08 April 2012

Human Dignity and Law

I've previously published an article (abstract here) that argued that human dignity was the foundation or, in Aristotelian terms, the material cause of human rights. In turn, I grounded human dignity in humanity's creation in the image of God. Late in 2011 Jeremy Waldron published a piece (abstract here): How Law Protects Dignity. (In case you're wondering, yes, I've blogged about Waldron before but on precedent and constitutional law, not human rights. See here and here.)

Waldron begins by noting that references to dignity often amount to rhetorical hot air, "when people want to sound serious but are not sure what to say." On the other hand, Waldron observes that when he uses "dignity," he means that humans have a certain status, which sounds like what I contended. However, Waldron immediately goes on to ground the status that entails dignity not in some substantial attribute of humanity but because a human person
Is recognized as having the ability to control and regulate her actions in accordance with her own apprehension of norms and reasons that apply to her; it assumes she is capable of giving and entitled to give an account of herself (and of the way in which she is regulating her actions and organizing her life), an account that others are to pay attention to.
In short, humans have dignity because they have certain capabilities. (Martha Nussbaum would agree; I don't.) But Waldron isn't falling into a simple "capabilities" approach; he knows what I'm talking about when he considers and rejects an image of God approach to the question he's addressing.. Rather, Waldron means to describe the concept of dignity as it appears and is actually used in the law; his approach is an interesting blend of the analytic and the normative.

To the extent that a legal system affords any room for action to the individual, whether as a claimant in what is commonly understood as private law or even as a defendant in a criminal action, the law affords the human person an opportunity to state a claim of right. I have a right to correction of an injustice done to me and a right to defend against charges brought against me. It is in the fundamental "rights-stating" capability that Waldron finds the necessary relationship between dignity and law. Simply subjecting human conduct to rules means that there is an inner morality of law as law; law presumes dignity. Human can be treated as herds of cattle, and hence without dignity, but as soon as they are subject to law they are treated as agents and thus as having dignity.

The existence of some sort of trial before some sort of tribunal is the clearest evidence of Wadron's dignitary understanding of human rights inhering in law. It is not as thought people are not regularly abused without any sort of legal process, they regularly are so deprived. It is that they are so deprived by the absence of law. (We might want to note at this point that the first trial recorded in the Bible is that of Adam and Even in the Garden where God provided them with notice of the charges against them, an opportunity to defend themselves, and an impartial judge as well as punishment according to known law.) As Waldron puts it,
Applying a norm to a human individual is not like deciding what to do about a rabid animal or a dilapidated house. It involves paying attention to a point of view and respecting the personality of the entity one is dealing with. As such it embodies a crucial dignitarian idea—respecting the dignity of those to whom the norms are applied as beings capable of explaining themselves.
One might infer that if God himself is subject to such process, then God recognizes human dignity, and we should too. Of course, the nature and extent of the appropriate extent of process that should be afforded is culturally and historically contingent. Yet Waldron contends--and here we agree--that the form of law mandates some process and that process both evidences and instantiates dignity.

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