23 WALDRON Coercion

23 Jeremy Waldron, “Dignity, Rank, and Rights,” 

Tanner Lectures on Human Values

(2009)

6. Coercion

“Maybe the dignitarian account that I am giving makes law seem too “nice”; maybe I am obscuring the violent and coercive character of law.[121] Law kills people; it locks them up and throws away the key. And these are not aberrations; this is what law characteristically does. Where, it might be asked, is the dignity in that? Some have worried that “the entire enterprise, central to the criminal law, of regulating conduct through deterrence (that is, through the issuance of threats of deprivation and violence) is at odds with human dignity.” [122] According to Lon Fuller, we have to choose between definitions of law that emphasize coercion and definitions of law that emphasize dignity.[123] I think this is a mistake. It is because law is coercive and its currency is life and death, freedom and incarceration, that its pervasive commitment to dignity is so momentous. Law is the exercise of power. But that power should be channeled through these processes, through forms and institutions like these, even when that makes its exercise more difficult or requires power occasionally to retire from the field defeated [124]--this is exactly what is exciting about the dignity of legal citizenship in the context of the rule of law” (246-247)

That is a wholesale answer to the objection. We might also give some retail responses. I have already
mentioned the importance of selfapplication. Law looks wherever possible to voluntary compliance,
which of course is not the same as saying we are never coerced, but which does leave room for the
distinctively human trait of applying norms to one’s own behavior. This is not a trick; it involves a
genuinely respectful mode of coercion. Max Weber is famous for observing that, although “the use of
physical force is neither the sole, nor even the most usual, method of administration,” still its threat “and in the case of need its actual use...is always the last resort when others have failed.”[125] But it would be wrong to infer from this that law uses any means necessary to get its way. The use of torture, for example, is now banned by all legal systems.[126] Elsewhere I have argued that modern  aw observes this ban as emblematic of its commitment to a more general nonbrutality principle: “Law is not brutal in its operation;...it does not rule through abject fear and terror, or by breaking the will of those whom it confronts. If law is forceful or coercive, it gets its way by methods which respect rather than mutilate the dignity and agency of those who are its subjects.”[127]

I think this general aspiration is now fully internalized in our modern concept of law. The law may force people to do things or go places they would not otherwise do or go to. But even when this happens, they are not herded like cattle, broken like horses, beaten like dumb animals, or reduced to a quivering mass of “bestial desperate terror.”[128]

Finally: law punishes. But again--and increasingly this too is internal to our conception of law--we deploy modes of punishment that do not destroy the dignity of those on whom it is being administered. Some of this is the work of the specific dignitary provisions we talked about earlier, requiring that any punishment inflicted should be bearable--something that a person can endure,  without abandoning his or her elementary human functioning.[129] One ought to be able to do one’s time, take one’s licks, while remaining upright and self-possessed. No one thinks the protection of dignity is supposed to preclude any stigmatizing aspect of punishment. Whatever one’s dignity, there is always something shameful in having to be dealt with on the basis that one has violated the common standards set down in society for one’s behavior. But an aristocratic society might distinguish between the inevitable stigma of the punishment accorded to a noble (in relation to his baseline dignity) and the inevitable stigma of the punishment accorded to a commoner or slave. There are punishments commensurate and punishments incommensurate with one’s status in both cases. I believe James Whitman is right in his suggestion that in some European countries, there has been a sort of leveling up–outlawing the dehumanizing forms of punishment formerly visited upon low-status persons: everyone who is punished is to be punished now as though he were an errant noble rather than an errant slave. [130]

I know, I know: many political systems do not exhibit anything like the respect for dignity that I have
outlined here. Also every country has to cope with the burden of its own history, with vestiges of its
commitment to an ideology of differential dignity. Think of the United States, for example, burdened by a history of slavery and institutionalized racism. When the Thirteenth Amendment abolished slavery, it did not do so unconditionally, but made an explicit exception for the treatment of prisoners--“Neither slavery nor involuntary servitude, except as a punishment for crime..., shall exist within the United States”--as though Americans were anxious to maintain at least a vestige of the great denial of human dignity that had for years disfigured their constitution.[131] I do not need to tell you the impression that is created when one combines an understanding of this reservation with the staggering racial imbalances in our penitentiaries.

American defendants are sometimes kept silent and passive in American courtrooms by the use of
technology that enables the judge to subject them to electric shocks if they misbehave.[132] Reports of prisoners being “herded” with cattle prods emerge from time to time.[133] Conditions in our prison are de facto terrorizing and well known to be so; even if they are not officially approved or authorized, we know that prosecutors feel free to make use of defendants’ dread of this brutalization as a tactic in plea bargaining. And generally: we often participate in what Sanford Kadish once termed “the neglect of standards of decency and dignity that should apply whenever the law brings coercive measures to bear upon the individual.”[134] Other examples and examples from other countries (France, the United Kingdom, Russia, Israel, and elsewhere) could be multiplied. All have fallen short of the  characterization given in this paper.

[121] See, for example, Austin Sarat and Thomas Kearns, “A Journey through Forgetting: Toward a
Jurisprudence of Violence,” in The Fate of Law, edited by Austin Sarat and Thomas Kearns (Ann Arbor: University of Michigan Press, 1993).
[122] Meir Dan-Cohen, “Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law,” Harvard Law Review 97 (1984): 672–73.
[123] Fuller, The Morality of Law, 108.
[124] Cf. E. P. Thompson, Whigs and Hunters: The Origin of the Black Act (Harmondsworth: Penguin Books, 1975), 265.
[125] Max Weber, Economy and Society, edited by Guenther Roth and Claus Wittich (Berkeley and Los Angeles: University of California Press, 1978), 54.
[126] This is why the recent proposals in the United States to introduce judicial torture warrants and to make torture a procedure in law (not just in Blackstone’s words “an engine of state” [Commentaries, 4:326]) aroused such anger in parts of the legal community. See generally Jeremy Waldron, “Torture and Positive Law,” Columbia Law Review 105 (2005): 1718–20, for a fuller discussion.
[127] This is adapted from Waldron, “Torture and Positive Law,” 1726–27.
[128] Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt Brace Jovanovich,
1973), 441.
[129] See Waldron, “Cruel, Inhuman, and Degrading Treatment.”
[130] See Whitman, “Human Dignity in Europe and the United States.”
[131] U.S. Constitution, Thirteenth Amendment: “Neither slavery nor involuntary servitude, except as a punishment for crime..., shall exist within the United States, or any place subject to their jurisdiction.”
[132] See, for example, Harriet Chiang, “Justices Limit Stun Belts in Court,” San Francisco Chronicle, August 23, 2002, A7; and William Glaberson, “Electric Restraint’s Use Stirs Charges of Cruelty to Inmates,” New York Times, June 8, 1999, A1.
[133] See, for example, “37 Prisoners Sent to Texas Sue Missouri,” St. Louis Post-Dispatch, September 18, 1997, B3: “Missouri prisoners alleging abuse in a jail in Texas have sued their home state and officials responsible for running the jail where a videotape showed inmates apparently being beaten and shocked with stun guns.” See also Mike Bucsko and Robert Dvorchak, “Lawsuits Describe Racist Prison Rife with Brutality,” Pittsburgh Post-Gazette, April 26, 1998, B1.
[134] Sanford H. Kadish, “Francis A. Allen: An Appreciation,” Michigan Law Review 85 (1986): 403.