Clifford Chuang- The Fall of Democratic Legitimacy? Dignity in The Context of a Pluralistic Liberal Democracy  

Introduction

According to Samuel Moyn, dignitarian constitutionalism refers to the contemporary prevalence of 'dignity' within national and international constitutionalism, as well as the term's increased use as justification for a wide array of moral viewpoints and beliefs (Moyn 40). For instance, dignity in the abortion debate is mainly a contention between two major interpretations of dignity: that of autonomy and life (Jones 534). Dignity as autonomy is forwarded by those who wish to see unrestricted access to abortion, believing that women should have a right to choose the direction they take in life (Réaume 539). On the other hand, proponents of dignity as life wish to see an absolute ban on abortion, as the act of aborting a fetus is seen to conflict with the view that all humans deserve to be treated with intrinsic and inherent worth (Jones 514). Although scholars like Steven Pinker contend that the state is disempowered from "enforcing a conception of dignity onto its citizens...and [democratic governments] abjure any mandate to define some vision of 'the good life'" (Pinker 8), pluralistic liberal democracies that engender a framework of 'dignitarian constitutionalism' reflect a different reality. Within these countries, the judicial interpretation of dignity allows court decisions to reflect certain visions of 'the good life' at the cost of others, thereby allowing appointed judges to enforce their own conception of dignity onto citizens. Not only does such a politically active judiciary undermine democratic legitimacy, it also risks limiting ethical discourse by forwarding an uncontested, unilateral view around key political issues.

This paper thus suggests a shift from the use of dignity as a jurisdictional principle to a heuristic political principle. Only when used heuristically can the protean nature of dignity uphold the values of a pluralistic liberal democracy, leading to the possibility of an adequate compromise between potentially polarizing accounts of dignity. This paper will begin with a brief history of how dignity adopted its protean nature. It will then clarify the distinction between dignity as a jurisdictional principle and a heuristic political principle. This paper then argues that dignity as a jurisdictional principle is inconducive to promoting the values of a pluralistic liberal democracy, and that only as a heuristic principle can conflicting conceptions of dignity achieve adequate compromise. Thus, a heuristic conception of dignity is ultimately what the state should promote.

History of the Protean Nature of Dignity

Dignity's protean nature can be traced back to its origins. According to Samuel Moyn, dignity was subject to conceptual change throughout history thanks to new and emerging forces; allowing it to adopt different meanings (41). To begin, two notions of dignity arose: dignity as rank and as intrinsic worth (Rosen 11). First, dignity was originally associated with aristocratic values symbolizing a rank above others (Rosen 11). Over time, Jeremy Waldron argues that dignity as rank democratized until every human being became endowed with the rights and statuses previously afforded only to nobility (1). At the same time, dignity as intrinsic worth arose from the Roman writings of Cicero, whose conception of dignity did not refer to rank but rather to the intrinsic worth of human beings by virtue of being human (Rosen 12). This notion of dignity ultimately branched off into two major conceptions. First, it became canonized in religious constitutionalism through Catholic Ireland's rejection of the secular liberal state in 1937 (Moyn 47). As David Hollenbach observes, this Catholic conception of intrinsic dignity is based upon the idea that, since human beings are created in the image of God, treating them in an undignified way serves to deny them their intrinsic dignity (252). This was also documented in Evangelium Vitae, where Pope Paul II declared that mankind transcends his earthly existence by virtue of sharing in the very life of God (1). The second branch of intrinsic dignity was adopted by Kant, who argued that man's innate ability to reason serves as the root of his dignity, thus warranting his treatment as an end in itself (McCrudden 659). In the Kantian conception, "to treat people with dignity is to treat them as autonomous individuals able to choose their destiny" (McCrudden 660). Although the Kantian notion of dignity became popularized as the world entered secularism (Moyn 64), dignity's historical trajectories have caused the term to become an entirely protean concept, thereby leaving it susceptible to multiple interpretations.

Dignity as a Jurisdictional Principle

The protean nature of dignity does not come without its problems. Ever since its entrance into global constitutionalism in 1937 Ireland, dignity has been indoctrinated into multiple global constitutions and treaties including the German Basic Law, the Universal Declaration of Human Rights, and the UN Charter (Moyn 40). However, Christopher McCrudden points out that the presence of dignity in constitutions has enabled judges to utilize the protean nature of dignity and build it into a new central principle of adjudication (685).

The consequences of using dignity as a jurisdictional principle are two-fold. First, the judicial interpretation of dignity undermines democratic legitimacy by allowing courts to assume the role of lawmakers while politicians take a backseat on key moral issues. Although the role of the courts is to interpret ambiguous passages of the constitution and apply them to individual cases, judges work within a legally entrenched framework of concepts that cannot be interpreted beyond their literal meaning; such would be changing the law as opposed to merely interpreting it. For instance, the court in R v. Keegstra looked at whether a person's freedom of expression can override laws against the wilful promotion of hatred (R. v. Keegstra). In such cases, there was a universal agreement upon the definition of 'freedom of expression' and 'wilful promotion of hatred'; the question was simply where the line would be drawn. However, the very concept of a protean term like dignity is subject to multiple polarizing accounts. As mentioned earlier, dignity in the abortion debate is mainly a contention between two major interpretations of dignity: that of autonomy and life (Jones 534). Dignity as autonomy is forwarded by those who wish to see unrestricted access to abortion (Réaume 539), while dignity as life is proposed by those who wish to see an absolute ban on abortion (Jones 514).

In cases that involve dignity, judges are thus no longer confronted with the simple issue of drawing the line between two agreed upon concepts; rather, judges are forced to interpret what dignity means for themselves, as well as create laws that reflect their subjective interpretation. Decisions that are made using dignity thus have the possibility of leading to completely opposite outcomes even within the same constitutional context (McCrudden 698). Since dignity can be used to support but also constrain rights (McCrudden 702), its protean nature essentially serves as the portal by which morality charges the law, granting judges the political power of lawmaking (Habermas 479). This was illustrated in the following two cases. The First Abortion Decision in Germany illustrated how courts relied on the concept of dignity for a complete ban on abortion, deciding that fetal life must be afforded the same 'dignity' as man (McCrudden 709). On the other hand, the Hungarian Constitutional Court adopted a completely opposite conception of dignity, stating that the right to abortion will not be denied as the mother's right to self-determination is the most important facet of human dignity (McCrudden 688). Although critics may contend that these two cases hardly illustrate the subjectivity of judicial interpretation, since the existing German and Hungarian laws may have been vastly different, closer inspection shows that this was not the case. In fact, the laws of Hungary were modelled after Germany's and thus contained a number of similar constitutional provisions. The legal issues in either case were also expressed in very similar terms (McCrudden 710). As such, the only notable difference that could explain the polarizing decisions that resulted was that the German and Hungarian judges interpreted dignity in vastly different ways (McCrudden 710). Evidently, through the judicial ability to interpret the protean concept that is dignity, judges have become the arbitrary and undemocratic lawmakers of the modern pluralistic world (Caulfield and Brownsword 75).

In addition, the jurisdictional principle of dignity also enables the courts to reject any form of proposed legislation if judges find it to violate their own interpretations of dignity. Specifically, McCrudden points out that pluralistic liberal societies encounter the issue of a 'counter majoritarian difficulty', where a body of unelected judges have the power to call into question the decisions of a democratically elected body (714). By doing so, courts fail to promote the values of a pluralistic liberal democracy as any piece of legislation that attempts to find a middle ground on dignitaries issues are subject to whether appointed judges interpret it as violating their own definitions of dignity. The counter majoritarian difficulty was illustrated by Reva Siegel, who documented an instance where German courts struck down a proposed legislative framework aimed to respect the dignity of both pregnant women and the unborn in matters of abortion. In the words of the court, the right to a pregnant woman's self-determination was "not reconcilable with the value ordering of the basic law" (Siegel 514). Yet within the Basic Law, the values built upon dignity could as easily have been interpreted as advocating for unrestricted access to abortion as for a complete prohibition on it. As such, the proposed legislative framework was shut down not due to a violation of legal precedent, but because the judge subjectively defined dignity in a way that renders abortion illegal, and used that subjective definition as the primary basis for rejecting a proposed law. This ultimately undermines the values engendering a pluralistic liberal democracy.

Critics may suggest that dignity as a jurisdictional principle is still able to take into account the different conceptions of dignity, as judicial interpretations do not preclude finding a middle ground within dignity discourse. In fact, Siegel also documented how the Constitutional Courts in Germany were willing to invoke counselling in place of criminal punishment for women who were considering an abortion (517). For Siegel, such a decision was reflective of a changing view of women, one where the courts were beginning to recognize the importance of balancing the autonomy of women with the dignity of the unborn fetus. However, upon closer inspection, the German court's decision was not so much a compromise between different conceptions of dignity as it was a method to further enforce the 'dignity as life' doctrine as initially adopted. In other words, the German courts agreed to substitute counselling for criminal punishment only because they found that the threat of criminal punishment simply drove the practice of abortion underground (Siegel 516). Keeping in line with prioritizing dignity of life, the German courts decided that counselling was thus a better alternative than criminal punishment for preserving such doctrine. In no way did the German courts invoke measures of compromise premised on the belief that a woman's dignity of autonomy deserved just as much consideration and recognition as the dignity of life (Siegel 519). In fact, counselling was a complete substitute for criminal punishment only if it completely persuaded the women to carry their pregnancy to term; if not, criminal punishment was inevitable (Siegel 516). Simply being in conformity with decisions that reflect a changing view of women does not indicate that the decisions were enacted for that very end.

Assuming, arguendo, that a court decision truly reflected a compromise between two competing notions of dignity: although the results may prove fruitful, it is nothing more than a temporary solution that does not address the structural issues inherent to the judicial interpretation process of key protean concepts. For instance, the compromise may have simply been the efforts of a pluralistic judge, rather than the result of a pluralistic system. If a different judge interprets a similar issue, problems will inevitably rise once again. Moreover, the 'solution' does nothing to address the violation of democratic legitimacy and the reversal of roles between the courts and the legislature. This paper contends that such a solution is thus not worthy of pursuit in the long run.

Dignity as a Heuristic Political Principle

In summary, the protean nature of dignity, which requires definition, is incompatible within the judicial sphere of judges, whose primary role is to interpret the law. However, the faults in dignity lie not so much in its protean nature as in its method of application. Although dignity is incompatible within the judicial sphere, it is not precluded from being useful in other methods of application, such as within the political arena. This paper suggests that, instead of using dignity to create laws through subjective interpretation, dignity should be used heuristically as a way to present the plurality of interests and ideals that make up complex moral issues. To do so, judges must defer all decisions regarding dignity to legislature. Heuristically, dignity would no longer be used to make laws through judicial interpretation, but rather to balance the rights of those whose dignity has been violated by bringing competing views of dignity into conversation with one another. A heuristic conception of dignity is thus conducive to achieving a potential compromise on key moral issues.

Scholars like David A. Jones may question this seemingly optimistic view by suggesting that different conceptions of dignity are irreconcilable (530). Although the concept of dignity adds both conceptuality to the debate and explains the emotional forces for and against key moral issues (Jones 531), dignity's protean nature allows it to embody a family of meanings (Jones 528). As such, there is a lack of consensus regarding how different conceptions of dignity are to be understood in relation to each other, leading to policymakers 'talking past one another' (Jones 530). For instance, how are we to balance dignity as life and dignity as autonomy in cases of abortion? To what extent and in what situations should either conceptions be given priority? The problem lies in attempting to commensurate two completely dissimilar rights; a seemingly impossible task due to the lack of a universal standard (McCrudden 714). As such, Jones suggests that there can be little hope of compromise between competing views of dignity (530). Christopher McCrudden also shares in this sentiment, noting that the various concepts of dignity do not relate to each other beyond that of a minimum core (712).

However, this paper contends that compromise is in fact possible within the political sphere, as a pluralistic liberal democracy allows for the refinement of laws governing contentious issues through a gradual process of 'knowledgeable reform'. In essence, a legislative bill is initially passed that attempts to find a middle ground between competing rights. Based on the public's reaction and the subsequent consequences of such legislation, concerns can be brought forward by affected interest groups, where they are provided an adequate political platform to voice their concerns. Parliament then uses this knowledge to reform the legislation, modifying the position of the line drawn in the process. After enough iterations, the reformed legislation will likely achieve a middle ground that adequately reflects the values engendering a pluralistic liberal democracy. This method is only possible in the political sphere, where debates and democratic discourse effectively guide the 'knowledgeable reform' process. Evidently, contentious values do not necessarily require a universal unit of measurement to achieve compromise, as methods such as the 'knowledgeable reform' as proposed in this paper can be utilized.

When seen in the context of the 'knowledgeable reform' process, the polarizing accounts surrounding the issue of abortion can be seen to be somewhat reconciled. Assume that parliament recently passed a law banning abortion, having decided that it violates the dignity of life. In response, pro-choice supporters across the country voice their concerns, claiming that such an outright ban violates a woman's dignity of autonomy. Taking into account the voices of its citizens, the elected legislature then passes a compromise resolution within legislature, modifying the line drawn in the process. This process repeats until the law adequately reflects the pluralism of values within that country. In this scenario, the protean nature of dignity is not a tool susceptible to abuse by appointed judges, but rather an instrument that is receptive to the various viewpoints and ideologies that engender a pluralistic liberal democracy.

Furthermore, political compromise regarding competing notions of dignity may actually be more achievable than it appears despite the existence of seemingly incompatible accounts of dignity. First, most people do not embrace such polarizing views of dignity in a majority of moral issues. In fact, McCrudden terms the adoption of a radical view as an 'outlier case' rather than something typically embraced by the ordinary citizen (711), and that most opinions regarding contentious moral issues lie within a continuum of opposing viewpoints (McCrudden 711). For instance, many pro-life advocates make exceptions for women who were sexually assaulted or women within the first few weeks of pregnancy, while many pro-choice supporters forbid abortion after a certain number of weeks have passed. This makes the possibility of compromise much more realistic in the political sphere, where different viewpoints are taken into adequate consideration in the form of democratic debate and deliberation. In addition, dignity as a political principle also creates an impetus for politicians to fashion a framework of compromise regarding key dignitarian issues. If judges defer to parliament for dignity-related matters, proposed legislation that attempts to draw a line will no longer be subject to a subjective process of judicial evaluation. As mentioned earlier, Reva Siegel documented an instance in which compromise legislation was proposed by the German legislature regarding the issue of abortion (514). However, the German courts struck down the legislation as a violation of dignity as life, reasoning that 'the state must proceed, as a matter of principle, from a duty to carry the pregnancy to term' (Siegel 514). If pluralistic liberal democracies adopt dignity as a purely heuristic political principle, judges will no longer have the power to strike down laws that fail to align with their own subjective interpretations of dignity. This allows parliament to take back the reins of law-making, creating an impetus for a proper political evaluation of conflicting dignity claims.

Even if the 'knowledgeable reform' process fails to achieve an adequate compromise in the end, recognizing the plurality of interests by bringing competing views into conversation with each other may be argued to be valuable in itself. In other words, a heuristic concept of dignity at least allows the debate to move forward in a way that allows reasons for opposing and adopting moral issues, like abortion, to be responsive to one another. This is democratically valuable in itself because it allows both sides to consider and address the full extent of their opposition, thus serving as a way for opposing sides to voice their concerns on the same page. This serves to preserve democratic legitimacy and uphold the values that engender a pluralistic liberal democracy. Such an ambition alone is thus intrinsically valuable and worthy of being pursued as an end in itself.

Conclusion

The protean nature of dignity has caused advocates from all sides of the so-called 'dignity debate' to utilize the term as a seemingly impenetrable vanguard upon which to justify their respective viewpoints. In a world characterized by 'dignitarian constitutionalism' (Moyn 40), where laws regarding dignity are passed through the subjective interpretation of judges, courts are thus at liberty to define some visions of 'the good life' for its citizens. Not only does this undermine democratic legitimacy, it also runs counter to the values of a pluralistic liberal democracy. Yet this paper has suggested that the faults in dignity lie not so much in its protean nature as in its method of application. Just as dignity can be used to set opposing viewpoints apart, it can also bring opposing viewpoints together in debate and, possibly, adequate compromise. Only as a heuristically political principle can dignity serve to bridge the gap between opposing viewpoints. Through the gradual process of what this paper has coined as 'knowledgeable reform', opposing viewpoints are provided with a democratic platform upon which to voice their concerns. Parliament then takes these concerns into account when reforming the law, modifying the line drawn in the process. Eventually, parliament may hit a 'sweet spot' and provide an adequate compromise for all sides. Although skeptics may continue to question whether the expectation of compromise surmounts to setting the bar too high, this paper has also suggested that by encouraging democratic participation in the creation and amendment of laws, 'knowledgeable reform' is a process that is valuable in itself.

With the word 'dignity' being referenced in over 162 constitutions and international treaties around the world after WWII (Shulztiner and Carmi 461), dignitarian constitutionalism has truly "re-founded [the] public law of our time" (Moyn 40). Clearly, the switch from an interpretive to a heuristic account of dignity is long overdue. Such a shift may be a key step towards reconciling competing values of dignity, while also ensuring that the values of a pluralistic liberal democracy are upheld. This paper has thus attempted to provide some insight into the right direction moving forward.

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Note: This essay was originally written on December 19th 2019.