Facetten Der Menschewürde, pp. 75-101, Nikolaus Knoepffler, Peter Kunzmann and Martin O'Malley, eds., Freiburg am Breisgau: Karl Alber Verlag, 2011
17 Pages Posted: 7 Mar 2013
Date Written: 2011
The article provides a performative definition of the human dignity principle for the purpose of (a) supporting its further recognition in law and ethics, and (b) providing a tool for differentiating and thereby supporting current dignity discourse. The performative definition: "Human dignity is the recognized affirmation that humans, qua humans, have a status of distinctive and exceptional worth expressed and thus discernible in law."
The performative definition helps capture the meaning contained in the principle of human dignity that is incorporated into the UDHR, the German Basic Law, and many other legal formulas and systems. Such a definition also aids in the discovery of functional equivalents to dignity for legal and ethical systems predating the UDHR. It is important to note that this performative approach does not surrender normative claims or the relevance of normative claims for the law – the opposite is the case. By “performative” what is intended here is an examination not only of the moral content of the principle, its inherent reasonableness and its coherence among other prevailing values and principles, but also a genealogical review of how human dignity has been and continues to be applied. The paper clarifies what is meant by the definition, the usefulness of such a performative approach, and the specific and necessary role of moral normativity for national and international structures of law.
Two aspects of the principle’s performative definition are especially essential, namely, the (a) action of recognition and the (b) object of recognition. The action of recognition is essential because, as an action, recognition is an historical act that occurs in a particular time and place. The act is therefore contextualized by a specific moral environment and the meaning of the act is both informed and restricted by that context. The object of recognition is essential because, despite its contextualized origin, human dignity is a claim that all human beings, by virtue of their being human beings, possess an unconditional worth. Among other advantages to this approach is the incorporation of the tension between the contingent and universal directly within the definition itself. Rather than posing a contradiction, the tension propels its utopic dynamism – such that the process of recognizing it is a process towards more justice and not merely compliance.
The five elements of the performative definition receive careful examination: Human dignity is (a) the recognized affirmation (b) that humans, (c) qua humans, (d) have a status of distinctive and exceptional worth (e) that is expressed and thus discernible in law.
Suggested Citation: Suggested Citation
O'Malley, Martin J., A Performative Definition of Human Dignity (2011). Facetten Der Menschewürde, pp. 75-101, Nikolaus Knoepffler, Peter Kunzmann and Martin O'Malley, eds., Freiburg am Breisgau: Karl Alber Verlag, 2011. Available at SSRN: https://ssrn.com/abstract=2229392