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, racial discrimination permeates U.S. society, police, and the criminal justice systems, as well as every point in the U.S. health care system.30 To be born black in the United States, according to critical race theorist Patricia Williams, writing in the 1980s, is to “embody” an otherness in relation to being born as the white self, and it is a threatening otherness that must be controlled or repressed. To this day, we have examples in the media all the time of how being especially a young black male in America is still a marker of dangerousness to be contained, from Florida to Ferguson, Missouri. For “blacks”—as Williams deliberately referred to a set of social actors—rights are a “magic wand of visibility and invisibility, of inclusion and exclusion, of power and no-power. The concept of rights, both positive and negative, is the marker of our citizenship, our participatoriness, our relation to others.”31
In the Spanish colonies, there were theological debates about whether just the black slaves brought from Africa or both they and the indigenous people of Latin America lacked souls, because the possession of a soul was thought to define “humanness.”32 Historically, a narrative of femininity in parts of Latin America is deeply tied to a vision of criolla women of European heritage as “clean and modern” as opposed to indigenous women who were thought to be dirty and animal-like.33
Women generally have historically been—and still often are—treated as less than fully human, as chattel or children or even on a par with animals.34 Women in many countries are still denied the right to inherit land and are required to obtain consent from men for certain medical procedures. And throughout the world, cultural norms and practices regularly define women not in terms of their humanity but in terms of their sexuality, which is to be managed and controlled. Women are the objects of both desire and misogyny, and in seemingly equal measure seem to need to be protected or repressed, rather than treated as subjects with rights, including to sexual pleasure.
One principal way in which women’s ethical and legal subjectivity is diminished is through laws and practices that reduce them to mere means for reproduction and childrearing. As Betty Friedan said, “There is no … full human dignity and personhood possible for women until we assert and demand the control of our own bodies, over our own reproductive processes…. The real sexual revolution is the emergence of women from passivity, from thingness, to full self-determination and dignity.”35 Among other courts, the Colombian Constitutional Court has explicitly used a “dignity” argument to strike down draconian abortion restrictions. In 2006, the court reasoned that to not leave any exceptions for the life and health of the mother, or for rape or incest, reduces the woman to being “a womb without conscience.”36 The Argentine Supreme Court was even clearer in striking down restrictions on abortion in the case of sexual assault: “From the notion of human dignity comes the principle that establishes [women] as an end in an of themselves and not merely a means or instrument of reproduction.”37
People with various disabilities have also been denied full human status by discriminatory laws as well as by social norms throughout history that dictate certain physical standards for humanness as well as define “normal” behaviors.38 Indeed, it is only in the last twenty to thirty years that the international human rights movement has begun to take seriously the violations of dignity faced by people with disabilities, including mental disabilities. Laws reducing “imbeciles” and “lunatics” to some less-than-human status, depriving them of control over basic decisions in their lives, including reproduction, were more the norm than the exception historically, and they continue to be in force in too many countries.
Historically, laws enshrined distinctions between citizens and others of lesser status based on property ownership as well—and across much of the world today, we still consign vast swaths of humanity to being less than fully human in practice, if not law, merely because they are poor. Stop at virtually any traffic light in Dar es Salaam or Freetown or Mumbai or Lima—or a hundred other cities across the globe—and there will be an immediate assault of beggars parading their misery in exchange for a handout. We, the well-off, who walk along or drive by in cars with the windows rolled up, tend to look right through the beggars, avoiding their eyes. However, the destitute and ill—trapped by their seemingly inexorable invisibility as human beings—often go to lengths to make themselves seem more pitiful and deserving of charity than the rest. Societies in which we tolerate these manifestations of tremendous inequality and extreme poverty structure
