Gregg J. Kinkley, PhD, JD, is a lecturer of religion and classics at the University of Hawaii at Manoa and is a former deputy attorney general for the State of Hawaii. This post is based on his remarks presented during the panel “Hawaii and Human Dignity” at the Oceanian Perspectives on Human Dignity Conference held at BYU–Hawaii in Laie, Oahu, Hawaii, 23–25 April 2024.
What Is Dignity?
While our English word dignity ultimately comes from Latin by way of England’s Norman conquerors (using their word dignité), the Anglo-American legal tradition has slowly taken up the concept of dignity and freighted it with its own unique baggage.
In Roman times, dignitas was a very personalized concept, used to describe an individual elite citizen’s ability to persuade and influence both government and peers, but our modern use of the word occurs more in the context of human rights. Dignity, then, stopped being something that the wealthy could leverage and treasure and became an elusive, sought-after guarantee of human freedom and rights proffered by (or demanded from) either a progressive society or some ethereal concept of a grand world civilization.
Whence this understanding of dignity as a code word for international human rights? By the time of the United States’ founding, this concept was fully fledged and spelled out in the organic documents of the republic. The recitation of “certain unalienable Rights,”[1] though clearly restricted to humans of a certain gender, hue, and economic value, was carried west across the Atlantic by the intellectual force of the Enlightenment and found purchase in the rhetoric that promised a “new world” for embittered European refugees.
Religious Sources for Human Rights as “Dignity”
But the aspiration for universal human rights that was the brand of the Enlightenment was certainly based on something earlier; it was not a brand-new concept at the time but was based on earlier notions. What made it sensational was the expectation that governments could be constrained to offer and actually enforce such rights for its citizens, or more often, its subjects. And that of course was the challenge: the very thought of a citizenry wielding equal economic, social, and political rights (even amongst themselves) went against the very nature of the most common form of government in Europe at the time: monarchy.
Although it is certainly a widely repeated part of the American mythos that the United States was founded by religious refugees, and that those people were discriminated against because of their creeds and deeds, the very religious institutions they fled were built on scriptural doctrines that informed what would become this new nation’s concept of human dignity through guaranteed individual rights.
It is interesting to note that a very common adjective used in modern times to describe the religious traditions of the greater European peoples and the American diaspora is Judeo-Christian. Notably absent from this widely accepted and oft-repeated word is Islamic. But surely the traditions—the scriptures of the Qur’an, ahadith, and sunna of the Prophet—also derive from a natural, deeply rooted common spring of human beings’ yearning for a harmonious relationship with the Creator, whether through humble, pious obedience or through a more progressive and liberal creative partnership.
It is easy to recognize a bundle of common values that can rightly be labeled “Judeo-Christo-Islamic,” or “Abrahamic,” if you will. The very ability to reference the three faith paths’ confidence in Abraham is itself a signal that a close and abiding relationship exists between these three houses. A central theme of the Torah, the Jewish scripture, is the story of the House of Israel being released from Egyptian bondage to become a free, but governed, People under God in a new land.
This seminal event, defining of the Jewish people, is celebrated and reenacted every spring at Passover. And what is the central theme of Passover if not God’s promise to Israel of a new life of freedom and human dignity, under God?
The Torah contains an at-times quite-detailed blueprint for a form of secular government to be used by a people establishing a live and constant spiritual link to the Divine. For whatever reason, history relates that this experiment, this plan, ultimately failed, but the main thematic promises and aims of Torah Judaism certainly live on in the faiths that owed a direct intellectual debt to Temple Judaism: Rabbinic Judaism, Christianity, and Islam.
Indeed, it may have been difficult in the earlier years of so-called Primitive Christianity to determine if practitioners were Christian or rather were following some quirky form of Judaism. Further, Mohamed’s initial concretization of Islam was infused with Jewish lore—many of the stories recited in the Torah are recounted in the Qur’an—and in the first few years of practice, Muslims actually bowed toward Jerusalem, not Mecca.
Politics, wars, real estate, and the daily exigencies and compromises that so regularly mark the practical burden of running a government eventually drove wedges between these three cousins of the Abrahamic tradition, the people who dared believe in one God. But the central tenet, the belief in the unity of the Creator, was encoded in the DNA of all these tribes, as Jews today still recite the Shma’ three times a day (“Hear, O Israel, the Lord our God, the Lord is One”), and the Muslims in prayer recite “La Ilaha illa Allah” (There is no god but God). It is noteworthy of course that Christians have incorporated all of the Torah into their own scriptures as well.
If we can then agree that a foundational religious cornerstone shared by all three Abrahamic faiths is a belief in a unitary God, then other commonalities flowing directly from that belief must also exist. The tension between these three great faiths, notwithstanding their basic agreement on first principles, is a struggle that continues to the present day, and not only in the area of religion.
Since we are focusing on human dignity, which we can agree today centers on human rights, let us examine for the moment another battleground of intellectual approaches to human freedom: the historical development of jurisprudence in the U.S. Supreme Court, often held to be the legal instrument in this country vouchsafing civil rights to Americans.
Shift in U.S. Civil Rights Jurisprudence
From the end of World War II, a war which was generally understood by the Allies to be a struggle for freedom from tyranny, until approximately the mid-1970s, the U.S. Supreme Court had adopted an approach to legal interpretation that could be described in various ways but was quite similar to that of the rabbis interpreting the Torah in Judaism. It is often tempting to draw a simple metaphor between the Torah and the Constitution, the rabbis and the Supreme Court justices. Both groups were in receipt of a Text which they greatly revered and to some extent agreed that its fundaments should not change over time. Since the purpose of the Law in both camps was to apply this unchanging Writ to constantly changing human conditions, a basic crisis emerged: how can one apply an unchanging law to a world that constantly changes and remain true to either the law or the world?
The answer, both for the rabbis from 200 CE on and the Supreme Court from 1948 to 1975, was to see the text of the law as a living document and interpret it using a variety of interpretive tools (for the rabbis, exegetical; for the justices, statutory). The key to rendering the law both constant and progressive was to use these interpretive tools consistently and not arbitrarily and to be informed by the general result that the law was intended to produce. This process in the modern era led to a line of cases that produced landmark results in civil rights and anti-discriminatory practices.
Then in the late 1970s, and certainly by the mid-1980s, a more conservative sentiment began slowly to dominate the jurisprudence of the Court, growing in size and effect to the present new jurisprudence focusing on new exegetical tools, as it were: textualism and originalism. While any educated U.S. legal scholar could agree with a central tenet of textualism (i.e., that the actual text of the law in question must be read simply and straightforwardly in its common-sense meaning, at least as a starting point) and originalism (i.e., that the original intent of the law in question should inform its interpretation), neither progressive nor conservative methods of jurisprudence remain free from political analysis and influence, and both can be seen as extrinsically suspect when touted as a purely rational and bias-free form of reaching legal conclusions.
On the battlefield of establishing human dignity through the extension of human civil rights to all, the term discrimination often comes up. It is seen as uniformly evil and something to be avoided at all costs. The end of legal segregation in U.S. public schools, heralded by the 1954 Supreme Court decision Brown v. Board of Education, is one obvious example of the denial of discrimination as a valid governmental act.
Discrimination v. Discernment
And yet, discrimination of a kind is key to all religious faiths and certainly crucial to the Abrahamic traditions. We refer here not to “illegal discrimination” of the type mentioned above but to the kind of discrimination that might more properly and unambiguously be referred to as “discernment.” This activity, discernment, can be explained as the drawing of differences between categories and making informed judgments as to which category a particular phenomenon should fall into. In its simplest reflex, a decision by a judge as to whether a certain act by a defendant is “legal” or “illegal” is an act of discernment, which is arguably discriminating between legal and illegal acts, favoring the former and punishing the latter.
The laws of normative Judaism according to which the rabbis make legal decisions are expressly informed by discrimination between “holy” and “secular,” “kosher” and “non-kosher,” “ritually pure” and “ritually contaminated.” So too with Islam and its distinctions between halal and haram foods, for instance. This type of discrimination (or discernment) between absolutes is central to these legal-driven faith practices.
Legal systems of all and any kind, it is herein asserted, are extrinsically discriminatory in this special sense: categories of conduct are set up as mutually exclusive; while one is allowed, the other is prohibited. The task of the judge is to decide which category is relevant for a given documented act.
The Essence of Western Legal Systems: Dualism
Western legal systems therefore owe a profound, existential debt to an ancient and pervasive mode of cognition: dualism. The Abrahamic faiths realize the limitations of dualistic reasoning but can only escape it, to the extent they do in fact escape it, in the more mystical and esoteric branches of their religious practices.
In Judaism, for instance, the very rabbis that insist on deciding between kosher and prohibited food in their daily legal practice stress as an article of faith that God is One and transcends any human attempt at qualifying or categorizing any of His Creation, least of all into dualistic concepts.
Discrimination, then, at least in its more positive, “discernment” guise, is a key component in religion and cognition: the roots of both are steeped in a dualistic approach to understanding and dealing with “reality.” Yet human rights, one purported end of these legal systems, can only be achieved through the very human enterprise of law, which is intrinsically dualistic and thereby discriminatory.
As we all know, but has not been expressly stated thus far, there is one important difference between the metaphor of the law of the Torah and its judicial institutions on the one hand, and the U.S. government and its legal and governmental institutions on the other: the state machinery conceived of in the Torah was expressly theocratic; the very essence of the American constitutional approach is that government is secular. Even so, the old habit of seeing reality as bundles of elements and phenomena in dualistic opposition remains deeply entrenched and can be easily seen and felt when we consider what informed the quest for human rights and freedoms during the early constitutional period.
Western approaches to law and human dignity will always be adversarial and dualistic. The Government is on one side, the People on the other. Rights exist as an express dualistic, categorical change from a Government-held power to a People-held power. The Bill of Rights is itself a simple laundry list of the inherent powers of suzerainty that have been contracted out by the government to the people.
But is this a way for a spiritual people to realize their worth and dignity? As we know, the House of Israel’s experiment failed (although the more generous might wish to style it as a continuous work in progress); should the Hawaiian people agree on a Western path to dignity, a path which may not even in its fundament share the same intrinsic values?
Hebrews and Hawaiians
At least superficially, the Hebrews and Hawaiians share some commonalities: both have (1) an expressed covenant (or connection to) and ownership of the land (‘aina), compromised by foreign powers; (2) an array of kings and queens of varying power and success in repulsing foreign invaders; (3) a native population that took part in a diaspora to far-away countries because of the difficulties of living under economic or social conditions; and (4) a focus on language, taken away by the time and tide of history, only later to be revitalized as a key to cultural transmission and a step toward the forging of a distinct and autonomous peoplehood.
The Hebrews, however, had a native tradition for legal rights that was documented in their holy scriptures, practiced, and continued unbroken even through multiple occupations, purges, and evacuations. At some point, the Hawaiian kingdom accepted the general Western template for jurisprudence, whether by force or from exhaustion.
The grim legacy of colonialism left Hawaii with a legal system that developed from premises the native people of Hawaii did not share: a focus on and prizing of the vindication of corporate rights, preservation of status roles, and destiny of the individual rather than the health of the overall community as reflected in the relationships among the people.
The motto of the United States, e pluribus unum, suggests at least some lip service to the idea that the welfare of the whole takes precedence over the vindication of individual rights, but the motto is misleading: the pluribus was a reference to the several states, and the unum was the federal government, not the commonwealth of citizenry generally.
Duality v. Emptiness
One of the few successfully articulated, developed, and widespread theories of existence and reality that is quite apart from the otherwise pervasive influence of Western culture is the Hindu/Buddhist doctrine of “emptiness” or Śūnyatā. Unlike the dualistic nature of the paradigmatic approach to cognition, reason, and decision-making, the doctrine of emptiness stresses that the world is empty of self, the concept of self, and that all perceived reality is, at bottom, nothing more than a construct, with no real existence of its own.
Because it is so contradictory to the very foundational principles of dualism, most Westerners first introduced to this philosophical insight cannot fathom its intent, and it sounds on the surface to be intrinsically irrational, or at least internally contradictory. The appearance of seeming contradictions stems in large part from the fact that any explanation of the concept of emptiness must, in the first instance, be communicated to the student in Western language using dualistic vocabulary—it is simply inescapable—and that medium will only betray the concept as something unimaginable or incomprehensible.
Imagine a computer screen with a picture formed from an intricate patterning of black and white pixels (a dualistic image). Within unity all pixels are black: the screen now appears to the dualist not simply as “all black” but specifically as “empty”—containing nothing at all—because the dualist cannot appreciate or understand “black” except within its specific contrast with something white. Many Buddhists take years of meditation and mindfulness practice to slowly approach a deep-rooted and successful understanding of this important basis for Buddhist thought.
Emptiness is not truly empty (at least in the Western understanding of emptiness as a forbidding and desolate nonexistence). The term emptiness, in fact, is an explanatory fiction catering to the abilities and biases, the eyes and understanding, of the dualist about what unity can be. Because there is no contrast within unity (contrast itself being an express and unique result of dualism), unity appears as nothingness to the dualist, since an opposition is necessary to perceive anything or to have existence in a dual world; hence that unified world appears “empty.” While “empty” is a pejorative concept in a dual world, it is the goal of the unified world.
Since emptiness appears to be a successful philosophical challenge to dualism, and inherently embraces a theory of unity much more seamlessly than any dualistic approach could, perhaps emptiness could serve as the philosophical starting point for a more relevant construct of “dignity” for a people who were not ethnically raised on an internally antagonistic, dual concept of life, law, and society.
Conclusion
Concepts of dignity appear to be the result of the worldview that a given people engage in; if it is foundationally dualistic, discrimination of both types (both discernment and exclusion) will ultimately occur. The only path open for true, universal dignity is to adopt a system that embraces unity (“emptiness”) as a cognitive platform for world and relationship building. In its best and most significant and characteristic rendering, dignity is an absolute (universal; UNI-versal!) concept, not a comparative one, and therefore must be the result of a unitary, not a dualistic (traditional Western), system of law.
Reference:
[1] The Declaration of Independence para. 2 (U.S. 1776).