I. Legal Rights to Dignity
The most obvious way in which law protects dignity is by proclaiming and enforcing specific norms that prohibit derogations from or outrages upon human dignity. Some of these norms are explicit, like Common Article 3 of the Geneva Conventions, which prohibits “outrages upon personal dignity.” Implicitly, dignity is protected also by prohibitions on degradation like those we find in Article 7 of the International Covenant on Civil and Political Rights (ICCPR) and Article 3 of the European Convention on Human Rights (ECHR).
Many pages have been devoted to the question of what these provisions mean.Footnote 1 In this essay, I want to talk about a less obvious way in which law protects dignity, but a way that is deeper, more pervasive, and more intimately connected with the very nature of law. For when we consider Article 3 of the ECHR or Common Article 3 of the Geneva Conventions, it may strike us as a matter of contingency that dignity is protected under these provisions. Maybe any worthwhile bill or charter of human rights should regard human dignity as something worth protecting, but it is notorious that at the level of positive law many bills of rights omit things that ought to have been included. There is no mention of dignity in the US Constitution, for example, and to the extent that the ideal has had any influence at all in American constitutional jurisprudence – and it has: for example in 8th Amendment jurisprudenceFootnote 2 – it has had to be imported as judge-made doctrine. And that too is historically contingent, not to say vulnerable to passing fads and fashions. So there's our question: are there connections between law and dignity that are less contingent than this?
II. Dignity as the Basis of Rights
Some have suggested not only that dignity ought to be protected as a human right, but that dignity is itself a ground of rights, perhaps the ground of rights. The ICCPR begins its preamble with the acknowledgment that the rights contained in the covenant “derive from the inherent dignity of the human person”. And some philosophers say the same thing.Footnote 3 Even if this is not a connection between dignity and law as such, it certainly purports to identify a wholesale connection between dignity and the branch of law devoted to human rights.
Others remark (more sceptically) that “dignity” is just a sonorous word we use whenever we are engaged in human rights talk, so it is no accident that it turns up all over the law in this area. In a recent paper, Christopher McCrudden remarks that that “dignity” operates mostly as “a place holder for the absence of agreement” in human rights discourse, used when people want to sound serious but are not sure what to say.Footnote 4 That may be overly pessimistic, but it does alert us to the fact that dignity may not necessarily be a load-bearing idea. A term that is pervasive is in danger of platitude, and if we are tracking the pervasiveness of “dignity” in law, we must take care that we are not just on the trail of some embedded rhetorical bombast.
III. The Meaning of “Dignity”
So what do I mean by “dignity”? What is it that we are tracking in the law? Dignity, in my view, is a sort of status-concept:Footnote 5 it has to do with the standing (perhaps the formal legal standing or perhaps, more informally, the moral presence) that a person has in a society and in her dealings with others. So what I mean by the term, when I ask about the various ways in which law protects, recognises, vindicates, or promotes human dignity, is something like this:
Dignity is the status of a person predicated on the fact that she is recognised as having the ability to control and regulate her actions in accordance with her own apprehension of norms and reasons that apply to her; it assumes she is capable of giving and entitled to give an account of herself (and of the way in which she is regulating her actions and organising her life), an account that others are to pay attention to; and it means finally that she has the wherewithal to demand that her agency and her presence among us as a human being be taken seriously and accommodated in the lives of others, in others' attitudes and actions towards her, and in social life generally.
As a general point, it is likely that a being with these capacities will have a status in law that is different from the status of a being (such as a non-human animal) that lacks these capacities. But people try to do all sorts of things with power, and one of the things they sometimes try to do is to treat certain people as having a status that is lower than this or treat people as though the capacities I have mentioned are unimportant and have no implications for the way those people are ruled. Because this is possible, dignity has to function as a normative idea: it is the idea of a certain status that ought to be accredited to all persons and taken seriously in the way they are ruled.
I am not stipulating this as a definition of dignity. I believe that the definition I have given captures much that is already present in our ordinary usage of “dignity.” But it is controversial; and other accounts are different. I am using dignity as a status idea rather than a value idea (as it is used by Kant, for example, in the Groundwork of the Metaphysics of Morals, where it refers to a certain kind of precious and non-fungible value). Twelve years after the publication of the Groundwork, Kant wrote again about dignity in “The Doctrine of Virtue” which is the second part of his late work, The Metaphysics of Morals, and there he spoke of it much more as a matter of status: he talks of the respect which a person can “exact” as a human being from every other man, and that respect is no longer simply the quivering awe excited in a person by his own moral capacity (which is what you find in the Second Critique, for example) but a genuine making-room for another on a basis of sure-footed equality and acting toward another as though he or she too were one of the ultimate ends to be taken into account. The later discussion preserves the element of infinite value but presents it much more in the light of this status idea.
My conception does not directly capture all the work that “dignity” does in law. Rules against “degradation” and “outrages upon personal dignity” are sometimes used to vindicate the human interest in elementary aspects of adult self-presentation (care of self, taking care of elemental physical needs) and to protect against forms of humiliation impinging on this interest.Footnote 6 This is a cognate idea, connected with my conception via the idea of being recognised and treated as a being capable of self-control. So, consider the requirement in ECHR jurisprudence that it is degrading to parade criminals or suspects in shackles (unless they pose a clear and present danger to themselves and others).Footnote 7 This requirement is connected to the idea that humans are capable of self-control. They are not just wild animals to be leashed. And they are not to be exhibited as such.
There are many aspects of our proper moral treatment of humans that have little directly to do with dignity. I believe that our basic duty to respect and sustain human life, for example – important though it is – is not really connected to dignity. The preciousness or sacredness of human life is not really a dignitarian idea. I know that in Roman Catholic literature and in some bioethics literature, human dignity is used just in this sense of the special worth or sacredness of human life.Footnote 8 In my view, the problem with this account is not that it has strong theological foundations, but that it appropriates the term “dignity” to do work that “worth” or “sacred worth” might do as well. But there is much more to be said – unfortunately elsewhere – about some of the indirect connections between this use of dignity and the use that I am insisting upon.Footnote 9
When you hear my definition, the sense in which law inherently promotes dignity begins to become apparent. For it is easy to get the impression from the way I set this out of a person appearing in their own behalf before a public tribunal (say) and demanding to be listened to, demanding indeed that their view of things be taken account of before any public decision is made (for example, any public decision about what is to be done with them). This is evidently a legal idea, and it is arguably non-contingently so – in the sense that it is not a matter of the law-maker having just decided to promote dignity (in the way that the framers of Common Article 3 of the Geneva Conventions decided to promote dignity). Dignity seems to hook up in obvious ways with juridical ideas about hearings and due process and status to sue. And the basic aim of the rest of this paper is just to elaborate these connections and make them explicit.
IV. Dignity and the Form of Rights: Hart, Feinberg and Dworkin
Here is a preliminary foray. At the beginning of the lecture, I considered the idea of a specific right to dignity. A few minutes later I considered the idea – commonly expressed in the preambles of major human rights instruments – that dignity might be at the ground of every human right. A third possible connection is that the very form and structure of a right conveys the idea of the right-bearer's dignity.
This is familiar to us in the so-called “choice theory” or “will theory” of rights, once advanced by H.L.A. Hart.Footnote 10 In an essay published in 1955, Hart believed that having a legal or a moral right was not just a matter of being the object of legal or moral concern. He rejected what is sometimes known as the “benefit theory” or the “interest theory” of rights. He favoured instead the description of the right-bearer as having the power to determine what another's duty should be (in some regard):
Y is … morally in a position to determine by his choice how X shall act and in this way to limit X's freedom of choice; and it is this fact, not the fact that he stands to benefit, that makes it appropriate to say that he has a right.Footnote 11
Y (the right-bearer) can make a sort of demand upon X, that X is required to pay attention to, and it may be that this is what his dignity amounts to. Hart developed this argument first for natural rights, but he thought (at least for a while) that it was true of legal rights too.Footnote 12 Something similar can be found in Joel Feinberg's work on rights as claims: to have a right in law is to possess the dignity of a recognised claimant entitled to push his case before us and demand that it be considered.Footnote 13 To the extent that rights are pervasive in law, the recognition and respect that claimants are entitled to elicit is going to be a pervasive aspect of law's commitment to dignity.
It is sometimes said that we can imagine law without rights. If that means we can imagine law without any of the elements discussed in this section, I think that is false. Even if Hart is wrong about rights generally, law will nevertheless characteristically (not just contingently) establish and respect positions that have the features that Hart's choice theory attributed to rights: for example, law will recognise potential plaintiffs and defer to their dignity in allowing them to make the decision whether some norm-violator is to be taken to task or not. It is even more evidently false if Ronald Dworkin is right in the basic “rights thesis” he set out years ago in Taking Rights Seriously.Footnote 14 Dworkin argued that anyone making a case of any sort in law makes it in the tones and language of rights, in the mode of entitlement rather than request or lobbying. (This applies whether it is formally a case about human rights or just an ordinary action in, say, tort or contract.) A party in law does not phrase his argument in terms of its being a rather good idea to require a defendant or respondent to pay such-and-such a sum of money; he stands on his rights and in recognising this standing the law accords him the dignity of a right-bearer. So that's worth bearing in mind.
Still, I think it is worth pursuing the possibility of even more direct connections than this. Even if the rights thesis proves a red herring or takes us down a jurisprudential cul-de-sac, is there nevertheless a conceptual connection between dignity and the very idea of law?
V. Fuller and the Dignity of Self-Application
Famously, in the book based on his 1963 Storrs Lectures, The Morality of Law, Lon Fuller developed an account of what he called the inner morality of law – the formal principles of generality, prospectivity, clarity, stability, consistency, and so on whose observance is bound up with the basics of legal craftsmanship.Footnote 15
Positivist legal philosophers (beginning with H.L.A. Hart) have sometimes expressed bewilderment as to why Fuller called these internal principles a “morality.”Footnote 16 I think this bewilderment is disingenuous; and I said so in an article published in the New York University Law Review in 2008.Footnote 17 Fuller called these internal principles a “morality” because he thought they had inherent moral significance. It was not just that he believed that observing them made it much more difficult to do injustice; though this he did believe.Footnote 18 It was also because he thought observing the principles he identified was itself a way of respecting human dignity. Fuller said this in The Morality of Law:
To embark on the enterprise of subjecting human conduct to rules involves of necessity a commitment to the view that man is, or can become, a responsible agent, capable of understanding and following rules, and answerable for his defaults. Every departure from the principles of law's inner morality is an affront to man's dignity as a responsible agent. To judge his actions by unpublished or retrospective laws, or to order him to do an act that is impossible, is to convey to him your indifference to his powers of self-determination.Footnote 19
These are not just platitudes. Fuller is referring here to a quite specific aspect of law – its general reliance on what Henry Hart and Albert Sacks in The Legal Process called “self application,”Footnote 20 i.e., people applying officially promulgated norms to their own conduct, rather than waiting for coercive intervention from the state. Self-application is an extraordinarily important feature of the way legal systems operate. They work by using, rather than short-circuiting, the agency of ordinary human individuals. They count on people's capacities for practical understanding, for self-control, for self-monitoring and modulation of their own behaviour in relation to norms that they can grasp and understand.
Even when the self-application of general norms is not possible and institutional determination is necessary, either because of disputes about application or because application inherently requires an official determination, still the particular orders that are eventually issued at law look towards self-application. Unsuccessful defendants in private law litigation are expected themselves to pay the damages that have been decreed; rare is the case where bailiffs have to turn up and take away their property. I do not mean to deny the ultimately coercive character of law (and I shall say more about this later). But even in criminal cases, where the coercive element is front and centre, it is often the case that a date is set for a convict to report to prison of his own volition. Of course if he does not turn up, he will be hunted down and seized. Still, the law strains as far as possible to look for ways of enabling voluntary application of its general norms and many of its particular decrees.
All this makes ruling by law quite different from (say) herding cows with a cattle prod or directing a flock of sheep with a dog. It is quite different too from eliciting a reflex recoil with a scream of command. The pervasive emphasis on self-application is, in my view, definitive of law, differentiating it sharply from systems of rule that work primarily by manipulating, terrorising or galvanising behaviour. And as Fuller recognises, it represents a decisive commitment by law to the dignity of the human individual. There is something of this recognition too in Joseph Raz's famous article from 1977 on the Rule of Law, where he connects the rule of law to law's action-guiding character and relates that in turn to the idea of dignity:
[O]bservance of the rule of law is necessary if the law is to respect human dignity. Respecting human dignity entails treating humans as persons capable of planning and plotting their future. Thus, respecting people's dignity includes respecting their autonomy, their right to control their future.Footnote 21
Other positivists have indicated a reluctance to pursue the implications of law's commitment to human dignity. Jules Coleman, of the Yale School, takes pains to argue that the action-guiding function of law is not necessarily expressive of a dignitarian value. He tries to separate the issues in this way:
Law just is the kind of thing that can realise some attractive ideals. That fact about law is not necessarily part of our concept of it. … If one is moved by the moral ideals of autonomy and dignity, then one can see how the elements of my analysis constitute a thing (law) that has the capacity for accommodating those ideals in ways that other forms of governance cannot. … But autonomy [and] dignity … do not enter at any point into the analysis that I offer.… These ideals are external to the concept of law; law happens to be the kind of thing that can serve them well. The capacity to do so is, in a metaphysically innocent sense, an inherent potential of law. This implies nothing about how the analysis of law must proceed.Footnote 22
Coleman is surely right to emphasise that not every potential of a practice is part of its concept. Let me illustrate with some analogies. Religion has the potential to stir up murderous passions, yet this is not in any way definitive of religion. Other cases are more difficult. It is part of our concept of democracy to embody a principle of political equality. But is it also part of our concept of democracy to diminish violence by facilitating peaceful transitions from one regime to another? Joseph Schumpeter thought it was, but others have argued that this is fact about democracy rather than a conceptual truth.Footnote 23 It is hard to see how one would decide this. It is certainly a notable fact about democracy. And equally the commitment to dignity – in the use of self-application – is also a notable fact about law. I suppose the argument the other way is that the choice of this definitive legal method of governance (as opposed to some other way of governing) might be merely a matter of efficiency; it does not necessarily betoken a moral commitment to human dignity, however minimal. On its own, that may be a plausible position. But in the following sections, as we consider other ways in which law also protects dignity, we may be less patient with Coleman's view. We might suspect that it is motivated more by a doctrinaire desire to resist any connection between the concept of law and values like dignity than by any real insight into the distinctiveness of an action-guiding rather than a purely behaviour-eliciting mode of social control.
One other point. It is tempting to say that law can guide conduct only if it is determinate, i.e. only if it is cast in the form of clear rules. But it is remarkable that law often presents itself in the form of standards, such as the standard of reasonable care in tort law. Some theories of legal process suggest that law can be self-applying only if the indeterminacy of these standards is reduced through official elaboration.Footnote 24 But in many areas of life, law actually proceeds without such definitive elaboration. It evinces faith in individuals' abilities to think about and proceed with the application of standards without any assurance that any two applications to similar circumstances will yield exactly the same result.Footnote 25
I believe that this feature of law also presupposes a commitment to human dignity. Law assumes that ordinary people are capable of applying norms to their own behaviour and it uses this as the pivot of their being governed. Ordinary people are capable of acting like officials – recognising a norm, apprehending its bearing on their conduct, making a determination, and acting on that.
VI. Procedure
A second way in which law respects the dignity of those who are governed is in the provision that it makes for trials or hearings in cases where an official determination is necessary. These are cases where self-application is not possible or desirable or where there is dispute about the application of norms that requires official resolution.Footnote 26
A legal system is not just a set of general norms, officially recognised and applied to individual cases. We call a mode of governance law on account of the distinctive way in which official applications are conducted. Law is applied by courts, by which I mean institutions devoted to settling disputes about the application of norms and directives established in the name of the whole society to individual cases. And I mean institutions which do that through the medium of hearings, formal events which are tightly structured procedurally in order to enable an impartial tribunal to determine the rights and responsibilities of particular persons fairly and effectively after hearing evidence and argument from both sides.
It is remarkable how little there is about courts in the conceptual accounts of law presented in modern positivist jurisprudence. In The Concept of Law, H.L.A. Hart conceives of law in terms of the union of primary rules of conduct and secondary rules that govern the way in which the primary rules are made, changed, applied and enforced. When he introduces the concept of secondary rules, he does talk of the emergence of “rules of adjudication” in the transition from a pre-legal to a legal society: he says these are “secondary rules empowering individuals to make authoritative determinations of the question of whether, on a particular occasion, a primary rule has been broken”.Footnote 27 But that account defines the relevant institutions simply in terms of their output function – “the making of … authoritative determinations … of whether a primary rule has been broken”. There is nothing on the distinctive process by which this function is performed.Footnote 28 A Star Chamber proceeding ex parte without any sort of hearing would satisfy Hart's definition; so would the tribunals we call in the antipodes “kangaroo courts”; so, for that matter, would a Minister of Police rubber-stamping a secret decision to have someone executed for violating a command. Outside the hallowed halls of academic legal positivism, I suspect that most people would regard hearings and impartial proceedings, and the safeguards that go with them, as an essential rather than as a contingent feature of the institutional arrangements we call legal systems. It should certainly be treated as an essential rather than incidental aspect of the Rule of Law.Footnote 29
Of course we should not be essentialist about details. In general jurisprudence (the study of law as such), our concept of a court and a hearing is necessarily rather abstract.Footnote 30 The nature of hearings and the procedures that are used differ between one legal system and another. Still, it is not just the concept of a law-enforcement agency. The essential idea is much more than merely functional: applying norms to individual cases. It would be quite wrong, even in general jurisprudence, to abstract away from the elements of process, presentation, formality, impartiality, and argument. The basic idea is procedural: the operation of a court involves a way of proceeding which offers to those who are immediately concerned an opportunity to make submissions and present evidence (such evidence being presented in an orderly fashion according to strict rules of relevance oriented to the norms whose application is in question). The mode of presentation may vary; but the existence of such an opportunity does not. Once presented, the evidence is made available to be examined and confronted by the other party in open court. And each party has the opportunity to present arguments and submissions at the end of this process and answer those of the other party. In the course of all of this, both sides are treated respectfully, and above all listened to by a tribunal which is bound in some manner to attend to the evidence presented and respond to the submissions that are made in the reasons it eventually gives for its decision.Footnote 31
These are abstract characteristics. But they are not arbitrary abstractions. They capture a deep and important sense associated foundationally with the idea of a legal system, that law is a mode of governing people that acknowledges that they have a view or perspective of their own to present on the application of the norm to their conduct and situation. Applying a norm to a human individual is not like deciding what to do about a rabid animal or a dilapidated house. It involves paying attention to a point of view and respecting the personality of the entity one is dealing with. As such it embodies a crucial dignitarian idea – respecting the dignity of those to whom the norms are applied as beings capable of explaining themselves.
VII. Legal Argument
Indeed, it is not just a matter of hearing both sides of the story. I think it is part of our concept of law that legal positions are sustained or defeated as a matter of argument – argument by counsel for each side and responsive argument (rather than just peremptory decision) at the level of the tribunal making a determination. This, I believe contributes yet another strand to law's respect for human dignity. Let me explain.
Law presents itself to its subjects as something that one can make sense of. I do not just mean that one can make sense of each measure, as one might do on the basis of a statement of legislative purpose. I mean that a person can try and make sense of the “big picture,” understanding how the regulation of one set of activities relates rationally to the regulation of another. The norms that are administered in our courts may seem like just one damned command after another, but the way in which they are treated conveys an aspiration to systematicity. Though legislation and precedents add to law in a piecemeal way, lawyers and judges characteristically try to see the law as a whole; they try to see some sort of coherence or system in it, integrating particular items into a structure that makes intellectual sense. This is the stuff of codification and Restatements. But it is also a resource and an opportunity for ordinary parties. It is open to people when they are confronted with law's particular demands to take advantage of this aspiration to systematicity in framing their own arguments – by inviting the tribunal to consider how the position a given party is putting forward fits generally into a certain conception of the logic and spirit of the law.
In this way too, then, law pays respect to the people who live under it, conceiving them as the bearers of reason and intelligence.Footnote 32 The individuals whose lives law governs are treated by it as thinkers who can grasp and grapple with the rationale of that governance and relate it in complex but intelligible ways to their own view of the relation between their actions and purposes and the actions and purposes of the state. This too, in its way, is a tribute to human dignity.
The price of this strand of dignitarian respect is undoubtedly a certain diminution in law's certainty. Occasionally an argument will be made, by counsel or by a judge, to the effect that the impact of the law on a particular type of event or transaction should be treated as embodied in some proposition, even though that proposition has not previously been explicitly adopted in legislative form or explicitly articulated (till this moment) by a court. The claim may be that since the proposition can be inferred, argumentatively, from the mass of existing legal materials, it too should be accorded the authority of law. It is a characteristic feature of legal systems that they set up institutions – courts – which are required to listen and respond in detail to submissions along these lines. These are not just arguments about what the law ought to be – made, as it were, in a sort of lobbying mode. They are arguments of reason presenting competing arguments about what the law is. Inevitably, of course, the arguments are controversial: one party will say that such-and-such a proposition cannot be inferred from the law as it is; the other party will respond that it can be so inferred if only we credit the law with more coherence than people have tended to credit it within the past. And so the determination of whether such a proposition has legal authority may often be a matter of contestation.
Law in other words becomes a matter of argument. This may seem to be at odds with the first dignitarian strain we identified: respecting people enough to entrust them with front-line self-application of legal norms. How, it will be asked, can we maintain this mode of respect if law becomes contestable in the way I have outlined? But, as I said in my brief discussion of standards, the self-application idea does not rigidly presuppose that law has the form of determinate rules. The act of faith in the practical reason of ordinary people may be an act of faith in their thinking – e.g., about what is reasonable and what is not – not just in their recognition of a rule and its mechanical application. And so also it may be an act of faith not just in their ability to apply general moral predicates (such as “reasonable”) to their actions, but also to think about and interpret the bearing of a whole array of norms and precedents to their conduct – rather than just the mechanical application of a single norm.
Courts, hearings and arguments – those aspects of law are not optional extras; they are integral parts of how law works; and they are indispensable to the package of law's respect for human agency. To say that we should value aspects of governance that promote the clarity and determinacy of rules for the sake of individual freedom, but not the opportunities for argumentation that a free and self-possessed individual is likely to demand, is to slice in half, to truncate, what law and legality rest upon: respect for the freedom and dignity of each person as an active intelligence.
VIII. Rank and Equality
Let me turn now in another direction for a different sort of link between dignity and our modern notion of law. In an article published in 2007, and in my 2009 Tanner Lectures at Berkeley, I argued that we should pay attention to the ancient connection between dignity and rank. (The article was called “Dignity and Rank” and the lectures were entitled “Dignity, Rank and Rights.”)Footnote 33
In Roman usage, dignitas embodied the idea of the honour, the privileges and the deference due to rank or office. And in English this was the original meaning of dignity, as when the 1399 statute taking the crown away from Richard II stated: “Ye renounced and cessed of the State of Kyng, and of Lordeshipp and of all the Dignite and Wirsshipp that longed therto.”Footnote 34 Some have suggested that this old connection between dignity and rank was superseded by an originally Stoic and then Jewish-Christian notion of the dignity of humanity as such.Footnote 35 I am not convinced. As I argued in “Dignity and Rank,” I think that what happened was a generalisation of high-rank – a sort of levelling up – rather than the abandonment of one (hierarchical) notion and its replacement by another.Footnote 36
The idea is that the modern notion of human dignity does not cut loose from the idea of rank; instead it involves an upwards equalisation of rank, so that we now try to accord to every human being something of the dignity, rank, and expectation of respect that was formerly accorded to nobility. (I got this idea from Gregory Vlastos,Footnote 37 and Jim Whitman has also pursued in his work the idea of “an extension of formerly high-status treatment to all sectors of the population.”)Footnote 38 I believe this is true also of the status-concept that I have been trying to elaborate here in connection with the institutions, processes and practices distinctive of law.
One can imagine – historically of course one can actually trace – systems of governance that involved a radical discrimination among different sorts of rank. High-ranking persons would be regarded as capable of participating fully in something like a legal system: they would be trusted with the voluntary self-application of norms; their word and testimony would be taken seriously; they would be entitled to the benefit of elaborate processes etc. If they were coerced, they would be dealt with under the auspices of a quite respectful mode of coercion, quite different from, and much less brutal than, those applying to members of other strata of society. If they were executed even, there were special methods of noble execution: beheading rather than hanging, for example. At the other extreme there might be a caste or class of persons, who were dealt with purely coercively by the authorities: there would be no question of trusting them or anything they said; they would appear in shackles if they appeared in a hearing at all; their evidence would be required to be taken under torture; and they would not be entitled to make decisions or arguments relating to their own defence, nor to have their statements heard or taken seriously. They would not have the privilege of bringing suit in the courts, or if they were it would have to be under someone else's protection; they were not, as we sometimes say, sui iuris. Slave societies were like that, and many other societies in the past, with which we are uncomfortably familiar, evolved similar discriminating forms that distinguished between (if you like) the legal dignity of a noble, the legal dignity of a common man, the legal dignity of a woman, and the legal dignity of a slave, serf or villein. I think it is part of our modern notion of law that all such gross status differences have been abandoned (though there are relics here and there). And the equalisation has been an upwards equalisation, which is why I think it is a matter of dignity.
Consider this incident. In 1606, in London, a carriage carrying Isabel, the Countess of Rutland, was attacked by serjeants-at-mace pursuant to a writ alleging a debt of £1,000.
[T]he said serjeants in Cheapside, with many others, came to the countess in her coach, and shewed her their mace, and touching her body with it, said to her, we arrest you, madam, at the suit of the [creditor] and thereupon they compelled the coachman to carry the said countess to the compter in Wood Street, where she remained seven or eight days, till she paid the debt.Footnote 39
The Star Chamber held that “the arrest of the countess by the serjeants-at-mace … is against law, and the said countess was falsely imprisoned” and “a severe sentence was given against [the creditor], the serjeants, and the others their confederates”. The court quoted an ancient maxim to the effect that “law will have a difference between a lord or a lady, &c. and another common person,”Footnote 40 and it held that the person of one who is a countess by marriage, or by descent, is not to be arrested for debt or trespass; for although in respect of her sex she cannot sit in Parliament, yet she is a peer of the realm, and shall be tried by her peers. There are two reasons, the court went on, why her person should not be arrested in such cases; one in respect of her dignity, and the other in respect that the law doth presume that she hath sufficient lands and tenements in which she may be distrained.Footnote 41 In light of this presumption of noble wealth, the seizing of her body could not legally be justified as it could in those days to recover the debts of a commoner.
But now we apply the first point at least to all debtors: no one's body is allowed to be seized; no one can be held or imprisoned for debt. We have evolved a more or less universal status – a more or less universal legal dignity – that entitles everyone to something like the treatment before law that was previously confined to high-status individuals.
True, we might still use the term “legal system” to describe the highly stratified society I have been imagining, with some members having legal dignity and being sui iuris and others not. But it would be much in the way that we describe ancient Athens, nineteenth century Britain, or apartheid South Africa as “democracies”: they had sort of gotten hold of the idea of democracy – governance through the participation of the common people rather than oligarchic elites – but had failed to extend that to all the common people in the society, excluding large sections of the population such as women, slaves, non-whites and so on. They had a proto-democracy, but not a true democracy. And in a similar way, I am inclined to say that the idea of law or of a legal system now embodies the assumption that everyone in a society ruled by law is treated as sui juris, as having full legal dignity in the sense that I have been discussing. A system that embodied radical differences of legal dignity might be a sort of proto-legal system, but we should not call it a true system of law.
IX. Dignity and Representation
Obviously the sense in which we all have equal access to the law, participate equally in its proceedings, and enjoy the benefits of its confidence is somewhat fictitious. Most ordinary people are not in a position of straightforward familiarity with law; most law is technical and forbidding and takes years of study to master. And, as Max Weber was famous for pointing out, this is getting worse not better.Footnote 42 Moreover, law often still excludes and denigrates some of those it deals with, discriminates in favour of the rich and powerful, and so on.
These are fair points. And we have to come to terms with the normative rather than the purely descriptive character of equal legal dignity. Even if it is conceived as a response to the objective moral facts of inherent human dignity, still legal status – equal legal dignity – has to be understood as a constructed human artifice, with all the fragility, bad faith, and ramshackle character of human constructions. Moreover, as I said at the beginning, the artifice is a normative one, and like all norms honoured often in the breach. And even at its best, it has to deal with descriptive inequalities among people using a variety of practices and techniques to create something likely a rough and artificial equality in standing before the law.
The primary technique we use is the artifice of legal representation. David Luban has developed a persuasive account along these lines,Footnote 43 building on some philosophical insights of Alan Donagan. Forgive me if I quote Professor Luban at length, but he makes exactly the points I want to make. He asks why litigants should have professional representatives:
The answer that, over the years, has appealed to me the most rests on a principle stated by the late philosopher Alan Donagan: “[N]o matter how untrustworthy somebody may have proved to be in the past, one fails to respect his or her dignity as a human being if on any serious matter one refuses even provisionally to treat his or her testimony about it as being in good faith.” An immediate corollary to this principle is that litigants get to tell their stories and argue their understandings of the law. A procedural system that simply gagged a litigant and refused even to consider her version of the case would be, in effect, treating her story as if it did not exist, and treating her point of view as if it were literally beneath contempt. Once we accept that human dignity requires litigants to be heard, the justification of the advocate becomes clear. People may be poor public speakers. They may be inarticulate, unlettered, mentally disorganised, or just plain stupid. They may know nothing of the law, and so be unable to argue its interpretation. Knowing no law, they may omit the very facts that make their case, or focus on pieces of the story that are irrelevant or prejudicial. They may be unable to utilise basic procedural rights such as objecting to their adversary's leading questions. Their voices may be nails on a chalkboard or too mumbled to understand. They may speak a dialect, or for that matter know no English. None of this should matter. Human dignity does not depend on whether one is stupid or smooth. Hence the need for the advocate. Just as a non-English speaker must be provided an interpreter, the legally mute should have – in the very finest sense of the term – a mouthpiece. Thus, Donagan's argument connects the right to counsel with human dignity in two steps: first, that human dignity requires litigants to be heard, and second, that without a lawyer they cannot be heard.Footnote 44
The account that I gave in sections VI, VII, and VIII might have seemed rather rosy and utopian, especially the account of process and argumentation. It becomes a little less so when we realise that law does not just throw us back on our own natural resources in this regard. It sets out to create the equal legal dignity that it is committed to.
X. Dignified Coercion
Some of you will be tempted to complain that I am making law seem too “nice,” and that all this emphasis on dignity obscures the ultimately power-ridden, violent and coercive character of law.Footnote 45 Law kills people, ruins them, beats them up, spoils their reputation, and locks them up and throws away the key. And these are not aberrations; this is what law characteristically does. Where, it might be asked, is the dignity in that?
In The Morality of Law, Lon Fuller seemed to suggest that we have to choose between definitions of law that emphasise coercion and definitions of law that emphasise the sort of dignitary considerations I have been explaining.Footnote 46 I think this is a mistake. It is because law is coercive, because its currency is ultimately life and death, prosperity and ruin, freedom and imprisonment, that its inherent commitment to dignity is so momentous. Fuller actually recognises this when he observes that the “branch of law most closely identified with force is also that which we associate most closely with formality, ritual, and solemn due process.”Footnote 47 Law is a mode of governance and governance is the exercise of power. But that power should be channelled through these processes, through forms and institutions like these, even when that makes the exercise of power more difficult or requires it occasionally to retire from the field defeated, is exactly what is exciting about rule by law.Footnote 48
That is a wholesale answer to the objection. We might also give some retail responses. The coercive character of law manifests itself in a number of ways. (i) Law presents its norms as categorical and non-negotiable demands. (ii) Law is committed, in extremis, to doing what it takes to see that its orders are obeyed and its demands complied with. (iii) Law imposes punishment. And (iv) law has and exercises the power to hold persons against their will and sometimes uses force to tightly control their behaviour. These four points are undeniable. But in each case, there is a strong dignitarian strand in the manner in which law exercises its power.
(i) I have already mentioned (in section V), the importance of self-application, so far as the administration of law's demands is concerned. Law looks wherever possible to voluntary compliance, which of course is not the same as saying we are free and never coerced, but which does leave room for the distinctively human trait of monitoring and applying norms to one's own behaviour. This is not a trick; it involves a genuinely respectful mode of coercion, even though the coercive element is not dispelled.
(ii) Max Weber is famous for observing that, although “the use of physical force is neither the sole, nor even the most usual, method of administration,” still “the threat of force, and in the case of need its actual use, is the method which is specific to political organisations and is always the last resort when others have failed.”Footnote 49 But it would be wrong to infer from this that law uses any means necessary to get its way. The use of torture, for example, is now banned by all legal systems. Elsewhere I have argued that modern law observes this man as emblematic of its commitment to a more general non-brutality principle:
Law is not brutal in its operation; law is not savage; law does not rule through abject fear and terror, or by breaking the will of those whom it confronts. If law is forceful or coercive, it gets its way by methods which respect rather than mutilate the dignity and agency of those who are its subjects.Footnote 50
People may fear and be deterred by legal sanctions, they may on occasion be literally forced against their will by legal means or by legally empowered officials to do things or go places they would not otherwise do or go to. But even when this happens, they are not herded like cattle or broken like horses or beaten like dumb animals. Instead, there is be an enduring connection between the spirit of law and respect for human dignity – respect for human dignity even in extremis, even in situations where law is at its most forceful and its subjects at their most vulnerable.
No one denies that law has to be forceful. But forcefulness can take many forms and not all of it involves, for example, the savage breaking of the human will or a regression of the subject into an infantile state, where the elementary demands of the body supplant almost all adult thought that is the aim of torture. The force of ordinary legal sanctions and incentives does not work like that, nor does the literal force of physical control and confinement. For example, when a defendant charged with a serious offense is brought into a courtroom, he is brought in whether he likes it or not, and when he is punished, he is subject to penalties that are definitely unwelcome and that he would avoid if he could; in these instances there is no doubt that he is subject to force, that he is coerced. But in these cases force and coercion do not work by reducing him to a quivering mass of “bestial desperate terror,”Footnote 51 which is the aim of every torturer. If something cannot be done without torture, law generally accepts that it cannot be done.
(iii) Law punishes, but again there is a sense that we work with modes of punishment that do not destroy the dignity of those on whom it is being administered. Some of this is the work of the external dignitary provisions we noted at the beginning of this paper. Provisions like ICCPR Article 7 and ECHR Article 3 impose a requirement that any punishment inflicted should be bearable – should be something that a person can endure, without abandoning his elementary human functioning. One ought to be able to do one's time, take one's licks, while remaining upright and self-possessed. Even going to one's execution is something that a human can do; and to the extent that these provisions affect the death penalty, there is an implicit requirement that it be administered in a way that enables the persons to whom it is applied to function as human beings up until the point at which their lives are extinguished.Footnote 52
(iv) Even in circumstances where behaviour is very tightly controlled by law (e.g. the behaviour of a person in custody), there is an assumption that people will stand upright and move in response to commands rather than being dragged as though they were incapable of self-locomotion. And the commands will be given rather than screamed at them, Nazi-style. These may seem trivial matters. I have hard-ass colleagues who will say: If someone is about to be killed, who cares how he gets from his cell to the execution chamber? If someone is under tight custodial control, who cares whether he is dragged into and out of a courtroom or allowed to walk in under his steam? Who cares about the tone of voice in which coercive commands are issued? They will say: These are just matters of sentiment. Once we have abandoned negative freedom all the rest is detail. I disagree. For one thing, the individuals concerned do seem to care greatly about these things, however dismissive legal scholars may be. Also, we know from the case-law on degradation that things sometimes do come down to details like this, and that in the extreme situation of custody such details loom large for human dignity. Dignity has long had a connection with something like physical bearing – standing upright: a sort of moral orthopaedics.Footnote 53 We have an idea, too, that indignity on these “trivial” matters may presage much more substantial affronts: is it an accident that, at the beginning of the war on terror, Guantanamo Bay detainees did not walk to their interrogations but were carried to and fro in wheel barrows like scarecrows? Those who take what I am calling the hard-ass line on custodial control often also take the hard-ass line on abusive interrogation.
XI. Aspiration and Reality
The point just mentioned reminds us that various systems of power that call themselves legal systems fall often short of this respect in one way or another. The discipline of dignity is a normative discipline and as such it is a costly and demanding discipline. It presents itself on the one hand as an aspiration, and on the other hand as a reproach to our shortcomings – shortcomings that sometimes come close to a betrayal of the whole idea. Add to that the fact that any actually-existing legal system has to cope with the burden of its own history, which may not always have been a history of respect for human dignity, and we can see how complicated and controversial the characterisation I have given in this paper might become.
The United States illustrates a number of these points. It is burdened by a history of slavery and racism, which particularly affects the law: it is notable for example that the Thirteenth Amendment that abolished slavery did not do so pervasively or unconditionally, but made an exception for the treatment of prisoners.Footnote 54 Critics have observed that in regard to the dignitarian aspect of its treatment of prisoners, America remains an outlier, compared say to West European systems of penal law.Footnote 55 And so too with some of the other aspects I have mentioned. Defendants are sometimes kept silent and passive in American courtrooms by the use of technology which enables the judge to subject them to electric shocks if they misbehave.Footnote 56 Reports of prisoners being “herded” with cattle prods emerge from time to time.Footnote 57 Conditions in our prison are de facto terrorising and well-known to be so, even if they are not officially approved or authorised; and we know that prosecutors (who pride themselves on their righteousness) feel free to make use of defendants' dread of this brutalisation as a tactic in plea-bargaining. Some would say too that the use of the death penalty represents a residuum of savagery in our system that shows the limits of American adherence to the principles that I have been talking about – though, as indicated, I think everything depends on the way it is administered. In recent years, too, we have seen the United States tempted away from dignitarian ideals in a number of important regards – in its attempt to establish a form of legally unreviewable detention at Guantánamo Bay, for example, and in its recent use of torture. Other examples, and examples from other countries (France, the United Kingdom, Russia, Israel, etc.) could be multiplied. All have fallen short of the characterisation given in this paper.
A legal system is a normative order, both explicitly and implicitly. Explicitly it commits itself to certain norms – the rules and standards that it says publicly it will uphold and enforce. Some of these it actually upholds and enforces, but for others, in certain regards, it fails to do so: the law says that the state should pay a pension or should pay compensation to Smith, but Smith does not receive it. The explicit content of the legal system provides us with a pretty straightforward basis for saying on these occasions that the legal system has fallen short of its own standards.
Less straightforward is the case where a normative commitment is embodied implicitly in the institutions or traditions of a system of governance. But I believe a very similar logic obtains. The commitment to dignity that I think is evinced in our legal practices and institutions may be thought of as immanently present even though we sometimes fall short of them. Our practices sometimes convey a sort of promiseFootnote 58 and, as in ordinary moral life, it would be mistake to think that the only way to spot a real promise is to see what undertakings are actually carried out. Law may credibly promise a respect for dignity, and yet fall short of that in various respects. Institutions can be imbued in their structures, practices, and procedures with values and principles that they sometimes fall short of. In these cases, it is fatuous to present oneself as a simple cynic about their commitments or to neglect the power of imminent critique as the basis of a reproach for their shortcomings.
Of course the interesting thing, now, about law's commitment to dignity is that the promise is embodied institutionally in both the ways we have been describing. It is there, internally or inherently, in the tissue of our practice and institutions, but it is also present in rules and standards that we have explicitly committed ourselves to (like the Geneva Conventions or Article 7 of the ICCPR or, in Europe, Article 3 of the ECHR). The two sorts of commitment reinforce each other. This is not unusual in regard to legal ideals. Think of an analogy: Article I. 9 of the U.S. Constitution states that “[n]o Bill of Attainder or ex post facto Law shall be passed,” but many people would say that this is also a definitive feature of the Rule of Law as such. We didn't need the provision of positive constitutional law to know that retroactive laws were an abomination. We knew that anyway. Still, the combination of an explicit standard and an implicit principle represent an abundance of riches. And just as it would be quite wrong to infer from the fact that Article I. 9 might have been different that law is only contingently committed to prospectivity, so it would be quite wrong to infer from the fact that the ICCPR or Geneva Conventions might have been different that law is only contingently committed to the protection of dignity. There is an implicit commitment to dignity in the tissues and sinews of law – in the character of its normativity and in its procedures – and we do well not to sell this short by pretending that dignity is a take-it-or-leave-it kind of value.
