 My name is John Bell, I'm the Director of the Centre for Public Law and it's my pleasure to welcome you on behalf of the law faculty to this Sir David Williams lecture. The Sir David Williams lecture series was started in 2001 to celebrate the contribution to legal scholarship and to legal life of Sir David Williams. Sir David was an eminent public lawyer who specialized in the control of public power. He was one of the founders of modern administrative law and he was also passionate about civil liberties. His interest was not just in broad principles or slogans but was involved in careful attention to the practical steps needed to secure real liberty in practice. From being Rouseball Professor and President of Wolfson College Sir David moved to be the first full time vice chancellor of this university. And in his retirement he was energetic in raising funds for the university, for law and for the Squire Law Library. But he was equally energetic in his support and encouragement of younger scholars. We're very glad to have today Lady Sally Williams and her daughters to celebrate his achievements. We're also very grateful to Mr John Nolan, Ms Michael Ross who have helped fund this lecture and who unfortunately cannot be with us this evening. It's very fitting that our speaker Professor Jeremy Waldron is delivering the lecture tonight. His passionate commitment to genuine liberal democracy is apparent from his work. Professor Waldron has written and published extensively in political theory and jurisprudence. He's written on general aspects of political liberalism in his works on the right to property, liberal rights and god, lock and equality. But he's also had the courage to challenge practices in the United States which sully the standing of liberal democratic society. In particular his essays in 2010 are entitled Torture, Terror and Trade Offs, Philosophy for the White House. His interest in the proper conduct of liberal government fits with Sir David's attention to the detailed arrangements for governing society. And his works on law and disagreement and dignity of legislation are testimony to his careful attention of how legislators should conduct themselves. Professor Waldron is the Chichily Professor of Social and Political Theory and a Fellow of All Souls College. For 2011 and 2012 he will hold this position in conjunction with a professorship at New York University. But he's been in this post only for a very short while. He was born and educated in New Zealand and you will tell that from his accent. We won't say anything about the rugby which may link him even more to Sir David Williams. He was educated at the University of Otago and then studied for his doctorate under Professor Ronald Dworkin at the same time as I was doing but in different faculties. He taught in Oxford at Lincoln College where he was a fellow from 1980 to 1982 and then was a lecturer at the University of Edinburgh before moving to the United States in 1987 as Professor of Law in the Jurisprudence and Social Policy programme in the School of Law at the University of California Berkeley. He's therefore well known across the world as a champion of liberalism. His topic for tonight is how law protects dignity. A liberal society must treat the human person as valuable in their own right. Whether that person occupies a high social position or is homeless, whether that person is law-abiding or a suspected or proven terrorist, the topic is a challenge for modern societies across a wide range of fields from police and military law to medical law and childcare. It's therefore my great pleasure to invite Professor Jeremy Waldron to give this year's Sir David Williams lecture. Thank you. It's a great honour to be invited to give a lecture in this series celebrating the life and work of Sir David Williams. It's a huge pleasure to be here in Cambridge, which I've lived in the UK for a long, long time. I was saying to some colleagues earlier this afternoon, I think I've only ever spent about two weeks in Cambridge, so it's a huge pleasure to be here. It was a particular pleasure to get to meet Lady Williams at lunch today, and I pass on my greetings to her. I would like to thank John Bell not only for his kind introduction, but for making the arrangements for this. It's been a very easy task to organise the details of this occasion. So my topic is the way in which law protects dignity. The most obvious way is that law protects dignity by proclaiming and enforcing specific norms that prohibit attacks on it. So some of these norms, I've mentioned one of them on the song sheet that you have here. The Common Article III of the Geneva Conventions prohibits, among other things, outrages upon human dignity, and that's very clear to us because it uses the word. But other provisions of international law and human rights law protect dignity even when they use slightly different words like the prohibition on degrading treatment and punishment plainly that is intended to protect dignity. We could easily spend a session like this, and I would love to, debating and discussing what degrading treatment has come to mean, for example in Article III of the European Convention and in the jurisprudence associated with that. But in my lecture today I want to do something different and talk about some less obvious ways in which law protects dignity, but ways which are deeper, more pervasive and more intimately connected with the very nature of law itself. Because when you look at Common Article III of the Geneva Conventions or Article III of the European Convention on Human Rights, it may strike you as a matter of historical contingency that dignity is protected under these provisions. Sure, we could argue politically that any worthwhile bill or charter of human rights ought to protect dignity as an important value, but it's notorious that at the level of positive law many bills of rights omit things that ought to have been included and include things that ought to have been omitted. There is no mention of dignity, for example, in the United States Constitution, and to the extent that the ideal has had any influence at all in American constitutional law, it's had to be, for example, an Eighth Amendment jurisprudence, it has had to be important as judge made doctrine, and that too is historically contingent, not to say vulnerable as Justice Thomas would say to passing fads and fashions. Some people have suggested not only that dignity ought to be protected as a human right, but the dignity is itself the ground of rights, it's the premise of rights, it's the basis from which all our human rights flow. The international covenant on civil and political rights, and I've quoted a piece from the preamble there under heading 2, the preamble begins with the acknowledgement that the rights contained in the covenant derive from the inherent dignity of the human person. That's a common theme in philosophical discussions too, particularly recent philosophical discussions of human rights. Even if this is not a connection between dignity and law as such, it's a connection between dignity and a whole area of law, namely the area of human rights law. Some people have remarked that, maybe in a more skeptical spirit, that dignity is just a word we use, and use relatively indiscriminately whenever we are engaging in human rights talks. So it's no accident that it turns up all over the area in the content of the provisions and the preamble to the provisions and a lot of the jurisprudence associated with the provisions and in judicial declarations of various sorts. In a very influential paper published in 2008, my Oxford colleague Christopher McCrudden remarked that dignity, the word dignity, operates mainly as a placeholder for the absence of agreement in human rights discourse. So that in this preamble it's evident that the framers of the international covenant wanted to say something very, very solemn and serious about human rights. But they couldn't agree exactly what it was that they wanted to say, but dignity works perfectly well. It sort of can mean all things to all men and can therefore occupy this role as a placeholder. Maybe that's overly pessimistic, but it does alert us to the fact that dignity may not necessarily be a load-bearing idea. I think it is, but I am conscious of this alternative possibility. A term that is pervasive is always in danger of platitudeness. Nys is always in danger of becoming a platitud. And if we are tracing the pervasiveness of dignity, we must take care that we are not just on the trail of some meaningless, embedded, rhetorical bombast. So we need to despair that in mind as a sort of alternative possibility. So everybody needs definitions. What do I mean by dignity? What is it that we are supposed to be tracking in its relation to law? It's notoriously difficult to define, but I've taken a stab at it under heading three on the sheet there. Dignity, in my view, is a sort of status concept. It has to do with the standing, perhaps the formal legal standing, or perhaps more informally, and perhaps more informally, the moral standing, the moral presence that a person may have in a society, or in his or her dealings with others, or in his or her dealings with the state. So what I mean by the term that I ask about the various ways in which law protects, recognises, vindicates, promotes human dignity is something like this. Dignity is the status of a person. That means that she, I'm going to use a feminine pronoun that obviously is supposed to apply to men as well. Dignity is the status of a person that means that she is recognised 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 means that 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 organising her life and account that others are bound to pay attention to. And it's a status that means that she may reasonably demand that her agency and her presence among us as a human being must be taken seriously and must be accommodated in the lives of others and other people's attitudes and actions towards her and in social and political life generally. Now it's a rough definition and I don't want too much to hang on it. And I imagine that if one were writing a treatise on dignity one would want to add volumes to that definition. I'm not sure that one would want to take anything away from it and that's basically what I want to emphasise here. I can deduce no canonical provenance for this definition but it's not simply a stipulation in the way that Humpty Dumpty stipulated a meaning for glory. I believe that the definition I've given captures much that is already present in our ordinary usage of dignity. But just before we go on to the main line of our inquiry let me remind you of one way at least in which it's controversial. I'm using dignity as a status idea rather than as a value idea. It was used as a value idea by Emanuel Kant in the groundwork of the metaphysics of morals where it appeared to refer to a certain kind of value beyond price. Something might have value in which case we could trade it for something of equivalent value. But certain things he said have dignity which meant that they couldn't be traded for anything of any price. They were non-fungible with other values and they were in a sense infinitely precious. I think that's a very important idea but I'm not really sure that that's what we want to convey with dignity. Even in ordinary language dignity has a connection with bearing the way you hold yourself, the way you present yourself to others. We talk about allowing people to present a dignified presence to other people and much of the work that we do, for example with regard to degrading treatment has to do with various ways in which the law might interfere with that. So I want to distinguish myself. Nothing much hangs on this but I want to distinguish myself from the sort of enterprise that I would be undertaking if I were working in the Kantian tradition. 12 years after the publication of the groundwork Kant wrote again about dignity in the Doctrine of Virtue which is the second part of his late work, the metaphysics of morals. Everything seems to have metaphysics in its title with Kant but this is not the groundwork of the metaphysics of morals but the metaphysics of morals. And there he spoke of dignity much more in terms of status. He talked of the respect that a person can exact as a human being from every other person and that respect is no longer simply the quivering or excited in a person by his own moral capacities which is what you find in the groundwork and in the second critique for example but a genuine making room for another on the basis of sure thought and equality and an acting towards other people as though he or she too were one of the ultimate ends to be taken into account. That's more a sort of status spin on the Kantian idea and I'm more comfortable with that. My definition doesn't directly capture all the work that dignity does in law. I mentioned rules against degrading treatment and outrageous upon personal dignity in the Geneva Conventions. And those are sometimes used as I said to vindicate elementary aspects of adult self-presentation. Care of self, taking care of elementary physical needs and so on and to protect against forms of humiliation impinging on this interest. So a person's dignity is affronted when they are left lying naked in their own urine for example in a cell at Guantanamo Bay or when torture or other maltreatment induces a sort of regression into an infantile state. People have lost control of the most elemental provisions of their own self-presentation and I think this is a connected idea cognate with my definition via this notion of being recognised and treated as a being capable of self-control, as a being capable of conforming action to norms and being able to present a genuine adult presence in society. And so too we might consider the doctrine in European Convention jurisprudence which holds that it is degrading to parade criminals or suspects and shackles, chains, in the way that we routinely do in the United States. It's degrading to parade criminals or suspects and shackles unless they pose a clear and immediate danger to themselves or others. Again this requirement is connected to the idea that we must treat people in principle unless there is compelling evidence to the contrary that they are capable of self-control. People are not to be treated leashed, held back like wild animals but are to be allowed to present themselves in public even in the most fraught circumstances. This we shall see is very important towards the end of what I'm going to say today when I want to talk in section 10 on the topic of dignified coercion which might strike you as an oxymoron but I'm going to try to argue that it's something we should take very seriously. There are many aspects of the proper treatment of people that have little or nothing to do with dignity on my account. I believe that our basic duty to respect and sustain human life duty to refrain from killing, for example. Important though it is, is not really connected with dignity. I think little or nothing is gained by adding to the preciousness or sacredness of human life some sort of dignitarian idea. I know that in the Roman Catholic literature in natural law jurisprudence and in some bioethics literature human dignity is used just in the sense of the special worth or sacredness of human life and so people talk about the dignity of embryos or they talk about the dignity of stem cells or they talk about the dignity of human life in relation to practices like abortion and so on. In my view the problem with this account is not the political implications that it has the problem with this account is not the theological background that it evokes. The problem is that it appropriates the term dignity to do work that worth or sacred worth might do just as well and distracts us from these other aspects of presence and presentation that seem to me to be done and importantly done under the auspices of the way the phrase is used. Now look again at the definition I've given when you read it I hope the sense in which law inherently promotes dignity may begin to become apparent and I have to acknowledge that I tailored this definition for the purposes of the lecture. So we talk about a person capable of giving and entitled to give an account of herself and I want that to convey an image of something like a litigant or a defendant who is not just hauled before the call and subject to a determination but is given a moment to speak to induce evidence to make arguments on his or her behalf. That's the sort of idea that I want to pursue in this lecture. Dignity I think although it is a pervasive idea and goes beyond the law it hooks up in obvious ways with juridical ideas about hearings and due process and status to sue and the basic aim of what I'm going to say here this evening is to elaborate those connections and make them explicit. Here's a preliminary foray. At the beginning of the lecture I considered the idea of a specific right to dignity. Then a few minutes later I considered the idea commonly expressed in the preambles of major human rights instruments where dignity might be the ground of every human right. A third possible connection is that the very form and structure of a right the very idea of having a right being the holder of a right conveys an idea of the right bearer's dignity. This will be familiar to some of the philosophers and jurors prudes in the room and explicitly so in what is known as the choice theory of rights once advanced by Professor HLA Hart Hart believed that having a legal or a moral right was not just a matter of being the object of legal or moral concern. He rejected what is sometimes known as the benefit or the interest theory of rights. He favoured instead the description of the right bearer as having a power to determine what another person's duty should be or having the power to determine what another person should have to do about the duty that they owed to him. So, as he said, the right bearer is morally in a position and often legally in a position to determine by his choice how the duty bearer shall act. The right bearer can choose to sue or not to sue. The right bearer can choose to waive the right or enforce the right. The right bearer has a certain sort of little local sovereignty over another person's moral or legal position. Hart developed this argument first for natural rights but he thought at least for a while that it was true of legal rights although he began to tipto away from this position in the 1980s. Something similar can be found in the American philosopher Joel Feinberg's account of rights as claims. To have a right in law is to possess the dignity of a recognised claimant so that when you make a claim for a certain form of treatment or a claim to a certain amount of good you just simply say, well what is that to us? Why should we take any notice of this? A recognised claimant is a one who can insist that a claim be heard and responded to. So, to the extent that rights are pervasive in law the recognition and respect that claimants are entitled to as such is going to be a pervasive aspect of law's commitment to dignity that is we insist on the dignity of somebody who has been able to stand up unapologetically for their own interests and to a certain extent control use their own free will to control what society and what other people have to do about those interests. It's sometimes said that we can imagine law without rights. I think that's false. Even if heart is wrong about rights generally I think any legal system will characteristically and not just contingently establish and respect individual positions that have the features that heart's theory or Feinberg's theory attribute to rights. For example, law will recognise potential plaintiffs and defer to their dignity, their standing in allowing them to make decisions about whether some norm violator is to be taken to task or not. It's even more evidently false if my colleague Ronald Dworkin is right in the basic rights thesis that he set out years ago in his book Taking Rights Seriously amidst the plethora of other propositions Dworkin argued that when you go to law when you come in as a plaintiff and make some claim or as a petitioner you don't just enter the courtroom in a lobbying mode you don't just try to convince the court that it would be a rather good idea for you to have this money paid for you or this remedy given to you. You walk in in the mode of somebody with an entitlement and it may not mean that you're entitled to bang the desk but you are demanding something for which you have a right. You are holding your head high and insisting that your presence and your claims must be taken seriously and if need be, peremptorily in the determination of what others are to do. So in those ways the very being of the very nature of litigation the very sense in which people inaugurate and pursue claims at law pays some sort of tribute to the way their dignity is recognised these are people, the law doesn't often work certainly private law doesn't work on its own motion it is put in motion by plaintiffs who have the power and the authority to pursue things in this way. Of course their claims may be false or controversial but the controversy is a controversy about entitlement not just the controversy about what it would be a rather good idea to do so there is all of that but I want to go even more deeply and more closely to the concept of law in this so in section 5 which as you see is entitled Fuller and Raz guiding action and the dignity of self-application famously in a book based on his 1963 stores lectures the morality of law the American jurist Lon Fuller developed an account of what he called the inner morality of law the inner morality of law insisted that laws must be phrased in general terms they must be clear they must be reasonably stable they must be prospective and they must actually determine what officials do and he said that these principles the observance of these principles is bound up with the basics of legal craftsmanship it's going to be some internal gossip here which those of you who are uninterested in controversies and jurisprudence can take a little nap but those like my friend Professor Cramer over there who are interested in these matters may want to be alert to positivist legal philosophers beginning with HLA Hart have sometimes expressed bewilderment as to why Fuller called these internal principles of prospectivity and generality clarity and so on why did he call them a morality I think this bewilderment is disingenuous and I said so in an article about Hart published in the New York University Law Review in 2008 Fuller called these internal principles a morality because he thought they had inherent moral significance it's not only that he believed that observing them made it more difficult to do injustice something that Professor Cramer has contested not only that but that he did believe it was also because he thought observing these principles of generality, prospectivity clarity and so on was a way of respecting human dignity he said this to embark on the enterprise of subjecting human conductor rules involves of necessity a commitment to the view that man is or man can become a responsible agent capable of understanding rules and following them and answerable for his defaults when you communicate a rule you've tried to communicate a rule to a dog you can't do it you can communicate a rule to a human being you are treating that human being as having a certain agency a certain ability to understand things and control action accordingly and he went on every departure every departure from the principles of laws internal morality is an affront to man's dignity as a responsible agent to judge his actions by unpublished laws or retrospective laws or to order him to do actions that are impossible is to convey to him your indifference to his powers of self-determination that are so important to dignity and not just platitudes Fuller is referring here to a very specific aspect of law in my view widely neglected in jurisprudence which is laws general reliance on what American legal philosophers have called self-application that is laws are addressed to people and the primary application of the laws is by the ordinary people themselves to whom the law is addressed self-application extraordinary extraordinarily important feature of the way in which legal systems operate they work by using rather than short-circuiting they work by using rather than short-circuiting the agency of ordinary individuals they count on people's capacities for practical understanding they count on the fact that they are communicating rules to beings capable of self-control beings capable of memory beings capable of internalising rules beings capable of self-monitoring which is monitoring how their behaviour is at a given moment in relation to given circumstances and beings capable of the moderation and modulation of their behaviour in response to their self-monitoring and their understanding of the rule from traffic laws to tax laws from property to criminal law self-application is absolutely crucial we don't have anything remotely like the power that would be required for the forceful application of laws to people the law relies on self-application and laws are primarily communicated to people on the basis that they will engage in self-application I don't mean that you can do whatever you like with the rules that are given to you there are chaps there are police there are tax auditors plaintiffs who will respond if they think you are not self-applying the laws in the appropriate way and disputes will break out about this but by and large at every moment in your driving and whatever dates are laid down for the return of your income tax returns in almost every aspect of criminal law and almost every aspect of private law we rely on self-application not only that but in constitutional law I need self-application now of the officials to whom the laws are addressed even when the self-application of general norms is not possible and institutional determinations are necessary either because of disputes about application or because application inherently requires an official determination so laws about divorce cannot be self-applied I can't do anything to make myself divorced I have to await an official determination and when there are conflicts sometimes we have to have official determinations even when the application of laws is done by an official body still the particular orders that are issued look towards self-application in their turn unsuccessful defendants in private law litigation are expected themselves voluntarily to pay the damages that have been decreed rare is the case where the bailiffs come up and take the property from them I don't mean to deny the ultimately coercive character of law as I said I'm going to come back to that under section 10 say much more about that but even in criminal cases where the coercive element is front and centre it is often the case that we rely on individuals to anticipate in their own actions the coercion that is being applied to take him down when the criminal turns around and goes with his waters usually have to be dragged you will be taken to a place of execution they say in the United States but usually people walk to their execution in the United States I'm not sure whether this is true in England where somebody is sentenced to a imprisonment say in federal prison often a date is set for them to turn up at the prison gates to begin their sentence occasionally people go AWOL and have to be tracked down and seized and dragged kicking and screaming to prison but the vast majority of convicted defendants simply turn up at the appropriate date and present themselves at the prison gates the law strains as far as possible to look for ways of enabling voluntary application of its general norms and voluntary application of its specific decrees all of this makes ruling by law forcing law quite different from say herding cows with a cattle prod or directing a fluff of sheep with a dog it's quite different too from eliciting a reflex recoil with a scream of command this pervasive emphasis on self application is in my view definitive of law differentiating it sharply from systems of government that work primarily by either manipulation or terrorism or galvanising behaviour in various ways and as fuller recognisers all of this represents a decisive commitment by law to the dignity of human individual and unposes a discipline in the way that law works because you can't work through self application unless the norms are properly communicated in a form that can be self applied there's something of this recognition too in my former mentor Joseph Ryers's famous article from 1977 on the rule of law where he connects the rule of law to law's action guiding character which is essentially the same notion and relates that in turn to the idea of dignity he says observance of the rule of law is necessary if the law is to respect human dignity respecting human dignity entails treating humans as persons capable of planning their future now I should add that Ryers now repudiates in the interest in dignity when I cited this in a paper that was circulated to you and recently he sent me an email and said hi Jeremy good to hear from you on page one of your circulated paper you imply that I said something about dignity without criticising the notion if I did I have to repent but I still hope that I did not and when I reminded him that indeed he had in fact he had said an awful lot about dignity without criticising the notion he replied terrible I repent so we can put Ryers in the category of those who think that talk of Ryers now rhetorical bombast but just as we refer to Hart's choice theory of rights even though he repudiated that in the 1980s so we can refer to Rass's theory about the connection between the rule of law and dignity even though he's now grumpy and impatient with the concept I'm going to omit what I have under 5a but I do want to mention the point under 5b it is tempting to say that law can guide conduct only if it is determinate that is only if it takes the form of rigid rules like speed limits or limits on tax deductions or things like that but it's remarkable of course that law doesn't always or even often present itself in terms of rules but it often presents itself in terms of standards using terms like reasonable you must take reasonable care in tort law or you must drive at a reasonable speed or pay reasonable attention to road conditions when you are driving and we communicate those standards to people their standards rather than rules because they use open ended evaluative terms that require not just perception but judgment on behalf of the person and it's tempting and a lot of my colleagues in the business foster this temptation to say that these norms phrased in that way are hopeless until some judge pins down the meaning of reasonableness for us in particular circumstances I don't believe that I believe what the law does is communicate these standards to us mindful of the fact that we have the ability to engage in complex evaluative thinking and we can put that ability to work in the self application of the law again there may be a problem if there are cultural reasons why for example my estimate of reasonable speed will be different from a police officer's estimate of reasonable speed cases like this have arisen in the American West but for the most part people seem to be able to cope with these standards and to administer them judiciously and again I think this is another aspect of human dignity the law credits us with the intelligence and the thoughtfulness to be able to apply these standards it doesn't just insist that the only forms of self application that we can participate in are the self application of mechanically phrased rules an important additional way in which law respects the indignity of those who are governed is in the provision that it makes for trials or hearings where an official determination is necessary and I want to talk a little bit now about procedure a legal system is not just a set of general norms officially recognised and applied to individual cases we call a mode of government law an account not only of the existence of rules but an account of the distinctive way in which official applications are conducted law is applied by courts not just by bureaucrats by which by courts I mean institutions certainly devoted to settling disputes about the applications of norms but I also mean institutions that do that through the medium of hearings formal events tightly structured procedurally in order to enable an impartial tribunal to determine the rights and responsibilities of particular people fairly and effectively after hearing evidence and argument from both sides it's a hearing it's not just a determination in which case the tribunal listens the tribunal doesn't just speak and that listening aspect is a huge tribute to the dignity of the people that law is dealing with it is remarkable this is another bit of jurisprudential gossip it is remarkable how little there is about courts in the conceptual accounts of law presented in modern positivist jurisprudence in his book famous book The Concept of Law HLA Hart tells us that a legal system is a union of primary and secondary rules primary rules of conduct secondary rules of change secondary rules of recognition and secondary rules of application and that's about as close as he gets to the idea of courts he says secondary rules of verification empower certain individuals to make authoritative determinations of the question of whether on a particular occasion a primary rule has been broken but his account defines the relevant institution simply in terms of their output function they take a dispute and they resolve it in the way that a king might resolve a dispute among two peasants the making of authoritative determinations of whether a primary rule has been broken there's nothing on the distinctive processes by which this function is performed for all that Hart says a star chamber proceeding ex party without any sort of hearing would satisfy the definition so with the tribunals that we call in the antipodes kangaroo courts so for that matter would a minister of police rubber stamping a secret decision to have somebody executed for violating a secret command all of these would satisfy Hart's definition of adjudication outside the hallowed halls of academic positivism I suspect most ordinary people and I suspect most people in this room would regard hearings and due process as essential rather than contingent elements of the institutional arrangements we call legal systems it's one of the most distinctive things not just that legal systems involve the presence and communication of general rules but legal systems involve hearings and processes rigidly controlled proceedings by which determinations are made maybe we don't want to be too essentialist about details in general jurisprudence which is a study of law as such our concept of a court and a hearing is necessarily rather abstract and there are many differences between proceedings that are used and I don't know British in the English legal system proceedings that are used in the French legal system and the proceedings that are used in the Chinese legal system and so on still the concept of a court is essential and it's not just the concept of a law enforcement agency it would be quite wrong even in general jurisprudence even in the most general jurisprudence to abstract away from the elements of process presentation formality, impartiality evidence and argument the basic idea as I said is procedural the operation of a court involves a way of proceeding which offers to those who are immediately concerned an opportunity to make submissions and present evidence in an orderly form the mode of presentation may vary the order of presentation may vary but the existence of such an opportunity does not and once presented the evidence is then made available to be examined and scrutinised and confronted by the other party and of course of all of this both sides are not only treated respectfully but above all are listened to by the tribunal which is bound in some manner to attend to the evidence presented and to respond to the submissions that are made in the reasons that it eventually gives for its decision these are abstract characteristics but they're not arbitrary abstractions they capture a very deep and important sense associated I believe foundationally with the idea of a legal system that law is a mode of governing people that acknowledges those people have a view of their own to present they people have a perspective of their own which they want to publicly put forward concerning their conduct and concerning the application of some norm to their conduct and situation in other words law proceeds on the basis that applying a norm to an individual is not like deciding what to do about a rabid animal or like deciding what to do about a dilapidated and deserted house which elicits an official determination but we don't as it were listen to the house's point of view or the rabid dog's point of view but when we deal with people we insist on recognising the dignity of a being that has a perspective of its own to present as such that embodies what I think of as a crucial dignitarian idea and it's back there in the definition of rejecting the dignity of those to whom norms are applied as beings capable of explaining themselves as beings capable of explaining themselves and whose explanations are not for purely private consumption indeed and this is another point along the same lines it's not just a matter of Audi, Outer Room, Parton I think it's part of our concept of law that legal positions are sustained or defeated as a matter of argument and by that I don't just mean an abstract series of propositions, I mean the activity of argumentation argument by council for each side and responsive argument rather than just parameterary decision at the level of the tribunal making its determination this I believe contributes yet another strand to law's respect to human dignity law presents itself to its subjects as something you can make sense of not just one damned thing after another it's the first command the second command is the millionth command and the millionth and first command but that you can make sense not just of each command as you might do with some doctrine of legislative purpose but you can make sense of the big picture and that people are capable along with their legal representatives of conceiving an account of how their relation to the particular norm that is at issue in the case can be presented if you screw your eyes up in a certain way and argue for 10 or 30 or 50 minutes can be presented in light of a particular conception maybe an idiosyncratic conception but again one for public consumption about how their the sense that they make of the law fits with the sense that they make of their position in this way too then law pays attention and pays respect to the people who live under it conceiving them as they bearers of reason and intelligence conceiving of them as the bearers of reason and intelligence the individuals whose lives law governs are treated by it as thinkers who can grasp and grapple with the rationale of their governance and related in complex but intelligible ways to their own view of a relation between their actions and the actions and purposes of the state so those are a couple of procedural ways in which it seems to me that that's essence law respects people as dignified beings capable of presenting and explaining themselves let's try a different tack in an article published in 2007 and in my 2009 Tanner lectures at Berkeley I argued that we should pay attention to the ancient connection between dignity and rank to indignity and rank in Roman usage dignitas embodied the idea of the honour, the privileges, the powers and the deference due to rank or office so somebody might have the dignity of pontifex maxims or the dignity of a general and the dignity might be a combination of the office and of their particular fflair in exercising it and in English this too was the original meaning of the word dignity as in the 1399 Statute that took the crown away from Richard II and said ye renounced and ceased of the state of king and of the lordship and of all the dignity and worship that belonged there too you are renouncing all the dignity of the crown some have suggested that this old connection between dignity and rank dignity and hierarchy was superseded by the Jewish Christian notion of the dignity of humanity of such human dignity I'm not convinced by that story as I argued in that article I think what happened was a generalisation of high rank I think we generalised high rank we decided to make every man a duke every woman a countess we didn't just replace the ranking idea with a egalitarian idea we leveled up rather than abandoning a hierarchical notion and replacing the egalitarian one the idea is that the modern notion of human dignity doesn't cut loose from the idea of rank instead it involves an upward equalisation so that we now accord to every human being something of the dignity rank and expectation that was formally accorded say to nobility or to professors or to judges or patriots or whatever I got this idea from Gregory Blast also as a distinguished classic scholar at Berkeley when I was there 1990s and James Whitman of the Yale Law School has also pursued this in his work in the idea of an extension of formally high status treatment to all sectors of the population you see you can imagine you don't have to imagine you can just do the history a system of government that involved radical discrimination at law among different sorts of rank high ranking persons will be regarded as capable of participating fully in something like legal system they would be trusted with a voluntary self-application of norms their word and testimony would be taken seriously they would be entitled to the benefit of elaborate processes and so on if they were coerced they would be dealt with under the auspices of quite respectful modes of coercion quite different from much less brutal than those applying to other the members of other strata in society at the other extreme there might be a caste or a class of persons who were dealt with purely coercibly by the authorities there would be no question of listening to or trusting anything they said they would be a pair in shackles if they appeared of the hearing at all their evidence, if they gave evidence would be taken under torture and they would not be entitled to make decisions or arguments relating to their own defence nor to have their statements heard or taken seriously they would not have the privilege of bringing suit in the courts or if they did it would have to be under somebody else's protection they would not be as we say the jurists ancient slave societies were like that modern slave societies are a little bit like that and many other societies in the past with which we are uncomfortably familiar evolved similar discriminating forms that distinguished between if you like the legal dignity of a noble the legal dignity of a common man the legal dignity of a woman and the legal dignity of a slave, a serf or a villain and the essential part of our modern notion of law that all such gross status differences have been abandoned not that the idea of status goes out the window we keep the idea of status for conditions that people might be in from time to time like bankruptcy or infancy of being a part of the military or something like that but gross status differences between different types of human beings we no longer work with in 1606 in London a carriage carrying Isabel the Countess of Rutland was attacked by sergeants at Mace pursuant to a writ alleging a debt of a thousand dollars the English reports tell us that the said sergeants and cheap side with many others came to the Countess and her coach showed her their Mace and touching her body with it said to her we arrest you madam at the suit of the creditor and there upon they compelled the coachman to carry the said Countess to the comter in Wood Street where she remained seven or eight days imprisoned until she paid the debt the Countess as you would imagine was terribly affronted by these proceedings and she sued successfully and the court held that the arrest of a Countess by sergeants at Mace is against all law and a severe sentence was given against the sergeants and others their confederates the court quoted an ancient maxim to the effect that law will have a difference between a lord or lady a lord or lady and a common person and it held that the person of someone who is a peer is not to be arrested in such cases for two reasons one because of her dignity and secondly because it's presumed that being a peer she has the ability to pay her debts anyway and that was 1606 and now we apply at least the first point to all debtors no debtors are seized in this way no debtors are imprisoned in this way no one's body is allowed to be seized by their creditors and we do that on account of an equalisation up of the dignity in this place and in a great number of other respects we have evolved a more or less universal status a more or less universal legal dignity that entitles everyone to something like the treatment at law that was previously confined to high status individuals now the sense in which we all have equal access to law is obviously a little bit fictitious that law continues to discriminate in various ways between the rich and the poor one thing to bear in mind when we talk about dignity in these matters is to remember that legal dignity at least whatever you think about moral dignity legal dignity is a construction it's a ramshackle human it's a construction like a building site it's incomplete it's a work in progress bits of it occasionally fall down and have to be built up again but it's a construction that we have made for ourselves perhaps in order to respond to what we think of as the inherent dignity of human beings but legal dignity at any rate in all these respects is something that we have tried to build and it is something that we have built in the first instance as a set of ideals not just moral ideals but ideals for our legal system that we respond to and I do want you to bear this in mind when I come to talk about my final topic which is something about dignified coercion law is an exercise of power and that power operates in the last resort coercively upon people and a number of thinkers including my hero long fella have sometimes said that we have to distinguish between law in its dignitarian capacity and law in its coercive capacity I think that's wrong I think that's wrong I think there are modes of coercion and modes of coercion and some of them are dignified and some of them are not dignified so I've listed there on the song treat four ways in which law operates coercively it presents its norms as categorical and non-negotiable demands, it's committed to doing whatever it takes to see what is obeyed, it imposes punishments and it exercises the power to get people to do things against their will and to tightly control people's behaviour I don't have time to go through all of these in detail but the way it works about self application it seems to me a tremendously important as far as possible when law coerces us it seeks to do so by communicating what it wants of us and asking us to do that ourselves people in the room will disagree as to whether for example the death penalty is an affront to human dignity many people in Europe believe it is many people in the United States believe it is not but the way it is administered is that as far as possible even though the death sentence will be carried out whatever the convict wishes as far as possible the convict will be treated as a human agent up until the last moment when he is extinct not exactly that we expect him to voluntarily administer the hemlock in the way that Socrates Socrates did but we expect people to walk to their execution we expect them to participate in the procedures of the last days of their execution and if that's true of the most extreme penalties that law can impose it's certainly true as I said of many of the others we strain and try to go as far as we can by indicating the demands that no doubt we have to use force to get them if we can if we have to but if possible we attempt to get voluntary maybe it's a wrong word but agents involved in the picture and there are some forms of force that we esdew or at least I always thought what happened in 2003 that we esdew there are some things if they can only be done by torture we don't do them because law has decided that whatever modes of coercion it uses it will not smash people's agency and break their agency and regress them to the status of infants now what happened in the United States between 2002 and 2008 shook a lot of people's faith in that I believe it undermined the legality of our legal system and argued extensively extensively on that but I think it's tremendously important to understand the ways in which law operates as far as possible non-brutally even when it operates coercion and you find the same thing in doctrines of punishment that punishments must not be inhuman what does that mean means partly that they must not be cruel but they must be punishments of the sort that humans are capable of bearing if their heads held high if necessary and these notions which are tremendously difficult to state of ways in which law seeks to treat us as responsible dignified agencies even when we are most at the mercy of its power and authority are I think hugely important in thinking about the law's commitment to dignity I don't deny and this is the last thing I would say I don't deny that this discipline of dignity in various aspects of the law is incomplete I don't deny that often we sell it short it's a normative discipline it is costly and demanding I think it is momentous that we are committed to it nevertheless but the commitment sometimes wavers and as with all commitments people sometimes don't do what they are committed to do and you might worry that the account I have been given has painted law a very nice light and a very flattering light so consider the United States it is burdened by a history of slavery and racism and that has affected the way in which it coerces and the way in which it rules people the 13th amendment for example didn't abolish slavery unconditionally abolish slavery except in prisons and critics have often observed that in regard to the dignitarian aspect of its treatment of prisoners America remains an outlier compared to say west european systems which have attempted to generalise formally high status notions of imprisonment or high status notions of incarceration and in regard to some of the other aspects of the argument I have been making we know from miserable reports from taxes and other states that American defendants are sometimes kept silent and passive in courtrooms by the use of belt technology which enables a judge to subject them to electric shocks if they misbehave by pressing a button on the bench I don't think you'd like that sort of appeal and reports of prisoners being herded with cattle plots occasionally emerge from time to time conditions in our prisons and in the United States I believe something similar is true in Britain are de facto terrorising well known to be terrorising and officials feel free to make use of those terroristic conditions imposing plea bargains to prisoners in a way that is thoroughly abusive and as I said in recent years we've seen the United States tempted away from dignitarian ideals in drastic regards in the attempt to establish forms of legally unreviewable detention and in its use of torture and other inhuman and degrading forms of treatment against terrorist detainees what do we say about all of that which is true because other examples could be multiplied from many other countries including this one here's what I say a legal system is a normative order both explicitly and implicitly the laws don't tell us what happens the laws tell us what is to happen the laws tell us what ought to happen explicitly the law commits itself to certain norms the rules and standards that it says publicly that it will uphold and enforce most of those it actually does uphold and enforce but occasionally for others in certain regards it fails to do so the law says the state should pay compensation to Smith but Smith does not receive it in those cases we can be very clear the law has fallen shorter of its own publicly enunciated standards and we hope that doesn't happen too often it's more difficult when the standards are implicit rather than explicit in the way that I have been talking about where they embodied implicitly in the practices, institutions and traditions of a system of governance and that's what I've been arguing about dignity that the idea of dignity is implicit in due process implicit in the mode of coercion implicit in equality before the law and so on but I believe nevertheless that some of the logic obtains the commitment to dignity that I think is even implicitly in our legal practices and institutions is present there and it is supposed to be controlling even though we sometimes fall short of it our practices convey a sort of promise but they do it implicitly and just as in moral life you don't always say I have a promise to do this but you give a commitment to your spouse that you'll do this in various implicit ways so the law gives us commitments in various implicit ways and just as it would be a very naive mistake to think that the only promises that ever existed were promises that were carried out so similarly would be a mistake to say that the only implicit commitments that the law has ever given us are the implicit commitments that the law has actually kept faith with dignity in the sense that I've been talking about is an implicit aspect of a legal system and as I said it's a ramshackle work in progress and it's often there is often a fall in short of course the interesting thing about law's commitment to dignity and our circle back to where I began is that the promise is actually embedded institutionally in both the ways that I've been talking about because there is this stuff in section one of this lecture in section two of this lecture about the reference to dignity and the explicit texts of certain documents that we have referred us of there to it is there internally or inherently a tissue of our practises and institutions but it's also present in rules, standards and preambles that we have explicitly committed ourselves to like the Geneva conventions or like the preamble to the international talent the two sorts of commitments reinforce each other and this is not unusual in regard to legal ideas article one nine of the US constitution prohibits ex post facto laws but many people would say quite reasonably that this is also a definitive feature of law as such so what we have here is an abundance of riches and just as it would be wrong to infer from the fact that article one nine might have been different in the US constitution that therefore law is only contingency contingently committed to prospectivity so it would be quite wrong to infer from the fact that the European convention might have been different but therefore law is only contingently committed to the protection of dignity it's an inherent in my view an essential commitment and it is worth working with that when we understand how legal systems operate thank you very much indeed we've had a really good lecture really interesting lecture and there may be a few points that people in the audience might want to make or questions to ask we've got about five minutes for comments or questions if anybody would like to make those Professor Cramer Professor Cramer I quite to ask quite a few questions of article no legal cause of this would deny that the features of attitude is distinctive of war in the world of government is to deny that that feature is a necessary condition for the treatment of people with dignity but what a legal cause of this might mean would deny is that that feature is anything like a sufficient condition and that that feature can in fact be used for the outright denial of dignity so let me offer an example without attempting to gloss over all the disinality the bank robber relies on the capacities of the bank clerk as a reflective agent to follow his instructions if the bank clerk doesn't open the safe the robber can't get what he wants so he relies indispensably on the agency of that person and that person's capacity to follow the bank robber's best likewise with the kidnapper there may be complicated instructions to be followed and if the if the address C of those instructions doesn't comply with them the kidnapper can't get what he wants Matt you're absolutely right so this is a distinctive feature of law by no means a feature of law that distinguishes it from other normative interactions families work through self-application ordinary economic transactions work through self-application and so does the bank robber example so law has that in common systems of law but the fact that it has it in common has it in common for a reason which is the respect for human dignity not just the respect for efficacy and we may want to debate that but also remember what bank robbers sometimes do so at a famous bullion robbery Heathrow and the guards would not self-apply the bank robbers norm they covered him with petrol and held a cigarette lighter very close to him and although it's tempting to say now consider the utility of being burned to death what's going to happen is in fact somebody's going to say I'm going to be burned to death and you go into a shivering situation of terror in which agency is largely short circled and what law and legal systems do on my account is that they pledge never to coerce like that they coerce forcefully but not terroristically or at least they do that at their best sorry to say thank you for my questions about the similar action because I was going to think about Foucault and his claim about self policing citizens I suppose Foucault would say it's a mistake to think that an overtly coercive forms of law are more repressive than the forms of law they get to indicate themselves but actually are more repressive more repressive so I mean and again it would be interesting to talk in detail about that one thing it might show us is that the insistence on dignified coercion is not the same as the insistence on less repressive coercion so there might be several dimensions in play here and it may well be that nothing is more repressive than say the inculcation of norms the internalisation of norms but nevertheless for all its repressiveness it is a way of respecting human agency and human presence and the ability to monitor and modulate your own behaviour compared to other modes of coercion which may be less Foucaultian in their character more brutal in their character but bypass or short circuit it may even mean that dignity needs to be unpacked with a certain sort of Foucaultian genealogy as well but that would be the first one How does your account of legal dignity involving agency, choice, self presentation apply to those who are unable to perform those functions due to infancy or through disability? Indeed and disability can range from simply not having forensic skills of an advocate to radical disability so again this is something that we have constructed, something that we build and one of the devices or practices that we build is the device of representation and when people make claims about the importance of representation this is part that I necessarily admit it because of time but one of the ideas is we want to work with two propositions the first is as a matter of dignity everybody's point of view has to be heard and listened to everybody's arguments have to be paid attention to as a second point since people are radically unequal in their ability to present arguments precisely the reasons that you mentioned we have developed notions of representation and of course representation varies from person to person but when we insist for example that even the lowliest and most impoverished criminal was entitled to a public defender and when we insist that infants in some contestation need guardians at litum and so on we are insisting on developing modes of conveying indirectly the dignified presence of those people in the proceedings so I think representation is one of the constructive aspects which we are building on this vast building site of law's commitment to dignity, very important one last question Professor Walden wondering whether you might have given the same to allow me to say so a fully excellent lecture but with the term autonomy substituted for dignity throughout and a number of people sceptical about the language of dignity have asked again what work does this do that the notion of autonomy doesn't do normally in the older notion of autonomy the notion of being a law to oneself being able to as a word behave in a law like manner not just behave with a degree of negative freedom that older notion of autonomy might be relatively easy to substitute in I'm not sure that it would convey exactly the same idea of presence presence that must be taken seriously or convey exactly the same idea of paying attention to a person's view of a matter or paying attention to an argument so I acknowledge immediately it's a perfectly good point that the two ideas are very close together but the idea of dignity is a status that must be paid attention to not just made room for I think it is an important one we'll have to finish there I'm sure there were plenty of questions that people will want to ask we've had the privilege of a very clear a very committed presentation of an idea of dignity that can work in law and that can set an ideal for law and it's an idea deal which treats individuals in society as some people who are capable of doing things on their own and being supported by law and sometimes confronted by law what we've had is something which we can take forward into a range of different activities of our own or research and work of our own whether as judges as students as academics and in different disciplines for that we're very grateful and it is a very fitting tribute that Sir David Williams committed his life to in ensuring both high standards of scholarship and great commitment to civil liberties can we thank Jeremy Waldron