[00:00:00] ELLEN GOBLER:
Good afternoon. My name is Ellen Gobler. I manage the Graduate Council on Tanner Lectures. Thank you all for joining us today. It is my pleasure to invite Jay Wallace to the podium. Or he can speak from there. Your choice.
[00:00:16] JAY WALLACE:
I’m just, I’m just going to speak from here. Uh, welcome to the, um, the, the third of this week’s, um, Tanner events. Um, just to, just to, uh, give you a taste of what’s to come, uh, well, the three commentators, um, will be producing or, or, or presenting, uh, further reflections on Jeremy Waldron’s, um, Tanner lecture, lectures for about twenty minutes each.
We’ll take a very brief break, uh, and then, uh, reconvene. Jeremy will, uh, respond, um, to, to comments, and then we’ll have, uh, plenty of time for, for, for discussion, discussion and questions. There will be, uh, a reception with some food, uh, following the discussion, so, uh, if you hang in there, um, until the, until the bitter end, there’ll be a culinary reward.
(laughter)
Um, we’re not going to redo the, uh, the introductions of the various, uh, speakers today, but our first, um, commentator will be Michael Rosen of Harvard University.
(applause)
[00:01:18] MICHAEL ROSEN:
Well, thank you very much. And I, I know you don’t want me to waste your time with, um, ceremony, um, uh, but it would be grossly ungracious of me if I didn’t take at least a minute to say what a wonderful three days this has been for me. I’ve learnt an immense amount from everyone here, Jeremy especially, um, but you in the audience, my fellow commentators.
Um, it’s like, uh, coming to the end of a very good party. Uh, one realizes that perhaps one’s had, uh, about enough. But then somehow one doesn’t want to, want, want, want it, want it to end.
And if I didn’t have such wonderful colleagues and students to return to, I should be regretting the end, uh, even more. So my very heartfelt thanks to, uh, particularly the Tanner host, the Tanner committee, particularly Jeremy, and my fellow speakers, but to all of you. And Tanner Lectures as, as you know, are wonderful things.
I’ve been privileged to, um, attend, uh, some Tanner Lectures myself as a member of the audience for several ones. And, uh, one of the most memorable was, uh, Christine Korsgaard’s, um, Tanner Lectures in Cambridge. I mean, Cambridge on the Cam, proper Cambridge.
And, um, that occasion which has become now the celebrated, uh, book, Sources of Normativity. Uh, when it got to the, to the, to the seminar stage and her interlocutors, um, uh, game– came to give their pieces, I remember that, uh, Thomas Nagel and Jerry Cohen, um, started by telling a Jewish joke. And since I don’t have a film clip for you today, I thought that I would try and find a Jewish joke.
But there aren’t that many Jewish jokes about aristocracy for fairly obvious reasons. Uh, and, and then I realized that, and in fact, the Jewish joke I sh- could perhaps tell you, uh, was the one that Jerry told us on that occasion. And it concerns a shammos in a synagogue.
Now, a shammos is, I don’t know, would it be a verger or a sexton? But at any rate, it’s the person who basically, um, cleans the building and makes sure that the lights are turned out after the services and does all that kind of stuff. And it’s in a rather, um, opulent, uh, synagogue in, uh, the old days in Łódź.
And, uh, the rabbi comes into the synagogue, and he sees the shammash before the Ark of the Covenant, where the Torah is kept, where the scrolls of the law are kept, and he’s praying, and he’s, um, throwing himself on the floor, um, and he’s shouting, “Oh, Lord, Oh, Lord, you are everything. I’m nothing. I am nothing.
And the rabbi turns away and says, “Huh, look who’s saying he’s nothing.”
(laughter)
And, uh, that c-came to my mind because of the, uh, very interesting and important comments by Wai Chee and by Jeremy, uh, yesterday. It seems to me one of the things we need to remind ourselves about, uh, the tradition of dignity is the way in which, in the Western tradition, there’s also been part of it, a complicating factor, a tradition of the inversion of dignity, that lowest dignity has the highest dignity. He’s, uh, set down the mighty from their seat and exalted the humble and meek.
I think that’s the Magnificat, isn’t it? And we can ask ourselves, well, is this a way of saying that there is a ranking, uh, but it’s not the ranking that’s visible? Or is this a way of saying that rank itself is to be inverted?
And I think those, um, complexities and ambiguities are ones which Wai Chee was trying to remind us of, and which Jeremy in his remarks about, uh, King Lear also reminded us of. And if you want an excuse for my joke, because I think it’s a reasonably good joke in its own right, it’s that we need to bear that in mind. Well, in his lectures, Jeremy gave us an account of dignity by which dignity was a term used to indicate a high-ranking legal, political, and social status.
And he said that the idea of human dignity was the idea of the assignment of this high-ranking status to everyone. And in my comments on his first lecture, I suggested that Jeremy’s picture was somewhat oversimplified, and it ignored, I thought, a particularly important strand of thought which came from particularly Aquinas and hi– or was expressed particularly clearly by Aquinas when he said that dignifa– dignity signifies something’s goodness on account of itself, propter se ipsum. To the extent that this conception sees dignity as a status concept, I think that that’s only, that everything ha- that has intrinsic value does so in virtue of occupying its place, its proper place, in a divine order.
And dignity in that sense can be found in all parts of God’s creation. In human beings, certainly, but also in abstract objects such as learning or indeed legislation, and human relations such as marriage or obedience. And from this perspective, the question of human dignity, I think, is an open question.
It isn’t the assignment of high rank to everyone, it seems to me. It may be, but not necessarily. It’s a question inviting an account of the proper place of human beings in the world and what their essential valuable characteristics are.
The answer that all share in a high rank just in virtue of being human is one, um, such account, one that Jeremy and I both admire and endorse, but it’s only one. And I emphasize that point to indicate in my view how remarkable an achievement it was to bring together the theological conception of dignity with the liberal conception of equal human rights in the founding doctrines of modern dignity-based law and politics, the Universal Declaration and the German Grundgesetz. And in my remarks today, I want to continue this theme and to argue that the tensions in the notion of dignity are deep and fundamental, both conceptually and sociopolitically.
The picture that Jeremy gives of an emerging consensus about dignity is, to my way of thinking, somewhat too optimistic because its scope is at best narrow. However, I also want to try to use these conceptual and historical reflections positively to propose a constructive suggestion about the proper use of the notion of dignity, which, although it differs markedly from Jeremy’s, well, differs, I think, markedly from Jeremy’s as in the lectures that I read. Perhaps, though, we’ll see this in discussion less markedly from some of the things that he said in discussion, but this, I hope, will emerge later.
In any case, the intention is to be at least complementary to his suggestion and in its spirit. So why is the placement of human dignity at the outset of both the Universal Declaration and the Grundgesetz so important? For Jeremy, the mere presence of the phrase human dignity entails the acceptance that all human beings share a high-ranking legal, political, and moral status.
If I’m right, though, the acceptance of a common human dignity leaves it open whether they share legal, political, and social equality. The Catholic tradition, at least until recently, saw no incompatibility between human dignity and a strongly hierarchical view of human society. So if you look at the constitutions where dignity was mentioned, many of them, uh, were in Catholic countries before the war, um, many of them markedly unfriendly to equal rights and democracy.
What’s remarkable, then, about the Universal Declaration of the Grundgesetz is the close connection between human dignity and equal human rights, and that invites a question. Does that mean that the idea of dignity falls away like the clear plastic wrapping on the Easter egg, and that it is to the rights themselves that we should look for substance? Well, not necessarily.
For it might be that the idea of dignity could be connected to our conception of human rights, whether by giving them a foundation or by fixing their content, or perhaps best of all, fixing their content by giving them a foundation. And Jeremy, of course, has given us a distinctive picture of how this might work. Dignity, he argues, is a legal conception that requires no extra-legal, that is, moral or metaphysical foundation, but that can itself play a foundational, or as he says, foundation-ish role for human rights.
Well, I’ll return to Jeremy’s account in a minute, but for the moment, I want to draw attention to two quite different moral conceptions, both of which I claim are at work in modern dignity and rights discourse. And not only do they offer different foundations for the concept of dignity, which, when you think about it, may be no very bad thing if the effect were to provide alternative sources of support for an overlapping consensus, but they also give different answers to the question of who or what has dignity and what content in the form of rights the possession of dignity entails. And the first conception can be found expressed with characteristic economy and precision by Jim Griffin.
I quote, “Autonomy is a major part of rational agency, and rational agency constitutes what moral philosophers have often called, with unnecessary obscurity, the dignity of the person.” And a similar view, if more polemically and rather less subtly expressed, has been advanced by Ruth Macklin. Digli-dignity, she claims, means no more than respect for persons or their autonomy.
Who are rational agents? What does it mean to say that they’re autonomous, and how is that autonomy to be respected? Of course, answers to those questions are various and complicated, but for my purpose, it’s not necessary to pursue them here in any detail.
What’s important is the connection that’s made between dignity and rational agency on the one hand, and via this concept of autonomy, most usually to that of choice on the other. On this view, it’s rational agents who are the central, if not the only, beneficiaries of dignity, and it’s their power of choice that requires respect. Does this conception of dignity play a central role in modern dignity discourse?
Yes, indeed, you bet. I can’t, of course, go through a lot of examples, so I’ll take one very celebrated one. Consider the famous philosopher’s brief on assisted f- suicide.
The six philosophers who presented that brief, Ronald Dworkin, Thomas Nagel, Robert Nozick, John Rawls, Tim Scanlon, and Judith Jarvis Thomson, Tanner lecturers all, I believe, argued that the patient plaintiffs in the case before the Supreme Court had what they termed a constitutionally protected liberty interest in hastening their own deaths, if they wished. Such a constitutionally protected liberty interest could be inferred, they argued, from the court’s very own jurisprudence. And they quoted the Supreme Court’s decision in Planned Parenthood v. Casey, in which the Supreme Court referred to, I quote, “The right of people to make their own decisions about matters involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy.”
Dignity then requires individuals to be allowed the power of choice over matters that they consider to be of the highest importance to themselves. Well, not surprisingly, if you were here a couple of days ago, the voluntarism associated with the autonomy conception of human dignity is forcefully rejected by the Catholic Church, not to mention many other religious groups. For example, by Po-Pope John Paul II in his encyclicals Veritatis Splendor of 1993 and Evangelium Vitae of 1995.
In Veritatis Splendor, the Pope recognizes that the heightened sense of the dignity of the human person certainly represents one of the positive achievements of modern culture. On the other hand, he says, “it’s characteristic of atheism,” and I quote, “doctrines which have lost the sense of the transcendent, that they should exalt freedom to such an extent that become– that it becomes an absolute which would then be the source of values.” And in Evangelium Vitae, John Paul II identifies a remarkable contradiction between the various declarations of human rights that acknowledge the value and dignity of every individual as a human being, and what he sees as the repudiation of those rights in practice.
And that comes, he says, from a voluntarist conception of human dignity. Quote, “The mentality which carries the concept of subjectivity to such an extreme and even distorts it, and recognizes as a subject of rights only the person who enjoys full or at least incipient autonomy.” And there you might think we have a very stark problem.
Certainly, the liberal humanistic, if I could call it, and the theistic conceptions of human dignity, at least in the latter’s modern Catholic form, have come to agree on a very great deal in accepting certain central social and political rights for hu– adult human beings, the rights associated with democratic self-government, and basic social equality. But when it comes down to questions of me- medical and biological ethics, issues such as abortion, suicide, sexual morality, medical experimentation, and genetic engineering, there is, it seems, simply no common ground. On the one side, valuable beings are seen as rational agents, and what’s to be protected is fundamentally their power of choice.
On the other, we have the denial that human choice can ever override the intrinsic and inviolable value that attaches to all human life. And here is where Jeremy, brave man, enters the fray. His idea is that we should not look for a foundational concept to act as a basis for human dignity, but that it should be understood as a high-ranking legal, political, and social status that is assigned to everyone.
Will this bold proposal bring peace to the battlefield of moral metaphysics? I fear not.
(laughter)
First of all, and most obviously, Who is everyone? Does it include zygotes, embryos, fetuses, the severely mentally handicapped, and those in persistent vegetative states? Well, if there was an answer to that question in Jeremy’s lectures, I have to say, I didn’t see it.
Moreover, what substantive consequences follow from extending the idea of high status to all human beings? Many of the forms of social interaction characteristic of high status when the latter was part of a hierarchical society were forms of deference and submission. And Jeremy has given us several vivid, and to me persuasive, examples, uh, of ways in which the law may be used to defend the high rank or dignity of the ordinary person by protecting her, particularly from degradation, insult, and contempt.
Uh, Jeremy mentions in passing, but as a separate category, the use of dignity in order to protect against invidious discrimination. Now, to my understanding, in those jurisdictions within which dignity has been invoked to distinguish benign from invidious discrimination, it’s the contempt and insult implicit in discrimination that’s held to constitute the dignitary harm. So I can’t see this as a di– as a separate case.
If it is, I would very much like to hear about it, so I can– can’t forbear from mentioning it because it’s something that interests me a lot. But in any case, what all these examples, degradation, insult, and contempt have in common, however, is something slightly different from what I thought that Jeremy had in mind, Because they all center significantly, it seems to me, on the notion of respect. And to make my point, I’m going to start with a tiny little piece of analysis of the notion of respect, because I think there’s an important distinction to be made here.
We’re agreed that human dignity is to be respected, But what’s that amount to? Well, if I respect the speed limit, I do so by driving below a certain speed. If I respect your right to free speech, I do so by not placing any impediment on your speaking.
And in general, I respect the law by keeping to it, and I respect rights by not infringing them. So let me call this idea, this conception of respect, respect as observance. Is that what’s involved in respecting human dignity?
Well, if that’s so, then we need to know the content of human dignity. You tell me you respect human dignity, um, I say, “Well, fine. Um, I’ll respect human dignity if you tell me what the content is that I have to respect.”
You tell me to respect the law, fine, I’ll respect the law, just tell me what the law is. Does it then entail something distinct from the inviolable and inalienable human rights that the Grundgesetze say follow from human dignity? Or is it simply a way of saying that human beings are entitled to this package of basic human rights, whatever they turn out to be?
And in that case, it seems as though we might be going back to what I called the wrapping on the Easter egg idea of dignity, something that simply points to or perhaps founds but doesn’t give the content of, um, rights. Nevertheless, Jeremy, and I wasn’t sure how deliberately, and he will obviously be able to tell us in a few minutes, is invoking a different kind of respect. Because in protecting the individual from degradation, insult, and contempt, we’re requiring that people act towards her in ways that are themselves substantively respectful.
We have to take up an attitude or express an attitude of respect in a way that we don’t when we respect the speed limit. To respect their dignity in this sense means to treat them with respect. And let me call this, it’s not very elegant, but it’s the best I could come up with late at night, Respect as respectfulness.
If I’m right about this, I think it’s a very important point indeed. On the one hand, respect as respectfulness gives content to the idea of human dignity and gives an answer to those who allege that there’s nothing more to the idea of dignity than rhetorical wrapping for a set of substantive rights claims whose origin and justification must be found elsewhere. On the other hand, it implies that dignitary harms are harms of a special kind.
What degradation, insult, and contempt have in common is that they’re expressive or perhaps symbolic harms, ones in which the elevated status of human beings fails to be acknowledged. Okay. And I agree with this understanding of dignitary harm very much and would amplify Jeremy’s examples with many ones of my own, if only I had the time.
Yeah. But note that this understanding of dignity as requiring respect as respectfulness has, I think, a very important consequence. Because if we take the view that dignitary harms are essentially symbolic or expressive in this way, then unless we believe that all violations of fundamental human rights are essentially failures to express proper respect for status, dignity can’t fulfill the role ex- assigned to it in those basic human rights documents to provide a foundation for the rights embodied in them.
Now, I took that when I wrote it to be taking issue with what was fundamentally going on in Jeremy’s lectures when he endorsed the idea that he wanted a wholesale conception of dignity, something that could give us this general foundation for human rights, as opposed to those, uh, who had urged him to, um, to, to, to step back and take up a more retail conception And I embrace the second option. It does seem evident to me that not all violations of fundamental human rights are symbolic harm.
When you torture me, you do indeed humiliate and degrade me, But the harm’s not just that. You cause me extreme pain and thereby deprive me of effective self-control. And to do that would be impermissible and would violate a human right, whether or not it was associated with expressions of contempt.
Now, a moral position does exist by which every wrong consists in acting in ways that fail to express proper respect. According to which, the wrong that I do you when I punch you on the nose doesn’t consist in the pain that I cause you, such as the so- so much as the lack of respect I thereby show for your personhood. But here, unfortunately, isn’t the place for a full discussion of Kantian ethics, fascinating and pertinent as it might be.
I take it that Kant’s view, as I’ve described it there, is one that has many problems of its own. Thus, there is, I think, a distinct class of dignitary harms of a symbolic or expressive character, and it’s here that the value of dignity may properly be connected with the wider aesthetic idea, as I would see it, of the dignified. Respecting someone’s dignity involves treating them with dignity.
Now, treating someone with dignity doesn’t always mean ensuring that they are behaving in a manner which is dignified. But there is, I haven’t time to go into it here, certainly some connection. And what treating people with dignity amounts to varies very naturally between cultures and contexts.
But there are some striking common themes. The one in which Jeremy has concentrated, and it’s certainly a very important one, is that when there are or were marked demarcations of social status between human beings, to treat someone with dignity is to treat them in a way that expressively attributes to them the highest status. But another characteristic da- demarcation which has been coming into our discussion and needs to be put into the foreground, I think, one which goes back to Cicero’s De Officiis, is that human dignity is expressed by behavior that marks the distinction between human beings and animals.
For example, in upright gait, uprightness as dignity. Through the wearing of clothes. In eating, subject to a code of table manners.
Defecating and copulating in private. And finally, by disposing of human remains according to prescribed rituals. The precise content of such rituals varies widely.
Should cor-corpses be buried, burned, or left to be eaten by vultures? But their existence, and it seems symbolic force, is strikingly general. To compel human beings to violate some symbolic codes is to subject them to gross indignity.
A word that came up a great deal yesterday was, but we didn’t reflect on its etymology, perhaps it was too obvious, brutality. But if I’m right in thinking that this is what’s distinctive about dignitary harm, then, shocking though it may be, remember the shameful pictures from Abu Ghraib, it leaves a possible doubt about its fundamental importance. Not that symbolic harms aren’t real harms, but in the end, you might think, the worst of what the Nazi state did to the Jews was not the degradation and humiliation of herding them into cattle trucks and forcing them to live in conditions of unimaginable squalor, terrible as that was.
It was that it murdered them. And if, like me, you feel the force of this, I offer, in conclusion, a thought about the possible connection between dignitary harm and human rights that’s extensively supported by Jonathan Glover in his quite marvelous book, Humanity: A Moral History of the Twentieth Century. And anyone who hasn’t read it, I deeply and desperately urge you to go out and buy it and read it, because it is fantastic.
One of the features… Oh, well, I, I should also interpose, um, that the value of dignity seems to me actually very closely connected with the value of humanity. To act in a way which is– To treat people with dignity is very often the same as to treat them in a way that is humane.
And i-if we had longer, it would be fun to talk about the value of humanity and humaneness and how it runs parallel to… Well, actually, I shall tell you a f-the most famous Kant story. Forgive me, Jay.
Um, but, uh, it’s one that connects the, the themes so well. Um, it’s the famous story about when Kant is on his deathbed. He’s on his deathbed.
He’s a very old, frail man, and his doctor, whom has been his doctor for many, many years, comes to see him. And Kant struggles to his feet. He comes upright, and the two old men embrace each other in tears, and Kant says, “Das Gefühl der Humanität hat mich noch nicht verlassen.”
“The feeling of humanity has not yet left me.” “He marks even on his deathbed his” own uprightness. And one of the features, as Glover shows, which have characterized many of the most violent and destructive acts of the twentieth century, has been the humiliation and symbolic degradation of the victims.
We can find examples, alas, all over, in the Nazi concentration camp, the Soviet Gulag, China, Cambodia, the Balkans. It seems to be a fact about human nature that we are able more easily to engage in the most violent behavior towards one another if at the same time, we can expressively deny the humanity of our victims. And if, if, if that’s so, then the preservation of our fellow human beings from dignitary harm is also fundamental to the protection of their humanity.
Thank you.
(applause)
[00:30:33] JAY WALLACE:
Our next speaker today is, uh, Don Herzog of the University of Michigan.
[00:30:38] DON HERZOG:
How much time I have? Um, I’d like briefly to thank the committee for including me in this, and Jeremy and my fellow commentators, um, for being interesting consistently and putting up with me. And finally, um, some old friends and I hope some new friends around Berkeley for being so gracious, um, with me.
Okay. So today I have two sneers for you, not two sneers at you. Um, the first is from Jeremy Bentham, no Kantian, um, who’s advising some Greek legislators in eighteen twenty-three.
Quote, “Never is the day laborer, never is the helpless pauper an object of contempt to me. I cannot say the same thing of the purse-proud aristocrat. I cannot say the same thing of the ancestry-proud aristocrat.
I cannot say the same of the official bloodsucker. I cannot say the same of the man covered with the tokens of factitious honor. Least of all can I say the same of a king.
Um, the second is recorded by the poet Thomas Moore six years later. Um, the victim of this, uh, sneer is Robert Peel, the great conservative who would become prime minister. Peel’s father had gotten fabulously rich in the textile business, so poor Peel, uh, being a nouveau riche kind of guy, had what Moore reports others felt were, quote, “Vulgar manners.”
There is, um, Moore: This, it seems, is a favorite subject of merriment with the king, who sometimes says, “Now I shall call Peel over to me. Watch him as he comes.
He can’t even walk like a gentleman.”” Moore again: “These people in their insolence attribute the want of gentlemanlike air in Peel to his birth, as if some of the highest among themselves had not the looks and minds of waiters.” So yeah, there’s a sneer in there at waiters, but that’s not the one I want quite yet. I want you to think instead about the king and his merry little band of aristocrats, his obnoxious gods, um, on Mount Olympus toying with, belittling, and sneering at the lowly mortal Peel beneath them, chuckling at his awkward gait, and banding together as superiors, um, who cement their own status by having underlings to stomp on.
Um, these sneers are glimpses of a long-running cultural war over contempt, and therefore over human dignity. Um, and they, they fit the motif Jeremy touched on as the transvaluation of values one finds in the attempt to say, um, the low are in fact the high. Jeremy, um, likes Robert Burns’ verse more than I do, um, with its endearing refrain, “A man’s a man for all that,” and that’s the one that gives you the, um, relatively benign picture of leveling up, right?
I may not be an aristocrat, but I too am a man. Um, Bentham’s sneer is different. Bentham’s sneer says the officially low are high, and the officially high are in fact low.
Um, he boasts about his own contempt for aristocrats and kings as if the only way to be dignified were to scorn the credentials of, uh, the well-born. So Bentham is sneering at the king, the king is sneering at Peel. No one in this kind of tableau has in their heads the meeting– the idea of meeting as dignified equals.
Um, it’s only a question of who’s on top. But again, I also, I share Michael and Jeremy’s denial that that’s the only game in town, right? I think it’s possible to imagine and live in a social milieu where people genuinely believe we’re all dignified and treat each other well.
Um, but it is a game in town, and it’s an important one. Um, the war is fought on many fronts. It fought– it’s fought out in high moments of public law, such as when the French Revolutionary Assembly strips the nobility of one privilege after another.
Um, it’s fought out in private law over, for instance, the long-running debate in tort law over what sorts of cuffs and beatings will be privileged as discipline and what sort will be actionable in tort. Um, and it’s fought out in micro settings of everyday life. You struggle over, um, you do, um, flared nostrils, shoves, inadvertent shoves, um, respectful eye contact, unpleasantly prolonged stares, the weird business we have of, of, uh, expressing disregard for somebody by staring straight through them.
Um, so those are the two sneers. I want to remind you that we fight a lot about contempt and dignity. Now I want to shift gears, um, and say something about a social theory distinction you might draw.
Um, here’s another way of thinking about the concept of status, um, which depends on contrasting it with the idea of a social role. So let’s say your status is something which follows you around the social landscape all the time, no matter what enterprise you’re engaged on. Aristocratic status was historically like that.
If you’re a duke, you’re not a duke only at the moment where you proudly survey your dominions or where you appear at court in your robes or, um, when you have too much sherry and grope at the servant maid. You’re a duke, as we might say today, twenty-four seven. You’re always a duke no matter what you’re doing.
You’re always to be treated as a duke. Um, in church, you will sit in a grand pew at the front of the, um, the front of the church, and Parliament, you’ll be entitled to a seat in the House of Lords. The tailor will come to your house, and again, if he dares to demand that you pay your debts as anybody else will, you will have your way with him socially and legally for his audacity.
Um, a role, on the other hand, is just a position in some institution. You shuttle in and out of it. Um, so right now I’m playing professor, right?
I suppose there’s a sense in which I’m always a professor. I’m a professor when I’m grocery shopping. It’s my job, right?
If someone asks me, I would report it. And sometimes my younger daughter, um, teases me about my claims to expertise about jazz by saying, “Oh, right,” you’re a law professor.” Um— but, um, I ask you to trust me on this.
I don’t quote Bentham at the supermarket, and I suppose when you’re sitting at home with your family, you don’t take notes on the conversation. Um, when Bill Ford— here’s an example I’d rather like. When Bill Ford, the great-grandson of Henry and then CEO of Ford, showed up at a dinner meeting for my daughter’s elementary school, he didn’t play duke.
He grabbed the same paper plate and plastic utensils the rest of us grabbed. He stood on line with the rest of us in order. He ate the same gloppy food we ate.
He did not remind us that at home he had servants. Um, so a role– Again, the status follows you around twenty-four/seven. The role, you’re in, you’re out.
It depends on what you’re doing at the moment. It is a feature, not a bug. It is a crucial feature of Jeremy’s account that it configures human dignity as a status, right?
It follows us around relentlessly. Um, we want it to, we think it should. Um, we may need, as Jeremy says, to punish criminals, but it’s still cause for grave concern, um, when we gratuitously humiliate them or let alone torture them.
We don’t want to crush their dignity. So too, on the biological side of things, your bodies can betray, um, you. Our bodies can betray us.
My body can betray me and does, um, in large and small ways, especially as you age. Um, you can end up drooling, twitching, um, having bad physical posture, let alone moral posture. But there is something utterly repulsive about people who flinch at or mock what we think of as these indignities of the human condition, let alone people who think it’s hard-nosed and clever to sneer at the idea of death with dignity.
So this distinction between status and role, I think, brings out a crucial merit of Jeremy’s account. Our dignity, again, doesn’t simply attach to particular roles. So it’s different in that crucial way from, say, the dignity of a judge, right, that Jeremy referred to.
It is simply, finally, the dignity of being human. It has to be a status category. Um, it’s another feature then and not a bug of Jeremy’s account that it helps explain and justify our endless worries through modern society about gender, race, social class, sexual orientation, um, and the like.
These two work as social statuses. They follow you around relentlessly no matter what you’re doing at the moment. Um, and depending, of course, on where you end up in those status mappings, they may open you up to serial indignities.
Um, these, uh, these concerns are not, in fact, the hangover of the 1960s. They are not the special preoccupation of tenured radicals. They are not localized to, to places like Berkeley, California.
Um, so try this from Mary Wollstonecraft’s best book, which, um, is her observations on Scandinavia. Quote, “In fact, the, the situation of the servants in every respect, particularly that of the women,” shows how far the Swedes are from having a just conception of rational equality. They are not–
The servants are not termed slaves, yet a man may strike a man with impunity because he pays him wages, though their wages are so low that necessity must teach the servants to pilfer, whilst servility renders them false and boorish. Still, the men, that is the menservants, stand up for the dignity of man by oppressing the women. The most menial and even laborious offices are therefore left to these poor drudges.
Much of this I have seen myself. In the winter, I am told, they take the linen down to the river to wash it in the cold water, and though their hands, cut by the ice are cracked and bleeding, their men, their fellow servants will not disgrace their manhood by carrying a tub to lighten the burden. So even among the wretched servants here, the men prop up their dignity by mistreating the women.
Um, is domestic service itself, is the role of servant already a hateful affront to dignity? By sixteen ninety-nine, the word– the English language had already memorialized the word catchfart, at least in a colorful version of English spoken by social deviants as slang for a footboy. Um, yesterday you’ll remember I mentioned stuff a turd in your teeth.
This is my plot to clinch the award for most scatological Tanner commentator of the year. Um, it was still in use. C-catch-fart was still in use at the end of the 18th century, and one dictionary spells out the point: Catch-fart, noun, a footboy, so called from such servants commonly following close behind their master or mistress.
Whether a footboy can be dignified, whether any number of so-called menial occupations can be dignified, um, what to make of Thomas Moore’s sneer that aristocrats have manners no better than those of waiters, raises struggles over the dignity of labor that are not centrally our topic, but are themselves an ongoing battlefield. All I want to say about the Wollstonecraft sort of concern about service is that when domestic service is a status and not a role, that is, when it’s not a job you cycle in and out of with other lively arenas of your social life, it’s harder to see it as dignified, and that’s simply because it’s easier to imagine that your social identity collapses straight into, “I am nothing but a servant.” Boswell, uh, feasted on the same gender dynamics that made Wollstonecraft’s gorge rise.
So take this journal entry. Uh, “Indeed, in my mind, there cannot be higher felicity on earth enjoyed by man than the participation of genuine reciprocal amorous affection with an amiable woman. There he has a full indulgence of all the delicate feelings and pleasures both of body and mind, while at the same time in this enchanting union, he exults with a consciousness that he is the superior person.
The dignity of his sex is kept up. Um, if the dignity of his sex is kept up by romantic affection and sexual intercourse, then the dignity of hers, of course, is being kept down. Um, the term of art, I’m not an emotivist about anything in the world, but the term of art for this is yikes.
(laughter)
Um, for both Wollstonecraft and Boswell, to be male is to be something of an aristocrat. Wollstonecraft condemns the fact, Boswell embraces the fact. Um, here too is the motif about aristocratic dignity that I was focusing on yesterday.
The exercise of exclusive privileges, the rank has its privileges story for which you don’t have to answer to the underlings. Um, Boswell thought it prudent to misstate– to disguise his endless assignations with lower class women from his wife, but only because he thought she’d be annoying about it, not because he thought she had any claims of right against it. So we have the idea of a valuable status, human dignity.
It’s a status, not a role. You don’t relinquish it. It doesn’t matter what social setting you’re in.
It follows you around relentlessly. That means that dignity, the idea of human dignity, can’t be a wholesale attack on status,
[00:42:44] MICHAEL ROSEN:
right?
[00:42:44] DON HERZOG:
It can’t be that we want to get rid of status in this sense. We also have the idea of a whole series of inferior-based, repellent, subordinate statuses,
[00:42:53] MICHAEL ROSEN:
right?
[00:42:54] DON HERZOG:
Some of them are the sort Goffman identified by stigma. Some of them are the sort that the academic left is obsessed with these days. And those we want to refigure or maybe get rid of in the name of human dignity.
[00:43:04] MICHAEL ROSEN:
So,
[00:43:07] DON HERZOG:
I’m skeptical again, as you know, about the claim that aristocratic status is finally what we’re after, because again, I worry about privileges that you don’t have to answer for others for your exercise of. So shift back to roles, right? And here’s an interesting feature of shifting in and out of roles, shifting from social setting to social setting.
In any given social setting, we’re selectively forgetful, right? You ignore considerations that are irrelevant to the business at hand, or at least you’re supposed to. When you go to vote in a primary, it may matter whether you’re a Republican or a Democrat, depending on state law, right?
It shouldn’t matter whether you’re a Catholic or a Jew or an atheist, whether you root for the Boston Red Sox or the New York Yankees, whether you’re a loving parent or whether you have no children at all. When you go to buy vegetables at the market, you don’t ordinarily care about the religion or politics of the seller. There is a kind of equality in this, right?
Of abstracting your attention from irrelevant facts. There is also a kind of dignity, and the kind of dignity is especially good for people who have embarrassed themselves or even humiliated themselves in one social setting. When they walk out the institution and take up some other role, they are ready to go again.
You can use the law to model this strand of dignity, too. Justice is blind. That’s a very long-standing image about the law.
Um, not that judges are tottering and decrepit, though sometimes they are, but that the law is committed to resolutely ignoring facts that are irrelevant to the business at hand. Um, Bentham again, this time from some scribbled notes on some French reforms of judicial procedure: “What then? Are men of the first rank and consideration, are men high in office, men whose time is not less valuable to the public than to themselves?
Are such men to be forced to quit their business, their functions? What is mar-more than all their pleasure at the beck of every idle or malicious adversary to dance attendance upon every petty cause? Yes, as far as the, as, uh, as far as it is necessary, they and everybody.
What if instead of parties, they were witnesses? Upon business of other people’s, everybody is obliged to attend, and nobody complains of it. Were the Prince of Wales, the Archbishop of Canterbury, and the Lord High Chancellor to be passing by in the same coach while a chimney sweeper and a barrow woman were in dispute about a halfpenny worth of apples, and the chimney sweeper or the barrow woman were to think proper to call them upon them for their evidence, could they refuse it?
No, most certainly not. A great man, Bentham continued, might find talking to attorneys and testifying before judges, quote, “Humiliating to his grandeur.” Right?
But being dragged down to the level of mundane legal proceedings was something nonetheless he would have to do. Um, Bentham, when Bentham says nobody complains of this, this is nonsense, right? Or maybe it’s facetious whistling in the dark.
The, the, uh, grand people on offer complain bitterly about it. Um, but what is on offer here is a vision of human dignity. It’s the law will not pay attention to those aristocratic facts of social status and grandeur.
It’ll say, “You have relevant evidence. We can compel you to testify, and we will do so.” It is painfully obvious the law doesn’t live up to this idea of equality, that justice tends to peek out from behind her blindfold, that race, class, power, et cetera, make a lot of difference in ordinary legal proceedings.
The same is true about the sense of equality that we’re committed to with role differentiation. You know that the rich end up with more political power, um, not just more market goodies. Um, you may have suspected that white men tend to do better on the market than other, uh, positions.
There’s some remarkable empirical work by Ian Ayres showing that if you send out people to buy cars, um, the white guys with literally identical financial profiles get systematically better offers from the car dealers than anybody else does. And about this sort of thing, I’m completely with Jeremy. There’s an, there’s a normative order in the world, and we know when, um, we’re not living up to our own aspirations and the commitments of our own practices.
So where are we? Um, to make sense of human dignity, I think we need to hang on to the form of status, right? Understood again as something that travels with you twenty-four/seven across the social landscape regardless of what you’re up to at the moment.
You’re not going to be able to make sense of human dignity as attaching to particular roles that people shuttle in and out of and may never occupy if they have, quote, menial roles they’re li– they live in. Um, But we also have the image from, I think, role differentiation of abstracting your attention from contextually irrelevant facts, right? And saying, “Let’s ignore what’s going on in other settings,” and that has a dignitary aspect too.
Think again of Bentham’s chimney sweep’s ability to issue a s- a subpoena to a duke and say, “You must come testify in my cause.” Um, Jeremy is right in saying that we need more than mere formal equality. We want to be able to explain and justify and illuminate the fact that everybody is on high status, right?
And not just the same status as everyone else. Um, I am happy to concede that some of the content of aristocratic status is helpful here. So I’m completely with Jeremy when he reminds us that the Countess of Rutland could not be arrested or imprisoned for being a debtor, and now none of us can be.
But again, I think too much of what aristocrats had in law and society is stuff we simply need to abolish and not extend to everybody. We don’t want to traffic in the business of having saying, “I have special perks, and I’m not answerable to the likes of you for what I do with them.” So if we need a human status of dignity, and we don’t have a lot of content, in my view, from aristocracy, see, where are we going to get the content for it?
On this, um, I’m a fox, not a hedgehog. I rather doubt there’s one big grand thing to say about how we fill in the status. So, um, you might think my rejection of much of noble privilege is a rejection of Jeremy’s central thesis.
I’d rather see it as a partial emptying of his view, right? I think we can still go far by configuring human dignity as a high status. I think we can still go far about thinking about law.
I’m completely in agreement, for instance, um, with Jeremy’s suggestion that it has nothing to do with the gestures towards
(clears throat)
aristocracy, that the law credits us with self-command, and that is an ascription of dignity that is crucial. Um, I will underline in passing what Jeremy does not, that this shows that command theories of law are deeply defective, um, as if we were terrified privates confronting a sadistic sergeant in boot camp barking orders at us and demanding that we submit. Um, I want to close with one last quotation.
It’s a long one, um, and it’s often excruciating. Um, if you squirm or get angry, um, or sweat, then you should not see yourself as a victim of mindless PC orthodoxy. You should see yourself as having, uh, internalized commitment to human dignity.
This is one of my favorite stories about human dignity. Um, Thomas De Quincey re-uh, records it. He says he got it from William Hazlitt.
Hazlitt is one of the world’s great essayists, great democrats, and uninterestingly garden variety misogynists. Um, anyway, the Duke of Cumberland is out for a walk, and here’s De Quincey. His Royal Highness had rooms in St. James’s, and one day, as he was issuing from the palace into Pall Mall, Hazlitt happened to be immediately behind him.
He could therefore watch His Royal Highness’s motions along the whole line of his progress. It’s the custom in England, wheresoever the persons of the royal family are familiar to the public eye, as at Windsor, et cetera, that all passengers in the street, on seeing them, walk bareheaded, that is, take off their hat, or make some signal of dutiful respect. On this occasion, all the men who met the prince took off their hats, the prince acknowledging every such obeisance by a separate bow.
Pall Mall being finished, and its whole harvest of royal salutations gathered in, next the Duke came to Cockspur Street. But here, and taking a station close to the crossing, which daily he beautified and polished with his broom, stood a Negro sweep. If human at all, which some people doubted, he was pretty nearly as abject a representative of, of our human family divine as can ever have existed.
Still, he was held to be a man by the law of the land, which would have hanged any person, gentle or simple, for cutting his throat. Law, it is certain, conceived him to be a man, however poor a one, though medicine, in an undertone, muttered sometimes a demur to that opinion. But here the sweep was, whether man or beast, standing humbly in the path of royalty, vanish he would not.
Um, he was, as the Times says of the Cornley, quote, “A great fact,” if rather a muddy one.” And though by his own confession, repeated one thousand times a day, both a nigger and a sweep, um, De Quincey reports that the man would call out, “Remember poor nigger, Your Honor.” “Remember poor sweep,” um, presumably begging for money.
Yet the creature could take off his rag of a hat and earn the bow of a prince as well as any white native of St. James’s. What was to be done? A great case of conscience was on the point of being raised in the person of a paralytic nigger.
Nay, possibly a state question. Ought a son of England, could a son of England and descend from his majestic pest- pedestal to gild with the rays of his condescension such a grub, such a very doubtful grub as this? Um, all Pall Mall was sagacious of the coming crisis.
Judgment was going to be delivered, a precedent to be raised. Pall Mall stood still with Hazlitt at its head to learn the issue. How if the black should be a Jacobin, and in the event of the Duke’s bowing should have a bas-relief sculptured on his tomb exhibiting an English priest and a German king as two separate personages in the act of worshiping his broom.
Luckily, it was not the black’s province to settle the case. The Duke of Cumberland, seeing no counsel at hand to argue either the pro or the contra, found himself obliged to settle the question. So drawing out his purse, he kept his hat as rigidly settled on his head as William Penn and Mead did before the Recorder of London.
All Pall Mall applauded. Um, contradictory, uh, Giulielmo Hazlitt— this is a running gag, and Hazlitt only. The black swore that the prince gave him half a crown, But whether he regarded this in the light or a godsend to his av– as a consent to his avarice or a shipwreck to his ambition, whether he was more thankful for the money gained or angry for their honor lost didn’t matter.
“No matter,” said Hazlitt, “the Black might be a fool,” but I insist upon it that he was entitled to the bow since all Pall Mall had it before him, and that it was unprincely to refuse it.” There is legal equality here, and hooray for that. Remember, De Quincey tells us correctly that at least in form, and sometimes even in actuality, right, a great man murdering a servant would be hanged for it.
If we’re going to model human dignity as a moral and finally a social ideal on aristocratic dignity, we’re going to have to think also hard about the Duke’s offering maybe money, but certainly not a bow, and why the crowd approved and why Hazlitt didn’t. And I think at the end of the day, we’re going to want to adopt Hazlitt’s sensibility as our own and think about how lamentably comfortable we remain in everyday life with the norms of aristocratic deference, with receiving it, with offering it, with extorting it from others, and quite generally with basking in it, or put differently, with our own residual steady discomfort with the business of egalitarian social life. Notice finally, um, how Hazlitt though voices his complaint with the Duke of Cumberland.
He says the Duke’s snub was, and I quote again, “unprincely.” Right? Here, there is a nice bit of leveling up, um, and this bit, I’m happy to say, fits Jeremy’s central thesis perfectly.
We can help undergird human dignity by universalizing the easy grace and civility of the best aristocrats. Thanks.
(applause)
[00:55:18] JAY WALLACE:
Our third speaker today is, uh, Wai Chee Dimock of Yale University.
[00:55:22] WAI CHEE DIMOCK:
I don’t need to repeat how, how thrilling it has been, um, to be here speaking, uh, in the company of Jeremy, um, Michael, and Don. Um, and I’ll remember to stay further away from the microphone. Uh, but I also want to point to those trees out there as being just a wonderful setting.
So thank you for that setting. Um, I also know that, um, Michael has, uh, generously, um, given you a summary, um, of my talk yesterday, but I’ll shamelessly give you another little bit. Um, yesterday I suggested that we might want to think about literature, um, as an alternative home for dignity.
And I looked especially at Moby Dick, at the chapter Knights and Squires, where that word is very much in the foreground but set in a darkening landscape coming with a clear sense of foreboding. Melville not only raises the common sailor up to the nobility of rank, He also hints that precisely because this is a high virtue, there’s something tragic about it, about the direction that it’s headed. I want to keep this warning in mind as I go back to Jeremy’s first lecture and explore this question against a longer time frame and ask whether or not there might be a historical connection between the high platform dignity operates on and the genre of tragedy espe– itself, especially as it was theorized by Aristotle.
But first, this is what Jeremy says. “Dignity has resonances of something like noble bearing. It connotes self-possession and self-control, self-presentation as someone to be reckoned with, not being abject, pitiable, distressed, or overly submissive in circumstances of adversity.”
” In this formulation, Jeremy seems to be thinking of dignity primarily as a virtue coming from within and reflecting upon itself. It is a self-referential virtue, self-executed, an awareness of one’s high standing leading to a noble demeanor, a cause-and-effect circuit that runs its course within the compass of a single individual. The key terms here are all reflexive terms.
Self-possession, self-control, self-regard. Jeremy seems to be saying that for there to be dignity, all it takes is one person to feel this self-esteem and to demonstrate it in this way. Um, and I think that Michael has, uh, actually pointed to a different conception.
And I think that, that, that, um, the– in, in the conception of dignitary harms. Um, and I think that, that elsewhere in the lectures, uh, Jeremy himself seems to be, um, moving away from this, um, reflexive model to a different conception. In this alternative conception, dignity is not just self-executed and self-validating.
Instead, it is dependent on the validation rendered by others, the tribute that they pay in acknowledgment of our high standing. Dignity in this sense is something that requires outside proof, outside backing that has to be supplied by other people. It’s obviously much more problematic because it turns the dignified person from an autonomous unit into a relational dependent, a recipient of the respect that he might or might not get.
It is fair to say that this relational dependency is not something that Jeremy emphasizes because in his paradigm, the dignified person is a noble person who stands tall on his own rather than an effect of the cushion of regard coming from others, a cushion that can be withdrawn at any moment. Which is also to say that the high platform where he puts dignity is very much an idealized plat-platform. But the non-idealized or even ignoble side is perhaps always there just below the threshold, causing trouble, and I would argue making the concept tragedy-prone.
On this note, I would like to go now to Aristotle, who has pointed us in exactly this direction, calling attention to a non-trivial connection between high dignity on the one hand and the genre of tragedy on the other. In the Poetics, Aristotle divides literature into two, into tragedy and comedy, and along this crucial differential axis, the degree of elevation of the protagonist. Tragedy, and by this he includes not only drama, but also the Homeric epics, is about noble actions and the actions of noble persons.
It is located on the high end of the spectrum. It is about those who are better than average, people who are to be taken seriously. Comedy, by contrast, is definitely on the low end.
It is about the recipients of our ridicule, our laughter, those who are worse than average. All of this is well and good until we remember that the high end is also the tragic end. Sooner or later, the world of these lofty beings will come crashing down.
And this is the c– the occasion for the pity and terror that Aristotle famously associates with tragedy. Why is it that an elevated platform is also the platform where catastrophes can happen? Aristotle was silent about how aristocrats behave and which of the norms of behavior might lead to tragic outcomes.
But filling in the gap, we can easily come up with a list. From high standing, we might go on to highfalutin, high-handed, being on a high horse, and so on. These forms of behavior also have something to do with dignity, but they’re excessive, unseemly, over the top.
A high self-esteem that has no corresponding acknowledgment from the world. We can think of this ignoble face of dignity, um, as ignoble because there’s never enough deference out there, and calling for vigilance and even truculence as a result. And yet, this negative profile isn’t so different after all from the face that is idealized.
Both take very seriously the burden of being someone to be reckoned with, refusing to back down, taking umbrage easily, and magnifying a personal injury into a right to retaliate. All of these are recognizable forms of behavior associated with the privilege of rank, and they do seem to me to be the precondition for tragedy. Aristotle would have been familiar with this non-idealized form of dignity.
In fact, there would have been no Homeric epics if Menelaus, Helen’s husband, had not stood on his dignity and launched a thousand ships to seek refuge, uh, redress for his personal dishonor. And the Iliad opens with another noble hero, Achilles, also standing on his dignity in a dramatic confrontation with his friends and companions. Achilles has been forced to give up his maiden prizes in order to compensate Agamemnon for what he has lost.
And Agamemnon, as insult to injury, taunting him with these words: “You are nothing to me, you and your overweening anger.” In a rage, Achilles swears an oath to do no fighting and to stand by and watch while the Greek army is being cut down by Hector. This is Robert Fitzgerald’s translation.
“But here is what I say, my oath upon it by this great staff. Let this be what I swear by. I swear a day will come when every Achaean soldier will groan to have Achilles back.
That day you shall no more prevail on me than this dry wood shall flourish. Driven though you are, and though a thousand men perish before the killer, Hector, you will eat your heart out, raging with remorse for this dishonor done by you to the bravest of Achaeans. I cite Achilles at length partly because this non-idealized form of dignity, dignity raging against the dishonor done to it, actually seems to me the more common form that it takes.
The fact that this dignity is going to defend itself at the expense of the lives of a thousand others suggests that this particular virtue might not be easily translatable from its individual form into a collective form, into an egalitarian model for everyone. Beyond that, what Achilles’ rage points to is indeed a tragic world in which slights and insults are likely to come our way and to be met with a commensurate fury of response. Dignity in this non-idealized world stands as a kind of a double-faced alert system, a defensive shield that, if necessary, can also be used for offensive purposes.
And some kind of offensive action does seem to be in the script, because it is very unlikely that this high self-esteem would not experience the world as an affront at some point and would not feel justified to lash out. It is this non-idealized world that actually seems to me to be the foundation of law, because law too acts on the premise that injurability is a normative condition for human beings, a condition correlated with a claim for redress. Jeremy sees dignity as the legal ground as well as the legal content for the exercise of, of, of rights.
I think the connection between these two is strongest in the context of this claim, in the context that is a predictable grievance and predictable retaliation, an offending act being responded to in kind. But if this is indeed the case, if the foundation of jurisprudence is not a right that is respected but a right that is violated, then law would also seem to belong to the genre of tragedy, just as dignity belongs to that genre, moving in exactly the same elevated and darkening universe that Homer and Aristotle have outlined for us. And the convergence of law, dignity, and tragedy comes not only from the fact that all three inhabit a world in which human beings nerve– nurse grievances, but also because all three allow for an escalation of those grievances.
Since the high platform on which dishonor is imagined to have been suffered also means that the response will be on that platform as well. This seems to me to be one of the greatest dangers in a jurisprudence based on dignity. A concept offering high privilege to everyone, but perhaps also involving high maintenance and high cost.
And so, in conclusion, I would like to ask Jeremy if he could imagine a jurisprudence not quite operating at that level, something like a low jurisprudence, one that relaxes rather than tightens the demand for dignity. And to frame this discussion, I would like to invoke Aristotle once again and his remarks about one genre in particular that he specifically identifies as low, namely comedy. This genre, he says, concerns itself with persons who are inferior, not, however, going all the way to villainy, but rather given itself the freedom to deal with the ugly, of which the ludicrous is one part.
The ludicrous, that is, is a failing or a piece of ugliness which causes no pain or destruction. If tragedy is defined by the noble bearing of the heroes, Comedy is defined by those who are far below that ideal, those who look and act like fools and buffoons, but who also bring no catastrophes into the world. Jeremy speaks of dignity as a moral orthopedics, as standing tall in the world.
I would like to end with a con-contrasting image, an image of two people down on all fours in a poem that calls itself the Commedia. The two people in question are Dante and Virgil. They are in hell, but since this is Canto thirty-four of the Inferno, they’re just about to get out.
And this is how they do it. By crawling on the hands and knees, scrambling up the body of Satan. This is Mark Musa’s translation.
“He,” Virgil, “grabbed onto the shaggy sides of Satan, then downward, tuft by tuft, he made his way between the tangled hair and crust. When we had reached the point exactly where the thigh begins, right at the haunch’s curve, my guide, with strain and force of every muscle, turned his head toward the shaggy shanks of this and grabbed the hair as if about to climb. I thought that we were heading back to hell.
“Hold tight, there’s no other way,” he said, panting, exhausted, “Only by these stairs can we leave behind the evil we have seen.”” According to this interesting topography, the way out of hell is initially by going down. And down in several senses, going down the shanks of Satan, getting down on all fours, and allowing oneself to look down like downright ridic– ri– sorry, downright ridiculous in the process.
Perhaps because of his Christian heritage, dignity is not a prime consideration for Dante. Instead, it is the freedom not to look dignified that enables the poets to get out of the place where they have no wish to linger. Perhaps with a nod to Aristotle, Dante is indeed writing a comedy, a genre about people we can almost look down on.
Certainly people we can laugh at, but who do us no harm, and who will avoid harm themselves as far as possible. A non-idealized world, it seems, does not always have to lead to a tragic outcome, with dignity coming to a glorious but sad end. Instead, it can take the form of a low comedy.
Dante’s version is of course only poetry, not law. But I’d like to ask Jeremy if he could imagine a jurisprudence in that spirit. If a jurisprudence of dignity is a tragic jurisprudence, what would a comic jurisprudence look like?
(applause)
[01:12:32] JEREMY WALDRON:
When we were talking about the relationship between dignity and sovereign immunity, that the dissenter, uh, in Alden and Maine was not Justice Breyer, but Justice Souter. And it was Justice- It was Justice Souter who said, um, “Look, do you really want to” use the notion of regal dignity to express the special standing of a state in a, in a federal republic?”
He said, “Look at what Blackstone says about regal dignity.” It’s a scandal. This is the last thing we should be introducing.”
Anyway, that was just a, a matter of detail. I am enormously in debt to my commentators. Um, these, uh, responses day by day over the last three days, but today particularly, have left me, uh, enriched and humbled, if, uh, those two can go together.
The whole occasion has been fabulous, but, uh, uh, it’s a privilege, a daunting privilege, as Michael said, um, at the beginning of his comments, and I would return the description. It’s a daunting privilege to have to respond to, uh, these commentaries. They have given me a lot of food for thought.
They have made me rethink some of the positions in the lectures, which is a good thing. Um, although we’ll then have to negotiate how we do the, the chapters of the book and so on.
[01:13:51] MICHAEL ROSEN:
Oh, no.
(laughter)
No, no, no, no.
(laughter)
[01:13:54] JEREMY WALDRON:
But if you want– if you didn’t want me to be, uh, changing my mind, you shouldn’t have offered such good comments. Um, what I’m gonna do is, um, Um, focus commentator by commentator rather than thematically, just because I haven’t had time to organize, uh, these into, uh, a more coherent presentation. I want to respond first to Don Herzog, then to Wai Chee Dimock, and then finally, at slightly greater length, to Michael Rosen because, um, Michael’s, uh, criticisms are particularly acute, and I want to be able to respond to the, um, the problems that he is attempting to raise for the overall analysis.
With Don Herzog, um, I would like to just be able to say that I agree with almost everything that he said. I accept the points that he made yesterday about the dangers of using as a model of the high status to which human dignity aspires, the model of nobles who regard themselves as above the law or a law unto themselves. The–
Those aspects of aristocracy may, uh, indicate that it’s probably not particularly appropriate to develop the idea of dignity that I’m developing, specifically with regard to the English aristocracy. I did it because I think it’s a vivid, uh, introduction to the theme, but there are certainly problems. And what we are looking for, what we are looking for in, in our account of dignity is a notion of high status.
The notion of a high status that all humans can attain to, which really maintains the height and the rank, uh, to which I think we are called, both in our social organization, in the law, and perhaps also ontologically by our creation. But some notion of high rank that doesn’t necessarily go with the abuses of high rank that Don spoke about yesterday. So I take that very seriously.
I, I— as, as I say, the, the, um, it was useful to present the conception in the first instance in these vivid and provocative terms, every man a duke, every woman a duchess. And there is a certain amount that we can generalize from the idea of, um, uh, high aristocratic status, but Don is right that there is a certain amount that we cannot. Yesterday, in responding to his critique, I said, like him, I’m a fox, not a hedgehog, and I believe that there are many values working in our social theory, in our social and legal theory, not just one.
I am not saying that dignity is the be-all or end-all, although it is, in a way, a shepherding or a organizing, uh, concept, and I’ll say more about that in my response to Michael. But I do think dignity works alongside other value ideas, other normative ideas like the rule of law. Um, and it’s not that I want to say that there is this thing called high aristocratic dignity for everyone which competes with the rule of law.
It’s rather that, uh, we are looking for a conception of high dignity for everyone that is congenial to the value environment that these other ideals also help to define. So this is just simply a, a way of acknowledging, I think, this important, important point. I suggested towards the end of my, um, comments yesterday, at the end of the lecture yesterday, that the idea of citizen defines a sort of high rank.
I mean, if you, if you say it slowly and sonorously and think about it, it defines a sort of high rank that I have in mind. A, a citizen is necessarily one who regards himself or herself as eq- as the equal of other citizens. But citizen doesn’t quite get the height and the grandeur and the momentousness that I wanted to hang on, nor the sense that abuses of the person are sacrilegious in the way that an abuse on a prince of the royal blood might be thought to be, uh, sacrilegious.
This is okay. The idea of high status that I am attempting to associate with dignity is not any definitive particular status. It is simply my intention in these lectures to encourage us to think about dignity in terms of a high status concept.
I don’t think our thought about dignity in law, and certainly not in morality, is settled, nor is it something now of which we can give an easy definition, nor c- nor, Michael, can we draw out, I think, any, um, uh, necessary substantive consequences from it. I’ve been telling you, I think in these lectures, the sort of concept that I think human dignity is, rather than, if you like, the particular details of any particular conception. Now, um, what else did I want to say to Don?
The passage on the Duke of Cumberland was fabulous, and I think you are right, there is a variety of lessons, uh, to be learned from that. One could imagine a different duke who would have had the grace to bow and whose, um, whose easy grace in that respect would have been exactly something that we wanted to universalize and emulate. And, um, the boorishness of his constrained and rigid and graceless response to the Negro crossing sweep, um, is a reproach, I think, to his high status and could be conceived as a reproach to his high status, not simply as a necessary incident of it.
Don began by talking in terms of a couple of sneers. He talked about Bentham’s, um, sneer, for example. And he, uh, worried that my affection for Robert Burns, uh, left the sneering part of the denigration of high rank behind.
I don’t think Burns did. I think– I mean, there were a number of sneers, uh, in the, um, in the great poem that I’ve cited.
Uh, if I can just read some of the other stanzas here. “What though on homely fare we dine,” “Wear hoddin gray, and all that.” “Give fools their silks and knaves their wine.”
“A man’s a man for all that.” “For all that, and all that,” “Their tinsel show, and all that.” “The honest man, though e’er so poor,” “is king of men for all that.”
And then, “Ye see yon birkie, called a lord, what struts, and stares, and all that.” “Though hundreds worship at his word, he’s but a coof for all that,” which is some sort of fool or idiot. And I mean, there’s, there is a lot of the, the, the, the sneer in Burns as well.
And, and I do take that sneering side of this quite seriously. In the transvaluation of values that I’ve been talking about, the translation– the transvaluation of values was not an effortless movement to universalize high status, but it was a war fought on many fronts, a war in which there were many steps and many, um, hesitations and many sneers. And some of the participants in that war had no particular interest in universalizing high status.
They just had an interest in making fun of high status. But the cunning of history is, uh, uh, sometimes enables us to take advantage of that. I don’t want to sound too Hegelian, Michael, but, but, um Listen, I, I do want to say something general about the idea of legal status and how we should think about it.
I had promised I’d say something yesterday, and I didn’t say nearly enough. Don thought it was useful to distinguish between status and role, or status and office. His office, our office as professors doesn’t necessarily impinge on every aspect of our lives, on every aspect of our bearing, or on every aspect of our relations with others.
And we distinguish that from those forms of, say, uh, high dignified aristocratic status, whereby a duke is on duty all the time. A duke is a duke twenty-four seven, as, as Don put it, that the status is one that can– commands not just respect for the duke in office, but respect for the duke, period. Diffused respect.
Diffused and comprehensive respect in all these ways. And I’m, I’m, I’m certain that the high status of human dignity is like that. And that again is makes me slightly hesitant about using the language of a citizen, because there are some conceptions where-whereby we are a citizen only when we’re going to the polls, or we’re a citizen only when we’re serving on duties.
But at other times we are fathers and mothers and scholars and so on. But we are talking about a status whose importance might cro-crop up at any stage. Now, in legal discussions of status in jurisprudence, there is a controversy, one of the most arcane and ridiculous controversies in the history of jurisprudence, but between Bentham and Austin.
Austin said, “A legal status is just a mnemonic device. It’s just an abbreviation.” Some people have some rights, some people have other rights.
We organize some of these rights into packages, uh, and we use status words like bankruptcy or infancy or lunacy simply to abbreviate the cluster of rights that bankrupts and lunatics and infants or aliens may happen to have. But the status idea itself tells you nothing. It’s the, um…
What was Michael’s phrase? It’s the, uh, the wrapping on the Easter egg. Or as Steven Pinker puts it, it’s the sizzle, not the steak.
It, it, it, it just, uh, wraps up the rights. Bentham’s position was more thoughtful. Bentham’s position was, no, status in a way abbreviates a set of rights, but it also helps explain the set of rights.
Status is, as it were, a generating idea for rights, so that when we talk about the status of an infant, we don’t just have a list of rights and disabilities and immunities in mind. We have in mind a list of reasons that are focused centrally on the being of, of a, of an infant being an infant, which explain why you would want these rights rather than those rights, uh, in play here. And I think the thing about a status is the basis on which you think about the generation of rights is, um, outstrips any particular rights that it happens to generate at any particular time.
The basis is a continuing resource from which we might generate new legal incidents in particular circumstances. There’s no telling what adjustments we might have to make in the rights of, in the rights of infants or the rights of aliens. They may change from time to time, and they may be up for grabs or up for discussion at any moment.
So in that sense, the status is always open, th– you can’t keep it under con-um, under, under narrow control. And I think that reinforces Don’s suggestion that status is potentially comprehensively relevant or re-likely to be relevant at any time. I am an alien in this land, and my alienage is likely to be relevant at any time in determining what my rights will be.
It isn’t just that there’s a secure list of the rights and disabilities of aliens that I can rely on and treat my alienage as simply an abbreviation for that. Now, as you know, I said in the first lecture that I do not accept that dignity is just reducible, another word for the rights that it generates. And I also said I didn’t think that dignity was just the telos of the rights that it generates.
I thought it was a status, uh, that, um, comprises certain rights, but comprises also an understanding of why we have those rights, and comprises, I think, the, the, um, the particular legal incidents that protect that status against various forms of insult and denigration, and comprises, um, uh, some virtue concepts that we have talked about under this heading of moral orthopedics about the way in which a person, uh, helps to maintain their own status. Although Wai Chee is absolutely right that that moral orthopedics of noble bearing, of dignified stateliness and self-possession is not to be conceived of in purely atomistic terms, but is a matter of how you present yourself to others, and how you present yourself to others, not just in the sense of display, but how you hold yourself out to others as ready to interact with them on this, on this basis. All right.
The final comment I wanted to make about Don Herzog’s terrific remarks is to say something about law’s blindness, the blindness of justice, uh, in that lovely image that he indicated. Law’s blindness obviously cannot be blindness to legal status, right? That, that’s, that’s preposterous.
I mean, if, if there is such a thing as differential legal status, for example, then law must be– that must be visible to the law. Um, the law must be able to see whether the person who is making a claim before it is an infant, uh, or a person who is sui ju- Uh, juris.
It must be able to see, in certain respects, whether a person is an alien, uh, or a citizen. But law’s blindness, I think, just is law’s consummation of the process that I have been talking about in these lectures. We used to have the idea of sortal status, as I said yesterday.
That are statuses which are not just conditional on being at a certain phase in your life or having fallen into certain vicissitudes like bankruptcy or felony or being, uh, having made certain choices like military service. I said yesterday that we have largely turned our back on sortal status, the idea that there are simply different kinds of human beings. And law’s blindness, I think, reflects that turning that back on the idea.
Law, like God, in St. Peter’s great speech in the Acts of the Apostles, is no respecter of persons. which doesn’t mean that law doesn’t respect us, but law is no respecter of the sortal distinctions, uh, among persons. And I believe that the blindness of justice just is the consummation of the leveling up process that I have been talking about.
It’s not blindness to all aspects of status, but it’s blindness to the sortal distinction that was formerly very important in the law. Law didn’t used to be blind. Law used to ask when there was a, um, a commitment for debt, “Is this the commitment of a duchess?” or is this a commitment of a common person?
Yeah, the law had to take off the blindfold. Now it keeps it on. I want to say some things now, uh, in response to the moving and extremely important comments of Wai Chee Dimock, both in her comments yesterday about knights and squires in Melville, um, and in her comments today about tragedy and comedy.
I was moved by what she said yesterday, I think we all were, uh, in those great passages from Moby Dick, and moved more than I can say to begin reflecting on, uh, literature and literary representations of dignity. Representations is not quite the right word because it suggests that literature might just be a mirror, a representation of processes that are happening elsewhere in the law, in morality, in social life. I agree with Wai Chee that literature may well be the arena where a lot of these moves are playing out, which is why I cited Burns and Wordsworth and others who are engaged in the very struggle to, um, move human dignity in a certain direction.
And again, that struggle was by no means a single track. It was by no means resolute or unhesitant. It involved ambiguities, one step forward, two steps back.
Uh, it involved a, um, a cultural conflict of many kinds that involved multiple strands, and it is extremely important that we pay attention to that. And to the extent that anything in my provocative remarks on Tuesday afternoon indicated that I thought we could do all the work that we want to do about dignity just by sticking within the four corners of jurisprudence, that again, was one of those strategic exaggerations which seemed like a good idea when I was drafting these lectures to have a certain effect and put the philosophers in their place, but it was, it was of course preposterous. And it’s not just that I, uh, accept what, um, what Michael said on Tuesday, that we should look for some sort of to and fro between law and morality.
We should look at a much wider and complicated to and fro between law, morality, literature, social forms, and so on. And I do believe that we need to pay a great deal of attention to this, particularly to understand the paradoxes and the ironies and the vulnerabilities of the trajectory of development of dignity that I have been talking about. Wojciech expressed some misgivings about the purely reflexive, almost atomistic account of self-regard, self-command, self-possession, these reflective formulations that I use to characterize what I call the moral orthopedics of dignity.
I take the point. Uh, plea and mitigation, I want to say three things. First of all, I did not want to insist that the moral orthopedics of dignity is all there is to dignity.
Do you remember the, the strategy yesterday was to say, “Look, there are some rights that protect dignity explicitly, like the rights against degradation, the rights against torture, the rights against certain forms of outrages on personal dignity.” There are some virtues, uh, like the moral orthopedics of uprightness and upright bearing that are very important in, in conveying and expressing dignity. But they… neither of those is all there is to dignity, and dignity is primarily a matter of a, a status that comprises rights and that complicated relationship that I was talking about a moment ago.
That’s the first point. The second point is the, the point I’ve already alluded to. Even though self-presentation, self-command, and self-possession sound like solitary virtues, they are presentations to others, and I said not just displays to others, look how self-possessed I am.
But you are presenting yourself as gracefully able to, ready to, alert to the, uh, way you will have to interact with others. You are giving others an assurance that you have sufficient command over yourself and your body to play a dignified part in social life, and a part that would be alert to the crossing sweep and to the, your peers, and to those to whom you are required to yield some sort of, uh, deference. And I do accept, uh, what, uh, Wei-Chi said that, uh, this needs to correspond to and be echoed by respect from others.
Uh, otherwise it’s preposterous. Otherwise it is futile and absurd. The person who struts around self-possessed while others make fun of them is a figure of comedy, maybe salutary comedy, but comedy nonetheless.
I think I have some notes of disagreement to sound about tragedy. They’re not notes of disagreement, but they may complement what Waley said in disconcerting ways. It is true that in the Aristotelian conception of tragedy, and in a lot of the tragedy that moves us most, the precondition or the premise is the high standing or status of the tragic hero.
Othello standing, uh, very high. King Lear, uh, in, in possession of his power. Uh, Oedipus, and so on.
But I do not accept that tragedy is about the inherent instability of high rank, as though anybody of of high rank or at high rank is kind of teetering there anyway. And tragedy is about what happens when they inevitably fall over. Tragedy presupposes high rank, and it’s certainly about the vulnerability of high rank.
But the interest of tragedy is the particular way in which one falls. And I don’t just mean the particular dive that one does but the particular actions or characteristics that one has, which means that one cannot remain at this high level. So the fall of Othello is different from the fall of Lear and different from the fall of Macbeth.
One falls through murderous ambition. One falls through, um, his, um, vulnerability to jealousy. Uh, one falls, if you like, from too much, uh, trust and filial piety.
It’s the way we fall from the high standing that is the interest of tragedy. And so, although it is true that tragedy reminds us that nothing in human relations is secure, uh, and tragedy reminds us that, that, that high status is not cemented in place. It reminds us that our high status is not invulnerable to our own ineptitude and our own viciousness.
I do not believe it is about the teetering instability of high status itself. The other point I would say is this, that in the modern world, as we have developed a notion of dignity, high dignity for every man, we have also developed a literature and a tragic literature of the fall of every man from that high status. Whether it’s Willy Loman or Geoffrey Firmin and Under the Volcano, people of middling status in the old sense, people of high civic status in the Waldron sense of high human dignity, people who can, by their flaws, their vulnerabilities, and their ambitions, reduce themselves from that status to something that they, that cannot but be seen as a groveling, uh, indignity and, uh, degradation.
And I think that’s, uh, that’s, um, entirely congenial with, uh, what Wei Ji has said. There is a separate point that she made about Menelaus and about that aspect of tragedy, that dignity and high status in, in the sense that I have been talking about is often associated with overweening sense of sensitivity to insult, and sensitivity to insult which will involve vengeance and the vindication of honor and rage and insisting that I will vindicate myself though thousands fall, uh, with my sword. And I think that this hooks up with Don’s doubts about, uh, whether every aspect of noble virtue is something that we want to generalize, but it’s certainly, um, uh, something that has to be taken into account, uh, in using ideas of dignity and honor as though they could be a stable basis for universalized, uh, human dignity.
So I want to accept that point. I wanna say a couple of things about it. First of all, if Elizabeth Anderson is right, in Kant’s universalization of honor, there may be some interesting things to be said there about how honor can, um, can, uh, reveal some of its benign aspects as well as its, um, dangerous aspects in this process of universalization.
There is also in Greek tragedy a very important theme that vengeance is inherently brutalizing.
[01:38:11] MICHAEL ROSEN:
Yes.
[01:38:13] JEREMY WALDRON:
Does that ten minutes? You’re saying that I have ten minutes left or that I, that I have-
[01:38:16] MICHAEL ROSEN:
Well, um, yeah.
[01:38:17] JEREMY WALDRON:
I’ll try to finish in ten minutes.
[01:38:19] MICHAEL ROSEN:
So that we can get at least one question in.
[01:38:20] JEREMY WALDRON:
I’m sorry.
[01:38:21] MICHAEL ROSEN:
Yes, absolutely.
[01:38:22] JEREMY WALDRON:
You see, you, you, you give me these comments-
[01:38:24] MICHAEL ROSEN:
I know, I know
[01:38:24] JEREMY WALDRON:
And I just talk and talk and talk.
[01:38:25] MICHAEL ROSEN:
It’s, it’s-
[01:38:27] JEREMY WALDRON:
A lot of Sophoclean tragedy, a lot of Greek tragedy is that vengeance turns us into dogs. And the pursuit of vengeance turns us into animals. And we need to understand, I think, that that there is that dimension, that Hecuba is crawling on all fours, having murdered the children of her, uh, of her dishonorer.
Um, this sense that the relationship that one does not remain stably in possession of one’s honor as one tries to vindicate it is, I think, a very important, very important point. Um, I do believe that the normative concepts that we have inherited and that we use are never ones that we should be entirely comfortable with. We’ve known this for generations about the idea of rights.
Rights have their unpleasant side, their litigious side, their self-assured and standing on your right side, their masculine side. And people have from time to time worried that this very central concept is a dangerous concept to use as the basis for morality. I’m sure the same is true of dignity for reasons that Wai Chee and, and Don have explained.
It is likely that the, um, the consummation of a notion of human dignity as one of the leading ideas, components in our morality is, um, is, um, is a great achievement of ours, but it’s not an unambiguous achievement. It is not an unambiguous achievement. I wish, Wai Chee, that I could say more in the way of a low jurisprudence.
I mean, if there’s a low jurisprudence, my friends here know I’m the person to do it, you know.
(laughter)
I’m the person who put the F in philosophy and,
(laughter)
And, um, uh, the– it’s– But I haven’t been able to figure out how the great image from Falstaff, the opera, the great fugue at the end, “Tutti gabbati,” we’re all fools, and that, that, that wonderfully humanizing, uh, uh, uh, premise can play into jurisprudence, so I’m gonna take that under advisement and accept it. Listen, in the time remaining to me, I wanted to give the bulk of my comments to
(laughter)
to, uh, Michael Rosen and, um, to say this: that we do disagree, I think, about how important in the history of thinking about dignity, a notion of dignity has been that was nothing but an idea of value. We talked about this a little bit on Tuesday, and Michael referred in his comments today, or maybe it was his comments on Tuesday, to a definition of dignity by Aquinas, where Aquinas simply referred to, “The dignity of something signifies its value or its, its goodness, uh, the goodness that it has inherently in itself.” I don’t think that’s a helpful definition.
I’m not even sure that Aquinas intended it as a definition. Signifies is a complicated term. But at any rate, it is quickly elaborated both in Aquinas and in others by understanding the goodness of something in terms of the place that it occupies.
And when you talk about the place that it occupies, we’re already beginning to think about a stratified hierarchy. Not just a hierarchy of values, some values being more important than others, but of certain forms of goodness, um, occupying, having precedence over others, having authority over others. And I don’t think you begin to see the role of dignity, even in the passages that Michael has emphasized, without seeing that it is working, um, alongside ideas of the function of certain values about the, uh, relative importance and priority of values over other values.
Priority having to do with deference and having to do with the way in which, um, uh, one value mustn’t require to be accommodated by, um, another. I have wanted to insist in my work that there is a strand associated with social– with Catholic social teaching about dignity, which uses dignity to convey points about the sacred worth of human individuals. Points that might much more lucidly be conveyed simply by talking about the sacred worth of human individuals.
But I will say this, that I believe even so that when dignity is used in that way in Catholic social teaching, it does have some reference to status, and it does have some reference to, to, uh, high status. I, I mentioned this on Tuesday. It refers to the high status that humans occupy, a little lower than the angels, a lot higher than the animals.
We bear the impress of our Maker. We bear the image of God. And, um, and therefore, we are a ranking species.
We are a ranking species, and our goodness and our value and our sacred inviolability is to be understood in terms of that very high rank. So there’s something of the notion of rank, even in the Catholic, uh, idea. Yeah, I, I mean, it just seems to me that, I mean, I’m, I’m almost saying two incompatible things here.
I’m saying, why don’t they just go away and talk about sacred value and leave us dignitarians alone? But the other thing I want you to say is, no, but they do talk in the language of dignity, and it does have some resonance with the concerns that I am, uh, developing. The The, um– I don’t believe that it’s the job of the account that I have given to settle any questions about euthanasia or to settle any questions about abortion.
Take euthanasia, for example. It seems to me that one could give an account of dignity along the lines that I have given that would leave it an open question whether we should have laws that permit and facilitate and frame euthanasia decisions. I can easily imagine an argument that, that there is a connection between rights of control over the end of one’s life and the ideas of dignity.
But I can easily also see that the ranking notion of dignity, even the ranking notion of dignity associated very strongly with choice and autonomy might nevertheless preclude that sort of idea. The notion of dignity need not suppose that all one’s rights are alienable, need not suppose that all one’s rights are to be simply treated as property which you can trade off and so on. I think it’s not the task of what I was doing to settle questions like that, but to indicate the formal characteristics of the sort of ideas that we might bring to issues like that.
But in the end, it will be a matter of argument to work from the telos, if not the telos, the basis of this legal special status that we have associated with every human being, and how we conceive of that to argue from that for particular rights in any particular, uh, direction. So there are going to be choices, there are going to be issues which remain open even on my account, and this is quite leaving aside the, the, the, this, um, hesitant standoff between, uh, what I have said and what, um, is said in Catholic social teaching about these matters. There is no doubt that dignity does have a connection with choice and does have the sort of connection which in a very abstract way was illustrated in the passage that Michael quoted from Planned Parenthood and Casey, Um, but it does not have any particularly, um, definitive relationship with particular choices.
It has the idea of a person being in charge of their destiny, but it also has the idea of people being properly deferential to others. Uh, and issues about the end of life and issues about the beginning of life are going to be very important in that regard. And dignity also has notions of self-regard, which may well be developed in the direction, whether it’s low jurisprudence or high jurisprudence, in the direction of, uh, respecting the nobility of old age, even the nobility of successions.
Successions? Senescence. Even respecting the nobility of senescence, uh, dignity for the sitters for those Rembrandt portraits.
Um, and it’s a perfectly open question that dignity might require humans to accept certain forms of helplessness and vulnerability at the end of life, in the same way that they accept certain forms, forms of helplessness and vulnerability at the beginning of life. I don’t want to make that argument today, but I certainly don’t want to say that anything I argued in these lectures leaves no room for it. Um, I’m certainly not wanting to say, and I don’t think Michael believed I was, that inasmuch as all rights derive from dignity, therefore all rights are protecting us only against symbolic harms.
I thought that, uh, what I said about judges and contempt in the lecture on Tuesday might help us understand that it’s very important for dignitary ideas that there be ways of protecting us against contempt and insult. I actually don’t think that protection against contempt and insult is only protection against symbolic harms, as though those symbolic harms were just representations or threats of something else. I think protection against concep- uh, contempt and insult is substantial and important in and of itself, and if we had another three days, I would talk to you endlessly about group libel and hate speech, which I alluded to very briefly in yesterday’s lecture.
Jay is getting ready to write that I have 10 seconds left. No. Um, and, uh, I am coming to an end.
Um, but I’m not arguing that all rights deriving from dignity are protecting us against, uh, insult or contempt. Some very important ones do. Other rights deriving from dignity simply protect us against murder or assault or rape.
And I think that they protect us against murder or assault or rape in the way that dukes used to be protected against murder or assault or rape, rather in the way in which animals are protected against, uh, being killed or the way in which slaves were protected a- against being killed. Don’s point about the, uh, the Negro crossing sweep has, despite his humility and his, um, uh, uh, the degraded perception of his race has nevertheless sufficient status that a prince will hang for killing him is important. But we add this, the prince will hang for killing him not just because it’s inconvenient to have princes going around killing, uh, crossing sweepers, but because the killing of the crossing sweepers is momentous.
Damn near as momentous as the killing of a duke. That’s the point. And what the dignitary conception of those harms adds to the picture is some sense of the momentousness of the violations, which again is not symbolic as though it stood for something else.
It’s, it’s, it’s, it’s a conveying of the ranking importance of the dignity that is directly assaulted when a, a human life is taken or when a human body, um, is, uh, assaulted. So I would counsel against being too loose in our use of the word symbolic. Uh, it can sound as though symbolic matters less than the thing that it symbolizes.
[01:49:54] SPEAKER 7:
Yeah?
[01:49:55] JEREMY WALDRON:
But contempt for human beings is something real. The insult and denigration that is suffered is something real. And how important we judge a murder, a rape, an assault, a silencing, or any of the other things that our dignitary rights protect us against, those are all real things.
They don’t just stand for something, for something else. So that’s the, the hope of the project, that by thinking in terms of dignity and high rank, we can reconceive the momentousness of our rights, as well as understanding the relationship they have to our bearing of ourselves and our presentation to others, and the specific ways in which others are required to show, uh, diffuse and particular respect for us. This has been a wonderful three days.
I hope we have some time left for questions. Thank you very much indeed.
(applause)
[01:50:54] MODERATOR:
We don’t have quite as much time left for questions as we originally planned, but we, uh, we’ll, we’ll take a bit of time. Yes. And I’ll, I’ll, um, call on people. So raise your hands if you want to ask, ask a question. Hannah Ginsborg?
[01:51:07] HANNAH GINSBORG:
So I don’t know if I can make this, uh, very coherent, uh, because I’ve just been thinking about it very recently. Um, but I’m worried about a kind of bootstrapping that’s involved in giving content to the idea of belonging to a rank. And maybe the bootstrapping worry can be put by focusing on, um, something that you’ve c- that you’ve mentioned a lot in talking about what dignitary rights protect us from, uh, contempt, insult, and degradation.
I know that you were just also saying that they protect us from such things as murder, Yeah, assault, and rape. And but I want to focus on the degradation, contempt, and insult part of it because that has come up a lot, and the worry is that when you talk, for example, about degradation, what that really means is just not being treated in accordance with one’s rank. So in the first instance, what being a duke entitles you to is to be treated in the matter suitable, uh, for a duke.
So, you know, it entitles you to take precedence over earls, and it entitles your wife to be a duchess, but that’s really all part of the same kind of bootstrapping maneuver. And so the worry is that to the extent that you see dignity as a rank, the worry is that it has this kind of emptiness. I mean, you know, so having the dignity of
[01:52:30] JEREMY WALDRON:
a human,
[01:52:31] HANNAH GINSBORG:
a human, yeah, just means being treated, but, you know, maybe this is echoing a little bit some of what Michael was saying. Right? But, uh, you know, but how?
[01:52:40] JEREMY WALDRON:
Right. Can I vary the image, Hannah, and say it’s not just bootstrapping, although there’s no doubt a certain amount of that involved, but it’s also a shepherding concept. Michael referred to– I think it was Michael at the end of his comments, referred to burial customs and, and, um, that we have for the thousands of years in which we’ve been on earth and awake to these things, developed a number of, uh, conceptions about ways in which humans should be treated.
The burial of the dead, I think, is is is the clearest one. And what dignity does is shepherd some of those ideas into a particular form and and into a particular structure. So it’s no accident that a judge in, uh, New York City can find in an alien torts claim, uh, action that there was a violation of the, uh, Law of Nations prohibition on degrading treatment when somebody was dr– when somebody’s corpse was dragged behind a Jeep in Harare.
Uh, this is a case against– brought against Robert Mugabe and ZANU-PF. Um, so it, it, it isn’t that we are without resources here, that once Waldron has established his wonderful conception of dignity as high rank, then we will have to sit down and try and figure out what, what, what rights come under these ranks. It’s a way of shepherding together some stuff that we knew already and, um, putting it and expressing it in a particularly momentous form.
[01:54:00] MODERATOR:
Okay. Chris?
[01:54:06] CHRIS KORSGAARD:
Yeah. Um, uh, thanks. Uh, two things, and they’re both requests for, um, elaboration or clarification.
And the first was that I thought when you said you were going to try to draw out of law some, uh, lessons for dignity or ways in which dignity was instantiated, we’d hear something about um, private law, and we didn’t hear much. And, I mean, since contract law is often thought of in particular as a form of dignity in, in which private will can assert itself as an autonomous will or order, and it allows people to construct, uh, you know, more, uh, complex social,
(laughter)
uh, social structures than they could otherwise, that that might be a place that one would look, and I was curious if that was a deliberate elision. Um, the s-the second thing I wanted to ask about, this came up, I think you alluded to Michael Ignatieff yesterday, and I think he was alluding to this comment of Hannah Arendt, that there’s something very peculiar about, uh, the idea of human rights as opposed to national rights, that a human right is ascribed to somebody in the least basically dignified manner possible, that, that similarly, this conception of human dignity is one that we’re drawn upon when we see people in the most degraded form possible when they’ve been– when, um, the sort of the, the gap between this outward notion of dignity, of self-presentation and people deferring is as far removed from reality as possible. Um, I wasn’t, I just, I wasn’t sure where you were going with that comment.
I wanted to hear more because it is an interesting feature of the concept of human dignity, especially in this post-Declaration of Human Rights, that it’s used in exactly this context in which there is no appearance of dignity, uh, for the person. It is, it is this sort of, uh, this ideal and only an ideal.
[01:55:36] JEREMY WALDRON:
Yes. Um, on the first point, um, it wasn’t a deliberate omission. I think the, the point is well taken.
When you think about, say, contract law, you’re thinking about the dignity accorded to ordinary people to make law for themselves, to make law in ones and twos, uh, twos or threes, uh, for themselves. It’s a power of lawmaking, as Hart has emphasized, and I think it’s, it’s something that could effortlessly be added to the list of ways in which law, uh, inherently protects dignity or vindicates dignity or expresses or embodies dignitarian considerations that I mentioned yesterday. So thank you for that.
On the second point, I’ve never known quite what to think about the Arendt Ignatieff stuff. Um, as I indicated, I wanted to work under the assumption that law is a normatively significant institutional order, and that what we do within that order has, um, a tremendous significance in itself and has a lot of resources that help us with our normative thinking long before we get to this strange entity called morality. I believe that when we talk about, I mean, I believe that Arendt was utterly wrong about human rights.
She underestimated our ability to create in the world the structures of law, including international law, but doubly positivized law, uh, as between international law and, uh, uh, national constitutional law as well, that would house human rights and that would define a status of rights-bearing, uh, for individuals. The clearest case of this that she should have known better than to denigrate was the case of the Hague Conventions and the Geneva Conventions relative to the treatment of prisoners of war, even during that titanic conflict of the Second World War, where for very large numbers of prisoners, despite the fact that they were in the hands of their mortal enemies, they had a legal status supervised by international institutions which enabled certain protections. I mean, the legal existence of that, quite apart from the interest and passion of the moral ideas associated with it, but the legal, uh, realization of that is, is, is a massive achievement, which is why its denigration, uh, under the previous administration in the United States, uh, was such a troubling, uh, matter.
So although these are rights supposedly incurred to us by virtue of our sheer humanity, not rights that inc-incurred by virtue of any other status that we occupy. They are legal rights incurred by our sheer humanity under the auspices of legal institutions, both international and national, multilayered, multiple layers of positive law, not just, uh, a matter of, uh, ethical aspiration.
[01:58:13] MODERATOR:
Uh, Kenji?
[01:58:15] KENJI:
Yeah, um, just a, a quick, um, thought about tragedy, um, which I, I, I think is something that ought to be congenial given other things you said. You, you concluded by talking about the– how your conception emphasizes the momentousness of the rights involved. Yes.
And when you were talking about tragedy, you were treating it as if it all has to… it all involves a, a fall from this status. Um, but, uh, there are lots of different ways of thinking about tragedy, and Aristotle’s is, is but one.
[01:58:49] JEREMY WALDRON:
Um, and I think a lot of, uh, what tragedy can give us is a sense of precisely the momentousness, not of necessarily what we lose, but how important we are. Um, so, uh, so many, uh, democratic tragedies in this country we’ve got, uh, Upton Sinclair or John Steinbeck or Langston Hughes,
[01:59:14] MICHAEL ROSEN:
uh, um, im– show or, or imbue what, uh, we might, uh, before we heard your lectures called ordinary lives, uh, with a kind of, uh, dignitas, with a, uh, with a, a value and freighted, uh, in such a way that when terrible things happen, they actually count as terrible rather than c-counting as banal or, uh, even risible. Uh, it really matters, and it matters as much as it used to matter for a king of Thebes. Uh, and that, that strikes me as something that you ought to, to, to, to welcome.
[01:59:47] JEREMY WALDRON:
I do welcome that.
(coughs)
I can take it on board. I think it’s tremendously important. It’s not just that there is such a thing as democratic tragedy, but there is such a thing as the momentum, the momentousness of the events.
So somebody walks away from what was a relatively decent marriage, ho-hum, or again, an occasion for terror and pity.
[02:00:06] MICHAEL ROSEN:
Yeah, yeah. And I, I think, uh, not just because of the loss of a status, I think. But even even insofar as someone retains a status, um, it matters.
[02:00:15] JEREMY WALDRON:
That’s right. That’s right. No, I entirely, entirely accept that.
[02:00:19] MODERATOR:
All right, we’re gonna take, uh, uh, one more question. Marty?
[02:00:27] MARTY:
Uh, I want to, uh, press you, uh, a little bit on the issue of the self-evident virtue of, uh, status highness.
[02:00:35] JEREMY WALDRON:
Yes.
[02:00:35] MARTY:
Uh, we’ve spoken about one alternative, which we’ve in a way identified with Kant, the certain notion of, uh, moral worth which is not related to, uh, external social, uh, uh, uh, dignity, uh, or social status. But there is, it seems to me, a second alternative which is worth considering, which we might construe in terms of a tradition, uh, which we can identify with a series of names throughout Western culture, beginning with, uh, Diogenes, including Rabelais, uh, including figures like Bakhtin, uh, Bataille, um, uh, um, uh, Julia Kristeva. A tradition which emphasizes, um, the virtues in a way or the value of baseness, of horizontality, of lowness, of, uh, the body, uh, as a grotesque rather than beautiful o-object.
Uh, uh, the body as i-in a way closer to the animals than to the angels. Now, it would be difficult, I think, to derive, um, a legal notion of, uh, equality from this, Uh, and I think I wouldn’t wanna argue that you could do that. But it serves in a way, if we remember this alternative tradition, as a counterweight to the possible argument that only dignified behavior justifies equality, uh, that only dignified behavior justifies being human, and instead allows us to understand behaviors that are construed normatively as not so dignified, say, sexually deviant behaviors, or behaviors that are outside the norms of propriety, as also equal, uh, in some complicated way, which the notion of status, uh, derived from, uh, a kind of upward mobility towards the ideal of, uh, the, uh, you know, the aristocratic version does not.
[02:02:19] JEREMY WALDRON:
Michael and I were briefly talking about, um, we talked about jokes, The Aristocrats,
[02:02:24] MICHAEL ROSEN:
which I’m sure you know.
[02:02:26] JEREMY WALDRON:
As a, uh… You know the movie The Aristocrats? Have you seen that? Well, I mean, there’s a kind of way in which—
[02:02:30] MICHAEL ROSEN:
Please tell it.
[02:02:31] JEREMY WALDRON:
Well, I can’t tell a joke because— I mean, everybody knows the joke by now, but— Yeah. Is it, is it possible people don’t know the joke? Well,
(unintelligible)
. But in any event, I mean, that, that movie suggests in a way precisely that reversal, uh, in which one gets as low and as debased and as vulgar and as, uh, transgressive and as, uh, abject as possible. And then, of course, the topping is that, you know, the, uh, the, the acrobats are called the aristocrats.
Yeah. So I wonder if, if you took that alternative tradition, uh, in any way into, uh, account.
[02:03:04] MICHAEL ROSEN:
It’s gotta be taken into account and, and it, and it could either stand as a reproach and an alternative to the pompousness of the height and dignified, um, conception that I’ve been s-setting out. Or it could stand in a, in a complicated, ironic, and transvalued relation to it.
[02:03:22] JEREMY WALDRON:
Um, instead of responding directly to the literature that you mentioned, let me talk just for a moment about some work I did myself on pissing and shitting in, in, uh, legal policy. It was the work on homelessness. And, um, there was a…
I, I did this when I was at Berkeley. There was a, a student of mine who had, um, been in the seminar, uh, uh, when I was working on the homeless piece, and then he was involved in the, um, litigation against the Matrix program of Mayor Jordan, uh, which must have been, what, back in the early ’90s, late ’80s? The ’80s.
And he, uh, some group of communitar- well-meaning communitarians had written a brief, you know, under the inspiration of Amitai Etzioni and others saying, “Look, a community surely has the right to patrol its public spaces,” blah, blah, blah. And so he said, “Would I write a, a brief in response?” And I sort of wrote this long brief in, uh, setting out some of the arguments that I’d made in the article about homelessness, saying that people have to be able to urinate.
They have to be able to, um, excrete. They have to do this once or twice every day. That, that if there is no private place, no home where they’re allowed to do this, and there are no public laboratories, and you could be prosecuted for just doing it in a pu- in a, in a public garden.
It’s not clear that you’re free to urinate or shit at all. Yeah? And, uh, so he, he took this brief, and he looked at it.
He said, “Uh, maybe we shouldn’t use urinate.” I said, “That’s okay.” We can do the same with sleep,” right?
Which is not quite as coprophilic, but it’s, it’s sort of… It’s again, something people have to do every day, and the same logic applies. If you have no private place you can sleep, and there are no public hostels, and you’re not allowed to sleep in public places, why?
It’s not clear that you’re allowed to sleep at all. So I did a global search and replace for, for urinate and replaced it with sleep and, and sent the brief off. And as I remember, I, I can’t be making this up, the judge actually took a couple of sentences in his opinion to respond to the brief, which went something like this: “As for the arguments of so-called Professor Waldron, the, uh, his argument has a superficial logical plausibility until you realize that exactly the same would apply to Europe.”
(laughter)
So I don’t know whether this is an example of low jurisprudence in fact. Anyway.
(laughter)
[02:05:57] MODERATOR:
Okay, thank you. Yes, um, good. I’d like to invite everyone now to continue our discussion, uh, while we, um, engage in the dignified ingestion of comestibles. Um, but before we do so, um, please join me in thanking Jeremy Waldron and our three distinguished commentators.
[02:06:17] JEREMY WALDRON:
Thank you very much.