legislator for mankind; any one of us is up to the task. Evidently, the job requires no particular study, no particular experience, no particular character. Each of us has the same inherent dignity, whether we are learned or ignorant, seasoned or green, serious or silly. We are all equal in our capacity to legislate. On second thought, this does not seem so much sentimental as megalomaniacal: if each of us should regard himself as a legislator for mankind, then we must think it is, one some level, quite reasonable for a mere human being to legislate for all humanity. What unites these seemingly opposite perspectives is the common premise that laying down law is easy, because it is merely a matter of will (even if, as Kants insists, it requires good will or good intentions). This seems to exalt mere intention in a way that is quite beyond ordinary political thinking.

   The Declaration of Independence seems to start with the opposite view: "When in the Course of human events, it becomes necessary .... " Quite apart from their own intentions, human beings are subject to necessities--in this case, the necessity of "one people" to insist on its "separation" from another with which it had previously been "connected." A "necessity" does not become less necessary to recognize and grapple with merely because one fails to notice it. How we cope with "necessity" does not simply turn on our intentions but also on our capacities, including, perhaps, our capacity to exercise imagination, foresight, and judgment. (13)

   Perhaps this passage in the Declaration alludes to moral as well as physical or political necessities. At any rate, the Declaration does not attribute the largest necessities to human intention. When the Declaration speaks about universal, seemingly moral, standards, it appeals to "the Laws of Nature and of Nature's God," to the rights "endowed by their Creator," and to the vindicating judgments of "the Supreme Judge of the world." The implicit assumption behind such appeals is that no mere human being could be trusted to legislate for the whole world.

   Of course, that thought did not originate with the American Founders. Indeed, it may be traced back to biblical times. "What is man, that thou are mindful of him?" (14) The Bible seems more devoted to preaching humility than extolling human dignity. When it speaks about dignity--or what the King James version renders as "dignity"--it refers to rank, to distinctions among men. (15) And the Bible is far from disparaging or ignoring all such distinctions.

   A respect for human limitations is one important link between the Bible and the Declaration of Independence. It may be that the difficulty of eliminating every form of inequality among human beings is itself a human limitation. The sense in which each human soul matters equally to God might be beyond human capacity to emulate. At any rate, when the Founders talk about equality, they talk about "rights." Whatever connection there might be between equality of rights and a biblical teaching about human souls, the term "rights" is not, itself, something one finds in the Bible.

   The...