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Dignity, Rank, and Rights

JER EMY WALDRON

L H V

Delivered at

University o Caliornia, BerkeleyApril ,

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is University Proessor and Proessor o Law at NewYork University. He is interested in liberal theories o rights, issues o eco-nomic and social justice, the political significance o moral disagreement,and the basis o our political ideals in a multicultural society. His booksinclude Te Right to Private Property(), Te Law (), Law and

Disagreement(), Te Dignity of Legislation(), God, Locke, andEquality: Christian Foundations of Lockes Political Tought(), andTorture, Terror, and Trade-offs: Philosophy for the White House ().He has taught at Otago, Oxord, Edinburgh, Berkeley, Princeton, andColumbia University. While at Columbia, he was the director or theCenter or Law and Philosophy. A requent international lecturer, Wal-dron was elected to the American Academy o Arts and Sciences in .

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[]

LECURE I.DIGNIY AND RANK

. Law and MoralityMy subject is human dignity. Dignity, we will see, is a principle o moralityand a principle o law. It is certainly a principle o the highest importance,and it ought to be something we can give a good philosophic account o.Tats what I am going to try to do in these lectures.

It is a topic that we can come to through lawanalyzing the preambleso various declarations o human rights, or example, or in the rules pro-

hibiting inhuman and degrading treatment

or it is something we cantreat as, in the first instance, a moral idea.On the second approach, which seems like a natural one to adopt, we

begin with dignity as a moral idea, and then we look and see how ade-quately or how clumsily it has been represented in the work o the draferso statutes or constitutions or human rights conventions or in the deci-sions that constitute our doctrines and our precedents. Beore we get any-where near the law, we look or the sense that moral philosophers have

made o itImmanuel Kant, or example, or modern philosophers likeStephen Darwall of Michigan (in his book Te Second-Person Standpoint),or James Griffin in his recent book On Human Rights.

Tat is a tempting approach. But moral philosophy is not our onlyphilosophical resource or exploring an idea like dignity. What i we wereto try the opposite approach? Dignity seems at home in law. Let us be-gin by analyzing how it works in its native habitat, and see whether thejurisprudenceo dignity can cast any light on its use in moral discourse.

Joseph Raz said to me a ew weeks ago that dignity is not a term thatcrops up much in ordinary moral conversation. Its presence is an artiacto philosophers trying to make sense o ordinary moral ideas (like valueand respect). Like utility, it is a constructive idea, with a oundationaland explicative unction. I it has been imported rom law to perorm thisconstructive unction, then we had better turn first to jurisprudence tofind out something about the distinctively legalideas that the moral phi-losophers have appropriated.

. Immanuel Kant, Groundwork of the Metaphysics of Morals, inPractical Philosophy, ed-ited by Mary Gregor (Cambridge: Cambridge University Press, ), (: o thePrussian Academy edition o Kants Works); Stephen Darwall, Te Second-Person Standpoint:Morality, Respect and Accountability (Cambridge: Harvard University Press, ); JamesGriffin, On Human Rights(Oxord: Oxord University Press, ).

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he anner Lectures on Human Values

So, or example: the moral philosophers tell us that dignity is a mattero status. But status is a legal conception and not a simple one. Dignity, weare told, was once tied up with rank: the dignity o a king was not the same

as the dignity o bishop, and neither o them was the same as the dignityo a proessor. I our modern conception o human dignity retains anyscintilla o its ancient and historical connection with rankand I thinkit does: I think it expresses the idea o the high and equal rank o everyhuman personthen we should look first at the bodies o law that relatestatus to rank (and to right and privilege) and see what i anything is re-tained o these ancient and historical conceptions when dignity is put to

work in a new and egalitarian environment. Dignity is intimately con-

nected with the idea o rights

as the ground o rights, and the contento certain rights, and perhaps even the orm and structural character orights. It would be a brave moral philosopher who would say that the bestway to understand rights (or a concept connected with rights) is to beginwith moral ideas and then see what the law does with those. Surely, it isbetter to begin (like Hoheld did) with rights as a juridical idea and thenlook and see how that works in a normative environment (like morality)that is structured quite differently rom the way in which a legal system is

structured.And I think the same may be true o dignity. Even as the ground o

rightsas when we are told in the preamble to the International Covenanton Civil and Political Rights that the rights contained in the covenantderive rom the inherent dignity o the human persondignity neednot be treated in the first instance as a moral idea. Afer all, it is not justsurace-level rules that are legal in character (as though anything deepermust be moral). I am enough o a Dworkinian to believe that grounding

doctrines can be legal toolegal principles, or example, or legal policies.Law contains, envelops, and constitutes these ideas; it does not just bor-row them rom morality.

So this is the point I want to begin with. It is probably not a good ideato treat dignity as a moral conception in the first instance or assume thata philosophical explication o dignity must begin as moral philosophy.Equally, we should not assume that a legal analysis o dignity is just a listo texts and precedents, in national and international law, in which the

. Wesley N. Hoheld, Fundamental Legal Conceptions (New Haven: Yale UniversityPress, ).

. See Ronald Dworkin, aking Rights Seriously(Cambridge: Harvard University Press,).

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[J W] Dignity and Rank

word dignity appears. Tere is such a thing as legal philosophy, and it isa jurisprudence o dignity, not a hornbook analysis, that I will be pursuingin these lectures.

. A Variety of UsesTere does not seem to be any canonical definition o dignity in the law.One esteemed jurist has observed that its intrinsic meaning appears tohave been lef to intuitive understanding.

I you glance quickly at the way in which dignity figures in the law,you will probably get the impression that its usage is seriously conused.Te indignant recording o such impressions is what passes or analytic

philosophy in some circles, but thoughtulness and patience actually payoff in this area, as they ofen do in responding to analytic critique.Te human rights charters tell us that dignity is inherent in the human

person; they also command us to make heroic efforts to establish every-ones dignity. Is this an equivocation? Jeremy Bentham used to make unof a similar duality in the use of liberty: defenders of natural rights wouldsay that men are born ree, but then complain in the name o rights that somany o them were born into slavery. Here, the appearance o equivoca-

tion is easily dispelled. In a slave society, a person might be identified as aree man in a juridical sensethat is, his legal statuseven though he isound in conditions o slavery. (He may have been enslaved by mistakeor kept erroneously in chains even afer his emancipation.) So similarlyone might say that every human person is ree as a matter o status thestatus accorded to him by his creatoreven though it is the case that somehumans are actually in chains and need to have their reedom representedas the content o a normative demand. Te premise may be problematic

or those who reject its implicit metaphysics, but the overall claim is notincoherent. And the same logic may work or dignity. On the one hand,

. Oscar Schachter, Human Dignity as a Normative Concept,American Journal of In-ternational Law (): . We do not find an explicit definition o the expression dig-nity o the human person in international instruments or (as ar as I know) in national law. Itsintrinsic meaning has been lef to intuitive understanding, conditioned in large measure bycultural actors (ibid.).

. Tis is the view o Stephen Pinker, who says o the concept o dignity that it spawnsoutright contradictions at every turn. We read that slavery and degradation are morally wrongbecause they take someones dignity away. But we also read that nothing you can do to a person,including enslaving or degrading him, can take his dignity away (Te Stupidity o Dignity,New Republic, May , , available at http://www.tnr.com/story_print.html?id=dc-eb-d-be-cdbbd).

. See Jeremy Bentham, Anarchical Fallacies, in Nonsense upon Stilts: Bentham, Burke,and Marx on the Rights of Man, edited by Jeremy Waldron (London: Methuen, ), .

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the term may be used to convey something about the rank or status ohuman beings; on the other hand, it may be used concomitantly to conveythe demand that that rank or status should actually be respected.

A more interesting duality o uses has to do with the distinction be-tween dignity as the ground o rights and dignity as the content o rights.On the hand, we are told that human rights derive rom the inherent dig-nity o the human person. On the other hand, it is said that people have aright to be protected against degrading treatment and outrages on per-sonal dignity.Dignity is what some o our rights are rights to, but dignityis also what grounds all of our rights. I have my doubts about the claim thatrights derive rom any single oundation, be it dignity, equality, autonomy,

or (as it is now sometimes said) security. In any case, I want to leave thisduality o ground and content in place. It is perectly possible that humandignity could be the overall teloso rights in general, but also that certainparticular rights could be oriented specifically to the explicit pursuit othat objective or to protecting it against some standard threats to dignity,while others were related to this goal in a more indirect sort o way.

I will actually argue against a reading o the dignity idea that makes itthe goal or telosof human rights. I think it makes better sense to say that dig-

nity is a normative status and that many human rights may be under stoodas incidents o that status. (Te relation between a status and its incidentsis not the same as the relation between a goal and the various subordinateprinciples that promote the goal.) Still, i human dignity is regarded as arank or status, there remains a duality between general norms establish-ing that status and particular norms like those that prohibit degradation.Here is an analogy. Te relation between these two sorts o norms mightbe like the relation between the general status or dignity o a judge and

the specific offense o contempt o court. Protection against contempt isnot all there is to being a judge, but a ban on contempt might be thoughtindispensable to judicial dignity. And not just a ban on contempt. Moreaffirmative provisions may also be important. Te Constitution o Polandstipulates that judges shall be granted...remuneration consistent withthe dignity o their office. And there may be other accoutrements, too gowns, wigs, ormal modes o address. Tese are all important or judicialdignity. But they do not exhaust the status o a judge; her status has to do

also with her role and with her powers and responsibilities. And the same. Preamble to the International Covenant on Civil and Political Rights.

. For example, Geneva Conventions, Common Article .

. Constitution o Poland, Article ().

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may be true or human dignity in general. We can distinguish betweenthe general status and the particular rules that protect it. Some o theseparticular rules are affirmative, like the provision in the Universal Declara-

tion o Human Rights that says that everyone who works has the rightto just and avourable remuneration ensuring or himsel and his amilyan existence worthy o human dignity. And some are negative, like theban on degrading treatment that I have already mentioned. Both kinds oprotection are important. But they are not all there is to human dignity.

Maybe this is too ambitious. Maybe we should take the various specificprohibitions on degradation just at ace value and not necessarily assumethat they are ancillary to the broader enterprise o upholding a general

rank or status o human dignity. Consider the prohibitions on degrad-ing treatment in the human rights covenants; should we not just saythese are intended to protect people against a very specific evil o grosshumiliation, particularly in situations like detention, incarceration, hospi-talization, and military captivitysituations o more or less comprehen-sive vulnerability with total control by others o a persons living situation?Can we not just say that that is all that these provisions are or? Why dowe have to work up a general account o dignity? All we require is a retail

theory, which may be no more extensive than is needed to make sense othese particular prohibitions. We do not need a grand wholesale accounto dignity.

But even i we were to take that tack, it would still leave the questiono what the law is doing when it also talks in more general (wholesale)terms about the dignity o the human person. And it does. Since we haveto give an account o thatanyway, it is certainly worth striving to producea theory that unifies what we say about dignity in general and what we say

about these specific (or retail) dignitarian requirements.

. Universal Declaration o Human Rights (), Article (). See also John Locke,Second reatise: For as much as we are not by ourselves sufficient to urnish ourselves withcompetent store o things needul or such a lie as our Nature doth desire, a lie fit or thedignity o man, thereore to supply those deects and imperections which are in us, as livingsingle and solely by ourselves, we are naturally induced to seek communion and ellowshipwith others (sec. ).

. I am grateul to Carol Sanger or urging this point. See also Daniel Statman, Hu-miliation, Dignity, and Sel-Respect, in Te Concept of Human Dignity in Human Rights Dis-

course, edited by David Kretzmer and Eckart Klein (Dordrecht: Martinus Nijhoff, ), :ying the concept o humiliation to that o human dignity makes the ormer too philosophi-cal . . . and too detached rom psychological research and theory.

. Te Universal Declaration o Human Rights and the International Covenant on Civiland Political Rights both provide that no one shall be subjected to torture or to cruel, inhu-man, or degrading treatment or punishment.

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. Is Tere a Need for a Foundation?

Human rights law suggests that dignity is the ground o rights: in thewords o the International Covenant o Civil and Political Rights, rights

derive rom the inherent dignity o the human person. Does this assumea moral ideal o dignity that serves as an extralegal grounding or humanrights?

Not necessarily. Te covenant gives us the legal groundo the rights setout in the body o its text, but it is a urther question whether this is sup-posed to be the legal representation o a moral conception. Maybe everylegal idea has a moral underpinning o some sort, but it would be a mistaketo think that the moral underpinning has to have the same shape or con-

tent as the legal ground.Consider as an analogy Hannah Arendts account o the ancient Athe-nian commitment to political equality among reeborn male citizens. TeAthenians adopted a legal principle o treating one another as equals, notbecause o any moral conviction about real equality between them butbecause such a principle made possible a orm o political community theycould not otherwise have. For their engagement in the joint enterprise opolitics, the community created or each o them an artificialpersonathe

citizenthat could take its place on the public stage, presenting them asequals or political purposes. Tey did this using artificial techniques likethe equal right to speak in the assembly, the equality o votes, the equalliability to be drafed into a jury, and so on. Human dignity might besomething similar. Tere might be a point to its legal recognition, but thatpoint need not be an underlying moral dignity.

Tat is a possibility. O course, many philosophers do believe in anunderlying moral dignity. In his recent book On Human Rights, James

Griffin has deended a moral account o dignity, which he thinks under-lies human rights. He adopts a conception o dignity rom a fifeenth-century writer, Pico della Mirandolathough he drops most o the verysubstantial theology that Pico associates with dignityand he comes tothe conclusion that the key to dignity is the human capacity to...be thatwhich he wills (which Griffin relabels normative agency). Te sort odignity relevant to human rights, Griffin says, is that o a highly prized

. Hannah Arendt, On Revolution(New York: Penguin Books, ), : Tis equal-ity was not natural but political, it was nothing they had been born with; it was the equality othose who had committed themselves to, and now were engaged in, a joint enterprise.

. Griffin, On Human Rights, (drawing on Giovanni Pico della Mirandola, Oration onthe Dignity of Man[], available at http://cscs.umich.edu/~crshalizi/Mirandola/).

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status: that we are normative agents. He says that our human rights arederived rom our dignity, understood in this way. Sometimes the way hesays this indicates that normative agency is the teloso our rights: human

rights are a means to normative agency as an end; we have a right to wel-are, or example, because you cannot exercise normative agency when youare hungry. Other times, what he says conveys the point that protectingour rights vindicatesour normative agency (or example, by respecting ourchoices), which is a rather different idea.

Te second o these ormulations is more closely connected to dignityas status. In general, a status is not a goal or a telos: a status comprisesa givenset o rights rather than defining them as instrumentalities. I am attracted

to the status account, and much o the rest o these lectures is devotedto it. I mention the uncertainty in Griffins account, just so that we donot have too simple a picture o dignity as a oundation. A status accountwill present dignity (however defined) as oundation-ish(or, as we mightsay, oundational), but it may not be a oundation in the simple way that(or example) the major value premises o a consequential argument are aoundation o everything else in the consequentialists moral theory.

. Dignity and BearingWe place a high value on human dignity, but height can be understood indifferent ways. We might just mean that dignity counts for more than othervalues. Or height might mean something like rank. Consider again theidea o status. Some legal statuses are low and servile, like slavery and vil-leinage (or, in the modern world, elony or bankruptcy). Others are quitehigh, like royalty or nobility. Highness, here, is not like moral weight(as in the moral weight o a particularly prolonged or intense episode o

pleasure or the purposes o Jeremy Benthams elicific calculus). It is morea matter o rank, and it conveys things like authority, and deerence.

Te high character o dignity also has physical connotationsa sort omoral orthopedics o human dignitywhat some Marxists, ollowingErnst Bloch, used to call walking upright. Dignity has resonances osomething like noble bearing. In one o the meanings the Oxford Eng-lish Dictionary ascribes to the term, it connotes befitting elevation o

. Griffin, On Human Rights, .. Ibid., .

. Ibid.

. See Jan Robert Bloch and Caspers Rubin, How Can We Understand the Bends in theUpright Gait?New German Critique (): .

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aspect, manner, or style;...stateliness, gravity. When we hear the claimthat someone has dignity, what comes to mind are ideas such as: having acertain sort o presence, uprightness o bearing, sel-possession and sel-

control, sel-presentation as someone to be reckoned with, and not be-ing abject, pitiable, distressed, or overly submissive in circumstances oadversity.

Tese connotations resonate with what I called earlier the retail use odignity in humanitarian law and human rights covenants. Te ban ondegrading treatment can be read as requiring that people must be permit-ted to present themselves (even in detention, even in the power o thepolice) with a modicum o sel-control and sel-possession. I think it is a

good thing in a philosophic account o dignity, not just to unite the retailand the wholesale uses o dignity in the law but to do so in a way thatmakes illuminating sense o these intuitions about moral orthopedics. Agood account o human dignity will explain it as a very general status. Butit will also generate an account o it as noble bearing and an account o theimportance o the ban on humiliating and degrading treatment. Tat iswhat I am trying to do with an account o dignity as a high-ranking status,comparable to a rank o nobilityonly a rank assigned now to every hu-

man person, equally without discrimination: dignity as nobility or thecommon man.

. Stipulative Uses of Dignity

Some philosophers definitions o dignity seem quite unrelated to thesethemes o nobility, bearing, and nondegradation. Consider, or example,Ronald Dworkins use o dignity in his bookIs Democracy Possible Here?At the beginning o that work, Dworkin states two principles that he says

identiy. . .abstract value in the human situation. One has to do with theobjective value o a human lie. Te other states that each person hasa special responsibility or how his or her own lie goes. Dworkin says:Tese two principles. . .together define the basis and conditions of human

. See also the account in Aurel Kolnai, Dignity,Philosophy (): .. See Jeremy Waldron, Cruel, Inhuman, and Degrading reatment: Te Words Tem-

selves, in orture, error, and rade-offs: Philosophy for the White House, by Waldron (Oxord:Oxord University Press, ), available at http://ssrn.com/abstract=, or the ways

in which the bestialization or inantilization o detainees is at odds with this (in the War onerror).

. Tis is connected with the idea o the sacredness o human lie, to which Dworkin de-votes some enormously insightul discussion inLifes Dominion: An Argument about Abortion,Euthanasia, and Individual Freedom(New York: Vintage Books, ), .

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and humanity insoar as it is capable o morality, is that which alone hasdignity.

Te first thing to say about this definition is that dignity here is the

English translators term, not Kants. Kant uses the German term Wrde.Tere is a well-established practice o translating Wrdeas dignity. Butthe two words have slightly different connotations. Wrde is certainlymuch closer to worth than our term dignity is.

Te second thing to say is that although value beyond price and theintrinsic non-negotiable non-ungible worth that inheres in every humanbeing in virtue o his or her moral capacity are wonderul and importantideas, there is no particular reason to use our term dignity to convey

them. Wrde, in sense o the passage in Kants Groundwork, expresses atype o valueor a act about value. Dignity, by contrast, conveys the ideao a type ostatusthat a person may have. Te distinction may seem a fineone, particularly i we acknowledge that in moral theory a persons statuscan derive rom an estimation o that persons undamental worth. Aperson may have dignity (in the sense that interests us) becausehe or shehas worth (or Wrde in Kants sense): but this is genuine derivation, notsynonymy. We can distinguish the ideas also in terms o appropriate re-

sponses to value and status, respectively. Te thing to do with somethingo value is promote it or protect it, perhaps maximize things o that kind,at any rate to treasure it. Te thing to do with a ranking status is to respectand deer to the person who bears it.

Now Kant does also say that the basis o human worth commands re-

. Kant, Groundwork of the Metaphysics of Morals, inPractical Philosophy, (: inthe Prussian Academy edition o Kants Works). Kant goes on to say that the moral will is infi-nitely above all price. He says it cannot be brought into comparison or competition with anyother value at all without, as it were, assaulting its holiness. Notice also that James Griffin iswary o associating his view with Kantian dignity ; he says that dignity in the Kantian sense issupposed to be characteristic o all morality, not just human rights (On Human Rights, ).

. It is a general practice, not just in translations o Kants work. I was wrong about thisin Dignity and Rank,Archives Europennes de Sociologie[European Journal o Sociology] (): .

. For a suggestive discussion o some differences, see Kolnai, Dignity, . See alsothe comment inDignity: Ethics and LawBibliography(Copenhagen: Centre or Ethics andLaw, ), : Te Scandinavian and German nouns vdighedand Wrdeare derived romthe Germanic *werpa- (werd, wert) which means that these languages point to worth and valuemore than to dignity.

. Christopher McCrudden, Human Dignity and Judicial Interpretation o HumanRights,European Journal of International Law (): , which ollows Gerald Neuman,Human Dignity in United States Constitutional Law, inZur Autonomie des Individuums:Liber Amicorum Spiros Simitis, edited by D. Simon and M. Weiss (Baden-Baden: Nomos Ver-lagsgesellschaf, ), , in identiying the core meaning o human dignity (i it has acore meaning) with the intrinsic wortho the individual.

. Kolnais discussion o this is very fine. See Kolnai, Dignity, .

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spect. But this is not exactly respect or persons. What commands re-spect is the capacity or morality, and I agree with Michael Rosen that this,in the first instance, is a sort o Platonism; it involves respecting some-

thing within a person, not a person him or hersel. Our respect or theworkings o the moral law within ourselves is subjectively a sort o quiver-ing awe at the way the moral law can strike down our inclinations. Rosenargues that it is a quasi-aesthetic ideal, and I am inclined to agree with him.

I am sure there are some in the audience who will regard my turningmy back on the conception o dignity in the Groundworkas a reductioad absurdum o my whole enterprise. I not Kant, then who? they willask. But Kants use o dignity (or Wrde) is complicated. He does also

use the term in ways that line up much more closely to the traditionalconnotations o nobility that we have been talking about. In his politi-cal philosophy, Kant talks o the distribution o dignities. He describesnobility as a dignity that makes its possessors members o a higher estateeven without any special services on their part. And he says that no hu-man being can be without any dignity, since he at least has the dignity o acitizen. Tese sayings associate dignity with rank in more or less exactlythe way that I want to associate them.

Additionally, Te Metaphysics of Moralscontains a long, priggish pas-sage called On Servility, where Kant talks o our duty with reerence tothe dignity o humanity within us:

Be no mans lackey.Do not let others tread with impunity on yourrights.Contract no debt or which you cannot give ull security.Do not accept avors you could do without.... Complaining and

. It is not entirely clear that Kantian respect, important though it is in his moral phi-

losophy, is really the right sort o shape or our purposes. In the Critique of Practical Reason,Kant presents respect as a eeling o awe that a person experiences when he notices how purepractical reason strikes down his inclinations and his sel-conceit (pt. , chap. , in PracticalPhilosophy, ff [:ff o the Prussian Academy edition o Kants Works]). It is like amaze-ment and admiration that there should be this moral capacity, a response that I have to myown sense o duty. It is not independently a way o generatingduties. Kant himsel seems torecognize this because, as he puts it, the concept o duty cannot be derived rom respect (;:). Kant used the term respect very careully. We tend to use it quite loosely, and we may beled to see in his account not what it strictly implies but what we need.

. See Michael Rosen, Te Shibboleth o All Empty-Headed Moralists: Te Place oDignity in Ethics and Politics (Boston University Benedict Lectures, ), lecture .

. In the Critique of Practical Reason, in Kants Practical Philosophy, (: o thePrussian Academy edition o Kants Works), Kant says: I something represented as a deter-mining ground o our will humiliates us in our sel-consciousness, it awakens respect or itselinsoar as it is a positive and a determining ground. Tereore the moral law is even subjectivelya ground o respect.

. Immanuel Kant, Te Metaphysics of Morals, inPractical Philosophy, (:o the Prussian Academy edition o Kants Works).

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whining, even crying out in bodily pain, is unworthy o you, especiallyi you are aware o having deserved it. . . .Kneeling down or prostratingoneself on the ground, even to show your veneration for heavenly objects,

is contrary to the dignity of humanity. ... Bowing and scraping beore ahuman being seems in any case unworthy o a human being.

Tis Polonius-like account o dignified bearing sounds like the sort othing I am pursuing. But the problem is to connect back to what dignityis said in the Groundworkto be: namely, value beyond price. Tat is whatI have trouble with. Tere is no doubt that Kant has some such connec-tion in mind. Te absolute inner worth o our moral personality begins

as a basis o sel-esteem, but it is also a sort o asset by which a personexacts respect or himsel rom all other rational beings in the world andmeasures himsel on a ooting o equality with them. Stephen Darwallmakes much o this passage in his recent book. He believes that there isan important conception o dignity to be ound in Kants work, whichhas much more to do with the way in which we elicit respect or ourselvesrom others by making what he calls second-person demands on themthan with any notion o the objective preciousness o our moral capacity.

Darwall, though, is reluctant to give up on the Groundworkdefinition.He pays lip service to it. He says that the moral requirements that interesthim structure and give expression to the distinctive value that personsequally have: dignity, a worth that has no price. But that last expressionis a wheel that turns nothing in Darwalls account. Everything has to dowith the generation o respect through second-person demands. Worthbeyond price is just decoration.

A more promising approach is indicated in a recent paper by Darwalls

colleague at Michigan, Elizabeth Anderson. Anderson has been explor-ing the notion o commanding value, which i it works may bridge the

. Ibid., (:).

. From our capacity or internal lawgiving and rom the (natural) human beings eel-ing himsel compelled to revere the (moral) human being within his own person, at the sametime there comes exaltation o the highest sel-esteem, the eeling o his inner worth, in termso which he is above any price and possesses an inalienable dignity, which instills in him respector himsel (ibid., [:]).

. Ibid.

. Darwall, Second-Person Standpoint, chap. .. Ibid., .

. See Elizabeth Anderson, Emotions in Kants Later Moral Philosophy: Honor andthe Phenomenology o Moral Value, in Kants Ethics of Virtue, edited by Monika Betzler(New York and Berlin: de Gruyter, ).

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gap between dignity as value beyond price and dignity as rank or author-ity. She is interested in the way Kant appropriated and transormed ideasabout honor: a man o honor treats his independence and sel-esteem

as something above price; he would not trade them or anything in theworld, certainly not or the sake o material interest. Tis bridges exactlythe gap that I am worrying about. And Kants transormation o it is pre-cisely a universalization o the ethic o honor. I Proessor Anderson isright about this, then I should rethink my claim that the Groundworkdefi-nition has little to offer the modern jurisprudence o dignity.

I have no doubt about the importance o the ideas that Kant associ-ates with dignity in the Groundworkdefinition: undamental worth or

value beyond price, the insistence that human persons are not to be tradedoff against each other. But, taken on its own, it has had a deplorable influ-ence on philosophical discussions o dignity and it has led many lawyers,many o whom are slovenly anyway in these matters, lazily to assume thatdignity in the law must convey this specific Kantian resonance. Kantslater work does indeed accord with the idea o dignity as a ranking status.But not his undamental equation in the Groundworko Wrde withvalue beyond price, at least not without the elaboration that Elizabeth

Anderson has offered.I am going to say more in a moment about conceptions that equate

human dignity with the sacred worth or value o human lie. Beore I do,let me cite one example o the legal use o a Kantian conception o dignityas a simple conception o human worth precluding trade-offs. In a well-known case, the Constitutional Court o Germany considered a statutepassed in the wake o the / terrorist attacks, permitting the Lufwaffe toshoot down airliners that had been taken over by terrorists. Te German

Constitutional Court held that was not compatible with Article o theBasic Law, which says that human dignity is inviolable. It is absolutely

. Ibid., : Te ethic o honor reserves respect, the status o being a bearer o com-manding value...exclusively to people o superior social rank. [But] Kants ethic universalizesrespectul standing to all rational agents.

. See, or example, Stephen J. Heyman,Free Speech and Human Dignity(New Haven:Yale University Press, ), , simply defining dignity as near absolute worth. See alsoSchachter, Human Dignity as a Normative Concept, , equating dignity with the Kantianinjunction to treat every human being as an end, not as a means, and G. P. Fletcher, HumanDignity as a Constitutional Value, University of Western Ontario Law Review (): ff.

. For the Kantian provenance o the dignity provision in the German Basic Law, seeFletcher, Human Dignity as a Constitutional Value, , and the sources cited therein.Fletcher is convinced that the modern constitutional notion o dignity is entirely Kantian(). See also McCrudden, Human Dignity and Judicial Interpretation o Human Rights,.

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inconceivable, said the court, under the Article guarantee o dignity tointentionally kill...the crew and the passengers o a hijacked plane, evenwhen they are in a situation that is hopeless or them, that is, even when

they are doomed anyway. Human dignity enjoy[s] the same constitu-tional protection regardless o the duration o the physical existence o theindividual human being. It is an admirable and brave decision, and it maybe right. But it takes dignity in a direction that leaves behind many o itsamiliar connotations.

. Catholic eaching on Human Dignity

Tere are absolute worth accounts o dignity, and there are ranking sta-

tus accounts. I avor the second, but right now I am trying to do justice tothe first, at least in the currency o the scarce time available or this lecture.So here is another well-known conception on the absolute worth side othings.

Roman Catholic social teaching about the absolute worth o each hu-man lie (starting rom conception), the sanctity o lie, and the absolutecharacter of the prohibition on murder, abortion, euthanasia, and scientificexploitation o embryos is sometimes expressed using the term dignity.

We are told o the almost divine dignity o every human being. We aretold that human beings have a special type o dignitywhich is the basisor...the obligation all o us have not to kill them. Tis theme is par-

. Bundesverassungsgericht, February , , , BVerGE , available at http://www.bundesverassungsgericht.de/en/decisions/rs_bvren.html. Te as-sessment that the persons who are on board a plane that is intended to be used against otherpeoples lives . . . are doomed anyway cannot remove its nature o an inringement o their rightto dignity rom the killing o innocent people in a situation that is desperate or them which anoperation perormed pursuant to this provisions as a general rule involves. Human lie and hu-man dignity enjoy the same constitutional protection regardless o the duration o the physicalexistence o the individual human being.... Whoever denies this or calls this into questiondenies those who, such as the victims o a hijacking, are in a desperate situation that offersno alternative to them, precisely the respect which is due to them or the sake o their humandignity.

. See Pope John Paul II,Evangelium Vitae(March , ), available at http://www.vatican.va/holy_ather/john_paul_ii/encyclicals/documents/h_jp-ii_enc__evangelium-vitae_en.html.

. Ibid., sec. . See also secs. and . Why is lie a good?. . . Te lie which God givesman is quite different rom the lie o all other living creatures, inasmuch as man, althoughormed rom the dust o the earth...is a maniestation o God in the world, a sign o his pres-ence, a trace o his glory.... Man has been given a sublime dignity, based on the intimate bondwhich unites him to his Creator: in man there shines orth a reflection o God himsel. . . . Tedignity o this lie is linked not only to its beginning, to the act that it comes rom God, butalso to its final end, to its destiny o ellowship with God in knowledge and love o him.

. Patrick Lee and Robert George, Te Nature and Basis o Human Dignity, RatioJuris (): .

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ticularly familiar from Catholic doctrine concerning abortion, which citesthe dignity o the unborn child as the basis or an absolute prohibitionon abortion, and holds also that the use o human embryos or etuses as

an object o experimentation constitutes a crime against their dignity ashuman beings. What do we make o this?Te view that I take is similar to my view o Kants definition o

Wrde in the Groundwork. I do not understand why dignitywithits own distinctive connotationsis a good term to use to do work thatmight be done as well by worth or sacred worth.

I am aware that nothing I say here will persuade Catholics or Kantiansto adopt different terminology. And the Catholic account does not alto-

gether ignore alternative approaches to dignity. Te sort o conception Iam developing in these lectures presents dignity as a rank or status thata person may occupy in society, display in his bearing, and exhibit in hisspeech and actions. But what about the dignity o those who cannot con-trol their sel-presentation or cannot speak up or themselves? John PaulIIs encyclicalEvangelium Vitaecondemns the mentality which equates

personal dignity with a capacity or verbal and explicit . . .communica-tion. . . . On the basis o these presuppositions there is no place in the world

or anyone who, like the unborn or the dying, is a weak element in the so-cial structure, or for anyone who appears completely at the mercy of othersand radically dependent on them, and can only communicate through thesilent language o a proound sharing o affection.

Te critique is a little overstated. As we saw earlier, dignitary provisionsare particularly important or those who are completely at the mercy oothers. But I think the ormer pope was reerring to those who are incapa-ble o speaking or themselves or controlling their sel-presentation even

i they were permitted to. Certainly, we do have to give an account o howhuman dignity applies to inants and to the prooundly disabled. My ownview is that this worry should not necessarily shif us away rom a concep-tion that involves the active exercise o a legally defined status. But it doesrequire attention. I believe it can be addressed by the sort o structure thatJohn Locke introduced into his theory, when he said o the rank o equal-ity that applies to all humans in virtue o their rationality: Children, I

. Pope John Paul II,Evangelium Vitae, sec. .. Ibid., sec. . For discussion, see alsoHuman Dignity and Bioethics: Essays Commis-

sioned by the Presidents Council on Bioethics(Washington, D.C., ), available at http://www.bioethics.gov/reports/human_dignity/index.html.

. Pope John Paul II,Evangelium Vitae, sec. .

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coness, are not born inthis ull state o equality, though they are born toit. Like heirs to an aristocratic title, their status looks to a rank that theywilloccupy (or are destined to occupy), but it does not require us to invent

a different sort o dignity altogether or them in the meantime.Nothing I have said is intended to reute or cast doubt on the Catho-lic position regarding the sanctity o lie. (Any more than my critiqueo Kant casts doubt on his view about trade-offs.) We are arguing hereabout what dignity means, not about the permissibility o abortion.And I certainly do not think that any o this shows that dignity (whetherin the Catholics hands or in general) is a stupid or useless concept. Ste-phen Pinker and Ruth Macklin say it does. But they say this just because

they are annoyed that Catholics and other theocons oppose substantivepositions (or example, about stem-cell experimentation) that they sup-port and because they ear that the word dignity might intensiy thatopposition. Pinker and Macklin are not really interested in the analysis odignity. Tey oppose the Catholic use o the word because they are politi-cally annoyed by the positions it conveys. Tey have little interest in whatdignity might mean i it were not associated with such opposition toabortion or stem-cell research or whatever.

. John Locke, wo reatises, pt. , sec. .. It would be wrong to give the impression that the Catholic use o dignity is confined

to issues like abortion and stem-cell research. It is also used as the basis o an extensive andar-reaching doctrine o human rights, and in that regard it covers a lot o the ground that anytheory o dignity has to cover: Whatever is opposed to lie itsel, such as any type o murder,genocide, abortion, euthanasia, or wilul sel-destruction, whatever violates the integrity othe human person, such as mutilation, torments inflicted on body or mind, attempts to coercethe will itsel; whatever insults human dignity, such as subhuman living conditions, arbitraryimprisonment, deportation, slavery, prostitution, the selling o women and children; as well asdisgraceul working conditions, where people are treated as mere instruments o gain ratherthan as ree and responsible persons; all these things and others like them are inamies indeed.Tey poison human society, and they do more harm to those who practise them than to thosewho suffer rom the injury. Moreover, they are a supreme dishonour to the Creator (SecondVatican Council Pastoral Constitution on the Church in the Modern World, Gaudium et Spes,, quoted with orceul approval inEvangelium Vitae, sec. ).

. Stephen Pinker says that dignity is a squishy, subjective notion, hardly up to theheavyweight moral demands assigned to it. He adds: Te sickness in theocon bioethics [in-volves] imposing a Catholic agenda on a secular democracy and using dignity to condemnanything that gives someone the creeps (Te Stupidity o Dignity). See also Ruth Macklin,Editorial: Dignity Is a Useless Concept,British Medical Journal (): .

. Te tone o Pinkers annoyance in Te Stupidity o Dignity is given by questionslike this: How did the United States, the worlds scientific powerhouse, reach a point at whichit grapples with the ethical challenges o twenty-first-century biomedicine using Bible stories,Catholic doctrine, and woolly rabbinical allegory?

. Tis is perhaps less true o Pinker than it is o Macklin. Macklin simply says in herbrie Editorial that autonomy can do anything useul that dignity is supposed to do.Pinker (in Te Stupidity o Dignity) says: Te perception o dignity...elicits a response

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. Rank

My view o dignity is that we should contrive to keep aith somehow withits ancient connection to noble rank or high office.

In Roman usage, dignitasembodied the idea o the honor, the privi-leges and the deerence due to rank or office, perhaps also reflecting onesdistinction in holding that rank or office. O course, Latin dignitas isnot necessarily English dignity any more than Kantian Wrde is. Butthe Oxford English Dictionarygives as its second meaning or the termhonourable or high estate, position, or estimation; honour; degree o es-timation, rank and as its third meaning an honourable office, rank, ortitle; a high official or titular position.

So people would talk about the dignity o the monarch. A indict-ment or high treason against a Jacobite spoke o an intent to depose theKing and Queen, and deprive them o their Royal dignity, and restorethe late King James to the government o this kingdom. Blackstonetells us that the ancient jewels o the Crown are held to be . . . necessary tomaintain the state, and support the dignity, o the sovereign or the timebeing. And the statute that took the crown rom off the head o

in the perceiver. Just as the smell o baking bread triggers a desire to eat it, and the sight o ababys ace triggers a desire to protect it, the appearance o dignity triggers a desire to esteemand respect the dignified person. Tis explains why dignity is morally significant: We shouldnot ignore a phenomenon that causes one person to respect the rights and interests o another.But it also explains why dignity is relative, ungible, and ofen harmul. Dignity is skin-deep:its the sizzle, not the steak; the cover, not the book. What ultimately matters is respect or theperson, not the perceptual signals that typically trigger it. Indeed, the gap between perceptionand reality makes us vulnerable to dignity illusions. We may be impressed by signs o dignitywithout underlying merit, as in the tin-pot dictator, and ail to recognize merit in a person whohas been stripped o the signs o dignity, such as a pauper or reugee.

. See eresa Iglesias, Bedrock ruths and the Dignity o the Individual,Logos: A Jour-nal of Catholic Tought and Culture (): : Te idea o dignitaswas central to Ro-

man political and social lie and closely related to the meaning o honor. Political offices, and asa consequence thepersons holding them, like that o a senator, or the emperor, had dignitas. . . .Te office or rank related to dignitascarried with it the obligation to ulfil the duties properto the rank. Tus decorum, understood as appropriate dignified behavior, was expected othe person holding the office.... Te Roman meaning o dignitasplayed a role in determin-ing distinctions o people in ront o the law. Tere was no equal punishment or everyoneor equal offenses in Roman law; everyone was not equal in ront o the law. Punishment wasconditioned, measured, and determined according to ones dignitas.

. So the dignitaso a Caesar might be different rom that o other generals or that oother holders o the office opontifex maximus.

. Samuel Johnson defined dignity as a rank o elevation (A Dictionary of the English

Language[Philadelphia, ], cited by Michael Meyer in Dignity as a [Modern] Virtue, inConcept of Human Dignity, edited by Kretzmer and Klein, ).

. Patrick Hardings Case, Eng. Rep. , Ventris, . And a elony would be said tobe committed against the peace o our...Lord the King, his crown and dignity.

. Comm. bk. , chap. .

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Richard II stated that he renounsed and cessed o the State o Kyng, ando Lordeshipp and o all the Dignite and Wirsshipp that longed therto.

It is not just monarchy. Kant talks about the various dignities of the no-

bility. In England, nobles had dignity, in the order o duke, marquis, earl,viscount, and baron. Degrees have dignity according to law; certainly adoctorate does. Clergymen have dignity, or some do, and a bishop hashigher dignity than an abbot. Ambassadors have dignity according tothe law o nations. And the French Declaration o the Rights o Man ando the Citizen, approved by the National Assembly in , says in Article that all citizens, being equal in the eyes o the law, are equally eligible toall dignities and to all public positions and occupations, according to their

abilities, and without distinction except that o their virtues and talents.Now, this equation o dignity and rank may seem an unpromising ideaor human rights discourse, inasmuch as human rights ideology is associ-ated specifically with the denialthat humans have inherent ranks distin-guishing some o them as worthy o special dignity in the way that a dukeor a countess might be. However, I am reluctant to leave the matter there.I suspect that this rankingsense o dignity offers something more to anegalitarian theory o rights than meets the eye.

. Rolls Parl. III. /, as cited in the Oxford English Dictionary, s.v. dignity.. Kant,Metaphysics of Morals, (:).. In Blackstones descending order: William Blackstone, Commentaries on the Laws of

England, bk. , chap. .. Te King v. Te Chancellor, Masters and Scholars of the University of Cambridge, or

Doctor Bentleys Case, Eng. Rep. , Fortescue, (): [A doctorate is a dignity.] It is adignity meerly [sic] civil, granted originally by the Crown, and conerred by the university; thedignity is the same, whether applied to a civil or spiritual person. What was said about degreesbeing only licences to teach was wrong said; or licences to teach were long beore degrees,

which were about the year , and there was teaching in the schools long beore there wereuniversities.

. Tough note that not all holy orders are technically dignities: Te civilians dividedspiritual unctions into three degrees. First, a unction, which hath a jurisdiction; as bishop,dean, &c. Secondly, a spiritual administration, with a cure; as parson o a church, &c. Tirdly,they who have neither cure nor jurisdiction; as prebends, chaplains, &c. And they defined adignity to be administratio ecclesiastica cum jurisdictione, vel potestate conjunctd, and therebythey exclude the two last degrees rom being any dignity;... an archdeacon is not a name odignity: . . . [A] parson is not a name o dignity. . . . [A] provost is not a name o dignity. . . . [A]precentor is not a name o dignity. . . . [A] chaplain is not a name o dignity (Boughton v. Gous-ley, Cro. Eliz. , Eng. Rep. []).

. Cootes v. Atkinson, Eng. Rep. , Gouldsborough, .. aylor v. Best, Eng. Rep. , C. B. .. In America, or example, we associate the egalitarian rights talk o (say) the opening

lines o the Declaration o Independence with the Constitutions insistence that no title onobility shall be granted by the United States (Article : [viii]).

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It might be thought that the old connection between dignity and rankwas superseded by a Judeo-Christian notion o the dignity o humanityas such, and that this Judeo-Christian notion is really quite different in

character. I am not convinced. I do not want to underestimate the breachbetween Roman-Greek and Judeo-Christian ideas, but I believe that asar as dignity is concerned, the connotation o ranking statusremained,and that what happened was that it was transvalued rather than supersed-ed. So let us explore some ways in which the idea o noble rank may bemade compatible with an egalitarian conception o dignity.

First, I said a ew moments ago that the Catholic equation o dignitywith sacredness o lie seems quite different rom the idea o dignity as sta-

tus. Yet when you think about it the Catholic notion is not unconnectedwith rank. When we talk about humandignity, we may be saying some-thing about rank but not about the rank o some humans over others.We may be talking about rank o humans generally in the great chain obeing. Te dictionary cites Richard Hooker as writing inEcclesiastical Pol-ity about stones being in dignitie o nature inerior to plants. Well,presumably in this ranking, plants are in turn inerior in dignity to beasts,and beasts are inerior to humans, and humans are inerior to angels, and

all o them o course are inerior in dignity to God. Catholic dignitaryteaching continues to draw on this idea o the special rank accorded to allhumans in the great chain o being. Unlike the lower beings, each o us is

. See, or example, Joshua A. Berman, Created Equal: How the Bible Broke with AncientPolitical Tought(Oxord: Oxord University Press, ).

. Even those who think in terms o a undamental opposition between the rank notiono dignity and the human rights notion o dignity also discern a dynamic connection. eresaIglesias distinguishes between what she calls the Universal and Restricted Meanings o Dig-nity (Bedrock ruths, ).

Consulting the dictionary we can find that the term dignity connotes superiority, andthe decorum relating to it, in two basic senses. One reers to superiority o role either in rank,office, excellence, power, and so on, which can pertain only tosomehuman beings. I will iden-tiy this as the restricted meaning. Te other reers to the superiority o intrinsic worth oevery human being that is independent o external conditions o office, rank, and so orth andthat pertains to everyone. In this universal sense the word dignity captures the mode o beingspecific to the human being asa human being. Tis latter meaning, then, has a universal andunconditional significance, in contrast with the ormer that is restrictive and role-determined.

She associates the restrictive use with classical Roman culture and the universal use withnotions o inherent human worth that emerged in Jewish ethics and theology.But though, asshe says, the meaning o dignity has been historically marked, up to the present time, by a ten-sion between its universal and its restrictive meanings, what has happened is that historically,the restrictive Roman meaning o dignitasassigned to office and rank, and used as a discrimina-tory legal measure, began to be used with a new meaning o universal significance that capturesthe equal worth o everyone (ibid., ).

. Te OEDcitation is as ollows: HOOKER Eccl. Pol. I. vi. () Stones,though in dignitie o nature inerior to plants.

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made in the image o God, and each o us bears a special dignity in virtueo that act.

It is ofen a striking implication o this sort o ranking that, within

each rank, everything is equal. Tis has been hugely important or theorieso human equality (in John Lockes work, or example). Humans rankhigher than other creatures because, with reason and ree will, they haveGods special avor and are created in his image; this is a rank in whicheach o us shares, without distinction or discrimination.

Second, picture this. In an earlier article, Dignity and Rank, I men-tioned a certain transvaluation of values that seemed to happen in late-eighteenth-century romantic poetry. One begins with an idea o dignity

associated with the high rank o some humans (compared to others), andthen one reversesthat ordering ironically or provocatively to claim that thehigh rank o some is superficial or bogus, and that it is the lowly man or thevirtues o very ordinary humanity that enjoy true dignity. Te OEDcites apassage rom William Wordsworth to illustrate this: rue dignity abideswith him alone, [w]ho, in the silent hour o inward thought, [c]an still sus-pect, and still revere himsel, [i]n lowliness o heart. Robert Burns is thereal master o this move, with the remarkable reversal o rank and dignity

in the three central stanzas o For A Tat and or A Tat:A prince can mak a belted knight,A marquis, duke, an a that;But an honest mans abon his might,Gude aith, he maunna a that!For a that, an a that,Teir dignities an a that;Te pith o sense, an pride o worth,Are higher rank than a that.

. So, or example, John Locke wrote at the beginning o the Second reatisethat there isnothing more evident, than that creatures o the same species and rank, promiscuously bornto all the same advantages o nature, and the use o the same aculties, should also be equal oneamongst another without subordination or subjection. . . . [B]eing urnished with like aculties,sharing all in one community o Nature, there cannot be supposed any such subordinationamong us that may authorise us to destroy one another, as i we were made or one anothersuses, as the inerior rankso creatures are or ours (secs. and ; pp. ).

. I have pursued this idea in Jeremy Waldron, Te Image o God: Rights, Reason, and

Order, orthcoming in Te Cambridge Companion to Christianity and Human Rights, editedby John Witte and Frank Alexander.. Waldron, Dignity and Rank, .

. OED: WORDSW. Yew-tree Seat, rue dignity abides with him alone Who,in the silent hour o inward thought, Can still suspect, and still revere himsel, In lowliness oheart.

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And Burns looks orward to a time when Sense and Worth, oer a theearth, / Shall bear the gree, an a that. And then the great peroration ohuman brotherhood, ounded on this equality:

For a that, an a that,Its coming yet or a that,Tat Man to Man, the world oer,Shall brothers be or a that.

Te use o dignity in this poetry is but an instance o a broader trans-valuation that I believe has taken place with regard to dignity generally:a sea-change in the way dignity is used, enabling it to become a leading

concept o universalrights (as opposed to special privileges), and bringinginto the realm o rights what James Whitman has called an extension oormerly high-status treatment to all sectors o the population. But wesee this only i we understand the dynamicso the movement betweenmodern notions o human dignity and an older notion o rank. Te oldernotion is not obliterated; it is precisely the resources o the older notionthat are put to work in the new.

So there is my hypothesis: the modern notion o humandignity in-

volves an upwards equalization o rank, so that we now try to accord toevery human being something o the dignity, rank, and expectation o re-spect that was ormerly accorded to nobility.

. Rank and Equal Rights

Something like this was noticed many years ago by Gregory Vlastos, whomI knew at Berkeley in the s, in a neglected essay, Justice and Equality.In an extremely interesting discussion o equality and rights, Vlastos ar-

gued that we organize ourselves not like a society withoutnobility or rank,but like an aristocratic society that has just one rank (and a pretty highrank at that) or all o us. Or (to vary the image slightly), we are not like asociety that has eschewed all talk o caste; we are like a caste society withjust one caste (and a very high caste at that): every man a Brahmin. Every

. James Whitman, Human Dignity in Europe and the United States, inEurope andU.S. Constitutionalism, edited by G. Nolte (Strasbourg: Council o Europe Publishing, ),, argues that the core idea o human dignity in Continental Europe is that old orms o

low-status treatment are no longer acceptable.... Human dignity, as we find it on the Conti-nent today, has been ormed by a pattern o leveling up, by an extension o ormerly high-statustreatment to all sectors o the population.

. Gregory Vlastos, Justice and Equality, in Teories Of Rights, edited by JeremyWaldron (Oxord: Oxord University Press, ), . Now, unlike Robert Burns, Vlastoswanted to separate the issues o merit and inherent worth. He imagined an interlocutor who

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man a duke, every woman a queen, everyone entitled to the sort o deer-ence and consideration, everyones person and body sacrosanct, in the waythat nobles were entitled to deerence or in the way that an assault upon

the body or the person o a king was regarded as a sacrilege. I take Vlastosssuggestion very seriously indeed. I he is right, then we can use aspects othe traditional meaning o dignity, associated with high or noble rank, tocast light on our conceptions o human rights.

Tink o the change that comes when one views an assault on an ordi-nary man or woman, not just as a crude physical intererence but as a sorto sacrilege (like assaulting a prince or a duke). It is a salutary recharacter-ization o this amiliar right, or it reminds us that a dignitarian attitude

toward the bodies o others is one o sacral respect, not just nonchalantorbearance. Or think o the proverbial saying An Englishmans home ishis castle. Tat too reflects something o the generalization o rank. Teidea is that we are to live secure in our homes, with all the normative orcethat a nobles habitation o his ancestral ortress might entail. Te mod-esty o ourdwellings does not signiy that the right o privacy or securityagainst incursion, search, or seizure is any less momentous.

Or consider, as a third example, the rights o prisoners o war, and the

insistence in Common Article o the Geneva Conventions that out-rages upon personal dignity, in particular humiliating and degrading treat-ment, shall be prohibited. In ages past, chivalry might require that noblewarriors, such as knights, be treated with dignity when they ell into thehands o hostile powers, but this was hardly expected in the treatment othe common soldier; they were abused and probably slaughtered. raceso differential dignity remain: you may remember Colonel Nicholson(played by Alec Guinness) in the David Lean movieTe Bridge on the River

understood only meritwhat a person had done to deserve something or what skills and abili-ties he had that might make him useul to others or to societyand whose whole basis orthinking about human beings was a merit system (or, as Vlastos abbreviates it, theM-system).A person who was accustomed to theM-system, says Vlastos, would be puzzled by the idea oinherent human worth: Tis last comparison is worth pressing: it brings out the illuminat-ing act that in one undamental respect our society is much more like a caste society (witha uniquecast) than like theM-system. Te latter has no place or a rank o dignity which de-scends on an individual by the purely existential circumstance (the accident) o birth andremains his unalterably or lie. o reproduce this eature o our system we would have to looknot only to caste-societies, but to extremely rigid ones, since most o them make some provi-

sion or elevation in rank or rare merit or degradation or extreme demerit. In our legal systemno such thing can happen: even a criminal may not be sentenced to second-class citizenship.And the act that first-class citizenship, having been made common, is no longer a mark odistinction does not trivialize the privileges it entails. It is the simple truth, not declamation,to speak o it, as I have done, as a rank o dignity in some ways comparable to that enjoyed byhereditary nobilities o the past (ibid.).

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Kwai, who insists to the Japanese commander o a prisoner-o-war campthat he and his officers are exempt by the laws o war rom manual labor,even though the private soldiers under his command may legitimately be

orced to work. But modern prohibitions on degrading treatment areoriented specifically to the common soldier, the ordinary detainee, solici-tous o their dignity in ways that would have been inconceivable in timespast or anyone but officers and gentlemen. (I do not have to remind youhow ragile this change is and how close we have come in recent practiceso detention in the War on error to a rightening leveling down, as wecharacterize the extension o ormerly high-status treatment to all detain-ees as quaint and obsolete. I shall say more about these unpleasant reali-

ties at the end o my second lecture. For now, it is important to rememberthat, in these lectures, we are exploring the shape o a normativeuniverse,which may or may not succeed in governing or modiying all aspects oour practice. Tis is as true in law as it is in morality.)

No doubt there are some aristocratic privileges that cannot be uni-versalized, cannot be extended to all men and women. Some we wouldnot want to universalize: a droit du seigneur, or example, in matrimonialrelations. And some when they are extended will change their character

somewhat: a nobleman might insist as a matter o dignity on a right to beconsulted, a right to have his voice reckoned with and counted in greataffairs o state; i we generalize thisand reallygeneralize itgiving every-onea right to have his or her voice reckoned with and counted in greataffairs o state, then what was ormally a high and haughty prerogativemight come to seem as mundane as the ordinary democratic vote accordedto tens o millions o citizens. And citizens sometimes complain that theirvotes are meaningless, and philosophers support them in this complaint.

. David Lean, Te Bridge on the River Kwai, based on Pierre Boulles novel Te Bridgeover the River Kwai(). Colonel Nicholson clearly believes that orcing the officers to workwould be degrading, and he suffers a great deal as a result o the Japanese reaction to his reusalto accept this degrading treatment. Intriguing though this is, however, it is pretty clear that thereerence to degrading treatment in the modern Geneva Conventions is not about insensitivityto military rank. It depends on an idea o dignity that is more egalitarian than that. See also thediscussion in Waldron, Cruel, Inhuman, and Degrading reatment.

. Benjamin Constant, Te Liberty o the Ancients Compared with Tat o the Mod-erns, in Constant: Political Writings, edited by Biancamaria Fontana (Cambridge: CambridgeUniversity Press, ), , gives voice to this concern when he contrasts the participatory

rights o the ancients with those o modern suffrage: Te share which in antiquity everyoneheld in national sovereignty was by no means an abstract presumption as it is in our own day.Te will o each individual had real influence: the exercise o this will was a vivid and repeatedpleasure. . . . Everybody, eeling with pride all that his suffrage was worth, ound in this aware-ness o his personal importance a great compensation. Tis compensation no longer existsor us today. Lost in the multitude, the individual can almost never perceive the influence he

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But the dignity hypothesis reminds us that, although it is shared with mil-lions o others, this vote is not a little thing. It too can be understood in amore momentous way, as the entitlement o each person, as part o his her

dignity as an (equal) peer o the realm, to be consulted in public affairs.Tere is more to say. But I think all this is tremendously helpul indeepening our talk o human dignity and enriching our understanding orights. Te idea that both notions are connected with ideas o status andrank is a stimulating one. In my second lecture, I want to say more aboutthe way status works in law, and more toomuch moreabout how thelaw defines a powerul dignity or us all, in the ways it gives distinctivedignitariancontent to the ideal o equality beore the law.

exercises. Never does his will impress itsel upon the whole; nothing confirms in his eyes hisown cooperation. Te exercise o political rights, thereore, offers us but a part o the plea-sures that the ancients ound in it. But maybe the better view is that o Judge Learned Hand,quoted in Ronald Dworkin,Freedoms Law: Te Moral Reading of the American Constitution(Cambridge: Harvard University Press, ), , who contemplated the possibility o beingruled by a bevy o Platonic Guardians: I should miss the stimulus o living in a society whereI have, at least theoretically, some part in the direction o public affairs. O course I know how

illusory would be the belie that my vote determined anything; but nevertheless when I go tothe polls I have a satisaction in the sense that we are all engaged in a common venture. I youretort that a sheep in the flock may eel something like it; I reply, ollowing Saint Francis, Mybrother, the Sheep.

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[]

LECURE II.LAW, DIGNIY, AND SELFCONROL

In my first lecture, I was toying with the idea that dignity is a term usedto indicate a high-ranking legal, political, and social status, and that theidea o humandignity is the idea o the assignment o such a high-rankingstatus to everyone. We know that human dignity can be treated as a moralconcept. But I was pursuing a hunch that we might do better by consider-ing first how dignity works as a legal conceptand then model what wewant to do morally with it on that. I argued that we should consider waysin which the idea o human dignity keeps aith with the old hierarchi-

cal system o dignity as noble or official rank, and we should view it inits modern orm as an equalization o high status rather than as some-thing that eschews talk o status altogether. In my second lecture, I want topursue this urther by considering the variety o ways in which law vindi-cates dignity in this sense.

Historically, law has done all sorts o things to protect and vindicatedignity in the sense o rank or high status. Law would protect noblesagainst imputations against their dignity, or example, by the offense (and

the tort) oscandalum magnatum. It would protect the exclusiveness orank with things like sumptuary laws and requirements o proper address,deerence, privilege, and precedence.

I I am right that dignity is still the name o a rankonly now anequally distributed oneand that this is a different matter rom there be-ing no rank at all in the law, then we would expect modern law also tocommit itsel to protection and vindication o the high rank or dignity othe ordinary person. And so it does, in various ways.

We have seen how law tries to protect individuals against treatment

. Te Earl of Lincoln against Roughton, Eng. Rep. ; Cro. Jac. (): Scanda-lum magnatum;or that the deendant spake these words; My lord (innuendo the said Earl oLincoln) is a base earl, and a paltry lord, and keepeth none but rogues and rascals like himsel.Te deendant pleaded not guilty; and it was ound against him. Afer verdict, it was movedin arrest o judgment, that these words were not actionable; or they touch him not in his lie,nor in any matter o his loyalty, nor import him in any main point o his dignity, but are onlywords o spleen concerning his keeping o servants, which is not material. Yelverton and Flem-ing seemed to incline to that opinion; but Williams and Croke to the contrary, because they

touched him in his honour and dignity; and to term him base lord and paltry earl, is matterto raise contempt betwixt him and the people, or the Kings indignation against him: and suchgeneral words in case o nobility will maintain an action, although it will not in case o a com-mon person.

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that is degrading. Tat is one very elementary way in which law protectsdignity.

Another is protection rom insulta sort o democratizedscandalum

magnatum. In countries where hate speech and group libel are prohibited,people are required to rerain rom the most egregious public attacks onone anothers basic social standing. A great many countries use their lawsto protect ethnic and racial groups rom threatening, abusive, or insultingpublications calculated to bring them into public contempt. Te UnitedStates is an exception in the latitude it currently gives to hate speech, buteven here the notion o a dignitarian basis or banning hate speech is o-ten cited in the constitutional debate, where it is understood as posing

a reedom versus dignity dilemma. Elsewhere these restrictions are notwidely viewed as violations o individual rights; most countries say theyhave enacted them pursuant to their obligations under the InternationalCovenant on Civil and Political Rights, which says that expressions ohatred likely to stir up violence, hostility, or discrimination mustbe pro-hibited by law.

Te other way that law protects dignity is by prohibiting invidiousdiscrimination. Tis has been very important in South Arican jurispru-

dence. According to the Constitutional Court, the history o the coun-try demonstrates how discrimination proceeds on [an] assumption thatthe disavoured group is inerior to other groups. And this is an assault onthe human dignity o the disavoured group. Te court went on: Equal-ity as enshrined in our Constitution does not tolerate distinctions thattreat other people as second class citizens.

. I mean provisions like the International Covenant on Civil and Political Rights (Ar-ticle : No one shall be subjected to torture or to cruel, inhuman, or degrading treatment

or punishment), the European Convention on Human Rights (Article : No one shall besubjected to torture or to inhuman or degrading treatment or punishment), and CommonArticle o the Geneva Conventions and Article o the Rome Statute o the InternationalCriminal Court, which prohibit outrages upon personal dignity.

. See, or example, Parts and A o the United Kingdoms Public Order Act .

. See Stephen J. Heyman,Free Speech and Human Dignity(New Haven: Yale Univer-sity Press, ).

. International Covenant on Civil and Political Rights, Article ().

. InPresident of the Republic v. Hugo, () SA (CC) , () BCLR , a caseconcerning gender discrimination, the South Arican Constitutional Court said that the pur-

pose o [South Aricas] new constitutional and democratic order is the establishment o asociety in which all human beings will be accorded equal dignity and respect regardless o theirmembership o particular groups (ibid., sec. , citing Goldstone, J.). Te court said this dig-nitarian conception lay at the heart o the prohibition o unair discrimination.

. Minister of Finance v. Van Heerden, () BCLR , at sec. . See also the dis-cussion in Jeremy Waldron, Te Dignity o Groups,Acta Juridica().

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[J W] Law, Dignity, and Self-Control

A similar approach has been taken in Canada. In a decision,it was said that the purpose o [the antidiscrimination provisions o thecharter] is to prevent the violation o essential human dignity. . .through

the imposition o disadvantage, stereotyping, or political or social preju-dice, and to promote a society in which all persons enjoy equal recogni-tion at law as human beings or as members o Canadian society, equallycapable and equally deserving o concern, respect and consideration.Te Canadian court said that this overriding concern with dignity in-uses all elements o the discrimination analysis, and it figured that dig-nitarian ideas could be used to distinguish between invidious and benigndiscrimination.

Mostly in this lecture I want to talk about a less obvious way in whichlaw protects dignitya way, though, that is more pervasive and more inti-mately connected with the very nature of law. When we think about some-thing like Common Article o the Geneva Conventions, it may strike usas a matter o contingency that dignity is protected in this way; we haveseen in recent years how ragile the Geneva Conventions are. Or considerthat in , the Supreme Court o Canada decided it would no longeruse dignity as the touchstone o its antidiscrimination doctrine. It was

persuaded by some pedantic academic articles that human dignity is anabstract and subjective notion that is conusing and difficult to apply.So it turned its back on dignity as the basis o antidiscrimination doctrine.Courts do that sometimes. Tey just decide to change the basis and direc-tion o doctrine. Are there connections between law and dignity that areless contingent than this?

. I am grateul to Denise Raume or an understanding o this material. See Raume,Discrimination and Dignity,Louisiana Law Review (): ff.

. Canadian Charter o Rights and Freedoms, sec. , (): Every individual is equal be-ore and under the law and has the right to the equal protection and equal benefit o the lawwithout discrimination and, in particular, without discrimination based on race, national orethnic origin, colour, religion, sex, age or mental or physical disability.

. Law v. Canada (Minister of Employment and Immigration), [] SCR sec. .. Ibid., .

. Ibid., : Ameliorative legislation will likely not violate the human dignity o moreadvantaged individuals where [their] exclusion...largely corresponds to the greater need orthe different circumstances experienced by the disadvantaged group being targeted by thelegislation.

. R. v. Kapp, [] SCR , at sec. : Human dignity is an abstract and subjectivenotion that, even with the guidance o the our contextual actors, cannot only become conus-ing and difficult to apply; it has also proven to be an additionalburden on equality claimants,rather than the philosophical enhancement it was intended to be.

. R. James Fye, Dignity as Teory: Competing Conceptions o Human Dignity atthe Supreme Court o Canada, Saskatchewan Law Review (): ff.

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One possibility is that even i jurisdictions vary in their readiness toacknowledge specific dignitary rights, still the very orm and structure oa right convey the idea o the right bearers dignity. Right bearers stand up

or themselves; they make unapologetic claims on their own behal; theycontrol the pursuit and prosecution o their own grievances. As Joel Fein-berg put it, A right is . . . something that can be demanded or insisted uponwithout embarrassment or shame. Te whole business o rights reekso dignity, particularly in theories like Feinbergs or in H. L. A. HartsChoice Teory o rights, or example.

What about other internal connections between dignity and the formsand procedures o law? Well, we are amiliar with something like this in

the contrast between internal and external aspects o laws moral connec-tions in the jurisprudence o Lon Fuller.In his book Te Morality of Law, Fuller developed an account o what

he called the inner morality o lawthe ormal principles o generality,prospectivity, clarity, stability, consistency, whose observance is bound upwith the basics o legal crafsmanship. Legal positivists have sometimesexpressed bewilderment as to why Fuller called these internal principlesa morality. He did so because he thought his eight principles had in-

herent moral significance. It was not only that he believed that observingthem made it much more difficult to do substantive injustice, though thishe did believe. It was also because he thought observing the principles he

. Joel Feinberg, Duties, Rights, and Claims, American Philosophical Quarterly (): .

. Alan Gewirth writes: Te ultimate purpose o the rights is to secure or each person acertain undamental moral status: that o having rational autonomy and dignity in the sense obeing a sel-controlling, sel-developing agent who can relate to other persons on a basis o mu-tual respect and cooperation, in contrast to being a dependent, passive recipient o the agency

o others (Rights and Virtues, Review of Metaphysics []: ). Also, Joel Feinberg,Te Nature and Value o Rights,Journal of Value Inquiry(): , suggests that what iscalled human dignity may simply be the recognizable capacity to assert claims. o respect aperson then, or to think o him as possessed o human dignity simply is to think o him as apotential maker o claims.

. H. L. A. Hart argued, in Are Tere Any Natural Rights? Philosophical Review() (reprinted in Teories of Rights, edited by Waldron), that crucial to having a right washaving the power to determine what anothers duty should be (in some regard): Y is, in otherwords, morally in a position to determine by his choice how X shall act and in this way to limitXs reedom o choice (). Y (the right bearer) can make a sort o demand upon X, which Xis required to pay attention to, and it may be that this is what his dignity amounts to.

. Lon L. Fuller, Te Morality of Law(New Haven: Yale University Press, ), esp.chap. .. See, or example, H. L. A. Hart, Book Review o Lon Fuller, Te Morality of Law,

Harvard Law Review (): . For a characterization o Harts bewilderment as disin-genuous, see Jeremy Waldron, Positivism and Legality: Harts Equivocal Response to Fuller,NYU Law Review (): esp. .

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identified was itsel a way o respecting human dignity: o embark on theenterprise of subjecting human conduct to rules involves . . . a commitmentto the view that man is...a responsible agent, capable o understanding

and ollowing rules.... Every departure rom the principles o laws innermorality is an affront to mans dignity as a responsible agent. o judge hisactions by unpublished or retrospective laws, or to order him to do an actthat is impossible, is to convey...your indifference to his powers o sel-determination.

. Self-Application

Tese are not just platitudes. Fuller is reerring here to a quite specific

characteristic o law

its general reliance on what Henry Hart and Al-bert Sacks in Te Legal Processcalled sel-application, that is, peopleapplying officially promulgated norms to their own conduct, rather thanwaiting or coercive intervention rom the state. Sel-application is an im-portant feature of the way legal systems operate. Tey work by using, ratherthan short-circuiting, the agency o ordinary human individuals. Teycount on peoples capacities or practical understanding, sel-control, sel-monitoring, and the modulation o their own behavior in regard to norms

that they can grasp and understand.All this makes ruling by law quite different from, say, herding cows with

a cattle prod or directing a flock o sheep with a dog. It is quite differenttoo rom eliciting a reflex recoil with a scream o command. A pervasiveemphasis on sel-application is, in my view, definitive o law, distinguish-ing it sharply rom systems o rule that work primarily by manipulating,terrorizing, or galvanizing behavior.

In an article published some years ago, Michael Meyer argued or a

strong link between human dignity and the idea o sel-control. Meyer

. Fuller, Te Morality of Law, .. For discussion o the idea o sel-application, see Henry M. Hart and Albert Sacks,

Te Legal Process: Basic Problems in the Making and Application of Law, edited by William N.Eskridge and Philip P. Frickey (New York: Foundation Press, ), .

. It is part o the modern positivist understanding o law that we should appreciatethe way in which norms are designed toguide actionrather than simply coerce it. On the otherhand, positivist jurisprudence is cautious about pursuing the implications that this may haveor laws commitment to human dignity. Jules Coleman, or example, who places great empha-

sis on the way law guides action, is at pains to insist that the action-guiding unction o law isnot necessarily expressive o a dignitarian value. He tries to separate the issues in this way: Lawjust is the kind o thing that can realize some attractive ideals. Tat act about law is not neces-sarily part o our concept o it (Te Practice of Principle[Oxord: Oxord University Press,], ).

. Michael J. Meyer, Dignity, Rights, and Sel-Control,Ethics (): .

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emphasized mainly the sel-control involved in ones sel-presentation toothers. We talked about this in my first lecture, in regard to the noblebearing and sel-possession that dignity expresses and protects. But sel-

command is more than justsetting ones stance, as it were. It is also a mattero people fine-tuning their behavior effectively and graceully in responseto the legitimate demands that may be made upon them, controllingexternal behaviormonitoring it and modulating it in accordance withones understanding o a norm. Tis one might imagine as a quintessen-tially aristocratic virtue, a orm o sel-command distinguished rom thebehavior o those who need to be driven by threats or the lash, or by ormso habituation that depend upon threats and the lash. But i it is an aris-

tocratic virtue, it is one that law now expects to find in all sectors o thepopulation.

. Te Use of Standards

Law does not always present itsel as a set o crisply defined rules that aremeant to be obeyed mechanically. Its demands ofen come to us in theorm o standardslike the standard o reasonable carenorms thatrequire, rame, and acilitate genuine thought in the way we receive and

comply with them.Some jurists say that law can guide conduct (and be sel-applying) only

i the indeterminacy o standards is reduced to clear rules through officialelaboration. But in many areas o lie, law proceeds without such de-finitive elaboration. We operate on the basis that it is sometimes better toacilitate thoughtulness about a certain type o situation (When thereis og, drive at a reasonablespeed) than to lay down an operationalizedrule (When visibility is reduced to less than a hundred meters, lower your

speed by mph). And people respond to this. If standards rely necessarilyon official elaboration, then the lie o the law shows that ordinary peoplecan sometimes have the dignity o judges. Tey do their own elaborations.Tey are their own officials: they recognize a norm, they apprehend itsbearing on their conduct, and they make a determination and act on it.

. Kants moral psychology celebrated in individuals the power to subordinate impulseand desire to the lawlike demands o morality, revealing, as he says, a lie independent o ani-mality (Critique of Practical Reason, [: o the Prussian Academy edition o KantsWorks]).

. C. Aristotle,Nichomachean Ethics, bk. , chap. .. Te best account is in Hart and Sacks,Legal Process, .

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. Hearings

A third way in which law respects the dignity o those who are governed isin the provision that it makes or hearings in cases where an official deter-

mination is necessary. Tese are cases where self-application is not possibleor where there is a dispute that requires official resolution. By hearings, Imean ormal events, like trials, tightly structured procedurally in orderto enable an impartial tribunal to determine rights and responsibilitiesairly and effectively afer hearing evidence and argument rom both sides.Tose who are immediately concerned have an opportunity to make sub-missions and present evidence, and conront, examine, and respond toevidence and submissions presented rom the other side. Not only that,

but both sides are listened to by a tribunal that is bound to respond tothe arguments put orward in the reasons that it eventually gives or itsdecision.

Law, we can say, is a mode of governance that acknowledges that peoplelikely have a view or perspective o their own to present on the applicationo a social norm to their conduct. Applying a norm to a human individualis not like deciding what to do about a rabid animal or a dilapidated house.It involves paying attention to a point o view. As such it embodies a cru-

cial dignitarian idearespecting

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