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Humiliation, Degradation, and Moral Capacity: A Response to Hörnle and Kremnitzer

Published online by Cambridge University Press:  30 January 2013

John Kleinig
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Abstract

I respond to Hörnle and Kremnitzer via a brief review of the development of our modern concept of human dignity, in which I take issue with their account of human dignity as non-humiliation, preferring instead the language of non-degradation. In addition, I offer a different account of the role of human dignity in criminal law, not as a criminally protected interest but as a foundational value.

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Israel Law Review , Volume 44 , Issue 1-2: Symposium: Human Dignity and the Criminal Law , 2011 , pp. 169 - 183
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2011

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References

1 Hörnle, Tatjana & Kremnitzer, Mordechai, Human Dignity as a Protected Interest in Criminal Law, 44 Isr. L. Rev. 143 (2011)CrossRefGoogle Scholar.

2 See Manetti, Giannozzo, De Dignitate et Excellentia Hominis Libri IV (1532), reprinted in Two Views of Man: Pope Innocent III—On the Misery of Man; Giannozzo Manetti—On the Dignity of Man (Murchland, Bernard trans. New York, Frederick Ungar 1966)Google Scholar; della Mirandola, Giovanni Pico, De Dominis Dignitate Oratio [Oration on the Dignity of Man] (Caponigri, A. Robert trans., Chicago, Gateway 1956) (1486)Google Scholar. Some see the seeds of a general idea of human dignity in Cicero or even earlier in Judaeo-Christian thought. For overviews, see Englard, Izhak, Human Dignity from Antiquity to Modern Israel's Constitutional Framework, 21 Cardozo L. Rev. 1903 (2000)Google Scholar; Trinkaus, Charles, Renaissance Idea of the Dignity of Man, in 4 Dictionary of the History of Ideas 136 (Wiener, Philip P. ed., 1968)Google Scholar; Dales, Richard C., A Medieval View of Human Dignity, 34 J. Hist. Ideas 557 (1979)Google Scholar.

3 I say “transplant” because, in many cases, including that of Kant, there was not so much a rejection of older traditions of rank-based dignity as the addition of a distinct kind of dignity, one attaching to all humans. This universal dignity also needs to be distinguished from another contemporary account of transplanted dignity—the dignity of each citizen.

4 There were, admittedly, those (e.g., Thomas Paine) who sought to replace the dignity of rank with the equal dignity of all, and several influential writers have spoken of this development as a “leveling up” (e.g., James Q. Whitman) or an “upwards equalization of rank” (e.g., Jeremy Waldron). For the most part, though, Kant and others who wished to advocate a universal human dignity did not wish to abandon traditional forms of rank. Instead, contrary to tradition, they thought that by virtue of their humanity all possessed a dignity comparable to that associated with traditional rank. See Paine, Thomas, The Rights of Man 320 (New York, Anchor Press 1973) (1791–1792)Google Scholar; Whitman, James Q., The Two Western Cultures of Privacy: Dignity versus Liberty, 113 Yale L. J. 1151 (2004)CrossRefGoogle Scholar; Waldron, Jeremy, Dignity and Rank, 48 Archives Européennes de Sociologie 201 (2007)CrossRefGoogle Scholar; see also Waldron, Jeremy, Cruel, Inhuman and Degrading Treatment: The Words Themselves (New York University School of Law, Public and Legal Theory Research Paper Series, Working Paper No. 08-36, 2008) available at http://papers.ssrn.com/so13/papers.cfm?abstract_id=1278604Google Scholar.

5 Some later Christian theologians spoke of the partial restoration of this dignity, originally located in the imago Dei, “in Christ.” Nevertheless, the awkwardness of connecting dignity with some universally possessed inherent characteristic led other theologians, especially in the Lutheran tradition, to construe human dignity as an “alien dignity”—an “infinite worth” that is not constituted by qualities such as rationality but by the distinctive relationship we have with God—created in love, called in love, and redeemed in love. For a useful exposition of this idea, see Lebacqz, Karen, Alien Dignity: The Legacy of Helmut Thielicke for Bioethics, in Religion and Medical Ethics: Looking Back, Looking Forward 44 (Verhey, Allen ed., 1996)Google Scholar.

6 See, e.g., Korsgaard, Christine M., Creating the Kingdom of Ends (1996) (especially chapter 4)CrossRefGoogle Scholar.

7 Margalit, Avishai, The Decent Society (1996)Google Scholar.

8 See Hörnle & Kremnitzer, supra note 1, at 146-47.

9 Id. at 148.

10 Id. (quoting former Israeli Supreme Court Justice Dalia Dorner).

11 As Margalit himself recognizes. See Margalit, supra note 7, at 1. My own perception is that humiliation is more often interpersonal than institutional or, perhaps more accurately, that institutionally mediated humiliations are generally experienced interpersonally. Anthony Quinton suggests that Margalit might more accurately characterize societies opposed to interpersonal humiliation as “polite” rather than “civilized.” See Quinton, Anthony, Humiliation, 64 Social Research 77, 85 (1997)Google Scholar. I shall, however, refrain from taking a stand on that.

12 See Hörnle & Kremnitzer, supra note 1, at at 147-48.

13 I am loath to give an account of social concepts, especially normative ones, in terms of a set of necessary and sufficient conditions (the original sin of analytic philosophers). I am more inclined to think of conceptual analysis as the provision of a cluster of criteria or elements, only some of which may be routinely “necessary” (but not sufficient) and others of which may be only contingently necessary, depending on what other members of the cluster are present. See Scriven, Michael, The Logic of Criteria, 56 J. Phil. 857 (1959)CrossRefGoogle Scholar; or, more radically, Kovesi, Julius, Moral Notions (1967)Google Scholar. I am also mindful of what W.B. Gallie famously referred to as the “essential contestability” of social concepts. See Gallie, W.B., Essentially Contested Concepts, 56 Proceedings of the Aristotelian Society 167 (1955–1956)CrossRefGoogle Scholar.

14 One need not think of this as perverse. Although it may, for example, be done for personal gain, one might also conceive of it being done to raise money for a charity or for some important political end.

15 Though we might want to think differently about those who carry out such degradation.

16 See, for example, the discussions in Schick, Frederic, On Humiliation, 64 Soc. Res. 131 (1997) and Quinton, supra note 11Google Scholar.

17 As Margalit rightly notes, it is not exclusion as such but exclusion as denigration (rather than, say, deification). See Margalit, supra note 7, at 90.

18 Id. at 115.

19 As noted above, I am inclined to think that the primary context of humiliation is interpersonal, even when it is institutionally mediated. See farther Schick, supra note 16.

20 See also Convention for the Protection of Human Rights and Fundamental Freedoms art. 3, Nov. 4, 1950, 213 U.N.T.S. 221, E.T.S. 5.I am not unmindful of the fact that “humiliation” is also sometimes eschewed. For example, common article 3 of the Geneva Conventions of 1949 prohibits “outrages upon personal dignity, in particular, humiliating and degrading treatment” But degrading treatment—presumably likely to involve humiliation—tends to be the more common concern. The idea of degradation is painstakingly explored in Vorhaus, John, On Degradation. Part One: Article 3 of the European Convention on Human Rights, 31 Common L. World Rev. 374 (2002)Google Scholar and On Degradation. Part Two: Degrading Treatment and Punishment, 32 Common L. World Rev. 65 (2003)Google Scholar. See also Duff, R.A., Punishment, Dignity and Degradation, 25 Oxford J. Leg. Stud. 141 (2005)CrossRefGoogle Scholar.

21 See Margalit, supra note 7, at 9, 39.

22 Statman, Daniel, Humiliation, Dignity and Self-Respect, 13 Phil. Psychol. 523, 523 (2000)CrossRefGoogle Scholar.

23 Id. at 527.

24 Id. at 531.

25 One of the concerns with peep-shows (whatever their legal status ought to be) is that some (at least) of the performers already lack a sense of self-worth or self-respect and so do not feel humiliated by what they do, even though they degrade themselves. As Margalit notes, degradation might well provide grounds for humiliation. See Margalit,supra note 7, at 100.

26 See Duff, supra note 20, at 150.

27 True, there is a sense in which a person's degradation may be constituted by his being stripped of rank or treated beneath it, but I think it is less central. My point here is further complicated by what I think is Margalit's somewhat heterodox account of honor. For further discussion, see Berger, Peter, On the Obsolescence of the Concept of Honor, in Revisions: Changing Perspectives in Moral Philosophy 172 (Hauerwas, Stanley & MacIntyre, Alasdair eds., 1983)Google Scholar.

28 Though hardly a paragon of virtue, consider the exposure of President Clinton's affair with Monica Lewinsky—humiliating, but hardly degrading.

29 If we take the route suggested by David Sussman that interrogatory torture threatens a sense of betrayal by one's body. See Sussman, David, What's Wrong With Torture?, 33 Phil. & Pub. Aff. 1 (2005)CrossRefGoogle Scholar. Sussman also suggests that the closest analogue to torture—so far as its distinctiveness is concerned—is rape (in which the victim sometimes feels alienated from her sexualized body).

30 They note that the threat or use of force constitutes only a core. But dignity is compromised beyond that core even when there is no humiliation.

31 See Hörnle & Kremnitzer, supra note 1, at 152.

32 Id. at 153.

33 Id. at 154.

34 Insofar as such cases do constitute violations of dignity, we might question whether it is because autonomy is violated. On their account, many such minors would still be lacking in autonomy. Their vulnerability is exploited rather than their autonomy transgressed. I have some hesitations too about their apparent acquiescence in the prohibition of bestiality on the ground that “sexual acts between a human being and an animal violate the human's dignity.” Id. at 157. Maybe so, though I take it that bestiality usually involves willing or consensual behavior by the human participant.

35 I have tried to explore such arguments further in Kleinig, John, Paternalismus und Menschenwürde, in Paternalismus im Strafrecht: Die Kriminalisierung von Selbst-Schādigendem Verhalten 145 (von Hirsch, Andreas, Neumann, Ulfrid, & Seelmann, Kurt eds., du Bois-Pedain, Antje trans., 2010)Google Scholar. An English language version is to appear in Criminal Law and Philosophy. However, the views I express in this article have not gone unchallenged. See the reply of Tziporah Kasachkoff, paired with the above reference, and also Hurd, Heidi M., Paternalism on Pain of Punishment, 28 Crim. Just. Ethics 56 (2009).Google Scholar

36 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, preamble, Dec. 10, 1984, 1465 U.N.T.S. 85. A similar ordering is found in the International Covenant on Civil and Political Rights, preamble, Dec. 16, 1966, 999 U.N.T.S. 171: “Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world; Recognizing that these rights derive from the inherent dignity of the human person.…”

37 Grundgesetz für die Bundesrepublik Deutschland [Grundgesetz] [GG] [Basic Law], May 23, 1949, BGBl.I, art. 1. Additional references to—and discussion of—the internationalization of human dignity can be found in Lee, Man Yee Karen, Universal Human Dignity: Some Reflections in the Asian Context, 3 Asian J. Comp. L., no. 1, art. 10 (2008)Google Scholar.

38 Somewhat speculatively, I suspect that Hörnle and Kremnitzer may have been misled by the compromised understanding of human dignity in Israel's Basic Law: Human Dignity and Liberty, 5752-1992, SH No. 1391, which allows that human dignity may be traded off against what is taken to be necessary for the preservation of the social order. If article 1 of the German Basic Law is overworked (as in the notorious peep-show case), section la of the Israeli Basic Law is too easily overridden.

39 Kant, Immanuel, Groundwork of the Metaphysic of Morals, Ak. 440 (Paton, H.J. trans., New York, Harper & Row 1956) (1785)Google Scholar.

40 I do not mean to imply that they cannot be sundered—indeed, they have been. But I want to suggest that there goes with the first usage an expectation of the second. For Kant, the willing of something as universal law obligates oneself as well as applying to others.

41 Waldron, supra note 4, at 235.

42 Id. at 226 et seq.

43 Kant, Immanuel, The Metaphysical Elements of Justice, Ak. 328 (Ladd, John trans., Indianapolis, Bobbs-Merrill 1965) (1797)Google Scholar.

44 Hörnle & Kremnitzer, supra note 1, at 145.