Two cultures of punishment.

• Author: Kleinfeld, Joshua
• Position: III. Devaluation and Rights Forfeiture C. Human Dignity and Democratic Dignity through Conclusion, with footnotes, p. 1003-1036

3. Human Dignity and Democratic Dignity

   The preceding discussion of capital punishment and prison conditions sheds light on one of the most perplexing divisions between European and American legal culture, this one less a disagreement than a source of mutual puzzlement: the variance over the concept of "human dignity." Europeans commonly think of dignity as nothing less than the foundation of the legal order, (314) while Americans wonder what such an abstract, seemingly philosophical concept could possibly mean--particularly when invoked as a term of law. The leading explanation in the literature is probably James Whitman's, who argues that Europe's concept of dignity can only be understood against the backdrop of Europe's aristocratic history, its traditions of according dignified treatment to the high-born and high-status: "Everybody is now supposed to be treated in ways that only highly placed and wealthy people were treated a couple of centuries ago. Germany and France have been the theater of a leveling-up, of an extension of historically high-status norms throughout the population." (315) Americans find European "dignity" so puzzling, Whitman argues, because Americans never had the aristocratic backdrop against which the concept of "dignity" makes sense.

   Extending this argument to the great punishment divergence, Whitman writes:

   In continental Europe ... old high-status norms of punishment have gradually, though incompletely, been generalized. Equality in modern continental Europe has meant conferring on all, to the extent possible, what were once the exclusive privileges of high status.... A yearning for "aristocratic equality" is indeed a constant in continental Europe. One of the most famous claims of Montesquieu deserves to be remembered here too: the claim that the "principle" of monarchical-aristocratic societies is honor. Continental societies are by no means "aristocratic" in the Montesquieuian sense today. But the idea hangs on that "honor" is of central importance, and the commitment to equality on the continent is partly a commitment to generalizing honor to all. (316) By contrast, the root of American harshness in punishment, Whitman argues, is the extension of low-status norms of punishment throughout society. In punishment--and in a wide variety of other contexts as well--Europe levels up, America levels down. There are "simply two different roads, to two different forms of equality." (317)

   This understanding of European/American cultural, legal, and political differences is in my view one of the most illuminating insights in the whole of the comparative literature--not just the comparative legal literature but all European/American comparative scholarship. Yet it can be a profound insight and, at the same time, an inadequate explanation. As an account of either the roots of the great divergence or the meaning of "human dignity," Whitman's status-oriented thesis overlooks a central dimension of European culture. On Whitman's view, "dignity" is purely a sociological thing, a claim about social status. But dignity also has a philosophical--indeed, a moral, metaphysical, and religious--dimension in European culture. Dignity does not just say that human beings are high-status; it says that they are sacred. It says something very much like what Waldron is saying when he speaks of "Imago Dei--the doctrine that men and women are created in the image of God." (318)

   To understand these philosophical dimensions of "human dignity," I submit that we think of the concept as a claim about value or worth, directly opposed to the concept of devaluation. European human dignity is the insistence that every human being, in virtue of his or her humanity simpliciter, is precious. That is first a moral and metaphysical claim about the roots and degree of human value. It is also a functional claim about rights: "dignity" is the name Europe gives for the quality in virtue of which human beings have rights. It answers the question of why human beings matter from a moral point of view and provides a form of words to invoke where some political or legal challenge makes it necessary to decide who should get rights and how far those rights should extend. In other words, the function of "human dignity" in Europe is to serve as the ultimate foundation for all claims of right. The concept plays precisely the role for twentieth century human rights discourse that the imago Dei played in the ancient Judaeo-Christian tradition. The most direct way to grasp the moral, metaphysical, and functional aspects of human dignity--perhaps historically the very root of the concept itself--is indeed through the imago Dei. The concept of human dignity is a secular substitute for the claim that human beings are made in the image of God.

   This raises the interesting question of what concept, if not being human as such, lies at the foundation of rights in America. America does not commonly identify the philosophical root of its conception of rights as Europe does, but there is some sort of foundation to be uncovered: America even more than Europe conducts its moral, political, and legal discourse in terms of rights, takes rights enormously seriously, and accords them to most people most of the time. Importantly, America does not, like ancient Rome, think of rights as mere privileges of citizenship: both within the country and on a global stage, America's general stance is that noncitizens are rights-holders too. Criminal offenders are an exception, and the question is what conception of the foundation of rights can make sense of that exception.

   I am frankly uncertain of the answer, but consider the following line of thought. Hobbes regarded the social contract as merely an instrument by which to subdue the violence of the state of nature. But what if one thinks of the social contract--of democratic society--as something morally precious, something demanded by and infused with justice? Monarchical societies have sometimes claimed that the structure of government is divine, approved by God. Imagine regarding democratic political or social arrangements in similarly elevated or even religious terms: democracy is God's or justice's way of ordering the world. From the democracy flows a network of legal and social arrangements whose legitimacy is not merely a matter of positive law but derives from the divine or righteous status of the democracy itself. What then does it mean to transgress the democratic social order, and not merely to do so once, as an aberration, but to be an enemy of that social order?

   A passage from John Locke--who did think the democratic social contract derived from the law of nature and from God--sheds light on the answer: "In transgressing the law of nature, the offender declares himself to live by another rule than that of reason and common equity, which is that measure God has set to the actions of men, for their mutual security...." (319) The offender is thus "dangerous to mankind"; the tie that secures all people "from injury and violence" is "slighted and broken by him." (320) He enters into a "state of war" with society, and another man may "destroy" him "for the same reason that he may kill a wolf or a lion; because such men are not under the ties of the commonlaw of reason, have no other rule, but that of force and violence, and so may be treated as beasts of prey, those dangerous and noxious creatures." (321) If establishing a democratic social order is the first principle of justice and the first right, then living in accord with a democratic social order is the first requirement of justice and the condition of rights, or, in other words: the foundation of rights is behaving decently enough and abiding sufficiently by the terms of the social contract to participate in democratic society. Call this "democratic dignity." It is the condition of being willing to live within a just social order. Those who declare themselves to "live by another rule" are enemies of justice, at war with all, and dangerous to all; they are "noxious creatures" and, as such, rightless creatures who may properly be destroyed. Tocqueville, notwithstanding the links he saw between democracy and penal mildness, recognized this side of democratic criminal law as well: "In Europe, the criminal is an unfortunate who is fighting to save his head from agents of the government. The people are merely onlookers in the contest. In America, he is an enemy of the human race and has all humanity against him." (322)

   Enlightenment thinkers widely believed that democracy would pull penal mildness in its train, and they were probably right: democracies probably do tend to punish more mildly than do other forms of government. (323) But it is only a tendency; it is not a law of penal evolution. What the Enlightenment thinkers who associated democracy with penal mildness did not understand is that democratic communities treasure their social contracts no less and probably more than undemocratic communities and will fight tooth and nail to defend their form of life when they feel the social contract is truly threatened.

   4. Evil and Dangerousness

   Immutability and devaluation are independent and potentially separable ideas. One could, for example, regard a serious criminal as someone with a medical problem, like a personality disorder, that might be permanent but not morally freighted. One could, given moralistic condemnatory attitudes but strong forgiveness norms, regard a serious criminal as someone wicked but salvageable--thus mutably or temporarily devalued. The New England Puritans, for example, engaged in forms of punishment designed to humiliate and degrade on the idea that the offender's crime reflected the condition of his or her soul but afterwards often welcomed offenders back into the community in full. (324) American criminal punishment today treats the worst offenders as both immutably criminal and devalued, and European criminal...