Thanks to James Penner and Jeff King for their comments and criticism of earlier drafts of the paper. The paper has also benefited from comments by Professor Alison Diduck, participants at the UCL staff lunch seminar, and participants at the civil liberties section of the Society of Legal Scholars Conference (Bristol) 2012. Responsibility for mistakes is of course mine. I am also grateful to Christopher McCrudden for access to valuable materials on human dignity.

1. McCrudden, Christopher, ‘Human Dignity and the Judicial Interpretation of Human Rights’ (2008) 19: 4 Google Scholar EJIL 655. (For a detailed account out of the problematic issues involving dignity in adjudication.)

2. Rao, Neomi, ‘On the Use and Abuse of Human Dignity in Constitutional Law’ (2008) 14 Colum J Eur L 201 Google Scholar; Carozza, Paul, ‘Human Dignity and the Judicial Interpretation of Human Rights: A Reply’ (2008) 19: 5 EJIL 931 Google Scholar (arguing against McCrudden’s view that the content of dignity is largely culture-relative); Moller, Kai, ‘On Treating Persons as Ends: The German Aviation Security Act, Human Dignity, and the German Federal Constitutional Court’ (2006) Public Law 457 Google Scholar (arguing that the application of the Kantian notion of dignity is problematic in the public sphere); Feldman, David, ‘Human Dignity as a Legal Value: Part I’ (2000) Public Law 682 Google Scholar (expressing scepticism about using dignity in adjudication, especially as a right); Feldman, David, ‘Human Dignity as a Legal Value: Part II’ (2000) Public Law 61 Google Scholar (providing an analysis of the many ways in which dignity has been used in English law, yet expressing scepticism about its use); Kretzmer, David & Klein, Eckart, eds, The Concept of Human Dignity in Human Rights Discourse (Hague: Kluwer Law International, 2002 Google Scholar) [Kretzmer & Klein, The Concept of Human Dignity]; Hennette-Vauchez, Stephanie, ‘When Ambivalent Principles Prevail: Leads for Explaining Western Legal Orders’ Infatuation with the Human Dignity Principle’ (2007) 10: 2 Legal Ethics 193 Google Scholar.

3. See Waldron, J, ‘Is Dignity the Foundation of Human Rights’ NYU School of Law, Public Law Research Paper No. 12-73 at 1 Google Scholar, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2196074 (last visited 10/08/2013); O’Mahony, Conor, ‘There is No Such Thing As a Right to Dignity’ (2012) 10: 2 I. CON 551 Google Scholar; White, Emily Kidd, ‘There is No Such Thing as a Right To Human Dignity: A Reply to Conor O’Mahony’ (2012) 10: 2 I. CON 575.Google Scholar

4. Rawls, John, A Theory of Justice, rev ed (Oxford: Oxford University Press, 1999) at 5 Google Scholar; Dworkin, Ronald, Taking Rights Seriously (London: Duckworth, 1977) at 103 Google Scholar.

5. Gallie, WB, ‘Essentially Contested Concepts’ (1956) Proceedings of the Aristotelian Society 167.Google Scholar

6. Waldron, , ‘Is Dignity the Foundation of Human Rights’, supra note 3 at 8 Google Scholar; Ehrenberg, Kenneth, ‘Law is not (Best Considered) an Essentially Contested Concept’ (2011) 7: 2 IJLC 232 Google Scholar; McCrudden, , supra note 1 at 679–80 Google Scholar; Tersman, Folke, Moral Disagreement (New York: Cambridge University Press, 2006) at 113 CrossRefGoogle Scholar; Dworkin, Ronald, ‘Thirty Years On’ (2002) 115: 6 Harv L Rev 1655 at 1686Google Scholar; Hurley, Susan, Natural Reasons: Personality and Polity (New York: Oxford University Press, 1999) ch 3Google Scholar; Dworkin, Ronald, Taking Rights Seriously, supra note 4 Google Scholar.

7. Dworkin, Ronald, Justice for Hedgehogs (Cambridge: Belknap Press, 2011) at 102.Google Scholar

8. Recent philosophical thinking about dignity has developed many such proposals: Waldron, , ‘Is Dignity the Foundation of Human Rights’, supra note 3 Google Scholar; Waldron, J & Dan-Cohen, Meir, Dignity, Rank, and Rights (New York: Oxford University Press, 2012 CrossRefGoogle Scholar); Rosen, M, Dignity: Its History and Meaning (Cambridge: Harvard University Press, 2012 CrossRefGoogle Scholar); Habermas, J, ‘The Concept of Human Dignity and the Realistic Utopia of Human Rights’ (2010) 41: 4 Metaphilosophy 464.Google Scholar

9. Tarunabh Khaitan has criticized McCrudden’s account on the ground that dignity’s function in human rights adjudication is best understood as an expressive norm, and not as a placeholder. His account, however, does not evaluate the conceptual foundations of McCrudden’s account. Rather his claim is that only an expressive conception of dignity allows it to play any meaningful role in law, distinct from the role of other values, such as autonomy or equality. See Khaitan, Tarunabh, ‘Dignity as an Expressive Norm: Neither Vacuous Nor a Panacea’ (2012) 32: 1 Oxford J Legal Stud 1.Google Scholar

10. Pinker, Steven, “The Stupidity of Dignity”, The New Republic (28 May 2008)Google Scholar, online: The New Republic http://www.tnr.com/story_print.html?id=d8731cf4-e87b-4d88-b7e7-f5059cd-0bfbd; Bagaric, M & Allan, J, ‘The Vacuous Concept of Dignity’ (2006) 5: 2 J Hum Rts 257 Google Scholar; Macklin, Ruth, ‘Dignity Is A Useless Concept: It Means No More Than Respect For Persons Or Their Autonomy’ (2003) 327: 7429 Brit Med J 1419 Google Scholar; Brownsword, R, ‘Bioethics Today, Bioethics Tomorrow: Stem Cell Research and the “Dignitarian Alliance”’ (2003) 17: 1 Notre Dame JL Ethics & Pub Pol’y 15 Google ScholarPubMed; Gibbins, R, ‘How in the World can You Contest Equal Human Dignity?: A Response to Professor Errol Mendes’ “Taking Equality into the 21st Century: Establishing the Concept of Equal Human Dignity” (2000) 12 NJCL 25.Google Scholar

11. Moon, G & Allen, R., ‘Dignity Discourse in Discrimination Law: A Better Route to Equality?’ (2006) 6 Google Scholar EHR L Rev 610; Waldron, & Dan-Cohen, , Dignity, Rank, and Rights, supra note 8, Lecture 1.Google Scholar

12. Carozza, Paulo G, ‘“My Friend is a Stranger”: The Death Penalty and the Global Ius Commune of Human Rights’ (2002) 81 Google Scholar Tex L Rev 1031; Moon, G, supra note 11 Google Scholar; Klein, Eckart, ‘Human Dignity in German Law’ in Kretzmer and Klein, The Concept of Human Dignity, supra note 2 at 145 Google Scholar; Chaskalson, Arthur, ‘Human Dignity as a Constitutional Value’ in Kretzmer, & Klein, , The Concept of Human Dignity, supra note 2 at 133 Google Scholar.

13. Supra note 9 Google Scholar.

14. O’Mahony, , supra note 3 Google Scholar (arguing that dignity makes more sense as a foundational principle of constitutional law rather than as a right in itself). For a reply see White, Kidd, supra note 3 Google Scholar. O’Mahony has a rejoinder to White in the same edition of the journal.

15. Dupre, Catherine, ‘Unlocking Human Dignity: Towards a Theory for the 21st Century’ (2009) 2 Google Scholar EHR L Rev 190; Baer, Susan, ‘Dignity, Liberty, Equality: A Fundamental Rights Triangle of Constitutionalism’ (2009) 59: 4 Google Scholar UTLJ 417.

16. For a mapping of this evolution see Cancik, Hubert, ‘Dignity of Man and Persona in Stoic Anthropology: Some Remarks on Cicero, De Officiis I’ in Kretzmer, & Klein, , The Concept of Human Dignity, supra note 2 at 105–07 Google Scholar [Cancik]. Most scholars who have referred to the history of the idea do not disagree with this account. See also: Sensen, Oliver, ‘Human Dignity in Historical Perspective: The Contemporary and Traditional Paradigms’ (2011) 10: 1 Google Scholar European J Political Theory 71. For a recent and more detailed history of dignity that affirms most of this account, see Rosen, supra note 4 Google Scholar at chs 1 and 2.

17. Whitman, James Q, ‘On Nazi “Honour” and the New European “Dignity”’ in Christian Joerges &Navraj Singh Ghaleigh, eds, Darker Legacies of Law in Europe: The Shadow of National Socialism and Fascism Over Europe (Oxford: Hart, 2003 Google Scholar) 243 at 243 (arguing that there is such a continuity). For a contrasting view: Neuman, Gerald L, ‘On Fascist Honour and Human Dignity: A Skeptical Response’ in Joerges, & Ghaleigh, 267 Google Scholar. Riley, Stephen, ‘Human Dignity: Comparative and Conceptual Debates’ (2010) 6 Int’l JL Context 117 at 119-20CrossRefGoogle Scholar (For a discussion of the debate between James Whitman, Gerald Neuman and Roger Cotterrell on whether there is continuity between ‘aristocratic dignity’ and ‘contemporary dignity’ in nineteenth and twentieth century German Law).

18. McCrudden, , supra note 1 at 656–64 Google Scholar.

19. Cancik, , supra note 16 at 19 Google Scholar.

20. Ibid at 23.

21. Ibid.

22. Ibid at 24.

23. McCrudden, , supra note 1 at 658 Google Scholar.

24. Arieli, Yehoshua, ‘On the Necessary and Sufficient Conditions for the Emergence of the Doctrine of the Dignity of Man and His Rights’ in Kretzmer, &Klein, , The Concept of Human Dignity, supra note 2 at 10 Google Scholar.

25. Cancik, , supra note 16 at 30 Google Scholar.

26. Ibid at 30-36.

27. McCrudden, , supra note 1 at 661 Google Scholar.

28. Ibid at 662.

29. Ibid at 663.

30. Ibid at 664.

31. Ibid at 664-74.

32. Ibid at 673-74.

33. Ibid at 678, quoting Schultziner.

34. Ibid at 679.

35. Ibid at 679-80.

36. Ibid at 679.

37. Ibid at 698.

38. Ibid at 699.

39. Ibid at 702.

40. Ibid at 706.

41. Ibid at 707.

42. Ibid at 707-10.

43. Ibid at 713 [citations omitted].

44. This includes mediating between incommensurable rights, incommensurable values, and be-tween incommensurable rights and values.

45. McCrudden, , supra note 1 at 720 Google Scholar.

46. Ibid at 722: ‘My only purpose, I repeat, is to identify what seems to me to explain the increasing popularity of the concept of dignity among judges and advocates’.

47. Klaus Dicke argues that even the founding function of dignity under the UDHR depends on relations between dignity and single human rights. Though Dicke’s arguments are towards demonstrating a universal, foundational function of human dignity, he argues that dignity can play its legitimizing function in legal reasoning only if a relationship between dignity and rights is applied. See Klaus Dicke, ‘The Founding Function of Human Dignity in the Universal Declaration of Human Rights’ in Kretzmer, &Klein, , The Concept of Human Dignity, supra note 2, 111 at 118–19 Google Scholar.

48. Fuller, Lon, ‘The Forms and Limits of Adjudication’ (1978) 92: 2 Google Scholar Harv L Rev 353.

49. Schauer, Frederick, ‘Giving Reasons’ (1995) 47: 4 Google Scholar Stan L Rev 633.

50. See Perry, AD & Ahmed, F, ‘Expertise, Deference and Giving Reasons’ (2012) 2 Google Scholar PL 221.

51. Edward White, G, ‘The Evolution of Reasoned Elaboration: Jurisprudential Criticism and Social Change’ (1973) 59: 2 Google Scholar Va L Rev 279; Melvin Aron Eisenberg, , ‘Participation Responsiveness, And The Consultative Process: An Essay on Lon Fuller’ (1978) 92: 2 Google Scholar Harv L Rev 410; Schauer, Fredrick, supra note 49 Google Scholar; Glen Staszweski, , ‘Reason-Giving and Accountability’ (2009) 93:4 Google Scholar Minn L Rev 1253; Schwartzman, Micah, ‘Judicial Sincerity’ (2008) 94: 4 Google Scholar Va L Rev 987; Perju, Vlad, ‘Reason and Authority in the European Court of Justice’ (2009) 49: 2 Google Scholar Va J Int’l L 307; Cohen, Mathilde, ‘Sincerity and Reason-Giving: When May Decision Makers Lie’ (2009) 59: 4 Google Scholar DePaul L Rev 1091.

52. Kumm, Mattias, ‘Institutionalising Socratic Contestation: The Rationalist Human Rights Paradigm, Legitimate Authority and the Point of Judicial Review’ (2007) 1: 2 Google Scholar EJ Legal Stud 1; Kumm, Mattias, ‘The Idea of Socratic Contestation and the Right to Justification: The Point of Rights-Based Proportionality Review’ (2010) 4: 2 Google Scholar L &Ethics HR 142.

53. For a comprehensive round-up of the various view points and issues in the debate: Lucy, William, ‘Adjudication’ in Coleman, Jules & Scott Shapiro, , eds, The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford: Oxford University Press, 2002 Google Scholar) at 206. For a detailed treatment see Lucy, William, ‘Adjudication for Pluralists’ (1996) 16: 3 Google Scholar Oxford J Legal Stud 369.

54. Fuller, , supra note 48 at 363 Google Scholar.

55. Ibid at 365. For my purposes in this paper, the spotlight is on appellate adjudication, particularly constitutional adjudication, where the considerations for non-reasoned decisions identified by Fuller do not apply.

56. Ibid at 366.

57. Ibid.

58. Ibid at 381.

59. For criticism of Fuller’s claim see Nagel, Thomas, ‘On the Fusion of Fact and Value: A Reply to Professor Fuller’ (1958) 77: 3 Google Scholar Nat LF 77.

60. See Lucy, William, Understanding and Explaining Adjudication (Oxford: Oxford University Press, 1999) at 1 Google Scholar.

61. Ibid at 5-6.

62. I adopt Dworkin’s definition of hard cases. See Lucy, , Understanding and Explaining Adjudication, supra note 60 at 5 Google Scholar and Dworkin, Ronald Taking Rights Seriously, supra note 4 at 83 Google Scholar.

63. Ibid at ch 4; Dworkin, Ronald, Law’s Empire (Cambridge: Harvard University Press, 1989 Google Scholar) ch 7; McCormick, Neil Legal Reasoning andLegal Theory (Oxford: Clarendon Press, 1978 Google Scholar) ch 5.

64. Ibid at 100-01: ‘A ruling is a universal and generic justification of a decision that judges develop to decide hard cases.’

65. Ibid.

66. Dworkin, , Taking Rights Seriously, supra note 4 at 126–27 Google Scholar; Dworkin, , Law’s Empire, supra note 63 at 255–56 Google Scholar.

67. Dworkin, , Taking Rights Seriously, supra note 4 Google Scholar, ch 4; Dworkin, , Law’s Empire, supra note 63 Google Scholar, chs 3, 7; Dworkin, Ronald, Justice in Robes (Cambridge: Harvard University Press, 2006)Google Scholar ch 6. For a reiteration of his views vis-a-vis judicial minimalism: Dworkin, Ronald, ‘Looking for Cass Sunstein’, The New York Review of Books (30 April 2009 Google Scholar), online: The New York Review of Books http://www.nybooks.com/articles/archives/2009/apr/30/looking-for-cass-sunstein/?.

68. Raz, Joseph, ‘Law and Value in Adjudication’ in The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press, 1979) 180 at 186–88, 203 CrossRefGoogle Scholar.

69. Ibid at 205 [emphasis added].

70. Sunstein, Cass, Legal Reasoning and Political Conflict (New York: Oxford University Press, 1996 Google Scholar) ch 2.

71. Ibid at 35.

72. Ibid at 36-37.

73. Ibid at 37 [emphasis added].

74. Ibid at 48-58.

75. Dworkin’s reply to Sunstein provides a sample of how some reason-giving accounts may respond to Sunstein’s arguments. Dworkin, , ‘Looking for Cass Sunstein’, supra note 67 Google Scholar.

76. McCrudden, , supra note 1 at 697 Google Scholar.

77. Ibid at 722 (mentioning the possibility of such an allegation but distances himself from it).

78. Ibid at 680-81: ‘In its thicker sense, dignity is a value on which human rights are built and thus helps in the identification of a catalogue of rights’.

79. McCrudden, , supra note 1 at 724 Google Scholar.

80. I thank Jeff King for pointing out this possible objection.

81. McCrudden, , supra note 1 at 679–80 Google Scholar.

82. Gallie, WB, supra note 5 at 169 Google Scholar. Some commentators on Gallie take ‘proper use’ to mean ‘correct use’ of the concept. See Gray, John, ‘On the Contestability of Social and Political Concepts’ (1977) 5: 3 Google Scholar Political Theory 331 at 331. Others take Gallie to be speaking of a ‘best interpretation’, see Swanton, Christine, ‘On the “Essential Contestedness” of Political Concepts’ (1985) 95: 4 Google Scholar Ethics 811 at 813-14. For my purposes reading it either way does not make any significant difference, as I am not testing Gallie’s accuracy in capturing the feature of essential contestedness.

83. Gallie, , supra note 5 Google Scholar. He uses the two synonymously.

84. Ibid at 167 [emphasis in the original].

85. Ibid.

86. Ibid.

87. Hurley, , Natural Reasons, supra note 6 Google Scholar at ch 3.

88. Ibid.

89. Wittgenstein, Ludwig, Philosophical Investigations, 3d ed, translated by Anscombe, GEM, Hacker, PMS & Schulte, Joachim (Oxford: Wiley-Blackwell, 2009 Google Scholar) at §§ 23, 241.

90. Hurley, , Natural Reasons, supra note 6 at 31 Google Scholar. For Wittgenstein’s discussion on strange ways of going on see Wittgenstein, , supra note 89 Google Scholar at §§ 185-90.

91. Hurley, , Natural Reasons, supra note 6 at 34 Google Scholar.

92. Hurley also identifies other kinds of concepts that host disagreements within a form of life: uncontested concepts, and conceivably contested concepts. Ibid at 43-45. Samantha Besson has used the term ‘conceptual disagreement’ that is akin to Hurley’s use of ‘substantive disagreement’. She uses it in contrast to ‘verbal or semantic disagreement’ and states that conceptual disagreement is about meaning. I follow Hurley’s use here as it is clear that in disagreeing about how a concept is to be employed we must have some agreement on its meaning. Thus calling such disagreement ‘conceptual disagreement’, which is about the meaning of the concept, creates space for confusion. Besson therefore has to distinguish later between degrees of disagreement about meaning. See Besson, Samantha, The Morality of Conflict: Reasonable Disagreement and the Law (Oxford: Hart, 2005) at 48–49 Google Scholar.

93. Gallie, , supra note 5 at 169 Google Scholar.

94. Ibid.

95. Ibid.

96. Gallie does not employ the term unreflective. It is my own formulation of what Gallie means.

97. Gallie, , supra note 5 at 169 Google Scholar.

98. Ibid at 171.

99. Ibid.

100. Ibid at 171-72.

101. Ibid at 172 n 1.

102. Ibid at 172.

103. Ibid.

104. Gallie, , supra note 5 at 176 Google Scholar. Brian Bix speaks of Gallie’s reference to paradigm cases as an instance of ‘guidance by ostensive definition.’ He thinks, and rightly so, that this criterion of Gallie’s offers nothing new to explaining disagreement. What it does is to push the problem of disagreement one step back. See Bix, Brian, Law, Language, and Legal Determinacy (Oxford: Clarendon Press, 1993 Google Scholar) at 57. Bix adds that Gallie fails to explain the reasons why we agree on a paradigm and yet have different understandings oi it. I arrive at a conclusion similar to Bix s about Gallie not being able to explain why disagreement ensues. The difference between mine and Bix’s enquiry is that Bix is interested in what causes disagreement, and valuably points out that Wittgenstein’s remarks on rule following have probably been over read to suggest that it sheds light on the issue. My project, on the other hand, is to point out that Gallie’s account does not explain the perspective of participants when they disagree. Though this overlaps to some extent with Bix’s conclusions, I part ways with Bix to investigate a different feature of the implications of this inability to explain the participant’s perspective. I explain this towards the end of the next section. Infra note 129.

105. Gallie, , supra note 5 at 180 Google Scholar.

106. Hurley, , Natural Reasons, supra note 6 at 46 Google Scholar; Bix, , supra note 104 at 55–56 Google Scholar.

107. McCrudden, , supra note 1 at 698 Google Scholar.

108. Gallie, , supra note 5 at 189 Google Scholar.

109. Ibid at 190.

110. Ibid.

111. McCrudden, , supra note 1 at 679–80 Google Scholar.

112. Rawls, , A Theory of Justice, supra note 4 at 5 Google Scholar. Rawls however does not associate his comments with essential contestability. He also remarks that the concept-conception distinction does not answer any important questions about justice.

113. Supra note 34.

114. McCrudden, , supra note 1 at 679–80 Google Scholar

115. If it were a concept, then it would be akin to an internally complex concept. See Ehrenberg, , supra note 6 at 222 Google Scholar. Ehrenberg suggests, that some concepts can be over aggregated and disaggregation should therefore precede any saddling of the concept with the feature of essential contestability.

116. For an analogous argument on how there might be plural sources of human rights: Tasioulas, John, ‘Taking Rights out of Human Rights’ (2010) 120: 4 Google Scholar Ethics 647; Nickel, James W, Making Sense of Human Rights, 2nd ed (Malden, MA: Wiley-Blackwell, 2006 Google Scholar) ch 4. Though Tasioulas’ and Nickel’s views are on the plural foundations of human rights, my argument here (that there might not be one foundational value that determines the appropriate relationship between the state and the individual) bears strong resemblance to theirs. There might be various reasons that strengthen the claim that the state exists for the individual and not vice-versa, and there is no compulsion to presume that all such reasons emanate from intrinsic worth.

117. Gallie, , supra note 5 at 168, 169 Google Scholar: ‘…[T]here are concepts which are essentially contested, concepts the proper use of which inevitably involves endless disputes about their proper uses on the part of their users.’

118. Ibid.

119. Gallie, , supra note 5 at 172 Google Scholar n 1.

120. Ibid at 169.

121. Margolis, Eric & Laurence, Stephen, eds, Concepts: Core Readings (Cambridge: MIT Press, 1991 Google Scholar) ch 1 (for a discussion of leading theories of concepts, each claiming that a concept is a particular sort of mental particular).

122. Fodor, Jerry, Concepts: Where Cognitive Science Went Wrong? (Oxford: Oxford University Press, 1998 CrossRefGoogle Scholar) ch 1 (for a discussion of what concepts are and how they relate to beliefs).

123. I am grateful to James Penner for pointing me towards the literature on concepts, and that it might bear upon Gallie’s account. Responsibility for the claims here are, of course, mine.

124. Gallie himself takes his first five criteria to be ‘formally defining criteria’ of ECC. Gallie, , supra note 5 at 180 Google Scholar.

125. Endicott, Timothy, Vagueness in Law (Oxford: Oxford University Press, 2000 CrossRefGoogle Scholar) at 54.

126. Gray, , supra note 82 Google Scholar.

127. Clarke, Barry, ‘Eccentrically Contested Concepts’ (1979) 9: 1 Google Scholar Brit J Political Sci122 at 125-26.

128. Mason, Andrew, Explaining Political Disagreement (Cambridge: Cambridge University Press, 1993 CrossRefGoogle Scholar) ch 2.

129. This is where I part ways with Brian Bix, as I mentioned in note 104 above. While Bix goes on to enquire what makes disagreement possible, I conclude that the lack of an account of reasons for disagreement in Gallie’s account makes it unsuitable for explaining how participants reason with ECC.

130. Khaitan, , supra note 9 at 14 Google Scholar.