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Davis, Dr Julia --- "Forbidding Dwarf tossing: defending dignity or discrimination based on size?" [2006] NZYbkNZJur 16; (2006) 9 Yearbook of New Zealand Jurisprudence 238

Last Updated: 24 April 2015

Forbidding Dwarf Tossing: Defending Dignity or

Discrimination Based on Size?

Dr Julia Davis*

i. intrOdUctiOn

In the last half of the twentieth century legislators began to use the idea of human dignity to supplement the traditional concepts of harm and autonomy as the source of principled controls over the state’s entitlement to forbid conduct on the pain of criminal punishment. More recently, the concept of dignity has been expressly relied upon by legislators to justify imposing criminal sanctions on those who organise dwarf tossing contests. This paper examines the relative merits of the three suggested candidates for keeping the criminal law within principled boundaries, namely, the harm principle, the principle of autonomy, and the idea of human dignity. It presents a model of criminal wrongdoing that is based on protecting not only our welfare and our autonomy but also our desire to be respected by others as persons of equal dignity, worth and value. It concludes by suggesting that our primary allegiance to the principle that all human beings are equal in dignity will sometimes require us to refrain from criminalising certain controversial kinds of conduct like dwarf tossing that may at first glance appear to be supremely undignified.

ii. the chaLLenge OF dwarF tOSSing

An important task facing any community is to find a source of principled moral limits that can be used to control the extent of the criminal law. This search is frustrated by the fact that the concept of wrongdoing, just like the contested concept of a crime itself, is open and empty of factual content. The ordinary definitions of wrongdoing, as conduct that deviates from a rule, standard or norm of conduct that is thought to be right, and of a crime as ‘a legal wrong that can be followed by criminal proceedings which may result in punishment’¹ both leave undone the hard work of identifying in precise factual terms the conduct that ought to be forbidden by the criminal law and providing acceptable reasons why it is thought to be right to punish offenders who are responsible for that conduct.

* Faculty of Law, University of Tasmania.

1 Williams G, Textbook of Criminal Law (1983) 27-28.

Legislators who have found that the meaning of these terms does not yield a universally accepted test for recognising criminal wrongdoing have sought assistance from other sources including religious teachings, moral and legal philosophy and criminology. However, despite our continuing community conversations about crime, wrongdoing and punishment, we have not agreed upon a clear test that can neatly divide the conduct that we feel compelled to act against from the conduct that we feel we must tolerate or deal with in other ways. Whenever a likely candidate is put forward by one camp, opposition from another camp points out its weaknesses. Consequently, legislators, whose allegiance to John Stuart Mill’s famous ‘harm principle’ is challenged by the

‘autonomy principle’ derived from Kantian ethics, adopt compromises that open the law up to criticism that it is illogical, inconsistent, and unprincipled. Lawyers and legal theorists, aware of the pull of opposing values, respond in different ways: some hail the collapse of the harm principle and call for a new critical principle;² some smuggle aspects of one theory into another to bolster its perceived shortcomings;³ others craft hybrid theories that use different guiding principles at different stages of the criminal justice process;⁴ while sceptics argue that the law is hopelessly ambiguous, fatally contradictory and fundamentally incapable of delivering justice.⁵

Fortunately, we are often able to agree upon the content of the criminal law; the core crimes sometimes classified as mala in se or evil in themselves, like murder, rape, theft and wounding, are commonly viewed by most members of the community both as morally wrong and as suitable objects of criminal sanctions. By contrast, those kinds of conduct that are viewed as mala prohibita or regulatory crimes, which occur at the penumbra of the criminal law, do cause problems both for legislators and for citizens. In these cases where we disagree, our need for a critical principle that can assist us in deciding upon the moral limits of the criminal law is thrown into high relief. One such challenging case is the ‘sport’ of dwarf tossing, a form of entertainment that was invented in Australia in the nineteen eighties, and which spread rapidly to other parts of the world. Dwarf tossing is a contest of strength usually held in discotheques and bars, which rewards the person who is able to throw a willing and suitably protected dwarf the furthest onto a padded landing stage.

2 Harcourt, BE, ‘The Collapse of the Harm Principle’ (1999) 90 JCrimL&Criminology

109.

3 For example, Joel Feinberg adopts an extended normative definition of harm as an indefensible and wrongful setback to interest, done with fault, and in violation of a person’s rights in The Moral Limits of the Criminal Law, Volume 1, Harm to Others (1984) 105-06,

36, 214-215, 186 and Harmless Wrongdoing (1988) 26.

4 See, for example, Hart HLA, Punishment and Responsibility (1984).

5 Norrie, A, Crime, Reason and History (1993) ‘Simulacra of Morality? Beyond the Ideal/ Actual Antinomies of Criminal Justice’ in Duff RA (ed.) Philosophy and the Criminal Law (1998) 101; and Punishment, Responsibility and Justice: A Relational Critique (2000).

Another variant, dwarf bowling, involves launching a helmeted dwarf who is strapped to a skateboard down a bowling alley; the winner is the contestant who knocks down the most pins.

At about the same time that dwarf tossing started to grow in popularity, legislators and legal philosophers began to use the idea of human dignity to supplement, and at times to displace, a reliance on the traditional concepts of harm and autonomy as the source of principled controls over the state’s entitlement to forbid conduct on the pain of criminal punishment. Responding to the protests of citizens who were outraged by the undignified spectacle of dwarf tossing contests and who claimed that such events are disgusting, demeaning and objectify and ridicule little people, legislators in France and the USA expressly relied upon the notion of human dignity to justify imposing criminal sanctions on those who organise dwarf tossing contests. The mayor of New York, Mario Cuomo, signed into law a bill prohibiting both forms of dwarf sports in 1990, saying that he did:

... not lightly impose limits on the activities of consenting participants. But balancing all the interests affected, I am persuaded that approval of this bill respects basic human dignity and protects the safety and self respect of the special people who are the subject of this strange diversion. ⁶

In France, the Conseil d’État, affirming that respect for human dignity is one

of the constituents of public order, upheld a law forbidding dwarf tossing in

1995 and refused to allow dwarfs to compromise their dignity by allowing themselves to be used as mere projectiles or be treated in the same way as inanimate pieces of sporting equipment.⁷ In 2002 this action inspired a French citizen, Manuel Wackenheim, who earned his living by participating in dwarf tossing contests, to attempt to overturn the legislation by taking his case against France to the UN Human Rights Committee.⁸ He argued that the French law was an unlawful, paternalistic act of discrimination based on his size and maintained that the ban infringed his autonomy and his right to pursue

6 Abramovsky, A, ‘Bias Crime: A Call for Alternative Responses’ (1992) 19 FordhamUrbanLJ

875, 902, n 229.

7 Conseil d’État (October 27, 1995) req nos (Commune de Morsang-sur-Orge) and 143-578 (Ville d’Aix-en-Provence).

8 The French dwarf, who lost before the Conseil d’État, supra n 7, took his case to the UN Human Rights Committee on the grounds that the French regulations banning the organisation of dwarf throwing contests violated his rights under the International Covenant on Civil and Political Rights. The case was not successful: Mr Manuel Wackenheim v France Communication No 854/1999, UN Doc CCPR/C/75/D/8541999 (13 November 1996), UN Doc A/57/40 at 179 (2002) Decision of the Human Rights Committee, 75^th Session, delivered

26 September 2002.

employment in a difficult job market.⁹ According to Mr Wackenheim, the bans denied his human dignity, which he equated with having employment and professional status. The UN Human Rights Committee upheld the validity of the ban on dwarf-tossing, claiming that it was necessary to protect public order and that notion of upholding human dignity was a valid basis for the laws.

I will argue in this paper that while the state is entitled to regulate the conditions under which dwarfs can be employed in these contests, it is not entitled to use the criminal law to punish those who organise safe, regulated dwarf throwing events. This conclusion is based on a model of criminal wrongdoing that aims to give a place to each of the three important principles that have been suggested as candidates for keeping the criminal law within principled boundaries, namely, the harm principle, the principle of autonomy, and the idea of respecting human dignity. The recent emergence of the notion of human dignity and its use in justifying the imposition of criminal sanctions on certain kinds of conduct generally thought to be harmless expressions of personal autonomy, forces us once again to think about the nature of the good life for human beings, to clarify the role that the criminal law should play in securing that vision and to reconsider the relative value that the state should place on our welfare and autonomy interests and our shared desire to be respected by others as persons of equal dignity and worth. The challenge posed by dwarf tossing contests offers us a useful test case to analyse the effects of each of these different approaches to setting the moral boundaries of the criminal law.

I begin in the next section by examining the relative merits of the harm principle, the principle of autonomy, and the idea of human dignity in order to see how they might be used as the basis for our decisions to criminalise conduct. The third section presents an account of a crime as conduct that threatens the foundations of the good life for human beings living together as a community. I suggest that, just like the good life which it mirrors and protects, a crime contains two distinct dimensions; a factual dimension that focuses on preventing setbacks to our welfare and our autonomy, and a normative dimension that is informed by the value that we place on being respected

9 See supra n 8. This case has attracted the following comments: Baber HE, ‘The Ethics of Dwarf Tossing’ (1989) FallInt’lJAppliedPhil 1; Becker L, ‘Crimes Against Autonomy’ (1999) 40 William&MaryLR 959, 971; Beyleveld D & Brownsword R, Human Dignity in Bioethics and Biolaw (2001) 25-27; Brownsword R ‘Bioethics Today, Bioethics Tomorrow: Stem Cell Research and the Dignitarian Alliance’ (2003) 17 NotreDameJLEthics&PubPol icy 15; Friedman GS & Whitman JQ, ‘The European Transformation of Harassment Law: Discrimination Versus Dignity’ (2003) 9 ColumbiaJEurL 241; McGee RW, ‘If Dwarf Tossing is Outlawed, Only Outlaws will Toss Dwarfs: Is Dwarf Tossing a Victimless Crime?’ (1993)

38 AmerJJuris 335; and Owen DG, ‘Products Liability: Category Liability: Product Outlaws’ (2000) 10 KansasJL&PubPolicy 126.

by others as an equal. I argue that our criminal law contains a distinctive conception of justice that is based on our vision of ourselves as equals in dignity, worth and value, and which imposes a duty on each of us to respect others by treating their interests in welfare and autonomy as carrying a value that is equal to our own. Under this ‘Good Life Model’ of the criminal law, we cannot justify criminalising any conduct unless it breaches both the harm principle, which sets the factual boundaries of the criminal law, and the equal dignity principle, which provides the criminal law with its moral heart. The paper concludes by explaining why our allegiance to the principle that all human beings should be respected as persons of equal dignity will sometimes lead to an apparent paradox that requires us to refrain from criminalising certain controversial kinds of conduct – like the practice of dwarf tossing – that may appear to many in the community to be supremely undignified.

iii. the Search FOr the mOraL LimitS OF the criminaL Law

The Harm Principle

John Stuart Mill argued that the state should be entitled to restrict our liberty only when our conduct risks doing harm to others.¹⁰ This ‘very simple’ principle has strong initial appeal because the essentially factual notion of harm-doing, as conduct that makes someone or something worse off, appears to provide a straightforward test that can give content to the moral, but factually empty, concepts of wrongdoing and crime. Furthermore, the utilitarian concern with harm and human welfare sits well with the state’s duty to govern for the health, safety and wellbeing of its citizens. However, three problems arise when we put the notion of harm into place as the critical principle that determines the contours of the criminal law.

The first problem is that a harm based test pushes the criminal law too far. It does not tell us how to distinguish criminal conduct from the conduct that we think would be better dealt with by the civil law. More importantly, the harm principle would extend the reach of the criminal law far beyond its current boundaries because, although it is relatively easy to identify, harm is ubiquitous. If we track the consequences far enough, almost any conduct can lead to harm and so theoretically attract the criminal sanction. Certainly, the harm principle’s perceived strength (in liberal eyes at least) in ruling out the criminalisation of conduct that is essentially objected to on the grounds of offence or moralism has been weakened by politicians who use ‘broken windows’ arguments to

10 Mill JS, On Liberty and Other Essays (1998) 13-14.

extend the criminal law by finding remote harms in conduct traditionally considered to be harmless to others like prostitution, begging, selling alcohol, using drugs, and engaging in homosexual activity.¹¹

In the case of dwarf throwing, it has been argued by dwarfs who wish to participate in the contests, that provided proper safety matters are observed, the activity is not dangerous and is certainly less dangerous that many kinds of dwarf wrestling exhibitions, which are not forbidden.¹² If we compare the sport with boxing, rugby or Australian Rules football where the risk of harm cannot be eliminated because of the nature of the games, regulated dwarf tossing does not appear to be harmful enough to forbid. If we compare it with ordinary recreational pursuits like sky-diving and gliding, where we allow individuals to risk their health and their welfare and (very often) death itself, it seems that we should allow the dwarfs a similar choice. However, some commentators like HE Baber, who accept that the events can be safely carried out without harming the participants, claim that dwarf tossing contests are wrong and should be banned under the harm principle on the grounds that they cause remote harms to ‘unwilling non-participants, particularly other little people.’¹³ These attempts to use the harm principle to justify forbidding dwarf tossing contests reveal the limits of the harm principle and our need either for a remoteness test for causing harm or for some other morally acceptable source of limits.

The next problem arises because equating harm-doing with wrongdoing (and reducing the moral problem to a purely factual question) leaves out something important; specifically, it does not take account of the characteristic attitude of contempt for the value of others that we read into conduct commonly seen as criminal. To solve this problem Jerome Hall posited the existence of a special kind of ‘penal’, ‘social’, or ‘criminal’ harm ‘the essential determination of which is the moral culpability of the actor,’¹⁴ and Joel Feinberg adopted an extended normative definition of ‘harm’ that includes notions of fault, moral wrongdoing and the idea of violations of rights.¹⁵ In the case of dwarf tossing this extension does not lead us to criminalise those who organise dwarf tossing

11 See Harcourt BE, ‘The Collapse of the Harm Principle’ (1999) 90 JCrimL&Criminology

109; and Feinberg J, ‘Harm to Others - A Rejoinder’ (1986) 5 CrimJusticeEthics 27.

12 Such precautions may include: the wearing of helmets, the use of padding, a requirement for insurance coverage, a requirement for up to date medical certificates from recognised orthopaedic specialists, and a stipulation that no person who is drunk may be allowed to participate in the throwing. See also McGee RW, ‘If Dwarf Tossing is Outlawed, Only Outlaws will Toss Dwarfs: Is Dwarf Tossing a Victimless Crime?’ (1993) 38 AmerJJuris

335.

13 Baber HE, ‘The Ethics of Dwarf Tossing’ [1989] FallInt’lJAppliedPhil 1.

14 Hall J, General Principles of Criminal Law 2^nd Ed (1960) 215 & 242.

15 See Feinberg, supra n 3.

contests because, if the dwarfs are consenting, there does not appear to be any violation of their rights or any special fault or culpability associated with the action that would lead us to think that the conduct is intrinsically criminal or morally wrong.

Unfortunately, however, these definitional manoeuvres lead to a third problem

– the struggle over the meaning of harm. Once the stronger moral notions

of culpability and wrongdoing are added into these extended definitions of

‘harm’, they overpower it and harm’s usefulness as a factual test is lost. In a frustrating twist, these tactics, which were designed to enhance harm’s limiting function, destroy its original meaning and we are forced back to the debates about the nature of moral wrongdoing that divided us in the first place. Adopting a definition of a crime as the culpable choice to harm another may improve upon our understanding of a crime as mere harm-doing, but it means that the harm principle ceases to be the critical principle that we had hoped for. So, although the concept of harm does appear to offer a usefully factual source of limits on the criminal law, its own limitations and our struggles over its meaning and role have led philosophers and lawyers to put forward the concept of autonomy as a necessary supplement to the harm principle.

The Autonomy Principle

Immanuel Kant’s theory of autonomy and treating persons as ends in themselves has been very influential in Anglo-American justifications of punishment. However, arguments over the relative importance of human welfare and autonomy have persisted, not only between consequentialists and deontologists, but also between unaligned theorists who attempt to find a place for both the harm principle and the autonomy principle in the criminal law. Furthermore, recent debates over autonomy’s role have moved away from Kant’s account, which grants us equal moral worth insofar as we are rational and autonomous, in favour of a more factual account of autonomy’s significance. Autonomy, defined as the exercise of control over the conduct of one’s own life by defining, choosing and pursuing a good life on one’s own terms (regardless of whether those decisions are based in morality or in rationality)¹⁶ is seen simply as another object of desire that may deserve legal protection. So conceived, it is no longer the key moral attribute justifying our duties to others. Theorists following this approach disagree not only over the meaning of autonomy and its relation to the harm principle and the matter of human welfare, but also over the priority that these aspects should have in structuring the criminal law.

16 On Joseph Raz’s account ‘a man is autonomous even if he chooses the bad.’ Raz J, The

Morality of Freedom (1986) 411.

Andrew Ashworth and Nicola Lacey argue that autonomy and welfare represent competing values.¹⁷ They suggest that the criminal law does not (and cannot) rank one consistently over the other and argue that we must negotiate compromises between the two on a case by case basis.¹⁸ By contrast, John Gardner and Joseph Raz maintain that autonomy as the ‘key ideal of human well-being for our age’ is the true source of the value that we place on our welfare interests.¹⁹ However, when defining autonomy, they also give primacy to the notion of capacity or functioning, and they resolve the dilemma over autonomy’s relationship to the concept of harm by classing as harmful only the adverse effects upon welfare that will reduce the prospective exercise of a person’s autonomy.²⁰ Like Feinberg, who also links interferences with autonomy to the harm principle, Gardner and Raz agree that conduct causing only transitory pain, disfigurement, grief and distress, which are disliked states that ‘come to us, are suffered for a time, and then go, leaving us whole and undamaged as we were before’²¹ cannot count either as harmful or as an interference with autonomy.

The insistence that adverse effects upon welfare are harmful only when they impair future capacity for chosen action seems not only to put an artificial limit upon the meaning of harm but also to underrate the importance that we

17 Lacey N, State Punishment: Political Principles and Community Values (1988) 103-105;

and Ashworth A, Principles of Criminal Law 2^nd Ed (1996) 24.

18 Ashworth A, Principles of Criminal Law 4^th Ed (2003) 323-329. Lacey suggests in State Punishment, supra n 17 at 117, that ‘it would be foolish to imagine that one always acts as an absolute constraint on the pursuit of the other’. She argues that the two are incommensurable political values and points out that trade-offs between the two must be made when a community considers both the aim and the distribution of punishment. Ibid, 180, 187. More recently, however, Lacey has argued that the values of autonomy and welfare are not necessarily in opposition: Unspeakable Subjects (1998) 52.

19 Gardner J, ‘On the General Part of the Criminal Law’ in Duff RA (ed) Philosophy and the Criminal Law (1998) 205, 242-243. See also Raz J, ‘Autonomy, Toleration and the Harm Principle’ in Gavison R (ed.) Issues in Contemporary Legal Philosophy (1987) 313, 327-

320, and The Morality of Freedom (1986) 413-414.

20 Joseph Raz argues that harm has a ‘forward looking aspect’ that is linked directly to autonomy and that we can classify as harmful therefore only those effects that ‘affect options or projects’ either by depriving ‘a person of opportunities or of the ability to use them’ or by reducing

‘his ability to act in ways that he might desire.’ Raz, The Morality of Freedom, supra n 19 at 413-414. John Gardner also emphasises that harm is ‘not the pain or lost limb or shock in itself’ but is instead the consequent ‘attenuation of capacity or opportunity for action, reducing the range of alternative actions and activities that are available to the person who is harmed.’ Gardner J, ‘On the General Part of the Criminal Law’ in Duff RA (ed.) Philosophy and the Criminal Law (1998) 205, 243.

21 Feinberg, Harm to Others, supra n 3 at 45. AP Simester and Andrew von Hirsch also limit the scope of harm to those effects that impair a person’s ‘opportunities to engage in worthwhile activities and relationships and to pursue valuable, self-chosen goals’ in Simester AP & von Hirsch A, ‘Rethinking the Offense Principle’ (2002) 8 LegalTheory 269, 281.

place on our welfare. We do appear to value an intact, unblemished body and the absence of pain, grief and distress as important aspects of the existence that we aim to secure for ourselves, and, whether these effects disable us from action or not, we do regard ourselves as being worse off or harmed if we are blighted in such ways even if it is only for a short time.

Another troubling example is the case of a ‘harmless rape’, described by John Gardner and Stephen Shute, where an unconscious victim is secretly violated by another without any physical damage resulting and where the event is never discovered.²² Gardner and Shute classify it as harmless because they insist that harm must have a prospective dimension that will affect the victim’s future exercise of her autonomy. Again, it is difficult to agree with their assertion that the rape does no harm simply because the victim’s future capacity for autonomy is unaffected. The victim’s control over access to her body was diminished, and I suggest that, viewed objectively, this factual setback to her opportunity to exercise her autonomy must be seen as making her worse off and therefore be classified as harmful.²³

Giving autonomy a controlling role within the harm principle also leads to a second set of problems that arise partly because our welfare interests and our autonomy interests often conflict and partly because giving primacy to one over the other unbalances the law by leaving out something we value. Our welfare interests, defined as comprising all the things both internal and external to the person that are important for human existence, cover what we might call the passive aspects of wellbeing. Our interests in autonomy comprise the active aspects of our wellbeing or, as Mill called it, well-doing.²⁴ Even though our desires to improve our welfare and to pursue our autonomy may sometimes conflict, reinforcing links do exist between the two; an adequate welfare base lays the foundation for the exercise of our autonomy and exercising our autonomy can often improve our welfare. However, if one of these aspects is missing, no improvement or increase in the other can make up the loss. The pampered slave, whose welfare interests are completely satisfied, but whose entitlement to the free exercise of his will is denied, cannot be said to

22 Gardner J & Shute S, ‘The Wrongness of Rape’ in Horder J (ed.) Oxford Essays in

Jurisprudence 4^th Series (2000) 193.

23 The criminal law exists not simply to respond to subjectively experienced wrongs or the subjectively experienced harms that flow from those wrongs, but to make an objective, public, assessment of conduct. Criminal law is the external view, and consequently we are entitled to make external assessments of harm just as Gardner and Shute go on to make an external assessment of wrongdoing in this case.

24 John Stuart Mill saw the good life as composed of ‘well-being’ and ‘well-doing’: see On Liberty, supra n 10 at 84. The useful notions of ‘passive well-being’ and ‘active well-being’ used by John Gardner neatly match Mill’s two elements: see Gardner J, ‘On the General Part of the Criminal Law’ supra n 19.

live well. Equally, the woman, whose entitlement to exercise her autonomy is guaranteed, but whose living conditions of deprivation and poverty mean that her choices are limited to deciding which of her children gets enough to eat, does not have a good life.²⁵

If we view welfare and autonomy as incommensurable elements of the good life and as equally worthy of the law’s protection, then neither can take priority in shaping the criminal law. Because we do commonly see ourselves as worse off in a factual sense when these interests are set back, it follows that conduct that sets backs either our welfare or our autonomy could be covered by the harm principle. However, while this move improves our theory of harm, and settles the relationship between harm, welfare and autonomy (in its modern factual sense), it does not bring us any closer to resolving the other problems that arise if the harm principle sets the limits of the criminal law. Even in its modified form, it still fails to capture the message about the value of others that we object to in conduct that is commonly called criminal, and if any conduct that risks a setback either to another’s autonomy interests or to their welfare interests qualifies as harmful, the boundaries of the criminal law would extend even further than they do now.

Despite these problems associated with the concept of autonomy, it clear that the test case of dwarf tossing would not be a fit subject for the criminal sanction if the autonomy principle alone were to be used to set the boundaries of the criminal law. In no case are dwarfs forced to participate, and in fact many dwarf participants claim that they enjoy the sensation of flying through the air and that they relish the fact that they are the centre of attention, not only while the event takes place, but afterwards when patrons socialise with each other and with the participants.²⁶ Furthermore, there appears to be no likelihood that participating in such events would impair the dwarfs’ capacity for the future exercise of their autonomy. One solution to the theoretical dilemmas might be to return to Kant’s account of our moral worth as being grounded in our rationality and our capacity to will that our maxims become universal law. Unfortunately, this vision of autonomy’s special moral significance is open to the objection that it may lead us to ignore non-human animals and any non-rational or incapacitated humans,²⁷ and so, to salvage what is valuable in Kant’s account of our moral worth, we must turn to the idea that has dominated modern legal thinking and examine the role that human dignity can play in the criminal law.

25 Partha Dasgupta explains how destitution creates both physical pain as well as the moral pain of having to make tragic choices over the allocation of food and health care in Human Well-being and the Natural Environment (2001) 37.

26 See references in n 9 supra.

27 Hursthouse R, Ethics, Humans and Other Animals (2000).

Human Dignity

The starting point for any discussion of human dignity is Immanuel Kant’s famous statement in The Metaphysics of Morals:

Every human being has a legitimate claim to respect from his fellow human beings and is in turn bound to respect every other. Humanity itself is a dignity; for a human being cannot be used merely as a means by any human being

... but must always be used at the same time as an end. It is just in this that his dignity (personality) consists, by which he raises himself above all other beings in the world that are not human beings and yet can be used, and so over all things. But just as he cannot give himself away for any price (this would conflict with his duty of self-esteem), so neither can he act contrary to the equally necessary self-esteem of others, as human beings, that is, he is under obligation to acknowledge, in a practical way, the dignity of humanity in every other human being. Hence there rests on him a duty regarding the respect that must be shown to every other human being.²⁸

After World War II the Kantian idea that state authorities have a fundamental duty to respect the equal dignity of all human beings began to feature in both international human rights law and the domestic constitutions of states like Germany and Israel.²⁹ Even in France and the USA where there is no express legislative recognition of human dignity (but where the concept of equality has strong constitutional support), the idea has been used to limit the law right through the criminal justice process. In addition to upholding laws banning dwarf tossing events,³⁰ courts have struck down laws criminalising homosexual

28 Kant I, The Metaphysics of Morals (originally published in 1797) Mary Gregor (trans) (1996)

209, see also 434-435.

29 See, Englard I, ‘Human Dignity: From Antiquity to Modern Israel’s Constitutional Framework’ (2000) 21 CardozoLR 1903; Hörnle T, ‘Offensive Behaviour and German Penal Law’ (2001) 5 BuffaloCrimLR 255; Resnick J & Suk JC, ‘Adding Insult to Injury: Questioning the Role of Dignity in Conceptions of Sovereignty’ (2003) 55 StanfordLR

1921. Courts in both Israel and Germany are empowered to strike down legislation that

conflicts with this duty.

30 See supra ns 7 and 8.

sodomy,³¹ outlawed punishments like castration,³² prohibited routine strip searches³³ and forbidden race or gender based discrimination in jury selection,³⁴ all on the grounds that the law must recognise our equal dignity.

In the case of dwarf tossing contests, the most commonly expressed objection relates to the issue of human dignity. Because there is no equal status or reciprocity between participants as there is in harmful or risky sports like boxing, rugby or Australian football (where each participant undertakes the same risk and engages in the same conduct) the throwing of the dwarfs appears to be demeaning of the human projectiles, who in these contests are equated to the status of inanimate shot-puts or javelins. The dwarfs also shoulder an unequal risk of harm by comparison with those who launch them and they do not have an equal entitlement to toss the other participants as they themselves are tossed. On the other hand, there are many human activities that may be thought of as undignified that do not attract the sanctions of the criminal law. If we compare the case with those where we allow men and women to perform together in peep shows for the titillation of paying customers, we may well conclude that it is unreasonably discriminatory to refuse the dwarf an opportunity to engage in what may be less demeaning employment.

The emphasis on the special moral dignity of persons traces back to Aristotle and Cicero³⁵ and features in the theories of utilitarians like Mill and Bentham as well as deontologists like Kant and Hegel.³⁶ This solid core of agreement

31 In Lawrence v Texas [2003] USSC 4776; 123 S Ct 2472 (2003) the US Supreme Court declared unconstitutional a Texas law forbidding homosexual sodomy on the grounds that by criminalising only homosexual sodomy and unjustifiably creating a class of ‘second-class citizens’, the Texas legislature had failed in its duty to respect equally the dignity of those persons subject to the law.

32 See Meir Dan-Cohen’s discussion of State v Braxton 326 SE 2d 410 (SC 1985), where the appellate court withdrew the option that the lower court had given defendants between choosing 30 years imprisonment or being surgically castrated: Dan-Cohen M, ‘Basic Values and the Criminal’s State of Mind’ (2000) 88 CalLR 759, text accompanying n 13, reprinted as the chapter on ‘Defending Dignity’ in Dan-Cohen M, Harmful Thoughts (2002).

33 See the ruling by the US District Court for the Eastern District of New York in Augustin v Jablonsky 99-CV-3126 (DRH) (ARL) 2001 US Dist LEXIS 10276 forbidding routine strip searches upon arrest for minor offences.

34 The US Supreme Court prohibited discrimination on the basis of race or gender in jury selection in: Batson v Kentucky [1986] USSC 89; 476 US 79, 90 L Ed 2d 69 (1986) on grounds of gender; and J.E.B. v Alabama ex rel T.B. [1994] USSC 6; 511 US 127, 114 L Ed 2d 89 (1994) on grounds of race.

35 Wright RW, ‘The Principles of Justice’ (2000) 75 NotreDameLR 1859. Nicola Lacey, in State Punishment, supra n 17 at 144-148, traces the liberal themes of equality and ‘taking persons seriously as moral agents worthy of equal respect and concern’ from Kant, Bentham and Mill, to the work of HLA Hart, Ronald Dworkin, John Rawls and Peter Singer.

36 See Mill’s discussion of Bentham’s famous aphorism ‘Each is to count for one and no-one more than one’ in On Liberty, supra n 10 at 198-199; and Kant I, The Metaphysics of Morals supra n 28 at 434-435.

between philosophers whose views are often opposed suggests that the equal dignity principle may be well suited to the task of justifying principled limits on the criminal law. However, before we can give dignity this crucial role, we must resolve three difficulties emerging from the dignity jurisprudence that cloud its meaning, use and significance.

The first problem is the blurring of the boundaries between dignity and harm. Just as legal philosophers have smuggled moral elements into their accounts of harm, so have lawyers fused harm with dignity as American courts use the idea of ‘dignitary harms’ to justify overturning legislation. ‘Dignitary’ or ‘expressive’ harms are said to be imposed on individuals by the improper messages about individual value that state laws express; they result from the attitudes expressed through government actions rather than the material consequences they cause.³⁷ These harms are a fiction designed to give legal standing to people who are not themselves threatened by the impugned laws, but who, because they wish to overturn them, must prove injury to comply with rules governing procedure. This usage should be resisted because the source of these complaints is located in the normative realm of value and not in the factual world of welfare or autonomy interests. They tell us nothing new about harm. Rather, they remind us that we see ourselves as being equal in dignity and that we feel morally outraged when the law does not do justice to that value.

The second problem arises because dignity has two senses. Dignity in the first sense refers to the inherent worth that attaches to all human beings simply because they are human beings – and in our times this worth is seen as equal worth. In its second sense dignity refers to a state of existence or conduct that is characterised by the absence of perceived indignity, humiliation or degradation. It is linked to our feelings, experiential wellbeing and self-esteem. However, because dignity is not simply the opposite of perceived indignity, there is an asymmetry between the two senses that creates problems in legal debates. Dignity as equal worth is a normative quality. It exists in the moral sphere and remains untouched by events or experience; we cannot differ in equality or have more or less of it. Conversely, dignity in the second sense is a quantitative and factual matter; we can progressively lose our dignity as more and more indignities are heaped upon us. Dignity in this factual sense cannot advance our search for moral limits. If we want protection from perceived indignities we can simply appeal to the harm principle that defends our welfare and autonomy, but this kind of dignity is too weak to do the moral

37 Pildes RH & Niemi RG, ‘Expressive Harms, “Bizarre Districts”, and Voting Rights’ (1993)

92 MichLR 483, 506-507. See also Anderson ES & Pildes RH, ‘Expressive Theories of

Law: A General Restatement’ (2000) 148 UPennLR 1503.

work of justifying the duties to others that the criminal law imposes upon us.³⁸

However, dignity in its normative sense offers more hope, precisely because it focuses upon the moral worth of human beings and because it is now welded to the powerful idea of equality.

The third problem casting doubt on dignity’s usefulness as a limiting principle arises because dignity based arguments work both ways. This is illustrated by the French dwarf tossing case, France v Wackenheim,³⁹ where both parties invoked the notion of human dignity to justify opposing arguments. France (using dignity in the second sense), argued that using human beings as projectiles creates an undignified public spectacle. Mr Wackenheim, whose welfare and autonomy interests were not harmed by his participation, claimed that dignity consists in having a job and being treated without discrimination based on size (thereby using both senses). This case suggests that, on its own, the concept of human dignity does not give us enough guidance. Dignity is not an open concept like the notion of wrongdoing, but we struggle over its significance in the law because it has different senses and often points us in opposite directions. It is morally important, but factually imprecise, and so while our insistence that each person’s intrinsic and equal human dignity must be respected may offer us a moral justification for our criminal laws, it cannot determine their factual content.

It seems that the search for a single controlling principle must fail. A harm based assessment offers us a usefully factual test that protects our welfare and autonomy, but it is too broad in scope and leaves out the moral dimensions of a crime. On the other hand, the normative claim that human beings are equal in dignity or moral worth may offer us a usefully moral justification for our criminal law, but it cannot tell us what kinds of conduct those laws should forbid. The challenge then, is to place these key elements into some kind of harmony by creating a model of the criminal law that not only reflects and protects the lives that we want to live and the kind of community that we want to be, but can also ensure that our criminal laws do justice to all those living within our community of equals.

iv. the ‘gOOd LiFe mOdeL’ OF criminaL wrOngdOing

My model of the criminal law aims to reflect the value we place both on protecting ourselves from conduct that may harm us and on responding to conduct that does not respect us as persons of equal dignity. It is based on

38 This may account for a recent editorial in the British Medical Journal doubting the usefulness of the concept of dignity by Macklin R, ‘Dignity is a Useless Concept’ (2003) 327 BritMedJ

1419.

39 See supra ns 8 and 7.

the assumption that there is a logical connection between our vision of the fundamental elements of the good life for human beings and our understanding of the nature of a crime, seen as conduct which threatens those elements. I suggest that we can identify three incommensurate elements of the good life that the criminal law should protect. They are our welfare interests, our autonomy interests and our shared desire to be respected by others as persons of equal dignity and worth. The two factual elements of welfare and autonomy represent the things that we want for ourselves from life in general. By contrast, the third element is normative and relational; being respected as a person of equal worth is something that we want from others because it confirms our vision of ourselves as members of a community of equals who have recognised in each other a reciprocal entitlement to be treated as equals. These elements were discussed in Section III and appear in Table 1, which follows.

TABLE 1. THE TWO DIMENSIONS OF A CRIME

In Table 2, the positive elements in the model of the good life are transposed into the negative elements contained in the model of a crime. Therefore, just like the good life that it reflects and protects, a crime has two dimensions: a normative or moral dimension governed by a principle that requires each person to respect others as persons of equal dignity worth and value; and a

factual dimension that protects our interests in welfare and autonomy, which is governed by the harm to others principle. Because our demand that others respect us as equals contains two sub-aspects that include both the attitude that others take towards us as well as their actual conduct towards us, the notion of equal respect can be linked both to the definition of fault and the definition of wrongdoing.

TABLE 2. THE TWO DIMENSIONS OF THE GOOD LIFE

The key to understanding how this model justifies transforming our reciprocal desires for respect into rules requiring respectful conduct lies in the crucial connection between our vision of ourselves as equals in dignity, worth and value and the primary principle of justice that directs that like cases should be treated alike, and equal cases, equally.⁴⁰ Once we recognise that all human beings are equals, the direction to treat equal cases equally requires more from us than a mere attitude of respect. In fact, the principle of justice is directed not to our attitudes at all, but to our conduct itself; given that we are equals, it requires us – whatever we might think of others – to treat them as equals. This connection between justice and our equal worth enables us to make laws mandating respectful conduct that apply to all within the community of equals and it suggests that the critical message is not that we see ourselves simply as possessing dignity, but that we see ourselves as possessing equal dignity.

At its moral heart, the criminal law contains a distinctive conception of justice that requires equal treatment of equals by equals. However, before we can give factual content to our moral norm of equal respect, we must return to the good life model and recognise that we are equal not only in a moral sense, but also in two essential factual ways as well. As equal human beings and as equal members of a community we also share a wide range of factual

40 Aristotle first laid down this principle of justice in Book V of The Nicomachean Ethics

(1998 edition) 106-136.

interests in welfare and autonomy in equal measure. It follows that if our common interests in welfare and autonomy are of equal value, then no one person’s interests can take priority over those of any others, because equality mandates a stand-off.

This means that the criminal law, as the law of equal justice, imposes a reciprocal duty on each of us to respect others by treating their fundamental interests in welfare and autonomy as carrying a value that is equal to our own and so, whenever the desires of two or more persons conflict, any use of fraud, force or coercion is ruled out and the only acceptable way to resolve the issue is to resort to persuasion or to let the status quo prevail. It also imposes a limited, unilateral duty on each human animal to respect the interests that we share equally with other non-human animals. Our recognition that we share interests in welfare and existence as a species with other animals, but not interests in autonomy, explains why it is lawful to kill an animal humanely and eat it, but not to torture it or neglect its welfare.⁴¹

The law of equal justice also explains why the criminal law imposes an extended duty on able-bodied adults of full capacity to make special efforts to equalise the position of any children, or non-rational, incapacitated humans who are disadvantaged by their circumstances of factual inequality. In the case of dwarfs, for example, we are obliged as a community to ensure that they are not discriminated against on the grounds of their stature. This comes about because equality is an abstract concept, which, when applied to human beings, makes sense only in circumstances of factual difference. If we must treat equal cases equally we must also treat different cases differently. Consequently we are not entitled to ignore the weak, whose identity and intrinsic worth as human beings remains unchanged by their factual incapacity, rather our duty is to make extra efforts to compensate for their reduced capacity for autonomy. So, in our encounters with other beings, there is first a moment of recognition when we realise that we are equal in our inherent worth and in our factual interests in autonomy and welfare. This is followed by a moment of acknowledgement of the consequent duty to respect that equal dignity and those equally shared interests, and finally, each time we are faced with choosing our path through life, with a moment of choice to accept or reject that duty. This takes us back to Aristotle, who said that ‘if a man harms another by choice, he acts unjustly

... provided that the act violates proportion or equality.’⁴²

41 It appears that some animals may share our passion for equal justice: Brosnan SF & de

Waal FBM, ‘Monkeys Reject Unequal Pay’ (2003) 425 Nature 279.

42 The Nicomachean Ethics, supra n 40 at 127-128.

v. cOncLUSiOn: the paradOx OF dignity

The good life model of the criminal law suggests that we are not justified in criminalising any conduct unless it breaches not only the ‘harm to others’ principle, which gives factual content to this concept of a crime, but also the

‘equal respect for others’ principle which, on my account provides the criminal law with its moral justification. Under the good life model of the criminal law, the primary moral principle requiring us to respect the equal dignity, worth and value of others explains why we also need the harm principle to give factual content to the criminal law – because we cannot treat others as moral equals until we can identify the ways in which we are factually equal. Furthermore, the model’s combination of the two principles also helps us to limit the spread of the criminal law that would occur if we used only the harm principle as our source of limits. The good life model, because it contains the equal respect principle that focuses on both the attitude of disrespect and the wrongful conduct that evidences that disrespect, defines a crime as conduct that is animated by a failure to recognise or to respond properly to the equal dignity, worth and value of others and their equal entitlement to pursue and enjoy their welfare and exercise their autonomy within the boundaries provided for by the state. This means that we cannot classify any and all conduct that risks harm as criminal, but only the conduct that risks harm to the equal interests of others, which we read as a conscious failure of respect.

The good life model places the duty of equal justice not only on each of us within the community as individual persons, but also upon the most dangerous of legal persons: the state itself. It not only justifies the state’s punitive responses to those who have failed in their conduct to do equal justice to others but also limits the state to criminalising only conduct that both threatens harm to the equally shared welfare or autonomy interests of others and at the same time is read as a failure to respect the equal value of others. This account of the limits on the criminal law leads to an interesting paradox that results from the asymmetry feature of the meaning of dignity discussed in section III. This paradox of dignity requires the state, in the name of our equal dignity, to refrain from criminalising certain controversial or upsetting kinds of conduct like dwarf tossing events that may be perceived as supremely undignified. It arises because our vision of ourselves as equals in dignity and worth, which gives the criminal law its moral justification, grounds our duty to respect others as sovereign equals, entitled to exercise their capacity for autonomy either in ways that may be antithetical to their own welfare interests as objectively viewed by others or in ways that are perceived by others to be undignified or even offensive (always providing that their exercise of that autonomy does not itself risk harm to the welfare or autonomy of others). This means that

we must respect not only the choices of a dwarf, who enjoys being paid to fly through the air in a safe, regulated dwarf tossing event, but also the choices of those who wish to test their strength by hurling the dwarf through the air. I would argue that legislation forbidding safe, regulated and consensual dwarf tossing is impermissible under the good life model: first, because the conduct is not relevantly harmful (it neither harms the dwarfs’ welfare interests, nor infringes their autonomy interests), and secondly, because it cannot be read as displaying any attitude of disrespect to the equal value of the dwarfs.

Any legislation imposing criminal sanctions on those who organise dwarf tossing contests would appear, therefore, to contain a false evaluation of the relative worth of citizens. The false evaluation contained in such a statute would be: “Because dwarfs are not equal to persons of full stature, they must be protected from autonomously choosing, as others of full stature do, to engage in these (possibly) demeaning kinds of activities and employment.” Such a paternalist statute improperly treats the dwarf as a person of lesser capacity by comparison with others of full stature and amounts to impermissible discrimination based on size. Consequently, I conclude that under the good life model, the state can insist that dwarf tossing is carried out in safety, but it cannot criminalise those events within a legal system that, on my account, is itself justified because it must stand up for our equal dignity.