Julian Sempill (Melbourne Law School) has posted Law, Dignity and the Elusive Promise of a Third Way (Oxford Journal of Legal Studies, Forthcoming) on SSRN. Here is the abstract:
What is law’s relationship to dignity? In Jeremy Waldron’s view, ‘There is an implicit commitment to dignity in the tissues and sinews of law—in the character of its normativity and in its procedures’. Waldron’s account can be read as an attempt to pursue a third way between positivism and natural law. Proponents of the third way believe that law has structural features that are intrinsically valuable. Waldron argues that law’s normativity and procedures promote dignity, and, therefore, are salutary. However, he does not ask whether their moral significance might be affected by the merits of the law’s contents. I raise doubts about Waldron’s approach and, in turn, the third way. I argue that the significance of law’s structural features may be affected by the merits of content. Where the law’s contents are dehumanising, law’s normativity and procedures may make a distinctive contribution to degradation and humiliation.