Human dignity in adjudication: The limits of placeholding and essential contestability accounts

Baruah, Pritam (2014) Human dignity in adjudication: The limits of placeholding and essential contestability accounts. Canadian Journal of Law and Jurisprudence, 27 (2). pp. 329-356. ISSN 08418209

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Abstract

Employing moral values as justifications in judicial decisions has been controversial. At present, there is increasing controversy over the application of human dignity. Contemporary debates on the role of dignity in law and adjudication are heavily influenced by Christopher McCrudden’s account of dignity as a placeholder, and much thinking on the contested nature of values is influenced by WB Gallie’s idea of Essentially Contested Concepts. In this paper I argue that both these accounts have limited explanatory and normative potential. McCrudden’s account is illuminating in terms of the role of dignity in the UDHR, but weak in terms of explaining why employing dignity in adjudication yields diverging conclusions, and why dignity should be understood to be a placeholder. His reliance on Gallie’s idea of Essentially Contested Concepts is also misplaced. Gallie’s views often serve as a philosophical basis for understanding the contested nature of values generally. I argue that his account is an external-descriptive one, which cannot explain why persistent disagreement ensues because of the peculiar nature of some concepts. Neither does it point out any property of essential contestability that is unique to some concepts. Thinking on how values such as dignity can figure as justifications for decisions, therefore, must explore other alternatives.

Item Type: Article
Keywords: Human dignity | Role of dignity in law and adjudication | Christopher McCrudden
Subjects: Social Sciences and humanities > Social Sciences > Law and Legal Studies
JGU School/Centre: Jindal Global Law School
Depositing User: Mr. Syed Anas
Date Deposited: 16 Apr 2022 05:06
Last Modified: 16 Apr 2022 05:06
Official URL: https://doi.org/10.1017/S084182090000638X
URI: https://pure.jgu.edu.in/id/eprint/2389

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