The many grounds for the excellence of human nature reported by many men failed to satisfy me - that man is the intermediary between creatures, the intimate of the gods, the king of the lower beings

by the acuteness of his senses, by the discernment of his reason, and by the light of his intelligence the interpreter of nature, the interval between fixed eternity and fleeting time, and (as the Persians say) the bond, nay, rather, the marriage song of the world, on David's testimony but little lower than the angels.

Pico della Mirandella, Oration on the Dignity of Man (I486)^[104]

A few months ago I had dinner with a litigation partner from a famously combative Washington law firm that specializes in white-collar defense - a firm that has often been the last resort of officials in trouble. She asked me what I was working on, and I told her that I’ve been thinking about human dignity and its connection with law. I halfway expected the neutral, wary response that practical people often have toward rarefied philosophical issues - the cautious response appropriate when your dinner companion explains that he’s been brooding over the Good, the True, and the Beautiful. Instead, she smiled and replied, “That’s extremely interesting to me, because defending human dignity is what I do every single day.”

Her response came spontaneously and without a moment’s hesitation. It seemed like a remarkable thing to say. After all, “defending human dignity” is an awfully abstract, intellectualized way to describe work that is as con­crete and sordid as the penitentiaries my friend keeps her clients out of. Her adversaries would hardly use the phrase to describe the smashmouth litigation tactics her firm is famous for. I expect, however, that many lawyers, and not just litigators, will agree with her. And, on reflection, I’ve come to recognize that it is precisely concern for human dignity which lies at the bottom of arguments in legal ethics that have occupied me for more than twenty years.

Of course, the concept of human dignity raises profound philosophical puzzles, and we can’t simply help ourselves to the phrase without under­taking to study what it means - or if indeed it means anything at all. Like Pico della Mirandella five centuries ago, the grounds for human dignity reported by many people (including, by the way, Pico della Mirandella) “fail to satisfy me.” The concept of human dignity sprouts from theological roots offered by the Abrahamic religions. The familiar grounds for asserting human dignity are that humanity is created in God’s image, that humans have dominion over the rest of nature, and that man consists of spirit. All of these are essentially articles of faith beyond proof or disproof, and I don’t believe they can be rationally reconstructed into secular counterparts. Rationalist proofs that we have immortal souls have not survived the philosophical criticisms of Kant, Nietzsche, or for that matter Aristotle. In any event, immortality would confer dignity on the soul only if the soul already possessed dignity on other grounds - immortal cockroaches would have no more dignity than their cousins who are not immortal, but merely very hard to get rid of. And, unfortunately, the picture of the human psyche emerging from scientific psychology seems more humiliating than it is dignifying.^[105] More con­troversially, the philosophical identification of human dignity with autonomy is, or so I shall argue, wrongheaded.

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 dig- nifier and the dignified.

But that jumps the gun. Here, I want to approach the question “What is 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 we can get some sense of what the term ‘human dignity’ means in them, 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 aim, 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 this book argues that it is a lot more central than many writers appreciate. However, it 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 gives human dignity pride of place. The UN Charter’s Preamble states the aim of reaffirming “faith... in the dignity and worth of the human person... ” Article 1 of the Universal Declaration of Human Rights begins, “All human beings are born free and equal in dignity and rights.” The 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 respected and protected.” And Principle VII of the Helsinki Accords asserts a philosophical proposition: that all human rights “derive from the inherent dignity of the human person.”^[106]

The phrase “inherent dignity of the human person” is, of course, a vague one, and the framers of these instruments left it vague intentionally.

Is this the counsel of wisdom? Roosevelt thought so, and we have no reason to doubt her political judgment. But 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 to 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 pro or con 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. Perhaps that is the best we can hope for. If so, however, then the invocation of human dignity in the instruments turns out to be empty rhetoric - a conceptual wheel 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 doesn’t beg too many important ques­tions, but that nevertheless has enough content that it can actually be useful in the critique of existing practices. This is obviously a much bigger task than understanding how lawyers defend human dignity (when they aren’t 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.