22 Jeremy Waldron, “Dignity, Rank, and Rights,”
Tanner Lectures on Human Values (2009)
In his book The Morality of Law, [Lon] Fuller developed an account of what he called the inner morality of law--the formal principles of generality, prospectivity, clarity, stability, consistency, whose observance is bound up with the basics of legal craftsmanship.[96] Legal positivists have sometimes expressed bewilderment as to why Fuller called these internal principles a “morality.”[97] He did so because he thought his eight principles had inherent moral significance. It was not only that he believed that observing them made it much more difficult to do substantive injustice, though this he did believe. It was also because he thought observing the principles he [237] identified was itself a way of respecting human dignity: “To embark on the enterprise of subjecting human conduct to rules involves ...a commitment to the view that man is ...a responsible agent, capable of understanding and following rules. . . . Every departure from the principles of law’s inner morality is an affront to man’s dignity as a responsible agent. To judge his actions by unpublished or retrospective laws, or to order him to do an act that is impossible, is to convey...your indifference to his powers of self-determination.”[98]
1. Self-Application
These are not just platitudes. Fuller is referring here to a quite specific characteristic of law--its general reliance on what Henry Hart and Albert Sacks in The Legal Process called “self-application,”[99] that is, people applying officially promulgated norms to their own conduct, rather than waiting for coercive intervention from the state. Self-application is an important feature of the way legal systems operate. They work by using, rather than short-circuiting, the agency of ordinary human individuals. They count on people’s capacities for practical understanding, self-control, self-monitoring, and the modulation of their own behavior in regard to norms that they can grasp and understand. All this makes ruling by law quite different from, say, herding cows with a cattle prod or directing a flock of sheep with a dog. It is quite different too from eliciting a reflex recoil with a scream of command. A pervasive emphasis on self-application is, in my view, definitive of law, distinguishing it sharply from systems of rule that work primarily by manipulating, terrorizing, or galvanizing behavior.[100]
In an article published some years ago, Michael Meyer argued for a strong link between human dignity and the idea of self-control.[101] Meyer [238] emphasized mainly the self-control involved in one’s self-presentation to others. We talked about this in my first lecture, in regard to the noble bearing and self-possession that dignity expresses and protects. But self-command is more than just setting one’s stance, as it were. It is also a matter of people fine-tuning their behavior effectively and gracefully in response to the legitimate demands that may be made upon them,[102] controlling external behavior--monitoring it and modulating it in accordance with one’s understanding of a norm. This one might imagine as a quintessentially aristocratic virtue, a form of self-command distinguished from the behavior of those who need to be driven by threats or the lash, or by forms of habituation that depend upon threats and the lash.[103] But if it is an aristocratic virtue, it is one that law now expects to find in all sectors of the population.
2. The Use of Standards
Law does not always present itself as a set of crisply defined rules that are meant to be obeyed
mechanically. Its demands often come to us in the form of standards–like the standard of “reasonable
care”--norms that require, frame, and facilitate genuine thought in the way we receive and comply with them. Some jurists say that law can guide conduct (and be self-applying) only if the indeterminacy of standards is reduced to clear rules through official elaboration.[104] But in many areas of life, law proceeds without such definitive elaboration. We operate on the basis that it is sometimes better to facilitate thoughtfulness about a certain type of situation (“When there is fog, drive at a reasonable speed”) than to lay down an operationalized rule (“When visibility is reduced to less than a hundred meters, lower your speed by 15 mph”). And people respond to this. If standards rely necessarily on official elaboration, then the life of the law shows that ordinary people can sometimes have the dignity of judges. They do their own elaborations. They are their own officials: they recognize a norm, they apprehend its bearing on their conduct, and they make a determination and act on it. [239]
3. Hearings
A third way in which law respects the dignity of those who are governed is in the provision that it makes for hearings in cases where an official determination is necessary. These are cases where self-application is not possible or where there is a dispute that requires official resolution. By hearings, I
mean formal events, like trials, tightly structured procedurally in order to enable an impartial tribunal to determine rights and responsibilities fairly and effectively after hearing evidence and argument from both sides. [[[Those who are immediately concerned have an opportunity to make submissions and present evidence, and confront, examine, and respond to evidence and submissions presented from the other side. Not only that, but both sides are listened to by a tribunal that is bound to respond to the arguments put forward in the reasons that it eventually gives for its decision.[105]
Law, we can say, is a mode of governance that acknowledges that people likely have a view or
perspective of their own to present on the application of a social norm to their conduct. Applying a norm to a human individual is not like deciding what to do about a rabid animal or a dilapidated house. It involves paying attention to a point of view. As such it embodies a crucial dignitarian idea--respecting the dignity of those to whom the norms are applied as beings capable of explaining themselves.
4. Argumentation
The institutional character of law makes law a matter of argument, and this contributes yet another
strand to law’s respect for human dignity. Law presents itself as something one can make sense of. The norms that are administered in our legal system may seem like just one damned command after
another, but lawyers and judges try to see the law as a whole, to discern some sort of coherence or
system, integrating particular items into a structure that makes intellectual sense. [106] And ordinary people take advantage of this aspiration to systematicity and integrity in framing their own legal arguments--by inviting the tribunal hearing their case to consider how the position they are putting forward fits generally into a coherent conception of the spirit of the law.107 [240]
In this way too, then, law conceives of the people who live under it as bearers of reason and intelligence. They are thinkers who can grasp and grapple with the rationale of the way they are governed and relate it in complex but intelligible ways to their own view of the relation between their actions and purposes and the actions and purposes of the state. This too is a tribute to human dignity.
(239-240).
n96 Lon L. Fuller, The Morality of Law (New Haven: Yale University Press, 1964), esp. chap. 2.
n98. Fuller, The Morality of Law, 162.
n99. For discussion of the idea of self-application, see Henry M. Hart and Albert Sacks, The Legal Process: Basic Problems in the Making and Application of Law, edited by William N. Eskridge and Philip P. Frickey (New York: Foundation Press, 1994), 120–21.
n100. It is part of the modern positivist understanding of law that we should appreciate the way in which norms are designed to guide action rather than simply coerce it. On the other hand, positivist jurisprudence is cautious about pursuing the implications that this may have for law’s commitment to human dignity. Jules Coleman, for example, who places great emphasis on the way law guides action, is at pains to insist that the action-guiding function of law is not necessarily expressive of a dignitarian value. He tries to separate the issues in this way: “Law just is the kind of thing that can realize some attractive ideals. That fact about law is not necessarily part of our concept of it” (The
Practice of Principle [Oxford: Oxford University Press, 2001], 194–95).
n101. Michael J. Meyer, “Dignity, Rights, and Self-Control,” Ethics 99 (1989): 520.
n102. Kant’s moral psychology celebrated in individuals the power to subordinate impulse and desire to the lawlike demands of morality, revealing, as he says, “a life independent of animality” (Critique of Practical Reason, 269–70 [5:162 of the Prussian Academy edition of Kant’s Works]).
n103. Cf. Aristotle, Nichomachean Ethics, bk. 10, chap. 9.
n104. The best account is in Hart and Sacks, Legal Process, 150–52.
n105. Lon L. Fuller, “The Forms and Limits of Adjudication,” Harvard Law Review 92 (1978): 353ff.
n106. See also the discussion in Jeremy Waldron, “Transcendental Nonsense and System in the Law,” Columbia Law Review 100 (2000): 30–40
Comments
Post a Comment