Rank Among Equals

Ben A. McJunkin*

Dignity, Rank, and Rights. By Jeremy Waldron. New York: Oxford University Press. 2012. Pp. 10, 147. $29.95.

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 Waldron[10] 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.

*      Associate, Covington & Burling LLP. I would like to thank Catharine MacKinnon, Christopher McCrudden, J.J. Prescott, and Marc Spindelman for helpful feedback and encouragement on this piece. I would also like to thank the editors of the Michigan Law Review for their thoughtful work.

[1].          Arthur Schopenhauer, The Basis of Morality 101 (Arthur Brodrick Bullock trans., George Allen & Unwin Ltd. 2d ed. 1915) (1840).

[2].          Christopher McCrudden, In Pursuit Of Human Dignity: An Introduction to Current Debates, in Understanding Human Dignity 1, 1 (Christopher McCrudden ed., 2013) (“The concept of human dignity has probably never been so omnipresent in everyday speech, or so deeply embedded in political and legal discourse.”).

[3].          Michael Rosen, Dignity: Its History and Meaning 1–2 (2012).

[4].          U.N. Charter pmbl.

[5].          Universal Declaration of Human Rights, G.A. Res. 217 (III) A, pmbl., art. 1, U.N. Doc. A/RES/217(III) (Dec. 10, 1948).

[6].          Grundgesetz für die Bundesrepublik Deutschland [Grundgesetz] [GG] [Basic Law], May 23, 1949, BGBl. I art. 1, § 1 (Ger.).

[7].          S. Afr. Const., 1996, §§ 1, 7, 10.

[8].          See, e.g., Katherine Franke, Dignifying Rights: A Comment on Jeremy Waldron’s Dignity, Rights, and Responsibilities, 43 Ariz. St. L.J. 1177, 1184­–85, 1194–99 (2011) (providing examples of human dignity’s being used in arguments supporting same-sex marriage rights).

[9].          United States v. Windsor, 133 S. Ct. 2675, 2689, 2692–94, 2696 (2013). For a detailed survey of the Supreme Court’s invocations of human dignity, see Leslie Meltzer Henry, The Jurisprudence of Dignity, 160 U. Pa. L. Rev. 169, 178–81 (2011) (chronicling the frequency and variety of references to dignity in Supreme Court decisions).

[10].          University Professor, New York University School of Law.

[11].          For example, Waldron suggests that we can see contemporary dignity as a universal legal status only if we first “understand the dynamics of the movement between modern notions of human dignity and an older notion of rank.” P. 33.

[12].          Milo Reese Robbins Professor of Law, University of California, Berkeley, School of Law.

[13].          Professor of Government, Harvard University.

[14].          Edson R. Sunderland Professor of Law, University of Michigan Law School.

[15].          William Lampson Professor of English & American Studies, Yale University.

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