In international human rights law, a person’s inherent dignity is the foundation for why all of us should have access to justice and safety. In Aotearoa we have a unique understanding of that value, but policymakers need to understand that ‘mana’ and ‘dignity’ are not interchangeable.
The law assumes that all people have inherent dignity – but what does this mean exactly? And is there potential for a uniquely Aotearoa understanding of dignity to take hold here?
Since the end of World War II, the idea that all humans possess equal, inherent dignity has become a hallmark of international law. In international human rights law, dignity is more than a sense of respect and standing. It is something that all humans possess by virtue of their humanity, regardless of how degrading their circumstances or treatment. Dignity is often treated as the foundation for all other rights, the status from which flows our right to be treated, or not treated, in certain ways.
In western law and philosophy, dignity is often associated with philosopher Immanuel Kant and the idea of protecting autonomy. Kant believed human beings had an intrinsic worth that elevated them over animals. “We have dignity too, so respect our autonomy” is a common argument in debates over same-sex marriage, abortion, and other civil liberties.
On the other hand, dignity can equally be used to argue that certain choices we make should be disallowed, because sometimes human choices lead to undignified behaviour. Most famously, in 1995 a top French court upheld a ban on consensual “dwarf tossing” – think Wolf of Wall Street, and men with dwarfism hiring themselves out as a living party trick – on the basis that it violated human dignity.
Dignity in New Zealand law
So what does New Zealand law say about dignity? Parliament has passed more than 30 statutes that use the term dignity or indignity, and the term dignity has been mentioned in over 4,000 court or tribunal cases.
One recent example was a 2020 decision of the Human Rights Review Tribunal, which concerned the “loss of dignity” that resulted from the substandard care provided to a profoundly disabled boy. The boy in question, the tribunal noted, was not capable of subjectively experiencing humiliation, but the tribunal still recognised a harm to his dignity – in other words, dignity is about more than our feelings or reactions. It’s about the right to be treated in a way that recognises our inherent value, our humanity, our mana and our tapu.
The idea of dignity and mana is also squarely before the Supreme Court in the pending case of Peter Ellis. The former Christchurch Civic Creche worker was allowed to appeal against charges of sexual offending, despite the fact he died in September 2019. Ellis’s lawyer used a tikanga-based argument that all people, Māori and Pākehā, have mana in death and if the appeal was successful, it would affect his mana and that of his whānau.
Mana and dignity – associated ideas?
One of the interesting things about “dignity” in New Zealand statutes and court decisions is that it is sometimes used alongside the idea of “mana”. For example, a law passed in 2017 to allow for the compulsory assessment and treatment of people suffering substance addiction refers to the importance of protecting “mana and dignity”.
Mana is commonly translated as status, prestige, authority or leadership. One high court justice has spoken of mana as a concept “understood implicitly by Māori and, now, by most New Zealanders”.
That might be a stretch; and we argue there’s a risk that if the phrase “mana and dignity” is used unthinkingly, mana might be misunderstood as just a te reo translation of dignity. Mana is actually a rich and complex idea that does not correspond simply to “dignity”. There’s also a very different cultural basis for mana – where dignity is usually premised on the idea of the autonomous individual, mana comes from a worldview that emphasises whanaungatanga.
When our predominantly English legal system uses te teo Māori terms such as mana, it’s important that care is taken not to twist and subvert the concepts that term represents.
On the other hand, assuming great care is taken and we listen to tikanga experts, the idea of mana might be a positive symbol of a legal system that is committed to bijuralism and biculturalism.
A bijural, bicultural legal system, as our colleague Jacinta Ruru has written, is one that “presupposes the existence of two laws” – not just the law brought here by Cook, but also the law brought here by Kupe.
This suggests that it is possible, and indeed deeply desirable, to think about a uniquely Aotearoa understanding of dignity as a legal concept. To be a valid idea in New Zealand today, dignity must speak to the diversity of culture in this land. It should be informed not only by western thought and the value of autonomy, but equally by a te ao Māori understanding of whanaungatanga, connectedness, and the multiple, interrelated attributes that define our status and worth as people. Those interrelated values include mana, but also personal tapu, mauri, wairua and hau.
As dignity continues to develop as a legal principle in New Zealand, our hope is that legislators, policymakers, judges and ordinary New Zealanders alike will understand dignity as an idea that draws on the richness of both western and Māori law and philosophy. That will allow for a uniquely Aotearoa idea of dignity to emerge, with particular resonance and relevance for our time and place.
This piece is adapted from an article forthcoming in the 2021 New Zealand Universities Law Review, based on research funded by the New Zealand Law Foundation and the Michael & Suzanne Borrin Foundation.