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Human dignity in bioethics and law
  1. Charles Foster
  1. Correspondence to Dr Charles Foster, The Ethox Centre, Department of Public Health, University of Oxford, Old Road Campus, Oxford OX3 7LF, UK;Charles.Foster{at}gtc.ox.ac.uk

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Dignity tends to be unpopular among philosophers. At least when they are doing the day job.

It is not hard to see why. It is hard not to distrust a principle used to defend and denounce abortion, and to bay for the blood and pray for the life of a murderer. Its ubiquity in international and domestic declarations and codes does not help either. It is often used there as a placeholder, and the suspicion is that that is because it has no real substance. What substance it has, it is often thought, is creepily Judaeo-Christian: borrowed from the Imago Dei, and dressed up dishonestly as Cicero or Kant to deceive the unlettered. So, whether it is hopelessly amorphous, incurably theological or just plain incoherent, it has no place in the lexicon of a serious thinker.

But sometimes nothing but dignity will do.

It is wrong to use the head of a dead person as a football, for medical students to practise vaginal examinations on a woman in permanent vegetative state or to let youths at a Casualty Department gaze lustfully at the undraped body of a seriously brain-damaged girl—even though she enjoys their attention. The wrongness can only properly be described in the language of dignity, or in some language that is necessarily dependent on dignity. Respect for persons? But why should we respect persons? Rights? Why accord rights to people and not, for instance, to stones? Duties? Well, to say that a duty is owed is meaningless unless the duty's demands are made clear. Which brings us back to the same type of question: why should I owe a duty not to do the offensive acts?

If there are times when only dignity will do, is there not a suspicion that dignity will be found if we tunnel deep enough into any ethical conundrum? That it is the fundamental principle in which all other principles are rooted? That is my contention in this book. Autonomy, beneficence, non-maleficence, respect for persons and so on are all second or third order principles. Usually, or at least when they are all given a voice in debate, they do a pretty workmanlike job. It is in the wild places of ethics (for instance human enhancement) where they most obviously fail. You have got to use dignity there, whether you like it or not. But even in the more humdrum, workaday problems, using dignity will give you a wiser, deeper, more nuanced answer than its sometimes callow children.

This is a grand—perhaps grandiose—claim. What conceivable account of dignity can be sufficiently hard-edged?

I start by making no assumptions at all about what ‘dignity’ is. I look at situations where everyone would agree that dignity, whatever it is, is present. I then identify the essential elements and conclude that dignity is objective human thriving. Warning myself about the naturalistic fallacy, I argue that it is possible to determine empirically, to a fair degree of accuracy (and with a fair consensus), what is good for humans. Humans are, for instance, quintessentially embodied and relational animals. Ascetic hermits are not thriving. They have opted out of the human adventure. Participation in that adventure is thriving.

There is nothing necessarily anthropocentric about this. The principles could apply perfectly well to forests or hedgehogs. The difficulty would simply be in determining what makes a tree or a hedgehog thrive.

Anyone who is worried that the ‘objective’ element means that I am being scarily prescriptive—that this is really ethical totalitarianism—should be reassured by the high place I give to autonomy in the list of ‘thriving’ criteria. Anyone who complains that I am conflating the normative and the empirical is right to complain. That is what I am doing. But I see it not as a criticism, but as a compliment. Surely any practically useful philosophy will, if it drills down beneath the usual analytical categories, hit an amalgam of the normative and the empirical?

I emerged from this book as a pretty convinced Aristotelian with a Stoic accent. In particular, I am with Aristotle as against Plato in believing that behaving ethically is a necessary but not a sufficient condition of human thriving, and with the Stoics (and many modern Eastern thinkers) in thinking that an appeal to ‘naturalness’ can sometimes be useful—at least as a tie-breaker in ethical discourse.

The next step is to show that I am talking here about something that can rightly be called ‘dignity’, as opposed to, for example, general niceness. That is a hermeneutic exercise. It occupies quite a lot of the book.

How should this model of dignity be deployed? I propose a ‘transactional’ approach. One should assess the dignity interests of all the stakeholders in a proposed action or inaction. Everything done by X to Y affects both of them, and also many others. The woman in permanent vegetative state might not have many live thriving interests (she has some, I would say), but the medical students who are violating her by practising the vaginal examinations have many, and their interests are being violated by their violation of the woman. Bioethicists and medical lawyers are normally so fixated on patients’ interests that they fail to think that way. The stakeholders will include the patient, the clinicians, the families, society more generally, the unborn and the dead. One then weights the dignity scores of all the stakeholders (a patient's score would generally, but not necessarily, have a higher weight than that of a hospital porter), and notionally tots them up in order to decide how much dignity is in issue in the transaction. A negative score would preclude the transaction. If transaction X has a higher score than Y, X is preferable to Y. It is a sort of utilitarian calculus.

All this is much easier said than done, of course. But the ‘weighting’ process is that routinely done by judges when they are drawing up ‘balance sheets’ in best interests determinations, and the transactional approach is, I argue, that mandated by Article 8 of the ECHR. The jurisprudence is already there. So is the judicial expertise.

I do not suggest that this approach makes the determination of right results easy. Perhaps its main use is not in dictating the right answers, but in suggesting the right questions to ask, and in providing a common linguistic currency in which to discuss them. It may be competing in the same market as relational autonomy, but it does a lot more work.

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Footnotes

  • Competing interests None.

  • Provenance and peer review Commissioned; internally peer reviewed.

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