Dignity: Bringing Law Down to Earth
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When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given e.g. AUTHOR (year of submission) "Full thesis title", University of Southampton, name of the University School or Department, PhD Thesis, pagination http://eprints.soton.ac.uk UNIVERSITY OF SOUTHAMPTON Faculty of Business and Law Southampton Law School Human Dignity: bringing law down to Earth by Alice Harrison Thesis for the degree of Doctor of Philosophy February 2014 i UNIVERSITY OF SOUTHAMPTON ABSTRACT Dignity founds The Law: from the centralising dignity of sovereign and parliament; to the particular dignities of The Crown and the Courts; to challenges that The Law fails to respect human dignity. Remembrance revealed through historic experience (in a survey of dignity in UK statute and Case law) and societal reflection (in dignity, jurisprudence and philosophy literature), reveals dignity evolved through Stoic characterisation of dignity as a logically reasoned, ethically considered way to be, to contemporary ideas that challenge the logic and or ethics of an imposed way of being. Much contemporary dignity literature accepts limits to law, working within The Law to try to claim the posited self-indulgent position of sovereign dignity, in claims of rank and rights. I suggest the only dignity to withstand societal scrutiny, in a consistent guiding message recognised through two millennia of Stoic informed wisdom, is that people individually sense, reason and reflect on good ways for themselves and society to be. People, who accept societal limits, but aspire to more. Consistent with this history I suggest a new definition for dignity; ‘societally valued worthiness in being’ that positively emerges from humans being in dynamic society. People limited by The Law try to concretise dignity, and law; to pin down particular ways for people and society to be, contained in rules of law. For example, governing law, assumed in sovereign dignity naturally arising in the leadership of people in particular ways of being concretised in autocracies and democratic parliaments; The Law providing the normative guidance of how to conform to that way of being. Yet, in agreement with John Austin, I suggest logical reason and ethical considerations of dignity do not arise exclusively in sovereign roles, but naturally from a positive ferment of command and obedience that challenges, and or necessarily supports, the positions of asserted dignity. I challenge Austin’s presumption that sovereign positions are only maintained by coercion, suggesting dignity also arises in societies bound by care and cooperation. I recognise the positive ferment of The Law in governing law, but also in wider contexts of dignity, societally valued worthiness in being, that work independently of The Law. I adopt the work of William Twining ii and his distinctions of ‘law talk’ of The Law and ‘talk about’ governing law to inform and enhance a re-picturing of a positive Natural Law Continuum. Finally I adapt Hohfeld’s matrix of rights to suggest that incidents of The Law reveal the locus of dignity in The Law’s making. The matrix, The New Model of Governing Law, can be used to (re)consider whether a particular position of The Law (still) has dignity; is The Law valued worthy of being in contemporary society. Understanding The Law’s dignity, alongside contemporary determinations of dignity, confirms The Law as societally valued, and or illuminates ways and dignity (independent like minds) loci to support, innovate or challenge The Law. Sovereign dignity, and societal law, evolves through the emergence of human dignity in incidents and issues recognised as contained in governing law, within the wider societal determination of Natural Law Continuum. FACULTY OF BUSINESS AND LAW Southampton Law School Thesis for the degree of Doctor of Philosophy HUMAN DIGNITY: BRINGING LAW DOWN TO EARTH Alice Harrison iii Table of Contents Abstract……………………………………………i Table of Contents………………………………...ii Chapter Outline……………………………...……v DECLARATION OF AUTHORSHIP………....ix Acknowledgements……………………………… x iv Chapter Outline Chapter 1 – Introduction Page 1 1. Can dignity be adequately defined? 2. What is the significance of dignity asserted at multiple levels in law? 3. What causes the objective/subjective tension in the aspects of dignity? 4. How do modern ideas of human dignity relate to older ideas of dignity? 5. Can dignity be meaningfully applied to/in law? Chapter Two - The Pervasiveness Newsworthiness of Dignity Page 7 2.1 Introduction to the pervasiveness newsworthiness of dignity 2.2 The newsworthiness of dignity: 2.3 Dignity asserted in law in promissory speeches and rallying calls to action 2.4 Dignity Assertion Intends to Favour The Asserter and Always Did. 2.5 Aspirations for international law and the unification of supra-national law 2.6 The United Nations, Charter & Declaration 2.6.1 The United Nations 2.6.2 The Charter and Declaration 2.7 International humanitarian law 2.8 Human dignity in national and international law Chapter Three - In pursuit of Dignity Page 27 3. Introduction to the dignity quandary; Questions raised in response to Feldman; a Methodology; Chapter Outline; and Literature Review. 3.1 Dignity in pursuit of Rights – An encounter with Feldman introducing the dignity quandary 3.1.2 Questions raised in response to Feldman 1. Can dignity be adequately defined? 2. What is the significance of dignity asserted at multiple levels in law? 3. What causes the objective/subjective tension in the aspects of dignity? 4. How does the modern idea of human dignity relate to older ideas of dignity? 5. Can dignity be meaningfully applied to/in law? v 3.2 Methodology 3.2.1 The UK Dignity Survey 3.2.1.2 Cautions about the dignity survey 3.2.2 Dignity Literature Review – Law in pursuit of Dignity in pursuit of Law 3.2.2.1 Dignity Stream One 3.2.2.2. Dignity Stream Two 3.2.2.3 Dignity Stream Three 3.2.2.4 The Unsatisfactory Outcome of the Dignity Literature Review 3.3 Experience of Being – Dignity in pursuit of Law in pursuit of Dignity 3.4 Answering the Feldman Inspired Questions. Chapter Four - The Ephemerality of Dignity in Being Page 51 4. Introduction 4.1 Dignity Definitions 4.2 The Golden Rule or Ethic of Reciprocity 4.3 Dignity through Philosophy 4.4 A Shared Harmony of Common Self-Interest 4.5 The history of dignity as philosophical-cum-political concept 4.6 Trans-valuation and rank Chapter Five –Dignity: societally valued worthiness in being Page 69 5.1 First… An Ephemeral Analogy 5.2 Being - the significance of dignity asserted at multiple levels in law 5.3 Societies - Different Spheres of Dignity within Human Being 5.4 Dignity Spheres Over-Arching Human Being 5.5 The ‘Worthiness’ of ‘Societally Valued Worthiness in Being’ 5.6 Matrix of Desire – Spinoza Inspired Aristotelian Experimental Design 5.7 Dignity Valued 5.8 The value of Dignity over Absolute Spirit, Being or Will 5.9 A Temporary Conclusion on Dignity 5.10 A Return to the Ephemeral Analogy vi Chapter Six – The Elusiveness of Dignity in Law Page 105 6.1 Different Spheres of Dignity/Being, Leading to Different Spheres of Law 6.2 Different Spheres of Law 6.3 The Dignity/Law Bazaar 6.4 Mapping the Law 6.5 A Legal Nationalist 6.6 Conceptualising the Contested Contestable 6.6.1 A game of ‘champions’ 6.7 Appreciating the Master’s Tools Chapter Seven - The Sovereignty of Dignity Page 124 7.1 Twining - General Jurisprudence - Contestable Boundaries of Law 7.2 Austin’s - Philosophy of Positive Law 7.2.1 Austin’s Schema of the ‘Objects of Law’ 7.2.2 Re-Picturing Human Law 7.2.3 The Pattern in Austin’s ‘Human Law’ 7.2.3.1 Positive Law (the appropriate matter of jurisprudence) 7.2.3.2 The Temporal Being of Sovereign Dignity 7.2.3.3 The Sovereignty of Dignity - The Essential Focal Point for Law 7.2.3.4 Governing Law (Austin’s Human Law) 7.2.3.5 The Essential Existential ‘Positive Law’ Agreement 7.2.3.6 Laws set by people not as political superiors 7.3 Law of Religious and Other Beliefs (Austin’s Law of God) 7.4 ‘Objects improperly but by close analogy termed laws’ 7.5 The unrevealing of the ‘Objects of Law’ 7.6 ‘Laws so called by a mere figure of speech’ 7.7 Public and Private Work Spheres - determined by dignity 7.7.2 Public Sphere - determined by dignity 7.7.3 Other private life issues - determined by dignity 7.8 The Re-Pictured ‘Objects of Law’ 7.9 Human Law 7.10 The Natural Law Continuum 7.10.1 The Law vii 7.10.2 Human Law 7.10.3 Earth Law Chapter Eight – Applied Judicial, and Other, Reasoning Page 189 8.1 Human Law: the Law Pro and Anti Law 8.1.2 Human Relationships 8.1.3 Human Relationships and Contestable Boundaries of Law 8.1.4 Recognising Human Dignity in Different Spheres of Societal Scope 8.1.5 The Resort to ‘Governing Law’ 8.2 Hohfeld’s - “Fundamental Legal Conceptions” 8.2.1 Hohfeld’s Fundamental Legal Conceptions 8.2.2 The Continuing “Loose” Talk of Rights Talk in Rights Theories 8.2.3 Back to Hohfeld Basics 8.2.4 Law as an Intervener 8.