Two concepts of dignity: on the decay of agency in law

Abstract

This paper examines the radical shift we can observe in the modern legal understanding of dignity. That one should be respected for one’s own sake is a cornerstone of our modern societies, enshrined in our laws and constitutions. The idea of dignity, however, is subject to fundamentally different interpretations. More precisely, we examine two such theories of dignity – namely, the “agency theory of dignity,” associated with Immanuel Kant and based on people’s capacity for free will, and the “well-being theory of dignity,” recently championed by Alan Gewirth and regarding dignity a kind of intrinsic worth that belongs equally to all human beings as such. Kantian dignity means that we should endorse strong negative duties, but not positive duties, such as duties of welfare. From Gewirth’s one we can derive rights not only of negative freedom, but also duties of well-being toward others. The modern shift from the former to the latter, we argue, is problematic, first, inasmuch as it is an expression of the decay of agency in our legal systems, and, second, because the well-being theory of dignity is often self-defeating, hurting the well-being of the worst-off and lowering total welfare in society. This paper accordingly maintains that we should go back to the agency theory of dignity. Using an antinomian reading of Kant’s theory, we maintain that rational people are to be their own lawmaker and act from laws they themselves made, that the scope of legislative activity should be limited as a matter of dignity, and the role of dignity should be reduced in our laws. The main conclusion is that dignity cannot be a principle of law, as it is rather a principle of responsibility.