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* This essay was presented originally as the 2011 Sir David Williams Lecture at the University of Cambridge.
I.
Legal Rights to Dignity
The most obvious way in which law protects dignity is by proclaiming and enforcing specific norms that prohibit derogations from or outrages upon human dignity. Some of these norms are explicit, like Common Article 3 of the Geneva Conventions, which prohibits "outrages upon personal dignity." Implicitly, dignity is protected also by prohibitions on degradation like those we find in Article 7 of the International Covenant on Civil and Political Rights (ICCPR) and Article 3 of the European Convention on Human Rights (ECHR).
Many pages have been devoted to the question of what these provisions mean.1 In this essay, I want to talk about a less obvious way in which law protects dignity, but a way that is deeper, more pervasive, and more intimately connected with the very nature of law. For when we consider Article 3 of the ECHR or Common Article 3 of the Geneva Conventions, it may strike us as a matter of contingency that dignity is protected under these provisions. Maybe any worthwhile bill or charter of human rights should regard human dignity as something worth protecting, but it is notorious that at the level of positive law many bills of rights omit things that ought to have been included. There is no mention of dignity in the US Constitution, for example, and to the extent that the ideal has had any influence at all in American constitutional jurisprudence - and it has: for example in 8th Amendment jurisprudence2 - it has had to be imported as judge-made doctrine. And that too is historically contingent, not to say vulnerable to passing fads and fashions. So there's our question: are there connections between law and dignity that are less contingent than this?
II.
Dignity as the Basis of Rights
Some have suggested not only that dignity ought to be protected as a human right, but that dignity is itself a ground of rights, perhaps the ground of rights. The ICCPR begins its preamble with the acknowledgment that the rights contained in the covenant "derive from the inherent dignity of the...