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Human Dignity in Adjudication: The Limits of Placeholding and Essential Contestability Accounts

Published online by Cambridge University Press:  20 July 2015

Pritam Baruah
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Employing moral values as justifications in judicial decisions has been controversial. At present, there is increasing controversy over the application of human dignity. Contemporary debates on the role of dignity in law and adjudication are heavily influenced by Christopher McCrudden’s account of dignity as a placeholder, and much thinking on the contested nature of values is influenced by WB Gallie’s idea of Essentially Contested Concepts. In this paper I argue that both these accounts have limited explanatory and normative potential. McCrudden’s account is illuminating in terms of the role of dignity in the UDHR, but weak in terms of explaining why employing dignity in adjudication yields diverging conclusions, and why dignity should be understood to be a placeholder. His reliance on Gallie’s idea of Essentially Contested Concepts is also misplaced. Gallie’s views often serve as a philosophical basis for understanding the contested nature of values generally. I argue that his account is an external-descriptive one, which cannot explain why persistent disagreement ensues because of the peculiar nature of some concepts. Neither does it point out any property of essential contestability that is unique to some concepts. Thinking on how values such as dignity can figure as justifications for decisions, therefore, must explore other alternatives.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 27 , Issue 2 , July 2014 , pp. 329 - 356
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Copyright © Canadian Journal of Law and Jurisprudence 2014

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References

Thanks to James Penner and Jeff King for their comments and criticism of earlier drafts of the paper. The paper has also benefited from comments by Professor Alison Diduck, participants at the UCL staff lunch seminar, and participants at the civil liberties section of the Society of Legal Scholars Conference (Bristol) 2012. Responsibility for mistakes is of course mine. I am also grateful to Christopher McCrudden for access to valuable materials on human dignity.

1. McCrudden, Christopher, ‘Human Dignity and the Judicial Interpretation of Human Rights’ (2008) 19: 4 Google Scholar EJIL 655. (For a detailed account out of the problematic issues involving dignity in adjudication.)

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30. Ibid at 664.

31. Ibid at 664-74.

32. Ibid at 673-74.

33. Ibid at 678, quoting Schultziner.

34. Ibid at 679.

35. Ibid at 679-80.

36. Ibid at 679.

37. Ibid at 698.

38. Ibid at 699.

39. Ibid at 702.

40. Ibid at 706.

41. Ibid at 707.

42. Ibid at 707-10.

43. Ibid at 713 [citations omitted].

44. This includes mediating between incommensurable rights, incommensurable values, and be-tween incommensurable rights and values.

45. McCrudden, , supra note 1 at 720 Google Scholar.

46. Ibid at 722: ‘My only purpose, I repeat, is to identify what seems to me to explain the increasing popularity of the concept of dignity among judges and advocates’.

47. Klaus Dicke argues that even the founding function of dignity under the UDHR depends on relations between dignity and single human rights. Though Dicke’s arguments are towards demonstrating a universal, foundational function of human dignity, he argues that dignity can play its legitimizing function in legal reasoning only if a relationship between dignity and rights is applied. See Klaus Dicke, ‘The Founding Function of Human Dignity in the Universal Declaration of Human Rights’ in Kretzmer, &Klein, , The Concept of Human Dignity, supra note 2, 111 at 118–19 Google Scholar.

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53. For a comprehensive round-up of the various view points and issues in the debate: Lucy, William, ‘Adjudication’ in Coleman, Jules & Scott Shapiro, , eds, The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford: Oxford University Press, 2002 Google Scholar) at 206. For a detailed treatment see Lucy, William, ‘Adjudication for Pluralists’ (1996) 16: 3 Google Scholar Oxford J Legal Stud 369.

54. Fuller, , supra note 48 at 363 Google Scholar.

55. Ibid at 365. For my purposes in this paper, the spotlight is on appellate adjudication, particularly constitutional adjudication, where the considerations for non-reasoned decisions identified by Fuller do not apply.

56. Ibid at 366.

57. Ibid.

58. Ibid at 381.

59. For criticism of Fuller’s claim see Nagel, Thomas, ‘On the Fusion of Fact and Value: A Reply to Professor Fuller’ (1958) 77: 3 Google Scholar Nat LF 77.

60. See Lucy, William, Understanding and Explaining Adjudication (Oxford: Oxford University Press, 1999) at 1 Google Scholar.

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62. I adopt Dworkin’s definition of hard cases. See Lucy, , Understanding and Explaining Adjudication, supra note 60 at 5 Google Scholar and Dworkin, Ronald Taking Rights Seriously, supra note 4 at 83 Google Scholar.

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64. Ibid at 100-01: ‘A ruling is a universal and generic justification of a decision that judges develop to decide hard cases.’

65. Ibid.

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69. Ibid at 205 [emphasis added].

70. Sunstein, Cass, Legal Reasoning and Political Conflict (New York: Oxford University Press, 1996 Google Scholar) ch 2.

71. Ibid at 35.

72. Ibid at 36-37.

73. Ibid at 37 [emphasis added].

74. Ibid at 48-58.

75. Dworkin’s reply to Sunstein provides a sample of how some reason-giving accounts may respond to Sunstein’s arguments. Dworkin, , ‘Looking for Cass Sunstein’, supra note 67 Google Scholar.

76. McCrudden, , supra note 1 at 697 Google Scholar.

77. Ibid at 722 (mentioning the possibility of such an allegation but distances himself from it).

78. Ibid at 680-81: ‘In its thicker sense, dignity is a value on which human rights are built and thus helps in the identification of a catalogue of rights’.

79. McCrudden, , supra note 1 at 724 Google Scholar.

80. I thank Jeff King for pointing out this possible objection.

81. McCrudden, , supra note 1 at 679–80 Google Scholar.

82. Gallie, WB, supra note 5 at 169 Google Scholar. Some commentators on Gallie take ‘proper use’ to mean ‘correct use’ of the concept. See Gray, John, ‘On the Contestability of Social and Political Concepts’ (1977) 5: 3 Google Scholar Political Theory 331 at 331. Others take Gallie to be speaking of a ‘best interpretation’, see Swanton, Christine, ‘On the “Essential Contestedness” of Political Concepts’ (1985) 95: 4 Google Scholar Ethics 811 at 813-14. For my purposes reading it either way does not make any significant difference, as I am not testing Gallie’s accuracy in capturing the feature of essential contestedness.

83. Gallie, , supra note 5 Google Scholar. He uses the two synonymously.

84. Ibid at 167 [emphasis in the original].

85. Ibid.

86. Ibid.

87. Hurley, , Natural Reasons, supra note 6 Google Scholar at ch 3.

88. Ibid.

89. Wittgenstein, Ludwig, Philosophical Investigations, 3d ed, translated by Anscombe, GEM, Hacker, PMS & Schulte, Joachim (Oxford: Wiley-Blackwell, 2009 Google Scholar) at §§ 23, 241.

90. Hurley, , Natural Reasons, supra note 6 at 31 Google Scholar. For Wittgenstein’s discussion on strange ways of going on see Wittgenstein, , supra note 89 Google Scholar at §§ 185-90.

91. Hurley, , Natural Reasons, supra note 6 at 34 Google Scholar.

92. Hurley also identifies other kinds of concepts that host disagreements within a form of life: uncontested concepts, and conceivably contested concepts. Ibid at 43-45. Samantha Besson has used the term ‘conceptual disagreement’ that is akin to Hurley’s use of ‘substantive disagreement’. She uses it in contrast to ‘verbal or semantic disagreement’ and states that conceptual disagreement is about meaning. I follow Hurley’s use here as it is clear that in disagreeing about how a concept is to be employed we must have some agreement on its meaning. Thus calling such disagreement ‘conceptual disagreement’, which is about the meaning of the concept, creates space for confusion. Besson therefore has to distinguish later between degrees of disagreement about meaning. See Besson, Samantha, The Morality of Conflict: Reasonable Disagreement and the Law (Oxford: Hart, 2005) at 48–49 Google Scholar.

93. Gallie, , supra note 5 at 169 Google Scholar.

94. Ibid.

95. Ibid.

96. Gallie does not employ the term unreflective. It is my own formulation of what Gallie means.

97. Gallie, , supra note 5 at 169 Google Scholar.

98. Ibid at 171.

99. Ibid.

100. Ibid at 171-72.

101. Ibid at 172 n 1.

102. Ibid at 172.

103. Ibid.

104. Gallie, , supra note 5 at 176 Google Scholar. Brian Bix speaks of Gallie’s reference to paradigm cases as an instance of ‘guidance by ostensive definition.’ He thinks, and rightly so, that this criterion of Gallie’s offers nothing new to explaining disagreement. What it does is to push the problem of disagreement one step back. See Bix, Brian, Law, Language, and Legal Determinacy (Oxford: Clarendon Press, 1993 Google Scholar) at 57. Bix adds that Gallie fails to explain the reasons why we agree on a paradigm and yet have different understandings oi it. I arrive at a conclusion similar to Bix s about Gallie not being able to explain why disagreement ensues. The difference between mine and Bix’s enquiry is that Bix is interested in what causes disagreement, and valuably points out that Wittgenstein’s remarks on rule following have probably been over read to suggest that it sheds light on the issue. My project, on the other hand, is to point out that Gallie’s account does not explain the perspective of participants when they disagree. Though this overlaps to some extent with Bix’s conclusions, I part ways with Bix to investigate a different feature of the implications of this inability to explain the participant’s perspective. I explain this towards the end of the next section. Infra note 129.

105. Gallie, , supra note 5 at 180 Google Scholar.

106. Hurley, , Natural Reasons, supra note 6 at 46 Google Scholar; Bix, , supra note 104 at 55–56 Google Scholar.

107. McCrudden, , supra note 1 at 698 Google Scholar.

108. Gallie, , supra note 5 at 189 Google Scholar.

109. Ibid at 190.

110. Ibid.

111. McCrudden, , supra note 1 at 679–80 Google Scholar.

112. Rawls, , A Theory of Justice, supra note 4 at 5 Google Scholar. Rawls however does not associate his comments with essential contestability. He also remarks that the concept-conception distinction does not answer any important questions about justice.

113. Supra note 34.

114. McCrudden, , supra note 1 at 679–80 Google Scholar

115. If it were a concept, then it would be akin to an internally complex concept. See Ehrenberg, , supra note 6 at 222 Google Scholar. Ehrenberg suggests, that some concepts can be over aggregated and disaggregation should therefore precede any saddling of the concept with the feature of essential contestability.

116. For an analogous argument on how there might be plural sources of human rights: Tasioulas, John, ‘Taking Rights out of Human Rights’ (2010) 120: 4 Google Scholar Ethics 647; Nickel, James W, Making Sense of Human Rights, 2nd ed (Malden, MA: Wiley-Blackwell, 2006 Google Scholar) ch 4. Though Tasioulas’ and Nickel’s views are on the plural foundations of human rights, my argument here (that there might not be one foundational value that determines the appropriate relationship between the state and the individual) bears strong resemblance to theirs. There might be various reasons that strengthen the claim that the state exists for the individual and not vice-versa, and there is no compulsion to presume that all such reasons emanate from intrinsic worth.

117. Gallie, , supra note 5 at 168, 169 Google Scholar: ‘…[T]here are concepts which are essentially contested, concepts the proper use of which inevitably involves endless disputes about their proper uses on the part of their users.’

118. Ibid.

119. Gallie, , supra note 5 at 172 Google Scholar n 1.

120. Ibid at 169.

121. Margolis, Eric & Laurence, Stephen, eds, Concepts: Core Readings (Cambridge: MIT Press, 1991 Google Scholar) ch 1 (for a discussion of leading theories of concepts, each claiming that a concept is a particular sort of mental particular).

122. Fodor, Jerry, Concepts: Where Cognitive Science Went Wrong? (Oxford: Oxford University Press, 1998 CrossRefGoogle Scholar) ch 1 (for a discussion of what concepts are and how they relate to beliefs).

123. I am grateful to James Penner for pointing me towards the literature on concepts, and that it might bear upon Gallie’s account. Responsibility for the claims here are, of course, mine.

124. Gallie himself takes his first five criteria to be ‘formally defining criteria’ of ECC. Gallie, , supra note 5 at 180 Google Scholar.

125. Endicott, Timothy, Vagueness in Law (Oxford: Oxford University Press, 2000 CrossRefGoogle Scholar) at 54.

126. Gray, , supra note 82 Google Scholar.

127. Clarke, Barry, ‘Eccentrically Contested Concepts’ (1979) 9: 1 Google Scholar Brit J Political Sci122 at 125-26.

128. Mason, Andrew, Explaining Political Disagreement (Cambridge: Cambridge University Press, 1993 CrossRefGoogle Scholar) ch 2.

129. This is where I part ways with Brian Bix, as I mentioned in note 104 above. While Bix goes on to enquire what makes disagreement possible, I conclude that the lack of an account of reasons for disagreement in Gallie’s account makes it unsuitable for explaining how participants reason with ECC.

130. Khaitan, , supra note 9 at 14 Google Scholar.