is not a philosophical treatise on the nature of our constitutive attachments to others or the voluntariness of our relation to our own ends, which are deeply contested among different philosophical traditions. I believe that both extremes—excessively individualized rights schemes and the kind of cultural relativism that rejects the plasticity of human social arrangements and dignity as a value—are overly rigid.
On the one hand, neither communities nor cultures are stable and monolithic. Reified assertions of unchanging cultural norms empty them of their political content and disconnect them from the realities of how they are used to prop up all sorts of inequitable social norms and power hierarchies.19 We must recognize not only that communal ideals shift over time but also that the notion of a community as a closed circle of group harmony is also false and disregards the multiple identities that we each carry within ourselves.
I am the product of two different religions, national and class backgrounds, and ethnicities, and therefore it may be particularly easy for me to see the false necessity of ascribing one particular identity to any given individual. More generally, however, rigid notions of identity—of gender identity, for example—disregard the multiplicity of meanings that a particular identity (such as gender) has for diverse people. Indeed, the construction of collective identities, based on gender, as well as ethnicity, religion, and race, for example, is a continual and ongoing process, not one definitive event with constant flux stemming from the inherent conflicts within each group.20 As Kant proposed, we humans have the capacity and duty to examine our conscience, which unites out thoughts and feelings, and that capacity can allow us to resist dominant moral codes and create the possibility for reform.21 If we believe in human dignity and the capacity of human beings for choice and agency, it follows then, as I discuss in later chapters, that we cannot accept that identities and roles imposed on people are immutable. In the decades of my doing this work, there have been many times in the most “traditional cultures”—from deep in the Amazon to remote African villages—that I have witnessed transformations in self-understanding about the role of women, which in turn produced changes in behavior with spouses, children, and others, and eventually led to modifications of expectations and group practices. Or sometimes it is judicial decisions, such as the Atala decision by the Inter-American Court of Human Rights, that can destabilize social narratives of identity even in a devoutly Catholic context such as Chile regarding the assumption that the “best interests of the child” means a lesbian cannot have custody.22
On the other hand, I also recognize that true self-government requires the power to make meaningful decisions for one’s self within the thick networks of relationships in which we actually live. This requires a conception of being human that acknowledges that we are all embedded in social contexts, and exercising ethical independence in our lives requires navigating the relations in those contexts. As philosopher Charles Taylor argues: “Discovering my own identity doesn’t mean that I work it out in isolation, but that I negotiate it through dialogue, partly overt, partly internal with others.”23 A dynamic relationship and mutual dependence exists between an individual and the conditions as well as between an individual and other people—children, sexual partners, community members, and so on—that allow an individual to develop into a full person.24
Throughout the rest of this book, I argue that a human rights framework based on a notion of dignity as including a respect for the humanity in others contains within it an understanding of our inescapable interconnectedness as members of multiple communities and societies. That interconnectedness, in practice, is shaped by different power relations that affect the possibilities for some people to live with dignity, and in our invariably gendered, racial-ized, class relations, our identities are enacted and reenacted continually in ways that can reinforce or can transform the status quo. Therefore, experiencing dignity is inextricably linked with participating in (re)shaping the conditions of our society, and with who gets to count as a full and equal member.
The narrow liberal idea of rights based on atomistic autonomy is, as we discuss in this and later chapters, connected to an idea of the liberal state. In the nineteenth century, traditional liberal state, male, property-owning, adult citizens were conceived of as free and equal. The role of the state was seen principally in terms of preserving their autonomous liberty, through police, military, and judicial protections. A more modern conception of the state as a welfare state, or a “social state of law” (estado social de derecho), recognizes that the diverse citizens in a society cannot exercise their liberties freely, or participate fully in society, without some background equality in distribution of resources and opportunities. No subject more than health rights illustrates the need to adapt traditional rights analyses, as former South African Constitutional Court Justice Albie Sachs stated: “Health care rights by their very nature have to be considered not only in a traditional legal context structured around the ideas of human autonomy but in a new analytical framework based upon the notion of human interdependence. A healthy life depends upon social interdependence: the quality of air, water, and sanitation which the state maintains for the public good; the quality of one’s caring relationships, which are highly correlated to health; as well as the quality of health care and support furnished officially by medical institutions.”25
This is the challenge of developing emancipatory rights frameworks concerned with dignity: they must navigate an understanding of our identities as socially constituted and yet also allow for individual agency; they must strike a balance between recognizing that identities are not preassigned, essentialist, and immutable, yet also not so fluid as to be readily changeable; and people must be protected by the institutions of the state, yet also must be empowered materially by the state and enabled to express different aspects of themselves freely.
Violations of Dignity and Rights: When Do We Stop Treating People as Fully Human?
Torture, as Dworkin writes, “is designed to extinguish that power [to make decisions], to reduce its victim to an animal for whom decision is no longer possible. That is the most profound insult to his dignity … it is the most profound insult to his human rights.”26 That is precisely what happened to Héctor Quijano.
Conversely, it is impossible to torture someone whom one sees as a fully human being. It is not the case, as some people think, that torture is generally committed by sociopaths, untethered by conscience, but rather that humans have a seemingly infinite capacity to justify inhuman actions to ourselves. Sociologists and psychologists have studied the different conditions, at societal, institutional, and individual levels, under which certain people can be dehumanized by others to the extent that it leads to torture. For example, Erving Goffman writes about the “mortification of self” and breakdown of normal social behavioral expectations that occur in “closed institutions” such as military boot camps, prisons, or psychiatric hospitals.27 Other scholars have pointed to the existence of a tendency to blame the victim, or what Ervin Staub calls a “just-world view”—the belief that the person being tortured must have done something terrible to deserve what is happening to him or her.28 This was true of the atrocities committed by the military dictatorship in Argentina and the abuse committed by the police in Mexico, as well as the “enhanced interrogations” conducted by the U.S. government in Iraq, Afghanistan and elsewhere. It is not just evil people and psychopaths who torture other human beings; structural factors foster the dehumanization of a certain group of individuals and allow perpetrators to stop seeing the victims as fellow human beings. Genocide is the ultimate expression of the denial of humanity of an entire group or population.
Torture, although perhaps the quintessential violation of an individual’s human rights, is of course far from the only deprivation of civil and political rights that denies dignity and people’s ability to carry out life plans. When we lack the freedom to elect our government or the freedoms of association, information, and movement, or if we face detention without due process, our ability to govern our lives—and in turn our dignity—is deeply affected.
Historically, people have been treated as less than human on the basis of differentiation with respect to particular aspects of their identity, which is why nondiscrimination is a central tenet in human rights law. For example, the U.S. Constitution originally accorded slaves the status of three-fifths of a person.29 And to this day,