Riley - Human dignity and law : legal and philosophical investigations

This book argues that human dignity and law stand in a privileged relationship with one another. Law must be understood as limited by the demands made by human dignity. Conversely, human dignity cannot be properly understood without clarifying its interaction with legal institutions and legal practices. This is not, then, a survey of the uses of human dignity in law; it is a rethinking of human dignity in relation to our principles of social governance. The result is a revisionist account of human dignity and law, one focused less on the use of human dignity in our regulations and more on its constitutive implications for the governance of the public realm.

The first part conducts a wide-ranging moral, legal, and political analysis of the nature and functions of human dignity. The second part applies that analysis to three fields of legal regulation: international law, transnational law, and domestic public law.

The book will appeal to scholars in both philosophy and law. It will also be of interest to political theorists, particularly those working within the liberal tradition or those concerned with institutional design.

Dr Stephen Riley is a lecturer in the law school of the University of Leicester, UK. He previously worked as a postdoctoral researcher in philosophy at Utrecht University.

This book develops an original revisionist understanding of human dignity. Under this understanding, dignity does not exist prior to or independently of law. Human dignity should be analyzed as a value which lies at the intersection of morality, law, and politics. This valuable approach challenges established dogmas and establishes the significance of law as a value-sustaining institution.

Alon Harel, Mizock Professor of Law, The Hebrew University Law Faculty and the Federmann Center for the Study of Rationality.

In place of conceptions of human dignity that suffer from normative indeterminacy, regulative redundancy or constitutive incoherence, Stephen Riley elaborates an account that focuses on the basic status of humans and their entitlements in a network of obligations that ranges across law, politics, morals, and justice. This is a truly impressive work, beautifully written and compellingly argued.

Roger Brownsword, Kings College London and Bournemouth University.

First published 2018
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2018 Stephen Riley

The right of Stephen Riley to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988.

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British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library

Library of Congress Cataloging-in-Publication Data

Names: Riley, Stephen, 1977, author.

Title: Human dignity and the law : legal and philosophical investigations / Stephen Riley.

Description: New York, NY : Routledge, 2017. | Includes bibliographical references and index.

Identifiers: LCCN 2017022609 | ISBN 9781138287587 (hardback) | ISBN 9781351975254 (adobe reader) | ISBN 9781351975247 (epub) | ISBN 9781351975230 (mobipocket)

Subjects: LCSH: Respect for personsLaw and legislation. | LawPhilosophy. | Dignity.

Classification: LCC K3249 .R55 2017 | DDC 340/.11dc23

LC record available at https://lccn.loc.gov/2017022609

ISBN: 978-1-138-28758-7 (hbk)
ISBN: 978-1-315-26816-3 (ebk)

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To Ella and Joe

This book argues that human dignity and law stand in a privileged relationship with one another. Law must be understood as limited by the demands made by human dignity. Conversely, human dignity cannot be properly understood without clarifying its interaction with legal institutions and legal practices. We therefore need to undertake a philosophical investigation into the links between human dignity and justice. That investigation must in turn be applied to our most important legal practices. The result is a revisionist account of human dignity and law, one focussed less on the use of human dignity in our regulations and more on its constitutive implications for the governance of the public realm.

Any scholarship on human dignity must be conscious of two vices to which discussions of human dignity are prey. This first is over-reaching. Human dignity has become an all-encompassing but vague token of collective aspirations. One of the consequences of putting human dignity and law into dialogue is, I hope, exchanging human dignity rhetoric for normative precision.

The second vice is under-estimation of human dignitys consequences. Human dignity is tamed by legal our institutions. Law can reduce human dignity to its breaches, to degradation or instrumentalisation. I take the implications of human dignity to lie in our very conception of obligations and by extension in the very idea of law itself. It is necessary, then, to think again about how it is we orientate our social world to human dignity. Whether this study ultimately under- or over-reaches will be for the reader to determine.

This book was written as part of the research project Human Dignity as the Foundation of Human Rights at Utrecht University, financed by the Netherlands Organisation for Scientific Research (NWO).

The chapters were read and commented upon by Patrick Capps, Catherine Dupr, Adam Etinson, Robert Fine, Machiko Kanetake, Gavin Kerr, Mary Neal, Elena Pribytkova, Phil Riley, David M. Seymour, Dina Townsend, and Elaine Webster. I am very grateful indeed for their time and constructive comments; I would have made significantly more errors without their efforts. All remaining faults are, alas, my own.

The project team at Utrecht University provided a wonderful group of scholars to work with. They have read countless drafts and given scholarly support in every imaginable way. My thanks to Gerhard Bos, Dascha During, Marie Gbel, Jurrin Hamer, and Frederike Kaldewaij. My especial thanks are owed to the project leader, Marcus Dwell, for steering me into a different engagement with human dignity than the one I had planned and for being an inspiring scholar to work with throughout my time in Utrecht.

Special thanks are owed to Ruth who made considerable sacrifices to allow me to get to this point. I want to express a deep gratitude for her support and kindness.

This study is not a survey of the uses of human dignity in law. It is a rethinking of human dignity in relation to law. It argues that human dignity, properly understood, demands a coherent vision of law and of our principles of social governance. Human dignity demands that the basic status of every individual should form the ultimate framework of our obligations, regardless of the settled practices of our legal and political institutions. To accept, alternatively, the current contradictory manifestations of human dignity in law (and to accept its various rhetorical functions in the political realm) is to abandon human dignity to its critics: legally efficacious at times but ultimately vacuous, the shibboleth of all empty-headed moralists as Schopenhauer put it with vicious relish.