論文

Human Rights Based on Human Dignity:
Defence and Elaboration through an
Examination of Andrea Sangiovanni’s
Critique
Kosuke Kiyama

I. Introduction
Recently, vigorous debate has emerged in the field of the philosophy of humanrights, attracting not only moral, political, and legal philosophers, but also
historians, lawyers, and civil society organisations. In the current debate,
opponents attack so-called naturalistic theories of human rights, which
historically comprise the mainstream of human rights theories. Naturalistic
theories see human rights as those all persons have in virtue of humanity, andthe rights are assumed to be captured by our moral reasoning independent ofinstitutional or practical reasoning. Against this view, many critics contend thathuman rights cannot be captured simply by moral reasoning and we should
focus more on practice(s) wherein human rights play their roles.
Some advocates of the naturalistic views tie values or interests that should
ground human rights with the notion of human dignity. Specifically, theyinterpret the notion in international human rights documents like the Universal
Declaration of Human Rights as embodying the moral reasoning underlying
human rights. At the same time, stringent criticisms have appeared, which areagainst the assumed connection between human rights and human dignity.
These claim that human dignity should not be the basis of human rights,
because it contains normatively undesirable problems.
The purpose of this paper is to show that the notion of human dignity as agrounding value of human rights and naturalistic theories can be defended fromcriticism. To accomplish this, the paper is structured as follows. First, it showsthat in influential theories of human rights such as the one offered by James1

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Griffin, the notion of human dignity in contemporary human rights documents istreated as providing important guidance for grounding human rights. Then, thispaper defends dignity from Andrea Sangiovanni’s series of new counterarguments. Sangiovanni insists that theories of dignity should not be adopted
while proposing a justification of fundamental human rights based on the valueof resisting social cruelty for a person’s integral sense of self. This paper
responds to his contentions , a rg uing that his criticisms of dig nity a reungrounded and the notion can work in the justification of human rights. In
addition, implicit difficulties in his suggested view of human rights are pointed
out, which to be overcome, will need the basic ideas of naturalistic theories.

II. Human Dignity in Naturalistic Theories
Before proceeding to the criticisms, I briefly overview how the notion ofhuman dignity is used in contemporary influential theories of human rights.
James Griffin, whose work, On Human Rights is often treated as not only thebest book supporting natura listic theories but sometimes as ‘the mostsophisticated philosophical treatment of human rights since the Universal
Declaration’ (Tasioulas 2016), locates dignity at an important position for his
theory. He argues that in order to envisage the ground of human rights, whichare ‘indeterminate’ in the current world, it is necessary to reinterpret their
history and current practice. According to him, we use the ‘Enlightenment
notion’ of human rights, which appeared in the late 18th century at the latest
and survived until now (Griffin 2008: sect. 1.1). Although the Enlightenment
notion is incomplete to achieve ‘determinateness’, it is possible to find thesubstantive explanation of the central value in the notion (Griffin 2008: sects.
2.1-2.3). According to Griffin, we can acquire the substantive explanation by
searching for the best interpretation of the notion of human dignity thatappeared in the tradition and exists in current international human rights
documents (Griffin 2008: 5-6, 21). Presuming this, as the interpretation of(human) dignity relevant to human rights he shows the notion of normative
agency: ‘our being able to form a conception of a worthwhile life and thenpursue it’ (Griffin 2008: 47). Thus, in his view, human rights are considered as‘protections of ... dignity’ interpreted as normative agency (Griffin 2008: 3).
Like Griffin, many naturalistic theorists conceive dignity as an important2

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Human Rights Based on Human Dignity: Defence and Elaboration through an Examination of Andrea Sangiovanni’s Critiquesource of human rights, as in the case of Martha Nussbaum, who interprets thenotion in the language of capabilities (Nussbaum 2011: 31, 62-7). Therefore, tothese theorists, dignity in contemporary human rights documents should beinterpreted as embodying moral reasoning such as for agency or central
capabilities (Griffin 2010a: 751; Liao & Etinson 2012: 335). In this way, in many
naturalistic theories, dignity is captured as the primary source from which to
ground human rights.

III. Sangiovanni’s Criticisms of Dignity and Responses
1. Theories in Three Traditions, or Mixed Theories?
Andrea Sangiovanni’s recent book titled Humanity without Dignity offers acomprehensive view that objects to human dignity, with unique and precise
analyses of some philosophical views of dignity.1 He considers three branches in
the philosophical traditions of dignity, namely Aristocratic, Christian (especially,
Catholic, inter alia, Thomistic), and Kantian, and rejects them all. I believe thatthe best contemporary theories of human rights that utilise the notion of dignity
do incorporate advantageous resources of the three traditions, and it is logicallypossible that even if each of the three traditions has pitfalls, a human rights
theory that relies on the best elements of the three can avoid them. As such,
Sangiovanni’s focus on the three respective traditions (or contemporary
exemplary theories thereof), not on contemporary mixed theories of the three,
may lead him to underestimate the potential of dignity for the desirable theoryof human rights.
Consider Griffin’s argument again, this time as one of the best mixed theories
available in the contemporary debate that utilise elements of the three
traditions. First, when he interprets dignity through normative agency as agrounding value of human rights, he employs the notion of dignity used by
Christians, inter alia, Pico della Mirrandola, as an important instruction (Griffin
2008: 26, 31, 133, 152; Griffin 2010a: 742, 751; Griffin 2012: 14-5; Griffin 2014: 2268). He observes that at least after the late Middle Ages persons in the Christianworld started to envisage themselves as ‘having been made in God’s image’ andas normative agents or the ‘creator[s]’ of themselves like God (Griffin 2008: 150).
Second, he is to some extent close to Kant. 2 The similarity appears when hesets the notion of normative agency authoritative to huma n rights a nd3

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acknowledges ‘deriving’ concrete human rights from it, similar to how Kant
derived rights from the ‘Universal Principle of Right’ (Griffin 2008: 192; Crisp
2014: 145). In addition, importantly, there is a symmetry between Kant’s dignity
possessed by those who are ‘the subject of a morally practical reason’ andGriffin’s dignity possessed by normative agents (Crisp 2014: 146-7). Third, Griffin
treats human rights based on normative agency as the special standing of (most)human beings compared to other beings, similar to the special status aristocrats
possessed compared to others in the past. According to him, ‘[h]uman dignity
must be a high value inhering in human status’ (Griffin 2014: 226; see also Griffin
2008: 26-7, 44). To summarise, Griffin uses some elements of the Christiantradition to envisage the idea of normative agency, which, similar to Kant, hetreats as authoritative and applicable to rational and volitional agents, based on
which he decides who are in the class of high status or standing.
Like Griffin, many contemporary naturalistic theorists adopt views that
contain elements of the three traditions. Although I believe this fact alone canhelp them avoid the problems of each tradition claimed by Sangiovanni, 3 someof his criticisms still apply to many, including the best naturalistic theories ofhuman rights that utilise the notion of dignity. At least Sangiovanni’s two
criticisms of the Aristocratic tradition and one of the three traditions are still
relevant to the best naturalistic theories, and it is worth responding to them.
2. Two Criticisms of the Aristocratic Tradition and Responses
Sangiovanni’s criticisms of the Aristocratic tradition apply directly to many
dignity-based naturalistic views. According to his interpretation of the tradition,
those with ‘elevated social standing’ (Sangiovanni 2017: 18, 23) were treated ashaving dignity, while in the contemporary sense, all persons are assumed topossess this standing. In this sense, if we live with the standing, we are treatedas living dignified lives. According to Sangiovanni, a person may lose dignity
understood in this way when faced with torture or slavery, because in thissituation, he or she is no longer in the standing of a ‘dignified man or woman’ or
loses the ‘capacity to live such a dignified life’ (2017: 24-5). Therefore, in thisunderstanding of dignity, ‘[t]he person who lives in squalor lives a life “beneaththe dignity” of a human being; such squalor makes him or her incapable ofacting in a dignified or “decent” way; people in such conditions are not living
lives that are “worthy of dignity”—worthy, that is, of their higher place in the
4

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Human Rights Based on Human Dignity: Defence and Elaboration through an Examination of Andrea Sangiovanni’s Critiqueorder of nature’ (Sangiovanni 2 017: 25). He sees this view as implicit ininfluential naturalistic views and criticises them. Especially criticised are David
Miller’s human needs theory in which decency or the level of needs is set
according to societal conventions, and Martha Nussbaum’s approach where
humans’ central capabilities are treated as necessary for a life with dignity.
According to Sangiovanni, the problem exists in the depiction that dignity canbe lost. If you do not live in miserable adversity, you are said to live with
dignity. This means that others can destroy your dignity or your ability to live
in a dignified life when, for example, you are sent to a slave camp or tortured(Sangiovanni 2 017: 25). Sangiovanni sees several pitfalls or implausible
consequences of the depiction. Hereafter, I respond to the alleged problems.
First, according to Sangiovanni, the depiction has two ‘odd’ implications, bothof which concern the existence and absence of dignity. One is ‘the implicationthat someone who is very poor (or living in “squalid” conditions), and who as aresult does not “stand tall”, lacks dignity or, in Nussbaum’s phrase, is “unworthy”
of dignity, or, alternatively, must be living an “indecent” life’ (Sangiovanni 2017:
26, italics original).4 For example, in Nussbaum’s view, you are unworthy of
dignity if you do not possess one human central capability among those listed.
The other ‘odd’ implication mentioned by Sangiovanni is that ‘someone who isstrong enough to withstand an assault on his or her dignity doesn’t have a claim
against his or her oppressor, since, if the claim is based on the worth of livingwith “human dignity”, then his or her human dignity has not been set back atall’ (Sangiovanni 2017: 26, italics original). However, these implications are not
odd at all. Regarding the former concern, we must consider the use of the term
dignity. As Thomas Pogge (2014a; 2014b) rightly points out, there are ‘two
distinct but related meanings’ of dignity. One is ‘inalienable’ dignity, and theother dignity is ‘precarious and stands in need of social protection’. This dual
meaning can be coherently interpreted as ‘inalienable’ dignity requiring its own‘realisation’ (Pogge 2014a; Pogge 2014b). We can understand this dual meaningof the concept using the analogy of the Invincible Armada. Why do we need tothink of the Invincible Armada as always invincible? Some people (perhaps
mostly in Spanish empire) ‘expected’ the Armada to ‘realise’ to be invincible,
although in reality, it is not always so. Human dignity is treated as inalienable,
because it is expected to be so, and thus to realise that. Therefore, the dignityof a person in squalid conditions is not yet realised, but at the same time, it is5

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expected that he lives a decent life or realises dignity. Thus, he is worthy of
dignity. Regarding the latter concern, we must take the inter-subjective natureof social standing into account. Even if the oppressed can ‘withhold an assault’,the existence thereof means that her standing is in danger. Dignity as social
standing or status exists when her relations with others are composed in a
relevant way, such that her decent life is secured in a community or hercapabilities are treated as (part of) objects of social policies. (This point can beunderstood as one requirement of ‘practicalities’, especially that of general social
information. I return to this later.)
Sangiovanni’s second criticism of the depiction that dignity can be lost is thatwrong events that allegedly harm dignity are wrong, because of reasons otherthan the harm to dignity. In his view, it is ‘hard to believe’ that ‘the wrongnessof torture or slave camps [is] contained in the fact that it makes it hard for us
to maintain a dignified bearing’; rather, ‘it is the suffering, the humiliation, and ...
the cruelty involved in cases like these that matters, not our dignified bearing’(Sangiovanni 2017: 25-26, italics original, see also 210). Certainly, it is true that
there are obviously many wrongs in slave camps and torture, where theinterests of a person not well-connected to her social status or standing are
involved. At the same time, however, interests that are connected to her status
and standing are also infringed. Both types of wrongs occur at the same time.
Reading Sangiovanni’s statement as ‘in torture and slave camps many interests
other than those connected to social status or standing are infringed’, it is true,
but who is the theorist who insists that dignity in the Sangiovannian-aristocratic
sense captures all wrongness in torture and slavery? As long as the notion of
dignity concerns human rights, as in the uses of Miller, Nussbaum and Griffin,
the purpose of the reference is to explain the grounds of human rights.
Theorists of dignity or decency explain these grounds by limiting the interests
to those connected to dignity or decency while acknowledging the importanceof other values. As Miller rightly argues, ‘the grounds that one gives for thehuman right not to be tortured do not have to explain the full wrongness of
torturing’ (Miller 2014: 161, n.11). To distinguish human rights from otherdomains of ethical notions (even if the latter can also show reasons for thewrongness of torture), core interests that should ground human rights areneeded. Indeed, Sangiovanni himself classifies the particular wrongs involved in
torture as those which infringe the interests necessary to an ‘integral sense of601_論文_Kosuke-Kiyama.indd 6

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Human Rights Based on Human Dignity: Defence and Elaboration through an Examination of Andrea Sangiovanni’s Critiqueself’ (2017: 75-86). I return to this point in the final section.
3. Criticism of the Three Traditions and a Response
Sangiovanni offers another criticism that applies to all three traditions, asprobably the most grievous one. In these traditions, we cannot find reasons why
dignity is possessed by all equally, because there are variations between
persons in realising levels of dignity or their capacities to realise it. These arevariations in persons’ capacities to live according to their status as humans in
the Aristocratic tradition, their rational and volitional capacities that are similar
to God’s image in the Christian tradition, and their ability to choose rationallyin the Kantian tradition (Sangiovanni 2017: 26, 28-35, 104-5). According to
Sangiovanni (2017: 26), questions like the following hold: ‘Why shouldn’t those
who have realized their human dignity to a greater extent have more of a claim
than others?’ ‘[D]on’t individual capacities to live in accordance with “humandignity” vary? And, if that is true, shouldn’t their claims vary too?’ As a result,it becomes dif f icult to show t hat we a re e qu al in dig n ity. He sees t he
explanation of equality as a desideratum that any theories of dignity must offer,
following the observation by Allen Buchanan ([2010]2014) that the egalitarianismof human rights exists in our practice (Sangiovanni 2017: 15).
Naturalistic theorists, inter alia Griffin, have responded to this line of criticism
while acknowledging the variations in capacities for or realisations of the values
that ground human rights. They argued that while capacities or realisations
vary, relevant to human rights is the threshold or minimum level of capacities
or realisations. In this view, once persons are above the threshold of capacities
or realisations, then remaining variations are irrelevant to the status. For the
proponents of this view, ‘[n]one of these continuing differences in degree above
the threshold prevent there being a valuable status’ (Griffin 2010b: 348; cf. Griffin
2008: 44; Griffin 2010a: 748).
Perhaps, Sangiovanni wants to point out that because in this view it isadmitted that there are gradations of status below the threshold—for example,
children’s insufficient capacity may not grant them the full status (Griffin 2008:sect. 4.7)—the view must also admit gradations of status above the threshold; i.e.
there is no reason not to do so. Yet I think there can be at least two reasons. 5
To explain, I formulate the argument of dignity in question as follows: interests
related to the capacity for x, or realisation of x should explain the possession of7

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dignity and thus of human rights. The objection is that the capacity for x or
realisation of x would not be equal above a set threshold, and it is natural toreflect this inequality in the possession of dignity and human rights. Here, I
suggest that one possible reason to reject the inequality above the threshold isthat the list of interests related to the capacity of or realisation of x contains aninterest related to equality. For example, if a psychological interest of recognitionby others as equals is the interest of this kind—I think Sangiovanni’s idea of an‘integral sense of self’ relies on this kind of interest and touches on this point
later—, then there is a strong reason to think that dignity is equal among
persons who possess it. Another possible reason is that equality of dignity
should be inserted from outside the formulation, and this should override thenatural requirement of reflecting variations of the capacities or realisations
relevant to dignity above the threshold. Perhaps a probable specific rationale forthe insertion is the strong egalitarianism of dignity enshrined in the actual
practice, 6 or the fact that ‘[e]qual respect for persons figures in ethics at aparticularly deep level’ which ‘gestures some form ... of equal moral weight for
all persons’ (Griffin 2010a: 755). If it is difficult to deny these two possible
reasons, it means that the notion of dignity need not explain the equality ofcapacities or realisations of it, as obvious in the latter possibility. Therefore,
there is no need to adopt the desideratum of explaining equality in dignity. In
other words, our support for the egalitarianism of human rights does notnecessarily require the egalitarianism of the capacities or realisations of
persons’ dignity.

IV. Criticisms of Naturalistic Theories and Responses
Sangovannni does not only argue against the notion of dignity but also
against naturalistic theories. Although he examines and criticises Griffin’s andJohn Tasioulas’ works as two exemplary naturalistic theories, hereafter I
concentrate on his criticisms of Griffin, as Sangiovanni’s views of Tasioulas seemplausible.
Sangiovanni’s basic thought in criticisms of Griffin’s view is that it cannot
show the content of human rights, which should be distinguished from othermoral rights or all moral rights ‘simpliciter’. As seen, for Griffin, the grounding
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Human Rights Based on Human Dignity: Defence and Elaboration through an Examination of Andrea Sangiovanni’s Critiquefrom moral rights simpliciter in the sense that the former is ‘necessary for theprotection of normative agency’ (Sangiovanni 2017: 180; cf. Griffin 2008: 64, 90,
101, 263). Yet Sangiovanni is sceptical about whether this distinction can work.
His contention is the same as the already suggested dilemma of ‘austere’ and‘rich’ interpretations of normative agency (Buchanan [2010]2014: 95-6; Tasioulas
2010: 659-660; Cruft 2014: 124; cf. Raz 2010: 326). According to the ‘austere’interpretation, normative agency is treated as ‘the bare capacity for intentional
action together with some measure of its successful exercise’ (Tasioulas 2010:660) or the capacity ensured if ‘existence as normative agents’ is maintained(Buchanan [2010]2014: 95). Adopting this interpretation, however, even slaves
can be treated as possessing normative agency, since their owners obviously
utilise their capacity for ‘intentional’ action (Tasioulas 2010: 660). Thus, possibly,
even a slave ‘can form a conception of a worthwhile life within the constraints
to which they are subject and take effective steps to pursue it’ (Buchanan[2010]2014: 95). On the other hand, it is possible to adopt the ‘rich’ interpretation,
which states that relevant normative agency requires the protection of ‘theopportunity for “reasonably effective” or “adequate” normative agency’(Buchanan [2010]2014: 95), which can accommodate the right against slavery.
Yet this comes at a tremendous cost: indeterminacy regarding how much liberty
or wherewithal is required for ‘reasonably effective’ or ‘adequate’ normative
agency (Tasioulas 2010: 660; Buchanan [2010]2014: 98). If all moral rights thatcan contribute to ‘adequate’ normative agency are considered as human rights,
then we cannot distinguish these from moral rights simpliciter (cf. Raz 2010:326-7). When Sangiovanni rejects Griffin’s view, this dilemma is suggested in a
replicative way. He highlights the same misgiving for ‘rich’ interpretation whenmentioning, ‘[i]f Griffin identifies “normative agency” as a fully realized capacity“to choose one’s own path through life” ... then all moral rights could beconstrued as contributing to such a life’ (Sangiovanni 2017: 180, italics original).
Alternatively, as in the ‘austere’ interpretation, he says that if what Griffin says
is that normative agency requires moral rights that are ‘necessary’ for its
protection or those rights without which agents cannot live worthwhile lives,then, a moral right against slavery is not ‘necessary’, because her position as aslave makes it only difficult for her to live a worthwhile life, not to make it
impossible (Sangiovanni 2017: 180-1).
Griffin’s basic reply to this dilemma is that it exists only when the ‘austere’
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文and ‘rich’ interpretations are ‘the only plausible ones’ (Griffin 2010a: 747).
According to Griffin, however, ‘[h]uman rights ... are rights to what allows one
merely to act as a normative agent’ (2010a: 747). This should be the criterion to
distinguish human rights from other moral rights. As such, ‘[n]ormative agent”
is ... a threshold term’ (Griffin 2010b: 348). Yet questions continue. What isrequired to be allowed ‘to act as a normative agent’? How can we determine thethreshold of normative agency?
For this, we must look at how Griffin determines what is required to beallowed ‘to act as a normative agent’ and what is not, or the threshold of therequirement of normative agency. Griffin’s writings can be interpreted as
supplying at least two theoretical sources for the threshold. I show that the firstshould be reduced to the other substantial interpretation, and the latter should
be supported with provisos.
The first interpretation is suggested by Sangiovanni. According to it, thethreshold is given because any theory of human rights must be faithful to ‘theway human rights are conceived by practitioners’ (Sangiovanni 2017: 181). As
explained in section II, Griffin wants to achieve the determinacy of sense byappea ling to the historica lly developed notion in the current la ng uage
community. From this, the interpretation sees his writings as indicating thatthe determinacy of the language of human rights, which requires a threshold of
requirements of normative agency, is given by reference to the use of thelanguage in the actual practice.
Important is being faithful to the use of practitioners if the grounding valueof human rights should be ‘taken up’ and ‘endure’ in the language community,
as Griffin (2008: sect. 4.6; 2010a: 750; 2014: 221) and perhaps most human rights
theorists accept.7 If the determinacy of the language is important for any viewof human rights to be taken up and endured in practice, then we may thinkthat the threshold should be searched for in the practice. 8 We cannot, however,rely simply on practice, as there are many values and interpretations of these in
the practice. In addition, even the value of normative agency in practice is open
to many interpretations among the participants therein. Some practitioners
believe that the right against discrimination can be shown from the value of
normat ive agency while ot hers do not , 9 a nd t he pract ice itsel f ca n notdemonstrate whether it contains the right or not. Therefore, to determine what
is inside the threshold that should be taken up and endured, substantial
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Human Rights Based on Human Dignity: Defence and Elaboration through an Examination of Andrea Sangiovanni’s Critiquereasoning is needed.
Therefore, a substantial source is needed to appropriately interpret the valueof normative agency that would set the threshold. The second source found in
Griffin is this substantial one; i.e. ‘practicalities’. Practicalities represent ‘empiricalinformation about ... human nature and human societies’ (Griffin 2008: 38) andcontribute ‘to fix[ing] boundaries for the right’ in question (Griffin 2008: 73).
Griffin uses the human right to basic education as example. In his view, eventhough an illiterate person can have the capacity to choose and pursue his or
her worthwhile life, literacy without doubt increases the number of those who
can actually choose and pursue their worthwhile lives. Yet it seems also truethat if people can access not only to the literacy education, but also bachelor’sor doctoral studies, the number of people who can actually choose and pursue
their worthwhile lives will increase (Griffin 2010b: 348). If so, do we have ahuman right to the latter education? In Griffin’s view, to set the boundary of thecontent of a right (e.g. the level of education required to represent the humanright to education), we must see not only the effects of the content (e.g. theeffect of education) on normative agency, but also social manageability (Griffin
2008: 37-39). Griffin proposes considering the ‘general run of people’ as theapplication of social manageability to set the boundary of the education required
as a human right (Griffin 2010b: 348). According to him, ‘[i]n drawing thedividing line, we should consider the general run of people’ and when ‘theconditions necessary to ensure that this general run of people will be at or
above the threshold [of normative agency]’ the boundary of the required
education will be set (Griffin 2010b: 348). Thus, in Griffin’s view, we can set theb ou nd a r ie s or l i ne s of object s of hu m a n r ig ht s by cons ider i ng s o cia lmanageability.
However, substantive criteria are needed to judge what is or is not needed forsocial manageability. For Griffin, the principle of ‘ought implies can’ is at thecentre of the practicalities or social manageability (Griffin 2008: 98-100, sects 6.1,
6.2). I claim that while this line of thought is essentially appropriate, it should becomplemented with at least two provisos.10 Griffin states that practicalities
require consultation with human and social nature, in which the ‘ought-impliescan’ principle is a criterion to determine the requirement of human rights.
According to him, concerning the huma n nature, the limits of ‘ huma nunderstanding’ and ‘human motivation’ are the determining factors of human
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論文rights (Griffin 2008: 72, 98), while for social nature, the ‘particular circumstances’of a society determine these (Griffin 2008: 38).
As a proviso to this line of thought, first, I claim that the reference to humannature, such as human understanding and motivation, should be limited only tonormatively desirable nature. Consider the following case of the formation ofadaptive preference, as an example of undesirable human understanding. A
reasonably rich society exists wherein the norm that higher education such as
doctoral studies are reserved for males is prevalent. At the same time, many
women are so accustomed to the norm that they do not even think aboutobtaining higher education, even if this will increase the prospect of the successof their worthwhile lives. I believe, in this society, even if women can choose
and pursue some worthwhile lives without higher education, it is not desirable
to treat their understanding as given, and hence the conditions to decide thesuccess of worthwhile lives of the ‘general run of people’, for example, as given.
Here, we should avoid assuming the nature that ‘people tend to get accustomed
to an undesirable situation and form their worthwhile lives according to it’ as apriori.11
Second, concerning social nature (although it is related to human nature), in
restricting the content of human rights, the relevant social nature should berobustly infeasible, not weakly infeasible.12 Robust feasibility is the unrealisability
that in the present and foreseeable future, the realisation of the objects is
impossible. Examples here include everyone’s right to go to the Moon. Weakfeasibility is the unrealisability that society has failed to accomplish the object
because of volitional, structural or other avoidable failures, not because ofunavoidable failures. I claim that the former is relevant in restricting thecontent of human rights, but the latter is not. The reason is that a human rightshould not be determined by the failures of society that can be avoided. If weapprove of weak infeasibility as a legitimate reason for a right not to exist, theright is subject to real-world failures and loses the potential to change thesefailures, and thus, to realize itself.13
I do not claim that these provisos as exhaustive, but (in collaborations withother appropriate provisos14) they make it possible for practicalities to show thethreshold and restrict the content of human rights. In this sense, Sangiovanni’s
critique of Griffin does not succeed.15

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Human Rights Based on Human Dignity: Defence and Elaboration through an Examination of Andrea Sangiovanni’s CritiqueV. S
 a ngiova nni ’s Alternative: A Genuine Alternative to
Humanity with Dignity?
1. Sangiovanni’s Alternatives to Dignity and Naturalistic Theories
Instead of dignity and the naturalistic theories, Sangiovanni shows the idea of‘integral sense of self’ and a context-sensitive human rights theory. According
to his interpretation of the ‘paradigmatic’ instances of treating others as inferior
or unequal such as torture or genocide, the ‘wrong-making property’ is ‘social
cruelty’ (Sangiovanni 2017: 75-6). Social cruelty is wrong because it involves the‘use of another’s vulnerability to attack or obliterate ... [his or her] capacity todevelop and maintain an integral sense of self’ (Sangiovanni 2017: 76). By self hemeans ‘what is sometimes called one’s self-conception, one’s conception of theva lues , com m it ment s , a nd concer ns t hat a re cent ra l to one’s l i fe , t herelationships and roles that make one the “kind of person” one is’ (Sangiovanni2017: 79). To have an integral sense of self requires that a person has two viewsof herself, first as ‘a creator and enactor’ and second as ‘what ha[s] been createdand enacted’ (Sangiovanni 2017: 79). This sense has special value as it is ‘aconstituent ingredient and structural element of a flourishing life’ (Sangiovanni
2018: 82). Social cruelty attacks the sense by destroying ‘our nature as selfpresenting beings’ (Sangiovanni 2017: 82 italics original). Sangiovanni insists that
torture endangers our self-presenting nature (2007: 83-5); thus, social cruelty(and its cases like torture) is wrong. To protect us from social cruelty herequires ‘opacity respect’, which means treating the inner life of a person as‘opaque’ (Sangiovanni 2017: 88). According to Sangiovanni, this type of respect isrequired because by making ‘the contingent aspects of ... [persons’] life andsituation as opaque’ (2017: 88) it can offer space for self-presentation that isrequired to guarantee the conditions necessary for an integral sense of self (825, 88-90). In this way, he postulates the integral sense of self and opacity respect
as substitutes for dignity and the respect based on it.
The idea of a n i nteg ra l sense of sel f a lso plays a n importa nt role i n
Sangiovanni’s unique view of human rights. According to him, there are‘multiple’ human rights practices, and human rights should vary according to
the context of each practice. He continues that naturalistic theories assume theexistence of ‘an underlying moral unity to human rights practice’ (Sangiovanni2017: 196). However, he proposes abandoning this assumption and accepting that13

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論文‘conceptions’ of the human rights ‘concept’—‘moral rights whose systematic
violation merits universal moral, political, and legal concern’ (Sangiovanni 2017:197)—can differ according to each practice. For example, a human rights‘conception’ for Amnesty differs from the ‘conception’ of, say, a Canadianpolitician who considers whether the country should intervene in Syria, because
their contexts are different (Sangiovanni 2017: 198-9). The context must be
specified, the expected role of human rights in the specified context explicated,and human rights in the context and their role identified (Sangiovanni 2017:
205-6). Sangiovanni (2017: chs. 5 and 6) focuses on the international legal humanrights system as an example of multiple practices and sees rights constitutive of
equal moral status as ‘fundamental’, as they avoid social cruelty and protect the
integral sense of self (Sangiovanni 2017: 240, cf. 210-1). These ‘fundamental’
rights also allegedly demonstrate the moral reasoning behind ‘the super-norms
of international law, namely jus cogens, erga omnes, and rights nonderogable instates of emergency’ as their ‘moral heart’ (Sangiovanni 2017: 235, cf. 241-4).
2. Do Sangiovanni’s Alternatives to Dignity and Naturalistic Theories Succeed?
Although Sangiovanni’s alternatives are unique and interesting, I doubt thathis proposal of resisting social cruelty for the integral sense of self can succeed
as a genuine alternative to dignity. I also argue that naturalistic theories areneeded to deal with the shortcomings of his context-based view of humanrights.
First, problematic for him is explaining the reason for regarding interests
connected to social cruelty, and thus the integral sense of self, as a suitablebasis for equality and ‘fundamental’ human rights. Although he shows theinterests from his interpretation of paradigmatic cases of treating others as
inferior or violations of human rights, it seems that in these cases, many
interests are infringed including those concerning the integral sense of self andnormative agency, for example. Here, it is difficult to single out interests thatare peculiarly infringed in the paradigmatic cases. If so, the reason that one
or some interest(s) are implicit in wrongdoings and serve as the basis of‘fundamental’ human rights must be highlighted. Sangiovanni himself singles
out a person’s interests connected to an integral sense of self for a person,
namely being able to see herself as an ‘autonomous, or self-governing’ selfcreator and self-created (2017: 80). I dare not criticise this view, although1401_論文_Kosuke-Kiyama.indd 14

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Human Rights Based on Human Dignity: Defence and Elaboration through an Examination of Andrea Sangiovanni’s CritiqueRozenboom (2018: 508) regards it as close to the Kantian view Sangiovanni
criticises. However, noteworthy is that singling out interests relevant to(‘fundamental’) human rights gives rise to the question of what interests should
ground human rights. In this situation, where many interests can explain thewrongness of typical human rights violations, he cannot avoid engaging in thecontroversy over what interests are appropriate as a basis of (in Sangiovanni’scase ‘fundamental’) human rights. This is the question that candidates of theanswer have been noted by naturalistic theorists (e.g. normative agency or
central capabilities) (Griffin 2008: 93-4).
Second, related to the first point, I argue that Sangiovanni’s strategies toanswer the ‘variation objection’, which he regards as fatal to the dignity-based
theories as we discussed earlier, is very close to the strategies adopted innaturalistic theories. I n his conception of the integral sense of self, as
Sangiovanni (2017: 104) recognises, individuals’ capacities to develop or maintainit vary: some are vulnerable, while others are not. To avoid the conclusion ‘weare not equal because our vulnerability differs’, he seems to introduce two
strategies. The first is to argue that our ‘central rights-generating interests
against inferiorising treatment grounded in our sociable nature’ (Sangiovanni2017: 103) requires equality. I read this as meaning only that our interests forequality are stringent and should be respected. Naturalistic theories can takethe exact same position as seen in section III. Sangiovanni’s second strategy is
to invoke opacity respect to vulnerabilities of individuals (2017: 104-9). In thefirst place, it is difficult to interpret Sangiovanni’s statement that ‘the thirdparty duties, and hence the character of the rights, will vary according topeople’s vulnerability’ (2017: 105, italics original) in a way consistent with hisconception of opacity respect, which requires treating another’s inner lives (88)and ‘another’s weakness and vulnerability as opaque to us’ (91). Perhaps we canunderstand this coherently by interpreting it as ‘vulnerabilities of a person
should be reflected in our attitudes toward her, but we must behave as if they
are opaque’. This interpretation approves, however, that respect for a personwith less vulnerability and another with more vary, because we are required toreflect on the variation. Sangiovanni may reply to this by saying that ‘“variance”... should not be understood in terms of scalar’, and ‘[t]he respect that people areowed will vary in more complex ways’ (2017: 105). To explain the ‘complex way’,
he provides two arguments concerning less and more vulnerable persons
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respectively. First, we must ‘embrace’ variations and acknowledge that specificvulnerabilities shape ‘interests against particular kinds of harm’ or social
cruelty (Sangiovanni 2017: 106-7). For example, we must consider the special
interests of children or patients with a mental illness who possess the capacities
to develop and maintain an integral sense of self (107-9). Yet is this a claim far
from those of naturalistic theories? Consider Griffin’s normative agency theory. Ib el ieve t h at a s lo ng a s a p er s o n i s a nor m at ive ag e nt , i f her c er t a i nvulnerabilities such as suffering from amyotrophic lateral sclerosis threaten
normative agency, then there is a prima facie reason to acknowledge her special
interests in the use of a wheelchair and so on (even though the embracement
should be ‘practical’ to be the base of human rights as discussed in the previous
section). Second, Sangiovanni insists that even less vulnerable persons whose
integral sense of self is not easily fractured still have the interests in theguarantee of social conditions for this sense of self. To demonstrate this,Sangiovanni (2017: 109) relies on a ‘general’ assumption about the interests
relevant to our ability to maintain an integral sense of self. He argues that if
there is a person with a strong integral sense of self that is not threatenedwhen the assumed conditions against social cruelty envisioned by Sangiovanni
are deprived, she ‘lack[s] the essentially sociable nature that is typical of us ashuman’ (Sangiovanni 2017: 109). Note that these consultations of social andhuman nature are the same as those embraced by naturalistic views in thename of practicalities. If he claims the consultations are appropriate, he mustacknowledge that his view is only a version of naturalistic theories, not analternative to it.
Third, I doubt that ‘practices’ of human rights can be separated and theircontexts can be isolated. For example, even when Canadian political leaders areconcerned about only human rights the violations of which can be a reason tointervene in another country, it is not morally controversial to say that theymust also consider conditions of the interests of persons in that country after
the intervention. In other words, the leaders must be concerned not only about
the human rights relevant to jus ad bellum, but also about those relevant to jus
post bellum. Importantly, the latter concern also guides local politicians in the
country intervened as well as internationa l or domestic huma n rights
organisations. If so, it is dubious that the human rights practice can beseparated into practices and the contexts isolated.16 Even if we can isolate the16

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Human Rights Based on Human Dignity: Defence and Elaboration through an Examination of Andrea Sangiovanni’s Critiquecontexts, the context-sensitive view faces another problem. If human rights
violations in the context of Amnesty differ from those in the context of coercive
interventions, persons whose interests are infringed on cannot see whether the
infringements can be blamed by appeal to the language of human rights or not.
For example, to know whether an infringement of interest is an appropriate
matter of human rights in the context of Amnesty requires moral calculus,
which needs tremendous understanding of at least the purpose, history, costs,
and benefits of the existence of Amnesty. This means that the information on
the context is beyond the reach of ordinary persons who use the language ofhuman rights, and I cannot believe that they agree with the result of thecalculus. However, if we see the history of human rights, as Forst (2018: 203)
points out, the language of human rights has been used to ‘cut across thecontexts’. If so, then Sangiovanni’s ‘concept’ of human rights as ‘moral rights
whose systematic violation merits universal moral, political, and legal concern’
cannot provide guidance regarding the correct usage of human rights that span
many contexts. This is because the ‘concept’ cannot show whether eachviolation of interests less than the worst misery of persons perhaps such as
their death by a chemical weapon is a matter of moral rights that merits
universal concern. We need the notion of human rights that regulates acrosscontexts and provide predictability for persons who use the language. For thata more substantive grounding value of human rights is needed, which istypically demonstrated in naturalistic theories.
To this claim, I suppose Sangiovanni might reply that the multiplicity ofpractices can be compatible with ‘the idea of a single project’ of human rights,
because he introduces an interesting analogy to argue that the multiplicity ofpractices does not entail the abandonment of ‘the idea of a single project’. In his
view, to engage in the ‘project of building a vibrant city’, there is no need for
artists, engineers, and restaurant staffs to conceive of themselves as engaging
in the same practice; rather, they may have different ideas of a vibrant city andthey may engage in different practices (Sangiovanni 2017: 204 -5). Yet is
Sangiovanni prepared to affirm that if everyone in the city interprets the ideaof a ‘vibrant city’ in his or her own way, it may lead to a city where within asquare kilometre of the city centre a nuclear power plant is located, surroundedby small English gardens and many Japanese restaurants? I cannot consider
this is a vibrant city, and perhaps even the engineers and politicians who want
17

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to introduce the powerplant at the centre of the city cannot envisage this as avibrant city if they understand the necessity of secured area around thepowerplant. There can be inconsistencies in participants’ ideas about a vibrantcity, which leads the city in a way no one thinks as vibrant. Fortunately, what
we need in the context of human rights is a determinate idea of the rights toguide the endeavour of those who participate in the language community ofhuman rights, not a vague notion like ‘vibrant city’. This paper showed that thus
far, the idea is made possible by naturalistic theories that envisage persons as
having human rights in virtue of hum anit y, and among these, theories
indicating the grounding value of the rights as an interpretation of dignity
remain promising; i.e. we still need an idea of humanity with dignity.1718

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Human Rights Based on Human Dignity: Defence and Elaboration through an Examination of Andrea Sangiovanni’s Critique

Notes
1.

2.

3.

4.
5.
6.
7.

8.

9.
10.

11.

12.

13.

14.

15.

Sangiovanni deals with and opposes (human) dignity, not only that used in human rights
theories, but also that in broader ethical theories of equality. However, not to blur thefocus of the paper, I concentrate on the dignity used in the former.
Note that Griffin rejects Kant’s ethics for several reasons such as excluding ‘practicalities’,
which he thinks necessary for a theory of human rights (see, for example, Griffin 2008:
59, 76, 96; Griffin 2014: 222). I touch on ‘practicalities’ later.
For example, as Griffin envisages human rights as secularised from the Christiannatural rights tradition (2010b: 339-40), the claim on the relation between soul and body,
called ‘hylomorphism’ can be avoided. Sangiovanni (2017: 31-6) sees hylomorphism as
desperately controversial, but at the core of the Christian tradition.
Cruft (2014: 124), as an objection to Griffin, has a similar concern.
My explanations below get basic hunches from Buchanan ([2010]2014).
Griffin (2008: 144) seems to use this reason.
Sangiovanni would also accept this, as he requires a human rights theory to be‘reasonably determinate’ to help evaluate and improve the practice, or according to him,‘practices’ (Sangiovanni 2017: 179).
Even though some important human rights documents in the practice are not fully
morally authoritative, partly because political powers have affected the formation
thereof, they should be treated as ‘recording the considered convictions of their drafters’(Miller 2014: 154) that are accepted by many people.
Barry & Southwood (2011: 373) doubt that the right against discrimination can beaccommodated as a human right by normative agency.
I think Griffin notices both provisos. For example, when he says there is no human rightagainst a rare disease, the treatment of which costs tremendously, he envisages therobust infeasibility that I touch on later (Griffin 20 08: 98). My argument can beinterpreted as offering more general and appropriate formulations of the provisos.
Note that Griffin claims more in somewhat different direction that there are values, theappropriateness of which is naturalistically guaranteed irrespective of the preferencesof the persons in question (Griffin 2008: 112-120).
I borrowed the expressions of weak and robust feasibility from Valentini (2012: 190-1),
although I do not follow perfectly her use thereof. Cruft (2018: 331) also offers a similar
distinction between infeasibility that is ‘ logically, metaphysically, or physically
impossible’ and that which is not.
For several ways in which human rights can be appropriate objects of aspiration andguide our actions, see Brownlee (2018). Griffin says, however, against the view thathuman motivation is plastic and changeable, arguing that even aid workers who know
the plight of the famine aid considerably less than the level that further aid makes thebenefit of the aid worker’s or his important person’s benefit equal to the benefit of the
aided (Griffin 2008: 72-3). For scepticism regarding the ‘natural partiality’ Griffin treats
as given and non-changeable, see Cruft (2010: 180-1). Note, however, that this is to beunderstood as a debate between the sorting of objects into robust or weak infeasibility,
not as one concerning the very distinction between them.
For example, the compatibility of rights inside human rights can be included in thepracticalities, as Miller (2007: 185-195) elaborates as an interpretation of Griffin’s notionof practicalities.
This does not mean that I completely agree with Griffin’s view. Rather, I think that19

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文

equality of status should be added as a grounding value of human rights, as Eddy (2007)
and Buchanan ([2010]2014) do. My point is only that practicalities play an important rolein distinguishing human rights from rights simpliciter.
16. In addition, I am sceptical about the possibility of identifying the expected role of humanrights in a given context. Let me show an example. As his interpretation of thei nter nat iona l lega l hu ma n r ight s system , S a ng iova n n i (2 017: 2 0 7 ) st ates it is‘uncontroversial’ that its one vivid role is making individual moral rights as a common
concern of the international community following the ‘two-level model’ shown byCharles Beitz (2009). However, as Schaffer (2017) persuasively argues, it is possible tosee the role of the system as mainly empowering individuals and groups in the domestic
context, not as positioning it international concern. This shows that identifying the roleof human rights in an ‘isolated’ context—even if the isolation is possible—is also noteasy, and the identification can be contested.
17. I would like to show my gratitude for the invitation from the editorial committee of the
Journal of Global Studies. In addition, while writing and modifying this paper I greatly
benefited from many helpful comments, especially from Rowan Cruft, as well as Yoichi
Mine and two anonymous referees. Although I could not touch on his replies in thispaper, I would also like to thank Andrea Sangiovanni for his insightful, rich book.
Moreover, I thank Rowan Cruft and many people at the Division of Law and Philosophy,
as well as Taeko Seki, for their kind support concerning my stay at the University ofStirling where I wrote this paper. Lastly, this paper is supported by JSPS KAKENHI
Grant Number JP17J01095.

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Human Rights Based on Human Dignity: Defence and Elaboration through an Examination of Andrea Sangiovanni’s Critique

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Human Rights Based on Human Dignity: Defence and Elaboration through an Examination of Andrea Sangiovanni’s Critique

Abstract

Human Rights Based on Human Dignity:
Defence and Elaboration through an
Examination of Andrea Sangiovanni’s
Critique
Kosuke Kiyama
Recently, vigorous debate has emerged in the field of the philosophy of humanrights. Currently, opponents argue against so-called naturalistic theories thatview human rights as possessed by all persons in virtue of humanity. In
particular, the notion of human dignity, often appealed to by naturalistic
theorists, is widely challenged.
The purpose of this paper is to defend the notion of human dignity as agrounding value of human rights as well as naturalistic theories against
criticisms. To accomplish this, the paper is structured as follows.
First, it shows that in influential theories of human rights such as the one
offered by James Griffin, the notion of human dignity in contemporary humanrights documents is treated as providing important guidance for grounding
human rights.
Second, the paper defends dignity from Andrea Sangiovanni’s series of recent
counter-arguments. To begin with, although Sangiovanni criticises three
traditions of dignity, namely Aristocratic, Christian, and Kantian ones, it ispointed out that the best mixed theories of these traditions can avoid many of
his criticisms. This paper, however, considers his two concerns regarding theAristocratic tradition and one pertaining to all three traditions as worthy of
examination, and thus responds to him. The paper shows that his three
criticisms are ungrounded and the notion of dignity can work in a theory ofhuman rights.
Third, this paper defends naturalistic theories, by analysing and replying to
Sangiovanni’s criticisms of Griffin’s view. Sangiovanni insists that naturalistic
theories, inter alia Griffin’s, cannot distinguish human rights from other moral

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論文rights. The paper points out that the core of this criticism is a replication of analready suggested dilemma of the ‘austere’ and ‘rich ’ interpretations ofnormative agency. It then argues that even Griffin’s theory can demonstrate an
appropriate threshold of distinguishing human from other rights by considering‘practicalities’ while proposing provisos for them.
Finally, the paper analyses Sangiovanni ’s alternatives to dignity andnaturalistic theories: an idea of ‘integral sense of self’ and a context-sensitive
human rights theory. The paper doubts that his idea of an integral sense of self
can succeed as a genuine alternative to dignity. This is because, first, support
for this idea requires engaging in the very controversy among naturalistic
theories: which interests should ground human rights. Second, the idea uses theexact same theoretical resources of practicalities as those in typical naturalistic
views. The paper also claims that naturalistic theories are needed to deal withthe shortcomings of Sangiovanni’s context-based view of human rights, such as
the inseparability of contexts, and (even if separable) too much of the calculative
burden of human rights for individuals in each context. Based on the present
investigation, the paper concludes that to guide our language community ofhuman rights, we still need naturalistic theories and dignity-based views arepromising candidates among these; i.e. we still need an idea of humanity with
dignity.

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