The definition of the exact scope of these moral obligations for the protection of the most important human interests requires the identification of what those interests are. In this respect, the following analysis elaborates on the concepts of human agency and human dignity, which may potentially constitute the most essential human values because of their fundamental importance for realising a meaningful human existence. Human agency is the capability of human beings to act independently, making voluntary choices according to their free will.217 To that end, human agents have generic needs, i.e. requirements that need to be fulfilled for agents to successfully act towards a purpose.218 According to Gewirth, those generic needs, also referred to as generic goods, consist of three types of goods: non-subtractive goods, additive goods, and basic goods.219 Non-subtractive and additive goods constitute second-order goods in that they are relative to an individual’s status quo of possessions and opinions.220
Non-subtractive goods are goods that retain an individual agent’s current standard, while additive goods are required for raising this standard, i.e. for achieving a higher level of purpose-fulfilment.221 While the scope of second-order goods varies between
different groups and persons, basic goods can be regarded as first-order goods as they have the same relevance for all human agents.222 This can be illustrated, for example, by reference to the right to food, on the one hand, which protects a basic good in that nutrition is a vital prerequisite for the existence of all humans alike, while a right to paid holidays, on the other hand, addresses a second order good in that it increases living standards without being an essential human need.223 In fact, basic goods ‘constitute the general necessary preconditions of action’.224 They comprise, inter alia,
physical and mental capacities, including an agent’s freedom, life itself, and physical integrity.225 The notion of physical integrity stipulates that the basic goods further include the necessary means for the preservation of life, i.e. food, clothing, shelter,
217 cf. Gewirth A, Reason and Morality (n 209) 48-54.
218 ibid 62-65; Beyleveld D and Brownsword R, Human Dignity in Bioethics and Biolaw (OUP 2001)
70.
219 Gewirth A, Reason and Morality (n 209) 54. 220 ibid 55.
221 ibid 54-56.
222 Gewirth A, Reason and Morality (n 209) 54. 223 Freeman M (n 3) 83.
224 Gewirth A, Reason and Morality (n 209) 54. 225 ibid 54 and 63.
160 health and the like.226 As the basic goods – which summarised comprise of freedom and basic well-being – are the fundamental requirements for human agency, they can also be considered as necessary goods, or basic needs.227
This is where, for the purpose of this thesis, a connection between human agency and human dignity can be drawn. A major obstacle with the consideration of human dignity, is that the very notion of dignity is vague and ambiguous.228 In essence, however, two concepts of dignity can be identified. In the historical context, dignity was commonly regarded as being attached to a certain role or position, for example someone holding a particular office. Further, dignity was connected to the social order, and persons of higher standing, such as members of the nobility, were considered to attract a higher degree of dignity.229 This concept can therefore be labelled as hierarchical dignity.230 Conversely, the contemporary moral concept of dignity, i.e.
human dignity, recognises the inherently equal worth of all human beings.231 The
dignity of the human person is inalienable, or, as illustrated by Article 1(1) of the German Constitution, inviolable, and applies equally to everyone simply as an inherent feature of being human.232 Reference to human dignity can further be found in all three documents of the International Bill of Rights, with both the ICESCR and the ICCPR stipulating that human rights ‘derive from the inherent dignity of the human person’.233
In other words, it is because humans ought to have dignity that they deserve to be treated equally, and with respect.234
According to Kant, human dignity stems from the human capacity for freedom and rationality, and mandates that human beings are never to be treated as mere means, but
226 ibid 54; Beyleveld D and Brownsword R (n 218) 70; Jowitt J, ‘Monkey See, Monkey Sue?
Gewirth’s Principle of Generic Consistency and Rights for Non-Human Agents’ (2016) 19 Trinity C.L. Rev. 71, 88.
227 cf. Gewirth A, Reason and Morality (n 209) 53 and 62-63.
228 den Hartogh G, ‘Is Human Dignity the Ground of Human Rights?’ in Düwell M et al (eds), The
Cambridge Handbook of Human Dignity: Interdisciplinary Perspectives (CUP 2014) 200.
229 cf. ibid 201; Bayefsky R, ‘Dignity, Honour, and Human Rights: Kant’s Perspective’ (2013) 41
Political Theory 809, 810 and 817.
230 Bayefsky R (n 229) 817-818. 231 ibid 809-810 and 817-818.
232 Basic Law for the Federal Republic of Germany (23 May 1949) [German Constitution], Article
1(1); see thereto: Bayefsky R (n 229) 810.
233 ICESCR (n 84) Preamble; International Covenant on Civil and Political Rights (adopted 16
December 1966, entered into force 23 March 1976) [ICCPR], Preamble; see thereto: Bayefsky R (n 229) 810.
161 as ends in themselves.235 For Kant, however, dignity is connected to morality rather than to simply being human. It therefore remains unclear whether for him dignity attaches to the moral capacity or to the actual moral conduct of a person.236 It seems, that Kant adopted a two-fold approach to dignity in that a realised dignity depends on the actual moral conduct of a human agent, while an initial dignity applies to every human being irrespective of behaviour.237 While persons who fail to act according to their dignity may therefore become subject to contempt, all human beings nevertheless deserve respect inherent to their basic dignity.238
While the contemporary view of human dignity understands the concept ‘as a source of claims toward others’,239 those claims are not further specified other than that every
human being has the right that his/her dignity is respected. As the worth of human beings and their rationality ultimately depend on their capability to freely engage in action, human agency must be seen as a prerequisite for human dignity. Therefore, while it is not within the scope of this analysis to provide a conclusive enumeration of all the rights entailed within human dignity, it is suggested that at least the Gewirthian basic needs for human agency – i.e. freedom and basic well-being – also constitute the basic needs for human dignity; to which, according to the Principle of Generic Consistency (PGC), as elaborated below in 3.2.2.3, every human being is entitled. For human dignity, however, it is submitted that the aforementioned basic needs only constitute the absolute minimum requirements, and that the listed goods therefore are non-exhaustive. As human dignity entails the equal and respectful treatment of every human being, it can be submitted that the realisation of human dignity requires more than the mere realisation of freedom and basic well-being.