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Why is law necessary for human dignity?
journal contributionposted on 16.10.2020, 15:47 by Stephen Riley
The modern state produces distinctive possibilities and pathologies for human value and autonomy. The modern state is the iron cage making novel crimes against humanity possible. The state also regulates the legal and political in ways that enhance our status. The modern state is an evolving test-bed for the dignity of the human person, both in its demand for critical defence of human dignity and for our understanding of human dignity itself.
Understanding the connection between modernity and human dignity is distinct from concern with explicitly dignity-protecting norms. There were dignitarian norms in pre-modernity, rules protecting privileges and immunities. And there are dignitarian norms in modernity, expanding the scope of those enjoying dignitarian privileges and adding to them a greater range of claim-rights and liberties. Finding the coherence of, and continuity in, those norms is to pursue a genealogical, doctrinal and conceptual question about the changing functions of ‘dignity’ in our normative discourses and a question that has produced a stream of scholarly work for 70 years. 1 The question of the state and its structural relationship with human dignity is, in contrast, far less explored. Weinrib’s book is a distinctive, philosophically robust, contribution to our thinking not only about human dignity and public law but to our theories of human dignity in relation to political and social theory. 2 Without enquiries of this kind, talk of human dignity mires us in a heterogenous body of norms and moralities. With it we can make sense of human dignity as constitutive and foundational.
This question of modernity, the state, and human dignity will here be pared down more narrowly to a question of law as such – why is law a necessary condition of human dignity? – recognising that the meaning of ‘law’ is sensitive to the distinctive features of modernity. In what follows I argue that Weinrib has the right approach to human dignity in this context – one derived from Kant’s conception of innate right – fixing our attention on human dignity’s structural implications for political morality. I also argue, in partial contradistinction to Weinrib, that rooting human dignity in innate right invites us to rethink human dignity’s normative implications more radically, making public reason, human rights, and our normative orders the coordinates within which human dignity’s ‘modern’ implications must be located.