“LAWYERS AS UPHOLDERS OF HUMAN DIGNITY
(WHEN THEY AREN’T BUSY ASSAULTING IT)”
UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2005
David Luban (Georgetown Law School)
[817] It seems to me that all these efforts fail because they try to zero in on some metaphysical property of humans that makes us the crown of creation, the paramount mortal links in the Great Chain of Being. I suspect that human dignity is not a metaphysical property of individual humans, but rather a property of relationships between humans—between, so to speak, the dignifier and the dignified. To put it another way, human dignity designates a way of being human, not a property of being human. It may even be the name of more than one way of being human. But that is jumping the gun. At this point, I want to approach the question of defining human dignity modestly and inductively by looking at several examples of arguments that claim to connect what lawyers do with the defense of human dignity.
Admittedly, there is something rather absurd about approaching a great and deep philosophical question by peering into the corridors of law firms. But I take my litigator friend very seriously. There is nothing absurd about connecting human dignity with legal personality and legal rights, and it is legal personality and legal rights that lawyers construct and demolish. By examining arguments about what lawyers do, I hope to provide some sense of what the term “human dignity” means, and in that way tease out a picture of what lawyers, and those who study them, mean when they invoke human dignity.
I have a more ambitious agenda in sight, however, than examining a handful of arguments about lawyers. The notion of human dignity plays something of a cameo role in discussions of legal ethics, although I shall be arguing that it is a lot more central than many writers appreciate. However, human dignity plays an enormous, central role in the contemporary law of human rights. All of the most vital documents in the twentieth-century law of human rights give human dignity pride of place. The U.N. Charter’s Preamble states the aim of reaffirming “faith . . . in the dignity and worth of the human person . . . .”3 Article 1 of the Universal Declaration of Human Rights begins, “All human beings are born free and equal in dignity and rights.”4 The Draft Charter of Fundamental Rights of the European Union begins with an Article 1 entitled “Human Dignity” that reads simply: “Human dignity is inviolable. It must be re[818]spected and protected.”5 And Principle VII of the Helsinki Accords states a philosophical proposition: that all human rights “derive from the inherent dignity of the human person.”6 The phrase “inherent dignity of the human person” is, of course, a vague one, and the framers of these instruments intentionally left it vague. When the Universal Declaration was drafted, it seemed initially like a good idea to include philosophers and theologians from all over the world to help clarify its basic concepts. Predictably, however, they fell into sectarian squabbling. The drafters ended by negotiating language that finessed the metaphysical and theological questions at issue.7
The result was a document that remains strategically silent about what key terms like “human dignity” are supposed to mean. Such silence is strategic because it allows individuals to provide their own definitions of these terms.
Is this the counsel of wisdom? Not entirely, and the development of human rights doctrine shows us why. A concept that can mean anything means nothing, and it seems to me that the invocation of human dignity in human rights documents does no conceptual work in explaining what rights everyone ought to have. If anyone denies, for example, that the rights to free speech or paid maternity leave are genuine human rights--and both of these appear in major human rights instruments despite the fact that some nations deny their validity—how can the case be argued against or defended if human rights are supposed to derive from human dignity, even though the concept of human dignity has intentionally been bled of content? The answer, of course, is that the case gets argued politically and diplomatically--and perhaps that is the best that can be practically hoped for. If so, however, then the invocation of human dignity in the instruments turns out to be empty rhetori--a conceptual wheel that is unattached to the rest of the machinery.
I would hope that we can do better than this—that we can come up with an understanding of human dignity that does not beg too many important questions, but that nevertheless has enough content that it actually can be useful in the critique of existing practices. This is obviously a much bigger task than understanding how lawyers defend human dignity (when they are not busy assaulting it). But I mean to undertake the smaller task as one step toward the larger—toward understanding human dignity in all its manifestations, not just those that pertain to our entanglements with the legal profession.
I. HUMAN DIGNITY AND THE RIGHT TO COUNSEL: ALAN DONAGAN’S ARGUMENT
Let us begin with the most basic question about lawyers in their role as courtroom advocates: Why should litigants have them? The answer that, over the years, has appealed to me the most rests on a principle stated by the late philosopher Alan Donagan: “[N]o matter how untrustworthy somebody may have proved to be in the past, one fails to respect his or her dignity as a human being if on any serious matter one refuses even provisionally to treat his or her testimony about it as being in good faith.”8
An immediate corollary to this principle is that litigants get to tell their stories and argue their understandings of the law. A procedural system that simply gagged a litigant and refused even to consider her version of the case would be, in effect, treating her story as if it did not exist, and treating her point of view as if it were literally beneath contempt.
Once we accept that human dignity requires litigants to be heard, the justification of the advocate becomes clear. People may be poor public speakers. They may be inarticulate, unlettered, mentally disorganized, or just plain stupid. They may know nothing of the law, and so be unable to argue its interpretation. Knowing no law, they may omit the very facts that make their case, or focus on pieces of the story that are irrelevant or prejudicial.9
They may be unable to utilize basic procedural rights such as objecting to their adversary’s leading questions. Their voices may be nails on a chalkboard or too mumbled to understand. They may speak a dialect, or for that matter know no English. None of this should matter. Human dignity does not depend on whether one is stupid or smooth. Hence the need for the advocate. Just as a nonEnglish speaker must be provided an interpreter, the legally mute should have—in the very finest sense of the term—a mouthpiece.10
Thus, Donagan’s argument connects the right to counsel with human dignity in two steps: first, that human dignity requires litigants to be heard, and second, that without a lawyer they cannot be heard. Of
course, the argument represents an abstraction from reality. In real life, advocates create theories of the case and assemble the arguments and evidence without caring much whether their theory is the client’s theory. Clients, for their part, generally will not have a theory of the case, and what interests them is the outcome, not the fidelity with which their lawyer represents their own version of reality. This is not a decisive objection. The law forces an artificial and stylized organization onto the way stories have to be told; by trial-time, any legally coherent telling of the client’s story will bear only scant resemblance to its raw version. And, precisely if the client is inarticulate, unreflective, or simply stupid, the lawyer’s version of the client’s story will be stronger, cleaner, and more nuanced than the client’s own version. The lawyer will read between the lines, and perhaps imbue the story with more subtlety than the client ever could. It seems to me that this does not disqualify the story from being, in an important sense, the client’s story. I acknowledge, nevertheless, that if the lawyer embellishes too much, at some point the story ceases to be the client’s and becomes instead the lawyer’s fictionalized version of the client’s story. The difference is a matter of degree, not of kind, but that makes it no less real. For the moment, I will postpone exploring the implications of this point for our discussion of human dignity; but I do wish to take it up again shortly.
If the advocate is the client’s mouthpiece or (to use a less offensive word) voice, telling the client’s story and interpreting the law from the client’s viewpoint, it follow that advocacy has limits. The lawyer cannot
knowingly tell a false story, and perhaps under some circumstances this prohibition includes willful blindness whereby a lawyer affirmatively takes steps to avoid knowing that the story is false.11 As Donagan puts it, the story has to have the minimum of credibility necessary so that it can be provisionally taken as a good-faith account.12 Decades ago, Lon Fuller and John Randall drafted a quasi-official statement of the principles of adversary ethics and argued that a lawyer “trespasses against the obligations of professional responsibility, when his desire to win leads him to muddy the headwaters of decision, when, instead of lending a needed perspective to a controversy, he distorts and obscures its true nature.”13 I suspect that almost every trial lawyer would disagree with this conclusion; but, on the terms of Donagan’s argument, it seems to me largely correct.14
At this point, let us return to the principle underlying Donagan’s argument: No matter how untrustworthy somebody may have proved to be in the past, one fails to respect his or her dignity as a human being if on any serious matter one refuses even provisionally to treat his or her testimony about it as being in good faith.15
What does the phrase “human dignity” signify in this principle? Apparently, honoring a litigant’s human dignity means suspending disbelief and hearing the story she has to tell. So, in this context, having human dignity means, roughly, having a story of one’s own.
I add the words “of one’s own” to emphasize the first-personal, subjective character of the story. Fuller once described the advocate’s job as displaying the case “in the aspect it assumes when viewed from that corner of life into which fate has cast his client.”16 The client’s story is not just the story in which she figures; it is the story she has to tell. The story is about her in both senses of the term—she is its subject-matter, and she is its center. It revolves about her, just as, to terrestrials, the sun revolves about the earth (no more and no less).17
n2 It is a picture of creatures who, over a wide range of cases, unconsciously falsify reality and change their own values whenever that is necessary to maintain an essential belief in their own inherent goodness. I summarize and analyze relevant results in experimental social psychology in David Luban, Integrity: Its Causes and Cures, 72 Fordham L. Rev. 279 (2003) and David Luban, The Ethics of Wrongful Obedience, in Ethics in Practice 94 (Deborah L. Rhode ed., 2000).
n3 U.N. CHARTER pmbl.
n4 Universal Declaration of Human Rights, G.A. Res. 217A(III), U.N. GAOR, 3d Sess., art. 1, at 71, U.N. Doc. A/810 (1948), available at http://www.un.org/Overview/rights.html.
n5 Charter of Fundamental Rights of the European Union art. 1, Dec. 7, 2000, O.J. (C364) 1 (2000).
n6 Final Act Conference on Security and Cooperation in Europe, Aug. 1, 1975, 73 DEP’T ST. BULL. 323 (1975). See also generally, Oscar Schachter, Human Dignity as a Normative Concept, 77 Am. J. Int’l L. 848 (1983).
n7 Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent 284–302 (1999).
n8 Alan Donagan, Justifying Legal Practice in the Adversary System, in The Good Lawyer: Lawyers’ Roles and Lawyers’ Ethics 130 (David Luban ed., 1984).
n9 When Clarence Gideon defended himself against a breaking-and-entering charge because he could not afford a lawyer, he spent most of his time trying to prove that on the night of the crime he was not drunk, which was irrelevant to the charge, and completely overlooked the real weaknesses in the state’s case. How was he supposed to know any better? Anthony Lewis, Gideon’s Trumpet 59–62 (1964).
n10 I have elaborated on this argument in David Luban, Lawyers and Justice: An Ethical Study 85–87 (1988) [hereinafter Luban, Lawyers and Justice].
n11 See David Luban, Contrived Ignorance, 87 Geo. L.J. 957 (1999) (discussing whether lawyers
legitimately can evade guilty knowledge regarding their clients).
n12 Donagan, supra note 8, at 130.
n13 Lon L. Fuller & John D. Randall, Professional Responsibility: Report of the Joint Conference, 44 A.B.A. J. 1159, 1161 (1958).
n14 But there remains plenty of room for controversy about how far the defender’s leeway to mislead extends. See David Luban, Are Criminal Defenders Different?, 91 Mich. L. Rev. 1729, 1759-62 (1993).
n15 Donagan, supra note 8, at 130.
NOTE: Alan Donagan taught philosophy at the University of Chicago for many years. He died in 1991.
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