Rank Among Equals

• Author: Mcjunkin, Ben A

RANK AMONG EQUALS

DIGNITY, RANK, AND RIGHTS. By Jeremy Waldron. New York: Oxford University Press. 2012. Pp. 10, 147. $29.95.

INTRODUCTION

Dignity is on the march. Once regarded as a subject exclusively within the province of antiquated moral philosophy, dignity-that "shibboleth of all perplexed and empty-headed moralists"1-has recently developed into a cornerstone of contemporary legal discourse.2 Internationally, the concept of human dignity has been central to the emergence and acceptance of universal human rights.3 Dignity, in some form, is guaranteed by such seminal documents as the Preamble to the Charter of the United Nations,4 the Universal Declaration of Human Rights,5 the German Basic Law,6 and the South African Constitution.7 Domestically, appeals to dignity undergird popular legal arguments for social and political rights at both the state and federal levels.8 Human dignity has been cited with surprising frequency in the recent opinions of the U.S. Supreme Court-including nine times (and "indignity" once more) in Justice Kennedy's recent majority opinion in United States v. Windsor, which struck down a central provision of the Defense of Marriage Act ("DOMA").9 Scholarly engagement with dignity's legal dimensions has never been more prevalent or more important.

Against this backdrop of emergent (and still emerging) interest in the jurisprudence of dignity, Jeremy Waldron10 offers Dignity, Rank, and Rights, a profound and provocative take on the relationship between dignity and the law. Looking to the concept's use in legal contexts, Waldron contends that human dignity operates as an elevated legal status that entails individual human rights. He casts what he sees as the law's normative commitment to universalize human dignity as the gradual democratization of aristocratic privilege, a process Waldron describes as "a sort of leveling up" of humanity (p. 64). Although Waldron presents these two accounts of dignity as part of a single, self-reinforcing argument,11 astute readers will note their independence. The first account identifies what contemporary legal dignity consists of and how it operates. The second offers up something like an origin story for that contemporary conception, one that attempts to reconcile dignity's history as a strongly hierarchical notion with the egalitarian undercurrents of the modern-day human-rights movement. By interweaving these accounts, Waldron believes he can offer a conception of legal dignity that salvages its universality while avoiding the pitfalls of grounding such a critical tool in the murky realm of moral thought.

Dignity, Rank, and Rights is a refreshing work of legal philosophy. Edited and introduced by Meir Dan-Cohen,12 the book comprises two lectures by Professor Waldron; commentaries on those lectures by Michael Rosen,13 Don Herzog,14 and Wai Chee Dimock;15 and a reply by Waldron to his commentators. Aided by the commentaries, Dignity, Rank, and Rights unfolds more like a rich conversation than an arid academic defense. Yet Waldron's book is perhaps most useful to those already well versed in the debates over the meaning of human dignity and its relationship to the law. Articulating his account of human dignity as an elevated legal status, Waldron draws upon a diverse array of thinkers and texts-from John Locke and John Austin to Hannah Arendt and Lewis Carroll (pp. 20, 58 n.34, 23 & 39 n.31, 29). He also dispenses with competing visions of human dignity quickly, and with no shortage of nuance (pp. 22-30). The resultant book is both pointed and poignant, if not the ideal primer for the novice starting to engage with dignity's jurisprudential dimensions.

This Review disentangles Waldron's twin accounts in the hope of laying bare the implications of his work. Part I sets out the methodological and substantive dimensions of Waldron's project to cast contemporary dignity in terms of legal status. It contrasts Waldron's status claim with more traditional visions of dignity as a legal value, examining both the relationship of dignity to human rights and the normative strength of dignity's universal distribution. Although Waldron sees his depiction of human dignity as breaking with important traditions, his work is largely synthetic-it offers a singular conception of dignity that encapsulates many features of established accounts by reimagining them as the privileges and immunities attending status. This Part also briefly examines the Windsor decision as a touchstone for domestic understandings of dignity's operation in legal contexts.

Part II explores and critiques Waldron's account of human dignity as a gradual extension of aristocratic rank. Borrowing from feminist theory and queer theory, as well as from the equality projects to which they are allied, this Part notes some troubles with extending preexisting rights in the guise of equality. Specifically, it examines the ways in which the narratives Waldron deploys may entrench social norms that perpetuate inequality and injustice while limiting the potential for marginalized groups to employ dignity as a deeply remedial legal tool. This Part concludes by suggesting that Waldron may be able to strengthen the normative grip of dignity as a rights-entailing status by incorporating those notions of human worth that have been central to dignity-based antidiscrimination and antisubordination projects.

1. DIGNITY AS RANK

   Despite widespread commitment to the concept of human dignity, there remains a deep disagreement in both legal and philosophical circles about dignity's nature and content.16 At its most basic, the notion of "human dignity" typically connotes something like a fundamental respect for each person's humanity.17 But the two prevailing conceptions of human dignity, those drawn from the writings of Immanuel Kant and from Judeo-Christian teachings, exemplify how sharply such a simple idea can diverge in application. Kantian dignity-most frequently summarized by the maxim that persons should be treated as ends in themselves, never as mere means-is grounded in respect for the uniquely human capacity for autonomous moral reasoning.18 By contrast, Judeo-Christian human dignity is a corollary to the concept of imago dei, the belief that all persons are made in God's image and thus carry some "inner, transcendental kernel" of the sacred that commands respect.19 Applying these competing conceptions of dignity to a singular legal issue-abortion, for example-produces arguments cutting in opposing directions.20

   In Dignity, Rank, and Rights, Waldron tries to sidestep just such metaphysical or theological precommitments, which tend to be a source of deep disagreement.21 Rather than assume, as many do, that legal invocations of human dignity import their content from particular moral accounts, Waldron postulates that human dignity can be analyzed first and foremost as a legal concept, much in the same way that we think of, say, consideration in contract law as principally a legal, rather than moral, idea.22 As Waldron notes, dignity already operates as a legal tool; the language of dignity already "enriches our vocabulary," and "many of those riches arise in the first instance from law."23 Accordingly, he wants to explore "how the concept works in its legal habitat and see whether the jurisprudence of dignity can cast any light on its use in moral discourse" (p. 14). Thus Waldron's project is not one of derivation from first principles but of interpretation of existing practices.

   By beginning in law, Waldron's methodology allows him to engage directly with the work that dignity is busy performing in legal discourse, particularly human-rights discourse. It also permits him to avoid the "often destructive or, at best, reductive" skepticism, most frequently seen in modern moral philosophy, about whether we need a concept of dignity at all (p. 134). Yet Waldron sets himself an onerous task. To elevate dignity to the realm of substantive legal principle rather than "mere slogan,"24 Waldron seeks to articulate an account of contemporary human dignity that will unify its disparate legal uses and aid in the further development of a cohesive human-rights jurisprudence. In the following Sections, I first examine Waldron's attempt to find such unity by deploying the concept of legal status. I then consider the ramifications of that move, both for dignity's normative grounding and for Waldron's particular methodology.

   1. The Nature of Dignity

      What Waldron finds when he examines dignity's operation in law-particularly in human-rights law-is an apparent contradiction. On the one hand, law frequently contains straightforward protections of individual dignity. For example, the Geneva Conventions expressly denounce "outrages upon personal dignity, in particular humiliating and degrading treatment."25 Likewise, the Universal Declaration of Human Rights guarantees certain rights in order to ensure "an existence worthy of human dignity."26 Formulations like these are consistent with an increasing trend in legal discourse to describe fundamental concepts as abstract values, in the sense typically implied by value theory.27 In fact, some sources explicitly identify dignity as a value to be promoted or secured through the operation of law.28 Values of this sort are attained through the protection offered by specific rights; rights are a means to the value as an end. Criminal laws against rape, for example, are widely justified by their protection of the value of individual autonomy.29 Likewise, sexual-harassment law is often understood as promoting the value of gender equality.30 Many accounts of human dignity proceed this way, focusing on the instrumental use of human rights to secure a given conception of dignity.31

      On the other hand, dignity is frequently cited in human-rights law as the foundational principle that grounds other rights. For example, both the International Covenant on Economic, Social and Cultural Rights...