How law protects dignity

Cambridge Law Journal

Volumn 71, Issue 1, 2012, Pages 200-222

  Waldron, Jeremy ^a,b  

^a NEW YORK UNIVERSITY   (United States)

^b ALL SOULS COLLEGE   (United Kingdom)

Author keywords

human dignity; human rights; Jurisprudence; rule of law

Indexed keywords

EID: 85006960472     PISSN: 00081973     EISSN: 14692139     Source Type: Journal    
DOI: 10.1017/S0008197312000256     Document Type: Article

References (67)

1. See Jeremy Waldron, “Cruel, Inhuman, and Degrading Treatment: The Words Themselves” (2010) 23 Canadian Journal of Law and Jurisprudence 269 (also in Jeremy Waldron, Torture, Terror, and Trade-Offs (Cambridge 2010), ch. 9.
2. See Trop v Dulles, 356 U.S. 86, 100 (1958) on the role of dignity in the 8th Amendment, and Furman v Georgia 408 U.S. 238 (1972)
3. Furman v Georgia 408 U.S. 238 (1972)
4. Gregg v Georgia 428 U.S. 153 (1976) on the role of dignity in death penalty jurisprudence.
5. See Jacques Maritain, The Rights of Man and Natural Law (New York 1951), 65
6. James Griffin, On Human Rights (Oxford 2008), 5–6 and 21–22.
7. Christopher McCrudden, “Human Dignity in Human Rights Interpretation” (2008) 19 European Journal of International Law 655.
8. For the idea of status, see R.H. Graveson, Status in the Common Law (London 1953).
9. See Waldron, “Inhuman and Degrading Treatment.”
10. Cf. Tekin v Turkey (2001) 31 E.H.R.R 4.
11. See, e.g., Patrick Lee, and Robert George, “The Nature and Basis of Human Dignity” (2008) 21 Ratio Juris 173.
12. For some connections, see also the discussion in Jeremy Waldron, “The Image of God: Rights, Reason, and Order,” in John Witte and Frank Alexander (eds.), Christianity and Human Rights: an Introduction (Cambridge 2010), ch. 10.
13. See H.L.A. Hart, “Are There Any Natural Rights?” (1955) 64 Philosophical Review 175 (reprinted in Jeremy Waldron (ed.), Theories of Rights (Oxford, 1984), ch. 3).
14. Theories of Rights., 180.
15. But see H.L.A. Hart, “Bentham on Legal Rights” in A.W.B. Simpson (ed.) Oxford Essays in Jurisprudence (Oxford 1973), ch.7 for the beginnings of a retreat from this position.
16. Joel Feinberg, “The Nature and Value of Rights” (1970) 4 Journal of Value Inquiry 243.
17. Ronald Dworkin, Taking Rights Seriously (London 1977).
18. Lon Fuller, The Morality of Law (New Haven 1964), esp. ch. 2.
19. See, e.g., H.L.A. Hart, “Book Review of Lon Fuller, The Morality of Law” (1965) 78 Harvard Law Review 1281, 1284.
20. Jeremy Waldron, “Positivism and Legality: Hart's Equivocal Response to Fuller” (2008) 83 NYU Law Review 1135, esp. pp. 1154–1156.
21. Lon L. Fuller, “Positivism and Fidelity to Law - A Reply to Professor Hart” (1958) 71 Harvard Law Review 630 at pp. 636–7 and 644–5.
22. Lon Fuller, The Morality of Law, p. 162.
23. For the idea of self-application, see Henry M. Hart and Albert Sacks, The Legal Process: Basic Problems in the Making and Application of Law (Westbury NY 1994), 120–121.
24. Joseph Raz, “The Rule of Law and its Virtue,” in his collection The Authority of Law: Essays on Law and Morality (Oxford 1979), 221.
25. Jules Coleman, The Practice of Principle (Oxford 2001), 194–195; see also pp. 205–6.
26. Joseph Schumpeter, Capitalism, Socialism and Democracy (New York), ch. 22.
27. See Hart and Sacks, The Legal Process, pp. 150–152.
28. See Jeremy Waldron, “Vagueness and the Guidance of Action” in A. Marmor and S. Soames (eds.) Philosophical Foundations of Language in the Law (Oxford 2011), 58.
29. Much of this section is adapted from Jeremy Waldron, “The Concept and the Rule of Law” (2008) 43 Georgia Law Review 1.
30. H.L.A. Hart, The Concept of Law, revised edition (Oxford 1994), 96.
31. Hart acknowledges that of course secondary rules will have to define processes for these institutions (The Concept of Law., at p. 97). But he seems to thinks that this can vary from society to society and that nothing in the concept of law constrains that definition.
32. Jeremy Waldron, “The Rule of Law and the Importance of Procedure” in James Fleming (ed.), Nomos 50: Getting to the Rule of Law (New York, 2011), 1.
33. See Martin Shapiro, Courts: A Comparative and Political Analysis (Chicago, 1986).
34. Lon L. Fuller, “The Forms and Limits of Adjudication” (1978) 92 Harvard Law Review 353, 358.
35. I have expanded on this theme in “Thoughtfulness and the Rule of Law,” British Academy Review, issue 18 (July 2011).
36. Jeremy Waldron, “Dignity and Rank” (2007) 48 European Journal of Sociology 201, and “Dignity, Rank and Rights” in Suzan Young (ed.), The Tanner Lectures on Human Values, Volume 29 (Salt Lake City 2011), 207.
37. 1399 Rolls Parl. III. 424/1, as cited in the Oxford English Dictionary, entry for “dignity.”
38. See, e.g., Teresa Iglesias, “Bedrock Truths and the Dignity of the Individual” (2001) 4 Logos: A Journal of Catholic Thought and Culture 111.
39. See Waldron, “Dignity and Rank,” pp. 215 ff.
40. Gregory Vlastos, “Justice and Equality” in Waldron (ed.) Theories of Rights, 41.
41. James Whitman, “Human Dignity in Europe and the United States” in G. Nolte (ed.), Europe and US Constitutionalism (Strasbourg 2005), 95, at p. 97 argues that “[t]he core idea of ‘human dignity’ in Continental Europe is that old forms of low-status treatment are no longer acceptable. … ‘Human dignity,’ as we find it on the Continent today, has been formed by a pattern of leveling up, by an extension of formerly high-status treatment to all sectors of the population.” See also James Whitman, Harsh Justice (Oxford 2003).
42. Harsh Justice., at p. 333.
43. Max Weber, Economy and Society, ed. Guenther Roth and Claus Wittich (Berkeley 1978), 894–895.
44. David Luban, Legal Ethics and Human Dignity (2007)
45. David Luban, “Lawyers as Upholders of Human Dignity (When They Aren't Busy Assaulting It),” 2005 University of Illinois Law Review 815.
46. Luban, “Lawyers as Upholders of Human Dignity,’ p. 819
47. quoting Alan Donagan, “Justifying Legal Practice in the Adversary System,” in David Luban (ed.) The Good Lawyer: Lawyers' Roles and Lawyers' Ethics 130 (Lanham MD 1983).
48. See, e.g. Austin Sarat and Thomas Kearns, “A Journey through Forgetting: Toward a Jurisprudence of Violence” in Austin Sarat and Thomas Kearns (eds.), The Fate of Law (Ann Arbor 1993).
49. The suggestion there is that law is always violent and that the most important feature about it is that it works its will, in Robert Cover's phrase, “in a field of pain and death” (R. Cover, “Violence and the Word” (1986) 95 Yale Law Journal 1601).
50. Fuller, The Morality of Law, p. 108.
51. The Morality of Law., p. 109.
52. Cf. E.P. Thompson, Whigs and Hunters: The Origin of the Black Act (Harmondsworth 1976), 265.
53. Weber, Economy and Society, p. 54.
54. This formulation is adapted from Jeremy Waldron, “Torture and Positive Law: Jurisprudence for the White House” (2005) 105 Columbia Law Review 1681, 1726 (reprinted in Waldron, Torture, Terror and Trade-offs).
55. Hannah Arendt, The Origins of Totalitarianism (New York 1973), 441.
56. This might be one ground on which the “death row phenomenon” is seen as inhuman. See Pratt v Attorney General of Jamaica [1994] 2 A.C. 1 (Privy Council in respect of Jamaica).
57. By the “moral orthopedics” of human dignity, I have in mind what some Marxists, following Ernst Bloch, used to call “walking upright.” See Jan Robert Bloch & Caspers Rubin, “How Can We Understand the Bends in the Upright Gait?” (1988) 45 New German Critique 9, at pp. 9–10.
58. See also the account in Aurel Kolnai, “Dignity” (1976) 51 Philosophy 251 at pp. 253–254.
59. Whitman has argued that American history tells quite a different story from the development of dignitarian jurisprudence in Europe. (See Whitman, “Human Dignity in Europe and the United States,” Philosophy., and Whitman, Harsh Justice, Philosophy.)
60. See also Nicola Lacey, The Prisoners' Dilemma: Political Economy and Punishment in Contemporary Democracies (Cambridge 2008), 30–40.
61. See, e.g., Harriet Chiang, “Justices Limit Stun Belts in Court,” San Francisco Chronicle, August 23, 2002, A7
62. William Glaberson, “Electric Restraint's Use Stirs Charges of Cruelty to Inmates,” New York Times, June 8, 1999, A1.
63. See, e.g., “37 Prisoners Sent to Texas Sue Missouri,” St. Louis Post-Dispatch (Missouri), September 18, 1997, 3B: “Missouri prisoners alleging abuse in a jail in Texas have sued their home state and officials responsible for running the jail where a videotape showed inmates apparently being beaten and shocked with stun guns,”
64. Mike Bucsko and Robert Dvorchak, “Lawsuits Describe Racist Prison Rife with Brutality,” Pittsburgh Post-Gazette, April 26, 1998, B1.
65. See Jeremy Waldron, “Does Law Promise Justice?” (2001) 17 Georgia State University Law Review 759 at pp.760–1.
66. For analogous arguments about justice, see Philip Selznick, The Moral Commonwealth: Social Theory and the Promise of Community 443 (Berkeley 1992)
67. John Gardner, “The Virtue of Justice and the Character of Law” (2000) 53 Current Legal Problems 1.