It is now trite to observe that the term ‘dignity’ has a plurality of potential and actual uses, that its normative content and practical demands are difficult to pin down, and that all of this has led a number of academic commentators to deny that the term is normatively meaningful or that it can have anything other than a polemical value in ethical debates. Sceptical views of dignity seem particularly prevalent in the academic field of healthcare law and ethics (HCLE), and although some general critiques of the normative value of dignity exist,1 the fiercest and most ill-tempered have been trained on the deployment of ‘dignity’ in the biomedical context.2 Although the language of dignity is familiar in lay discourse about healthcare ethics—in debates about assisted suicide and euthanasia, for example, or when deploring the mistreatment of vulnerable patients—dignity-talk in HCLE scholarship has tended to be associated with scholars who are perceived as writing from a religious/conservative perspective, and to be regarded critically and/or sceptically by others.3
This contrasts sharply with academic discourse about human rights law (HRL), which reflects a widespread acceptance of the idea that human dignity is the philosophical foundation of human rights. HRL scholars have begun in earnest to interrogate precisely how dignity is foundational to human rights,4 and to investigate possible alternative (or additional) foundations for human rights, such as universal human interests, or desert.5 Nevertheless, the view that human rights are—at least partially6—grounded in human dignity is very much mainstream, and it is commonplace to hear human dignity described, for example, as ‘the main philosophical foundation of human rights’7 or as the ‘very essence’ of the European Convention on Human Rights.8
What accounts for dignity’s greater purchase in HRL than in HCLE? The answer will of course be complex, and cannot be explored fully here. One likely factor is that, whereas in HRL the language of dignity is the conventional vocabulary in which the importance and worth of human beings is discussed, HCLE scholars have a range of other terms at their disposal when they wish to discuss these things, some of which—‘autonomy’ and ‘personhood’, for example—can seem more precise than, and so preferable to, ‘dignity’. Another possibility is that HRL scholars, because they are able to draw upon both an extensive jurisprudence which explores dignity directly or indirectly, and an authoritative and growing literature which takes dignity seriously, are simply more confident in working with the idea. They are bolstered (or hindered, depending on one’s view) by a background reassurance that when they refer to dignity, they are at risk neither of being dismissed as religious/conservative, nor of being accused of simply talking nonsense. Moreover, a wealth of literature and case law can be brought to bear in ensuring that their discussions of dignity are anchored within a recognisable disciplinary framework. HCLE scholars, by contrast, have neither this sense of ‘permission’ nor any practical techniques for accessing and engaging with dignity as a value capable of clarifying HCLE controversies.
It is undoubtedly more challenging to try to ‘get at’ dignity in HCLE than in HRL. Although both contexts lack any agreed formula for defining dignity, HRL has the benefit of some guidance, consisting in (i) the general acceptance that dignity refers (albeit vaguely) to the ‘intrinsic worth’ of human beings, and (ii) the lists of particular rights that are said to be connected with dignity in some way (ie, to flow from it, protect it, etc). In the HCLE context, there is neither a vaguely agreed concept like ‘intrinsic worth’ nor a list of dignity’s incidents/requirements to indicate a way forward. Neither, I have argued elsewhere, can we simply adopt what is decided about dignity in other contexts (including HRL) and transplant it into our deliberations about HCLE: dignity is not a single concept, but a range of concepts and we should expect the meaning (ie, the use) of ‘dignity’ to be different in different legal language games (such as HRL and HCLE).9
Nevertheless, what I will propose in this chapter is that it might be possible to unlock dignity as a useful value in HCLE to some extent by paying attention to the emotional content of end-of-life narratives. Drawing on Nussbaum’s recent work, I will argue that, disagreement about the precise source and normative content of dignity notwithstanding, we can recognise some emotional responses as being compatible and others as being incompatible with respect for dignity. I will begin by noting Nussbaum’s observation that respect for dignity is a matter of inclusion in the community of moral equals, and that conversely, denying dignity involves excluding individuals from the moral community. I will add to this her further insight that such inclusion/exclusion is accomplished in important part by ‘emotion-shaping processes’, which include narratives. I will focus on ‘killing narratives’, first by exploring some of the narratives that surround acts and practices of killing in non-healthcare contexts. Narratives that dehumanise and/or abjectify their subjects as a precursor to ‘atrocity killings’ (like genocide, for example) will be discussed as clear examples of negative emotion-shaping, since they promote emotional responses that are incompatible with a respect for equal human dignity. Finally, I will begin to apply the same analysis to end-of-life discourses in healthcare law, arguing that these can also be analysed as emotion-shaping narratives, and that undertaking such analysis may be able to help us to determine whether particular narratives are dignity-congruent or not. The value of this approach is that it may offer HCLE scholars a basis for discussing dignity’s promotion or violation (at least in the context of end-of-life issues) in a way that can be the subject of meaningful exchange.
A significant strand of Martha Nussbaum’s recent work has been concerned with the cultural and political importance of the emotions.10 Most recently, in Political Emotions: Why Love Matters for Justice, Nussbaum has considered the role emotions play in civic life, and in particular, their role in shaping and constituting ‘the decent society’. For Nussbaum, a ‘decent society’ is a liberal society which is committed to a strong conception of justice premised on the equal worth of all citizens; a ‘political culture committed to a shared morality of human dignity’11 which recognises ‘the badness of various forms of discrimination and hierarchy’.12
‘Sometimes’, Nussbaum writes, ‘people suppose that only fascist or aggressive societies are intensely emotional and that only such societies need to focus on the cultivation of emotions’.13 In Nussbaum’s view, however, it is ‘both mistaken and dangerous’14 to associate the cultivation of emotions only with ‘bad’ societies, since ‘[a]ll political principles, the good as well as the bad, need emotional support to ensure their stability over time, and all decent societies need to guard against division and hierarchy by cultivating appropriate sentiments of sympathy and love’.15 According to Nussbaum, there are two tasks for the decent society with regard to emotion-shaping:
One is to engender and sustain strong commitment to worthy projects … The other related task for the cultivation of public emotion is to keep at bay forces that lurk in all societies and, ultimately, in all of us: tendencies to protect the fragile self by denigrating and subordinating others … Disgust and envy, the desire to inflict shame on others.16
Thus, it seems clear that Nussbaum regards processes of emotion-shaping as fundamental to the constitution and maintenance of all societies, and as no less a feature of the ‘decent’, equal society than of fascist regimes. The critical difference is which emotions are being fostered and suppressed.
Nussbaum identifies compassion/sympathy/love—she appears to use these terms more or less interchangeably—as the main emotions that ‘guard against division and hierarchy’.17 One of the main ‘enemies’ of these positive, dignity-congruent emotions is ‘projective disgust’: whereas ‘primary disgust’ serves a useful evolutionary purpose by directing us away from potentially harmful substances, creatures and environments, ‘projective disgust’ involves reacting in this way to other people:
Projective disgust is disgust for a group of other humans who are segmented from the dominant group and classified as lower because of being (allegedly) more animal. Members of this group are thought to have the properties of disgust’s primary objects: they are found dirty, smelly, slimy … They are represented as quasi-animals, as occupying a border between the truly human (associated with transcendence of the body and its substances) and the utterly nonhuman.18
Projective disgust is obviously stigmatising. Nussbaum identifies it as ‘[a] key device of subordination’,19 inimical to equality (since it ‘blocks equal respect’)20 and therefore to dignity; she claims ‘it can be surmounted only by love’.21
Compassion’s main enemies, besides projective disgust, are ‘fear, envy, and shame’.22 In shame, ‘one acknowledges that one is something inferior, falling short of some desired ideal’.23 In its purest form, it is a ‘painful emotion directed at the self’24 which provokes a ‘natural reflex’ of ‘hiding’.25 Humiliation is an extension of shame, ‘the active public face of shame … the hostile infliction of shame on others’.26
Thus, whereas a fascist or segregated society will cultivate negative, hostile emotions towards a section or sections of its population, a decent society will cultivate emotions such as compassion, sympathy and love. To put this another way, a decent society will cultivate an emotional (as opposed to a merely rational) appreciation of the equal worth and status of all its citizens. Simultaneously, such a society will endeavour to keep at bay those emotions—like projective disgust, envy, fear, shame and humiliation—which would undermine the positive side of the emotion-shaping project. One consequence of Nussbaum’s argument (though she seems not to say this explicitly) appears to be that societies are ‘bad’ or ‘decent’ in significant part precisely to the extent that they successfully cultivate the ‘right’ emotions and keep the ‘wrong’ ones at bay.
Another feature of Nussbaum’s analysis is that she explicitly links emotions with human dignity. She assumes that a normative commitment to ‘equal human dignity’27 will be one of the ‘core values of a just society’,28 and she explicitly considers the role of the emotions, and of processes of ‘emotion-shaping’, in either cultivating/promoting dignity, or threatening/undermining it. Dignity, for Nussbaum, ‘should be understood as a member of a family of conceptions’.29 Like many scholars who write about dignity, Nussbaum makes the familiar association between ‘equal human dignity … [and] equal intrinsic worth and being objects of equal respect’.30 Interestingly, however, she also associates dignity with ‘both striving and vulnerability’ (emphases added).31 In this regard, there appears to be a symmetry between Nussbaum’s understanding of dignity and the understanding I have begun to elaborate in my own recent work, at least insofar as both Nussbaum’s understanding and my own emphasise dignity’s groundedness in universal vulnerability, and insofar as both can be contrasted with accounts in which dignity is conflated with autonomy, ‘personhood’, or (only) ‘intrinsic worth’.32
Nussbaum’s analysis of ‘political emotions’ is incredibly rich, but the significant features of her account for present purposes are twofold: first, her observation that respect for dignity and its violation are, respectively, about inclusion and exclusion from the moral community; and second, that Nussbaum seems committed to insisting that a decent society will not only strive to cultivate those emotions which are congruent with (which affirm or promote) the ‘core’ value of equal human dignity, but will also endeavour to keep at bay emotions which tend to undermine or deny the value of equal dignity. For Nussbaum, in other words, emotion-shaping is crucial not only to the positive promotion and cultivation of dignity, but also to the task of resisting threats to dignity. These features, together with Nussbaum’s insights regarding which emotions are dignity-affirming and which are dignity-denying, provide the substantive point of departure for the argument I will pursue here.
Applying Nussbaum’s insight about dignity and political emotions, if we want to establish whether a particular end-of-life practice is congruent with or inimical to a respect for equal human dignity, we ought to be attentive to its emotional context. Part of that context might include what I will call ‘killing narratives’: narratives that accompany, describe, explain and/or attempt to justify the ending of life.33 Killing narratives are profoundly emotional discourses—they reflect and reveal (sometimes ‘betray’) emotional responses, but they also shape them; they are ‘emotion-shaping processes’, to use Nussbaum’s phrase. The question we ought to be interested in from a dignity point of view is whether the emotions they reflect and shape are ones which tend to affirm dignity or to deny it: do they include people in, or exclude them from, the community of moral equals?
Sometimes killing narratives are provided explicitly and retrospectively, as part of a formal legal process. The criminal law of homicide is full of retrospective narratives of self-defence, provocation, temporary insanity and other narratives which attempt to explain or mitigate the act of killing. These are not ‘exclusionary’ killing narratives, since they seek to mitigate or excuse the act of killing not by excluding the victim from the community of moral equals, but rather by describing the state of mind of the killer as threatened, provoked, or disordered. Killing narratives can be ‘exclusionary’, however. Before turning to the healthcare context specifically, I will discuss two distinct but related types of exclusionary killing narrative—narratives of dehumanisation and of abjectification—and explore how they reflect and shape emotion in order to exclude those who are killed from the community of equal human dignity.
Here, I adopt Sophie Oliver’s definition of dehumanisation, which is that the word ‘refers in the most basic terms to the denial, in part or whole, of the humanity of a person or group of persons’.34 Dehumanisation, Oliver says, is ‘[a] process by which human beings are rendered so radically other that their lives count for nothing’.35
Although, in Oliver’s words, dehumanisation involves a ‘denial of humanity’, contemporary dehumanisation obviously does not involve a literal denial of the biological or genetic humanness of the individual or group being dehumanised.36 Rather, it involves denying that the individual or group concerned shares in whatever it is that we regard as uniquely important about human beings; a denial, in other words, of precisely the status that the term ‘human dignity’ tries to capture. It is irrelevant for present purposes that different people have different views about what is uniquely important about humans, and so use the term ‘human dignity’ to signify different things. What matters here is simply that, absent an acknowledgment of and commitment to human dignity—ie, to the idea that there is something equally, distinctively and fundamentally important about human beings which demands to be respected by oneself and others—it can make no sense to speak of ‘dehumanisation’ at all. Dehumanisation just is the denial that a particular individual or group shares equally in the uniquely human value that attaches to the rest of us (however we describe that value).37
Oliver cites Kelman’s description of dehumanisation as a violation of the two qualities that he says are key to perceiving someone as fully human: identity and community.38 Both are stripped away in the process of dehumanisation. Identity is undermined by removing uniqueness—for example, by referring to people using numbers instead of their names, or by taking away physical uniqueness and making them all look the same. In pictures of concentration camp survivors immediately after liberation, for example, it is striking how the emaciated bodies, huddled together wearing uniforms and with heads shaven, all seem so similar. Oliver observes that ‘[identity is] among the most affectively devastating losses suffered by victims of dehumanization’.39
Victims of dehumanisation are also robbed of community. Oliver explains, quoting Kelman, that dehumanisation amounts to exclusion from the community of ‘individuals who care for each other, who recognize each other’s individuality and who respect each other’s rights’.40 This clearly intersects with Nussbaum’s observation that the emotional content of political narratives works either to include or to exclude individuals from the community of equals. So too does Oliver’s reflection, again following Kelman, that
[t]o be dehumanized is to be excluded from [the] community. It is to be perceived by the in-group as outside the moral kinship or scope of justice … By excluding a person or persons from our moral community, it becomes possible to act inhumanly towards them, or else to allow harm to be done to them by others, without invoking any sense of moral inhibition or self-reproach.41
Identity and community, for some philosophers, are so fundamentally bound up together that they are almost not conceptually distinct.42 On this view, it would be impossible to attack identity without attacking community, and vice versa; the idea that dehumanisation involves a simultaneous denial both of identity and community has some intuitive appeal, therefore.
Between them, Margalit43 and Haslam44 describe the spectrum of dehumanising narrative quite comprehensively. Haslam identifies two main types of dehumanisation: ‘animalistic’ and ‘mechanistic’ (or ‘object-like’) dehumanisation, in which people are dehumanised by being treated like animals or objects/automata respectively.45 Margalit recognises these two types,46 but notes that dehumanisation can also take the form of ‘demonisation’ which portrays people as spreaders of disease, destruction or evil.47 There is a degree of overlap between Margalit’s ‘demonisation’ and Haslam’s ‘animalistic’ dehumanisation; however ‘demonisation’ seems to play into subtly different fears on the part of the recipient of the narrative (fear of evil and moral harm, rather than mere physical disgust).48 Presumably, more than one type of dehumanisation will often be discernible within a given narrative.
In some cases, dehumanising killing narratives have been officially promulgated and/or endorsed. Notoriously, Nazi propaganda dehumanised Jewish people in the animalistic sense, by explicitly comparing them to rats and parasites, and also demonised them as uncivilised, degenerate, manipulative, lascivious and unhygienic, all as a precursor to their mass extermination.49 The demonising narratives which were deployed by the laws in many jurisdictions during early modern witch hunts provide another example of ‘official’ dehumanisation.50 A more recent example is the dehumanising hate speech broadcast by some Rwandan media outlets before and during the 1994 genocide, inciting ethnic Hutus to kill their ethnic Tutsi neighbours. The radio station Radio Télévision Libre des Mille Collines (RTLM) (nicknamed ‘Radio Machete’ by the Rwandan public) regularly referred to Tutsis as ‘cockroaches’ and urged their complete annihilation (the station repeated the slogan ‘the graves are not yet full’ to incite Hutus to ever greater slaughter).51 Animal-like dehumanisation is clearly visible in the references to ‘cockroaches’; however note also Roméo Dallaire’s observation that RTLM ‘was created [in 1993] specifically as a tool of the genocidaires to demonize the Tutsi’.52
Whereas dehumanising killing narratives attribute animal-like, object-like, demon-like, or machine-like characteristics to individuals or groups in order to locate them outside the community of equal human dignity, abjectifying narratives threaten or undermine dignity in a subtly different way. Abjection is defined by Kristeva as a process of rendering someone negatively-Other, making her a site of horror or revulsion, with the effect that she is cast out, distanced from the moral community.53 We could explain how abjectification differs from dehumanisation by saying that, rather than excluding people by denying their humanity, abjectifying narratives render their subjects ‘abhuman’;54 they cast them out to the borders of humanity, where they evoke the particular kind of horror or disgust that belongs to what Freud called the uncanny, the juxtaposition of the familiar with the unfamiliar, the human with the non-human. The abhuman subject exists liminally and interstitially, across and between categories, overlapping categories and challenging boundaries, simultaneously itself and Other. The landscape of gothic horror literature is populated with fictional abhumans (such as vampires, phantoms and Frankenstein’s monster) which combine humanity and non-humanity to provoke emotional responses of horror, fear and revulsion, but also a terrible recognition and pity. Whereas in narratives of dehumanisation it is the author of the narrative who purports to place the subjects beyond the observer’s sphere of moral concern, narratives of abjectification induce or invite the observer to perform the distancing for him or herself, to reject the subject as too challenging, too uncanny to embrace as an equal. Some real life examples will be discussed presently when I come to consider end-of-life narratives in the healthcare law context. Away from healthcare law, there are echoes of abjectification in Bartlett’s analysis of cases of ‘gay sexual homicide’ (which he defines as sexual homicide involving male perpetrators and male victims).55 Bartlett exposes narratives of hate, rage, disgust, fear, powerlessness and alienation: three of the perpetrators quoted in the article explicitly mention ‘disgust’ in their narratives, one of them also mentions ‘nausea’, and in a fourth narrative the perpetrator describes himself as having felt ‘revolted’.56
I do not wish here to labour or overstate the distinction between abjectification and dehumanisation: they are clearly close relatives. Undoubtedly there is overlap between narratives that dehumanise and those that abjectify, and just as a combination of different forms of dehumanisation within a single narrative is possible, so too is a combination of dehumanising and abjectifying elements within a narrative. Moreover, it is important to emphasise two of the main things that dehumanisation and abjectification have in common. The first is that both operate to exclude