'A matter of consistency: Dignity and personhood in human rights biolaw' by Thomas Finegan in (2014) 14(1-2)
Medical Law International 80 argues
Between 1997 and 2005, four formal international law documents were promulgated involving the intersection of human rights law with bioethics. Underpinning and animating each of these legal texts is an implicit philosophy of human dignity and personhood. This article makes explicit the operative philosophy in each of the documents and questions whether the four texts in question evince an overarching, consistent approach to dignity and personhood. The article proceeds by distinguishing between the two broad and incompatible ways of understanding both of the core categories at issue: intrinsic and extrinsic dignity, and Boethian and Lockean personhood. An exegesis of the legal texts reveals the mutually supportive role intrinsic dignity and Boethian personhood play throughout the four documents. The exegesis highlights the implications this philosophy has for issues involving nascent human life, implications not always overtly stated in the legal texts themselves, though invariably—at a minimum—hinted at by these texts. ....
A clear analysis of the various human rights biolaw instruments reveals a strong degree
of consistency in how the concepts of dignity and personhood are understood throughout.
The fact that the human rights biolaw corpus subscribes to an intrinsic view of dignity
and a Boethian view of personhood has very clear implications for who, precisely, is
to be considered a subject of human rights protection under these instruments (simply
put, the bare human being). But it also has implications for ongoing debates within
human rights biolaw theory, especially the debate between proponents of ‘‘interest’’ and
‘‘will’’ theories of rights. This particular debate focuses on the scope and purpose of
rights, their justification, and also on who exactly is to count as a rights-bearer. For a will
theory of rights, rights protect autonomous action and are therefore only directly relevant
to agents capable of acting autonomously. Such a theory precludes the recognition
of nonautonomous human beings as equal human rights-bearers. An interest theory of
rights in the mould of Finnis’ natural law theory, however, sees rights as protective of
basic human goods and basic human flourishing. Such a theory is more concerned with
the ‘‘best interests’’ of human subjects than with limiting restrictions upon autonomous
agency, and as such can accommodate nonautonomous human beings within its human
rights framework — ‘‘interests’’ is understood here in an objective rather than subjective
sense.
So an interest theory of rights can accommodate developments within human rights
biolaw far more easily than will theories could plausibly claim to do, at least in terms
of human rights biolaw’s acceptance of unconscious human beings as human rights subjects.
But proponents of will theories of rights can, and indeed do, criticize human rights
biolaw on a number of grounds. For instance, probably the most sophisticated work on
human rights biolaw, Beyleveld and Brownsword’s Human Dignity in Bioethics and
Biolaw disparagingly describes human rights biolaw as ‘‘a significant change to the
terms of the debate’’ and incompatible with the more traditional corpus of human rights
law, one guided, it is claimed, by human dignity in the form of ‘‘dignity as empowerment.’’
This coherintist critique argues for a disjunction between human rights biolaw
and more general human rights law in terms of the philosophical foundations of each.
That contention is itself contestable though will theorists of rights can also defer to a
more metastyle argument, namely that human rights biolaw, to the extent that it offers
human rights protection to unconscious human beings and/or appeals to an interest theory
of rights, is unjustifiable as a matter of ethical rationality (an issue outside the scope
of this article). What the proponent of a will theory of rights cannot do, though, is appeal
to human rights biolaw as currently constituted as an example of a human rights legal
corpus founded upon a will theory of rights. Human rights biolaw is not neutral on the
controversy between will and interest theories of rights—its affirmative response to the
human rights status of human beings lacking consciousness indicates that a will theory of
rights cannot claim compatibility with it.
'What Do Philosophers Have Against Dignity?' by Jeremy Waldron
argues
Among analytic philosophers, there is considerable antipathy towards the concept of human dignity. It is not always expressed, but the impression is conveyed that this is a rather disreputable idea and that its trumpeting in legal and political theory is to be deplored. The present paper tries to get to grips with the sources of this antipathy. Is it based on the unclarity of the concept, its religious overtones, its speciesism, or its redundancy as a moral idea. The paper makes a case for dignity as a status-concept – denoting a particular sort of moral/legal status that all humans have.
