Human Dignity as a Foundation of Law: Proceedings of the Special Workshop held at the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy in Beijing, 2009 3515104402, 9783515104401

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Human Dignity as a Foundation of Law Edited by Winfried Brugger / Stephan Kirste

archiv für rechts- und sozialphilosophie archives for philosophy of law and social philosophy archives de philosophie du droit et de philosophie sociale archivo de filosofía jurídica y social Herausgegeben von der Internationalen Vereinigung für Rechts- und Sozialphilosophie (IVR) Redaktion: Dr. Annette Brockmöller, LL. M. Beiheft 137

Human Dignity as a Foundation of Law Proceedings of the Special Workshop held at the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy in Beijing, 2009 Edited by Winfried Brugger / Stephan Kirste

Franz Steiner Verlag

Bibliografische Information der Deutschen Nationalbibliothek: Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über abrufbar. Dieses Werk einschließlich aller seiner Teile ist urheberrechtlich geschützt. Jede Verwertung außerhalb der engen Grenzen des Urheberrechtsgesetzes ist unzulässig und strafbar. © Franz Steiner Verlag, Stuttgart 2013 Druck: Druckhaus Nomos, Sinzheim Gedruckt auf säurefreiem, alterungsbeständigem Papier. Printed in Germany. Franz Steiner Verlag: ISBN 978-3-515-10440-1 Nomos Verlag: ISBN 978-3-8487-0729-4

TABLE

OF

CONTENTS

Stephan Kirste Introduction ............................................................................................................... 7 Dietmar von der Pfordten Some Remarks on the Concept of Human Dignity ............................................... 13 Paul Tiedemann Human Dignity as an Absolute Value ..................................................................... 25 Winfried Brugger † Dignity and Rights and Legal Philosophy within the Anthropological Cross of Decisionmaking ................................................................................................... 41 Stephan Kirste A Legal Concept of Dignity as a Foundation of Law ............................................. 63 Julian Nida-Rümelin Why Human Dignity rests upon Freedom ............................................................ 83 Bernhard Jakl Human Dignity as Fundamental Right to Freedom in Law ................................... 93 Luis Pereira Coutinho Human Dignity as a Background Idea .................................................................. 105 Elena Pribytkova The Human Right to a Dignified Existence: The Ethical Foundations of the Contemporary Legal Order ............................... 117 Klaus Mathis Human Dignity as a Two-edged Sword ................................................................. 131 Miodrag Jovanovic´ Legal Validity and Human Dignity – On Radbruch’s Formula ........................... 145 Milena Petters Melo Safeguarding Cultural and Natural Heritage – In Order to Keep the Memory of Human Dignity Alive ..................................... 169 Jan Philipp Schaefer Human Dignity: A Remedy for the Clash of Cultures? – Human Dignity and the Mind of Mencius ........................................................... 181

6

Table of Contents

Paul Tiedemann The Relation between Human Dignity and Human Rights ................................. 193 Oliver W. Lembcke Human Dignity – a Constituent and Constitutional Principle: Some Perspectives of a German Discourse ........................................................... 207 Ingo Sarlet Human Dignity in the Brazilian Constitutional Order: An Analysis in the Perspective of Jurisprudence of the “Supremo Tribunal Federal” (Brazilian Supreme Court) ...................................................................................... 233 Ed Eberle Human Dignity in American Constitutional Law ................................................ 255 The Authors ............................................................................................................ 265

STEPHAN KIRSTE, SALZBURG INTRODUCTION Human Dignity is a foundation of law. This is the common thread running through all the papers of this publication. What does it mean, however, that all law is grounded on human dignity? Should all or at least, all constitutional provisions be derived from human dignity? Or is human dignity rather to be considered as a norm or an extra-legal foundation of law? Does it confer a right on every human being or is it rather an objective principle? If it is a right, is it only a right to have rights, without determining their content? One could call the assumption that all law should be derived from dignity a material concept of human dignity, whereas a second formal perspective sheds light on its function in law. Both perspectives need not contradict each other. They can also be formulated with more or fewer presuppositions: Is human dignity only the basis for fundamental rights, but not for the elementary norms of the organization of the state? Should we maybe reject the idea of deriving constitutional provisions from dignity, and assume instead that no constitutional provision should contradict dignity? And also: If human dignity is the foundation of law, what is the foundation of human dignity? Is autonomy or freedom a prerequisite of dignity? In a legal sense, however, autonomy could also be interpreted as a consequence of human dignity. How about dignity and equality? If we relate human dignity to these values, which concept of dignity are we to follow? Is a Christian concept of dignity as an image of God of much help, especially in secular states? Is Pico della Mirandola’s concept of the dignity of men as an self-projecting being pertinent? Many of the authors in this book refer to Immanuel Kant’s idea that dignity requires treating men always as subjects and never as mere objects. Is this concept not too idealized and abstract and should not dignity demand the overcoming of alienation and oppressive working conditions? Compared to equality and liberty, human dignity is a relatively recent legal concept. In its broadest sense, it was first mentioned in the preamble of the Irish Constitution of 1937. Only after World War II did it successfully find its way into various constitutions. Before that, human dignity was a principle in moral philosophy and occasionally in the theory of natural law, but not in positive law. This is why these questions not only raise problems in the dogmatics of constitutional theory on the one hand, or in the philosophy of law on the other hand, but in both. In the aftermath of the National Socialist atrocities, many framers of constitutions were driven by the intuition to transform human dignity from a moral into a legal principle by incorporating it into the preambles or normative parts of their founding documents. The more precise meaning of this new principle, however, remained open to interpretation. Legal philosophy needs to provide arguments for such an interpretation or else criticize ready interpretations in legal dogmatics for naively taking certain philosophical assumptions to be the one right answer. Thus, just as human dignity serves as a foundation of law, legal philosophy recognizes that there are two sides to the coin – dignity as a moral, philosophical precondition of law and dignity as a principle incorporated into constitutions. Ac-

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Stephan Kirste

cordingly, this book deals with the methodological problems raised by such a principle, with its structural problems as a legal principle and with the ethical questions of its relation to other principles. As we are dealing with a current legal principle, it will be interesting to take a look at a rather recent constitution – the Brazilian one – and at an old one – the US-Constitution – in order to compare how they deal with human dignity. This will be the topic of the last two contributions to this volume. The first couple of articles in this volume are dedicated to concepts of human dinity. Dietmar von der Pfordten (“Some Remarks on the Concept of Human Dignity”) is convinced that a secular understanding of human dignity requires conceptualizing it as a second order principle within a context of normative ethics. According to this concept, human dignity rests on the ability of a human being to satisfy his or her elementary needs, such as to live, to eat etc. It is the expression of men’s capability to preside over his own interests and concerns. If this ability is infringed, as it is in cases of tube feeding, use of lie detectors or torture, human dignity is violated. Paul Tiedemann (“Human Dignity as an absolute Value”) attempts to construe human dignity as a non-metaphysical absolute value of personal identity. Taken in this sense, dignity is a relational concept: Like Fichte, Tiedemann upholds that the awareness of one’s identity depends on the identity of others. On this basis, he examines human dignity as a legal concept, applying by the criteria of a connection to ordinary language, distinctness, metaphysical restraint and empirical significance. Winfried Brugger (“Dignity, Rights, and Legal Philosophy within the Anthropological Cross of Decision Making”) situates human dignity within the context of the “anthropolocial cross of decision making”. This cross illustrates the four dimensions of human agency: the idealist perspective upwards, the empirical or realist perspective downwards and the time line from left (the past) to right (the future). All human actions have to take a position on this cross by deciding about the balance between the four dimensions. This necessity distinguishes human beings from animals. Consequently, their dignity lies in their ability to decide on these dimensions. Stephan Kirste (“A Legal Concept of Dignity as a Foundation of Law”) finds the common use of the concept of dignity too strong for law. Responsible for this problem are religious or particular moral assumptions behind the idea of human dignity. Kirste identifies two ways to avoid this problem and to transform the concept into law: One is to generalize its content; the other is to weaken its form. The disadvantage of generalization is that the idea loses an applicable meaning. Weakening its form, however, has disadvantages too. When understood as a mere objective value or a principle that binds the state, but does not contain an individual right, it loses its impact in the balancing against other principles and values. The solution is to understand human dignity as the right to be recognized as a person in law. Thereby human dignity keeps the strong form of an individual right and has a specific content, guaranteeing the individual always to be treated as a subject of law and never as a mere object. Understood in this way, human dignity is the foundation of human rights and the law in general. Self-respect and freedom from humiliation are the two key aspects that characterize human dignity according to Julian Nida-Rümelin (“Why Human Dignity rests upon Freedom”). Again, human dignity founds an ethical humanism. An illustration of the issue at stake here can be found in the genital mutilation of girls in

Introduction

9

Africa: humiliation as the paradigmatic violation of human dignity presupposes self-respect on behalf of the victim. Self-respect requires a certain degree of autonomy – a capability which embryos and mentally disabled people are lacking. Accordingly, the price Nida-Rümelin is willing to pay is the exclusion of those groups of human beings from the protection of dignity. Besides, the ethical foundation of values cannot be grounded solely on the value of human dignity, but also has to take account of human life. Bernhard Jakl (“Human Dignity as a Fundamental Right to Freedom in Law”) tries to elaborate a legal concept of human dignity on the basis of Kant’s means-enddistinction. The concept of dignity as a faculty to act is a construct which helps him avoid the introduction of non-legal values into the definition of the term. Luis Pereira Countinho (“Human Dignity as Autonomy?“) introduces human dignity as a “background-idea” behind the legal order, in the tradition of the Greek concept of paideia. As such, dignity is neither based on autonomy, nor is it an individual right. It is an objective founding principle of legal orders, which in itself relies on religious beliefs. The oldest legal meaning of human dignity refers to the right to a dignified existence. The contemporary importance of this right is evaluated by Elena Pribytkova (“The Human Right to a Dignified Existence”). For this purpose she interrogates thinkers as diverseas Immanuel Kant and Vladimir Solov’ev. She also discusses Gewirth’s concept of dignity as a capability to assert claims and Birnbacher’s idea of dignity as respect for a bundle of rights belonging to every individual irrespective of his or her achievements or social merits. Not the foundation, but the consequences of human dignity are what is analyzed by Klaus Mathis (“Human Dignity as a Two-edged Sword”). Does the protection of human dignity entail legal paternalism? Klaus Mathis thinks so and pleads for the careful application of this principle. He is especially concerned with the question of who defines what human dignity is. Is it the state or the individual who has the authority to define it? For the purpose of his enquiry he introduces the cases of “Dwarf tossing” and “Peepshows”. His analysis further includes comparative studies of the German, French and Swiss jurisdiction. Mathis proposes a narrowly defined concept of human dignity on a case by case basis. Has the debate between natural law and legal positivism come to an end? And if not, is Radbruch’s argument still shaping the debate? Finally, if the first question is answered with “no” and the second with “yes”: Is it convincing that Radbruch appeals to human dignity as an argument to resolve the debate? These are the questions Miodrag Jovanovic´’ (“Legal Validity and Human Dignity – On Radbruch’s Formula”) contribution to this volume discusses. Jovanovic carefully discusses different versions of legal positivism, esp. “exclusive” and “inclusive” versions, before he situates Radbruch within this context. In particular, Jovanovic turns to the Radbruch formula in the assumption that it might be substantiated with the help of the principle of human dignity as a threshold for the disavowal formula. Human dignity is the core content of natural law which may never be violated if law is not to lose its legal character. How does cultural heritage pertain to human dignity? Milena Petters-Melo (“Safeguarding Cultural and Natural Heritage“) discusses their connections, building on an analysis of several relevant UN declarations. According to Petters Melo, increas-

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Stephan Kirste

ingly social systems are economically dominated. As a result, men become an abstract variable in the pursuit of the desired concrete economic developments. In this situation Petters-Melo holds it that the general awareness for humanity and dignity is lost. Jan Schaefer, winner of the German IVR-Price for his contribution to the IVRWorld-Congress discusses the often problematic discourse about values and human rights between East and West, taking human dignity as an example (“Human Dignity as a Remedy for the Clash of Legal Cultures?”). Indeed, he finds elements of equality, individualism and welfare in the teachings of Mo Di (5th century a.C.). A more thorough investigation, however, reveals far-reaching differences. Love and dignity cannot readily be equated, because love is something to give, while dignity – at least in the Christian understanding – is something all men obtain. Are the virtues of righteousness and humanity in the Confucian writings of Mencius better candidates for building ethical bridges between East and West? His concept of “tianjue” can indeed serve as a bridging concept, precisely because it does not contain any elaborate metaphysics, but is rather a biological concept combined with few normative assumptions, for instance that a fellow member of society does not deserve to be killed. From this analysis, Schaefer derives a common principle of dignity which demands respect and even empathy for fellow human beings. In his second article, Paul Tiedemann (“The Relation between Human Dignity and Human Rights”) justifies the derivation of human rights from human dignity as claimed by several human rights declarations and conventions. Since Tiedemann assumes that dignity is a value, the problem arises, how to transform a value into a norm, i. e. an obligation to respect human rights. For this purpose he relies on Frankfurter’s distinction between first- and second-order volitions. Does the principle of human dignity derive its validity from the constitution or does it, on the contrary, found the constitution itself? In other words: is it a constitutional or a constituting principle? In order to elaborate his answer, Oliver Lembcke (“Human Dignity – a Constituent and Constitutional Principle: Some Perspectives of a German Discourse”) makes helpful distinctions between different definitions of human dignity, focusing respectively on the social nature of men and on the essence of men as contrasted with that of animals, with further sub-categories in both cases. None of the proposed conceptions of human dignity, however, are fully satisfactory. Instead, following Emmanuel Joseph Sieyès, Lemcke divides the principle into two branches – dignity as a constituent and as a constituted principle. The first institutes a liberal order, while the second serves to further elaborate the protection of dignity in and by these liberal institutions. This way, human dignity is being transformed from an ethical via a political into a legal principle. The last two articles adopt a comparative perspective, illustrating and to some extent problematizing the concepts elaborated above. Ingo Sarlet (“Human Dignity in the Brazilian Constitutional Order: An Analysis in the Perspective of Jurisprudence of the ‘Supremo Tribunal Federal’ (Brazilian Supreme Court)”) concentrates on the latter aspect and analyzes human dignity as a constituted principle, using the example of the Brazilian Constitution. Sarlet discovers a distinction between the individual dignity of a human person and an objective form of human dignity. It is striking to discover how much not only constitutional provisions, but also the jurisdiction of the Supremo Tribunal Federal, have been influenced by the Romanic le-

Introduction

11

gal traditions inherited from the Spanish and the Portuguese constitutions, German Basic Law and the Federal Constitutional Court, as well as the United States. Sarlet argues for a careful application of dignity arguments, pointing to the danger of their misuse. What sort of role does the concept of human dignity play in a legal order which has refrained from defining it? It is successful, nonetheless, and has become a background theme of American law, as Edward Eberle (“Human Dignity in American Constitutional Law”) puts it. Not only is dignity undefined, however, but the whole concept of rights is far more oriented towards external action than towards the human being in itself. The problem is that there are questions of privacy in which not only the right to act, but also the right not to act, the right to retreat and other very personal forms of behavior are at stake. Again, there is need for the principle of human dignity. But Eberle also analyzes how similar problems lead to very different solutions in the German and in the American legal order: The first seems to be more apodictic, drawing on Kantian philosophy, whereas the latter seems to follow a more pragmatic line, based on mores and conventions. The last two articles illustrate how the efforts to specify the relatively novel legal concept of human dignity call for an international discourse – a discourse along the lines of the one that took place at the IVR-World Congress in Beijing in 2009. Winfried Brugger, who co-organized the workshop, could not see this volume published. In the middle of his work, full of projects, he died on Nov. 13th 2010. Human dignity was one of his main research areas from early on. He traced the principle through the works of Max Weber,1 William James2, Georg Jellinek and Werner Maihofer3, developed his own concept of dignity4, tried to solve conflicts where dignity collides with dignity, as it is the case in ticking bomb-cases5, and attempted to pinpoint the problem with the help of his famous symbol, the anthropological cross of decision-making6. The workshop would not have been possible without the almost fourteen years he spent discussing the matter with me. He helped gather the authors of this volume. This is why he is not only the co-editor of this book, but why I also dedicate it to him. Finally, I would like to express my gratitude to Luisa Schulz, Kristin Albrecht and Stefan Kofler assisting me to edit this book.

1 2

3

4 5 6

Menschenrechtsethos und Verantwortungspolitik. Max Webers Beitrag zur Analyse und Begründung der Menschenrechte. Freiburg/München 1980, pp. 221, 279 ff. Pluralismus und Menschenwürde im Werk von William James, in: Heiner Bielefeldt / Winfried Brugger / Klaus Dicke, Hrsg., Würde und Recht des Menschen. Festschrift für Johannes Schwartländer. Würzburg: Königshausen und Neumann, 1992, pp. 15–34. Existenz, Freiheit und Ordnung. Von Werner Maihofer zu Georg Jellinek und zurück. In: Menschliche Existenz und Würde im Rechtsstaat. Ergebnisse eines Kolloquiums für und mit Werner Maihofer aus Anlass seines 90. Geburtstages, hrsg. von Stephan Kirste / Gerhard Sprenger, Berliner Wissenschaftsverlag, 2010, pp. 152–169. Menschenwürde, Menschenrechte, Grundrechte. Baden-Baden 1997. Würde gegen Würde, in: Verwaltungsblätter Baden-Württemberg 16 (1995), S. 414 f., 446–455. Menschenwürde im anthropologischen Kreuz der Entscheidung, in: Jahrbuch des öffentliches Rechts. Neue Folge, Band 56 (2008), pp. 95–124 and in the present volume, pp. 43 ff.

DIETMAR VON DER PFORDTEN, GÖTTINGEN SOME REMARKS

ON THE

CONCEPT

OF

HUMAN DIGNITY

Abstract: Human Dignity is a very new concept. It emerged much later than other concepts in philosophy and human rights declarations. I think this is no accident. Human dignity is a second-orderconcept. I will argue that the concept of human dignity can only be understood within a system of other concepts in normative ethics. The basis of normative ethics are concerns/interests, that is the strivings, needs, desires and aims of human beings. Desires and aims can also be used as second-order-concepts. That is, we can have desires for needs, desires or aims and aims for needs, desires or aims. Human dignity signifies this relation between first-order- and second-order-concerns/interests.

The concept of human dignity has become a central concept of practical philosophy. However, it is not clear how to understand this concept. The following distinction is fundamental: 1. ACCIDENTAL

VS.

NECESSARY DIGNITY

First, it is possible to distinguish accidental (contingent, external) from necessary (inherent, internal) dignity.1 In the literature one finds the alternative of “achievement” vs. “dowry”.2 Accidental (contingent) dignity is based on a specific (dignity-) achievement of the dignity owner (his being worthy of dignity) and is a variable quality. It consists in the posture of calmness, of internal independence, or being self-contained with regard to external changes and challenges.3 Depending on the situation behaving with dignity means different things. In the course of a life one can acquire such contingent dignity but also lose it again. Therefore, the quality “accidental dignity” is distributed unequally and is realized unequally by individuals.4 Contingent dignity consists of an aesthetic part, the gravitas, monumentality, and self-containment of a person, an institutional-social part, the dignity of an office (e. g. a minister or bishop) or of public standing (this is the original Latin meaning of “dignitas”5), and, finally, an expressive part of behaving with dignity, such as the acceptance of a defeat or a loss with calmness and internal independence. However, it is necessary to distinguish clearly between the accidental quality of contingent dignity and the framing of dignity as an ethical term. Contingent dignity 1 2 3

4 5

Philipp Balzer / Klaus P. Rippe / Peter Schaber: Menschenwürde vs. Würde der Kreatur. In: Begriffsbestimmung, Gentechnik, Ethikkommissionen, p. 17, Freiburg 1998. Hasso Hofmann: Die versprochene Menschenwürde. In: Archiv für öffentliches Recht 118 (1993), pp. 353–377. Robert Spaemann: Über den Begriff der Menschenwürde. In: Menschenrechte und Menschenwürde: historische Voraussetzungen – säkulare Gestalt – christliches Verständnis, pp. 295–313, p. 299, Stuttgart 1987. Cf. for a phenomenological analysis: Aurel Kolnai: Dignity. In: Dignity, Character, and Self-Respect, pp. 53–75, p. 66, Robin S. Dillon (ed.), New York 1995: “Undignified is everything antithetic to distance, discretion, boundaries, articulation, individuation and autonomy”. Philipp Balzer / Klaus P. Rippe /P eter Schaber (note 1), p. 19. Also: Robert Spaemann (note 3), p. 304. Vgl. Bernhard Giese: Das Würde-Konzept. Eine normfunktionale Explikation des Begriffs Würde in Art. 1 Abs. 1 GG, pp. 23 ff., Berlin 1975.

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as a bare quality cannot be the normative source of ethical obligations. One can compare the role of the bare quality of contingent dignity with the role of hunger. There is an ethical duty to support the starving. Therefore, hunger is a necessary condition of this duty. However, hunger is not in itself the normative source of the obligation. In a similar way, contingent dignity can be the condition and content of an ethical obligation. Someone who does not live up to the dignity of his office cannot demand from others to respect his dignity as a holder of the office. However, the duty to respect the holder of an office is not based on his actual behavior. Thus, the actual behavior – with or without dignity – cannot be the ultimate relevant normative-ethical quality. Such ultimate normative-ethically qualities can be – apart from transcendentreligious ones – only the strivings, needs, wishes and aims of affected individuals, that is their concerns or interests.6 These interests or needs however require a content. And one possible content is contingent dignity. However, the variable quality of contingent dignity is merely one ethical quality among others and arguably not the most important one. It is more important to prevent that people are getting killed, are injured or harmed as these acts ignore more important interests. Hence, the variable quality of dignity is to be considered as an ethically significant interest. However, it is usually only one interest of minor importance among many. One can find a parallel to this insight in the jurisprudential and constitutional discussion. In the interpretation of Article 1 of the German Basic Law (the inviolability of human dignity) the qualification of dignity as “an achievement” did not achieve broad acceptance. This interpretation is mainly maintained by social scientists, which reject normative ethics altogether.7 2. THE MAIN FOCUS

OF THE

QUESTION

AFTER

HUMAN DIGNITY

As contingent dignity has turned out to be one interest of ethical significance among others the focus of the question must now turn to the other meaning of human dignity, namely necessary (inherent) dignity or dignity as “dowry”. This meaning of course does not refer to the dignity of the members of higher estates (this meaning can be found up to the 18th century in Burke and even still at some peripheral places in Kant8) but to the general dignity, which in the Christian tradition and especially in the Renaissance is assumed to be inherent in all human beings.9

6 7 8

9

Cf. Dietmar von der Pfordten: Normative Ethik, p. 57 ff., Berlin 2010. Niklas Luhmann: Grundrechte als Institution, p. 53 ff., Berlin 1965. Immanuel Kant: Grundlegung zur Metaphysik der Sitten (1785). In: Kant`s gesammelte Schriften, ed. Königlich Preußische Akademie der Wissenschaften, p. 328, vol. IV, Berlin 1911 (Groundwork of the Metaphysics of Morals, transl. and ed. Mary Gregor, Cambridge 1998). Unless otherwise indicated, all references to Kant are given by page and, where appropriate, line numbers of the Academy edition. The cited English editions also contain the Academy pagination, except for Smith’s translation of the Critique of Pure Reason which employs the standard AB citation. See also Michael J. Meyer: Kant’s Concept of Dignity and Modern Political Thought. In: History of European Ideas 8 (1987), pp. 319–332. Cf. Kurt Bayertz: Die Idee der Menschenwürde: Probleme und Paradoxien. In: Archiv für Rechts- und Sozialphilosophie 81 (1995), pp. 465–481; id.: Human Dignity: Philosophical Origin

Some Remarks on the Concept of Human Dignity

15

Three alternatives can be distinguished: According to the first alternative, human dignity is the source of the ethical obligation to respect all people equally. According to the second alternative, human dignity is an additional aspect of this ethical obligation. The third view, finally, rejects human dignity as an independent source or even an independent aspect of ethical obligation. Either it renounces considering human dignity in ethics at all, or it states that the ethical obligation to respect individuals and respect for human dignity are identical. In this case an independent consideration of human dignity would also be unnecessary. Curiously hardly any representatives can be named for the view that human dignity is the source of ethical obligation. Human dignity is of course important in religiously inspired ethics. However, the source of ethical obligations are divine orders or at least a God-given quality such as the belief that man was created in God’s image but not a purely inherent quality of the person. Therefore, dignitas becomes an essential quality and plays a certain role in the ethics of Thomas Aquinas, but it is not fundamental.10 In this line Robert Spaemann writes: “Humans have human dignity only, because as moral beings they represent the absolute.”11 The Renaissance has set the person and its highest position or dignity at the center of its anthropology while refraining from giving religious foundations. However, no ethics with lasting influence was developed on this basis. Only Kant has finally stressed the dignity of man in his Foundations of the Metaphysics of Morals from 1785.12 This has prompted some interpreters to assign dignity a central role in Kantian ethics.13 However, this should be stated with caution, for a number of reasons.14 In the more extensive elaboration of his ethics in his Kritik der praktischen Vernunft (Critique of Practical Reason) from 1788, which is particularly important in the overall context of his critical project, the term does not occupy any significant position and is mentioned only twice en passant. It appears only again in 1798 in the second part of the Metaphysics of Morals, the Doctrine of Virtue but not in the Doctrine of Right. In the Groundwork of the Metaphysics of Morals the term dignity appears relatively late, namely in the course of explaining the third formula of the categorical imperative. Yet the concept of “human dignity” is often, and mostly without further discussion,

10

11

12

13

14

and Scientific Erosion of an Idea. In: Sanctity of Life and Human Dignity, pp. 73–90, id. (ed.), Dordrecht/Boston/London 1996. Thomas Aquinas: Summa theologiae I, qu. 29 a 3; cf. Christoph Enders: Die Menschenwürde in der Verfassungsordnung, pp. 180–184, Tübingen 1997; Bernhard Giese: Das Würde-Konzept. Eine normfuktionale Explikation des Begriffs Würde in Art. 1 Abs. 1 GG, p. 27; J. Lenz: Die Personwürde des Menschen bei Thomas von Aquin. In: Philosophisches Jahrbuch 49 (1936), pp. 139–166. Robert Spaemann: Über den Begriff der Menschenwürde, p. 304: “Weil der Mensch als sittliches Wesen Repräsentation des Absoluten ist, darum und nur darum kommt ihm das zu, was wir ‘menschliche Würde’ nennen”. Immanuel Kant: Foundations of the Metaphysics of Morals, pp. 434 f. See for an interpretation of the notion of human dignity in Kant, Dietmar von der Pfordten: Zur Würde des Menschen bei Kant. In: Recht und Sittlichkeit bei Kant, Jahrbuch für Recht und Ethik, pp. 501–517, ed. Sharon Byrd et. al. Stuttgart 2006. English version: On the Dignity of Man in Kant. In: Philosophy 84 (2009), pp. 371–391. Neil Roughley: article “Würde”. In: Enzyklopädie Philosophie und Wissenschaftstheorie vol. 4, Sp-Z, pp. 784–787, p. 784, Jürgen Mittelstraß (ed.), Stuttgart/Weimar 1996; Josef Santeler: Die Grundlegung der Menschenwürde bei I. Kant, Innsbruck 1962. Cf. for the following in more detail: Dietmar von der Pfordten (note 12), pp. 501–517.

16

Dietmar von der Pfordten

associated15 with the second formula of the categorical imperative: “So act that you use humanity, whether in your own person or in the person of any other, always at the same time as an end, never merely as a means”.16 This is the case with the widely accepted interpretation17 of the Federal Constitutional Court of Article 1 Paragraph 1 of the German Constitution, the prohibition of violating human dignity (“object formula”).18 However, in the course of developing the second formula of the categorical imperative Kant does not refer to dignity at all.19 This cannot be a coincidence. The second formula of the categorical imperative demands the recognition of others and of the acting person himself as an end. However, this is formulated from the perspective of the individual agent. Only in the context of the kingdom of ends the perspective of a detached, godlike observer is taken, who is explicitly not an addressee of the categorical imperative. Only in this detached, godlike perspective, which Kant associates with the category of totality but not of plurality, which is associated with the second formula,20 Kant mentions the dignity of man.21 What is the difference between the state of being an end in oneself and the dignity of man? Kant defines “dignity” as the quality of a rational being “who obeys no law other than that which he simultaneously gives himself.”22 Accordingly, it is a crucial condition that every being capable of dignity is itself the author of his own ethical restrictions. This is not yet necessarily established by the second formula of 15

Beat Sitter-Liver: “Würde der Kreatur”: Grundlegung, Bedeutung und Funktion eines neuen Verfassungsprinzips. In: Julian Nida-Rümelin / Dietmar von der Pfordten, Ökologische Ethik und Rechtstheorie, pp. 355–364, p. 359, 2. ed. Baden-Baden 2002. Norbert Hoerster: Zur Bedeutung des Prinzips der Menschenwürde, pp. 93–96, p. 93, Juristische Schulung 23 (1983) equals without further reference the second formula with means in itself. 16 Immanuel Kant (note 12), p. 429. 17 The formula goes back to Günter Dürig: Der Grundrechtssatz von der Menschenwürde. In: Archiv des öffentlichen Rechts 81/2 (1956), pp. 117–157, p. 128: “It is a violation of human dignity as such if a human being is treated like an object by a legal proceeding.“; id., in: Grundgesetz. Kommentar, Theodor Maunz / Günter Dürig (eds.), München 2001, Art. 1, not. 28. Cf. Tatjana Geddert-Steinacher, Menschenwürde als Verfassungsbegriff. Aspekte der Rechtsprechung des Bundesverfassungsgerichts zu Art. 1 Abs. 1 Grundgesetz, p. 31 f., Berlin 1990. 18 BVerfGE 5, 85 (204); 7, 198 (205); 27, 1 (6): “It is against human dignity to make a human being to a mere object of the state”; 28, 386 (391); 45, 187 (228); 50, 166 (175); 56, 37 (43). Cf. Christian Starck: Menschenwürde als Verfassungsgarantie im modernen Staat, Juristenzeitung 36 (1981), pp. 457–464. 19 Therefore incorrect: Philipp Balzer / Klaus P. Rippe / Peter Schaber (note 1), p. 23. The quoted page BA 79, 80 does not mention the second formula but only the rest of the third formula and a summary of all formulas. In the context of the second formula at BA 66 f. dignity is not mentioned. 20 Immanuel Kant (note 12), p. 436. 21 However, the identification of dignity and means in itself occurs 14 years later in: Immanuel Kant: The Metaphysics of Morals, p. 462: “Humanity itself is a dignity; for a human being cannot be used merely as a means by any human being (either by others or even by himself) 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.” The bracketed notion “personality” after the notion dignity shows that it is here used differently than before in the Foundations. Norbert Hoerster: Zur Bedeutung des Prinzips der Menschenwürde, p. 96, tellingly omits the bracketed notion (personality). 22 Immanuel Kant (note 12), p. 434.

Some Remarks on the Concept of Human Dignity

17

the categorical imperative, that is, the “end-in-oneself-ness” formula, for the recognition of others as ends in themselves only requires that the agent does not use others as mere means. And this does not say anything about why he must not use others as mere means, that is, it does not make explicit the foundation upon which the obligation to recognize the independent ends of others rests. For it is not explicitly set forth as a necessity that the obligation to recognize the ends of others and of oneself derives from the other and oneself as possessors of these ends. After all, one might also conceive of an ultimate obligation posed, say, by divine law. The second formula of the categorical imperative, the formula of ends-in-themselves (Selbstzweckformel), only states the necessity to ethically consider humans for their own sake. Only when Kant defines the human being as self-legislating and as member of the legislating kingdom of ends of all rational beings, does he exclude an ultimate relativization of the “end-in-himself-ness” of persons to other normative sources, that is, to sources lying beyond the affected individual in question, e. g. in God. Such alternative sources are excluded in two ways: First, the classification of individual humans in the legislating kingdom of ends makes possible the idea of the completeness of the end-determining entities. The kingdom of ends represents a “whole of all ends.”23 Second, as mentioned before, God, as well as other possibly existing rational beings, is integrated into the kingdom of ends. The formula of ends in themselves is restricted to humanity, at least in its explicit formulation; by contrast, the “kingdom of ends” consists, according to Kant, not only of “members” – which, though universally legislating, are also subject to these laws – but also includes a legislating “head” which is not subjected to any law.24 While in the Christian tradition the dependency of humans on God was taken to be the source of human dignity,25 Kant now conversely construes the dignity of man as partial equality of humans with God as the moral legislator in a common legislating kingdom of ends. This idea of self-legislation and of the legislating kingdom of ends leads to the postulate that only rational beings can be legislating in the kingdom of ends. Since animals are not rational in this substantial sense, they cannot be awarded the status of legislating members in the kingdom of ends. According to Kant, they cannot claim inherent, morally relevant dignity like human beings. For Kant there exists no direct ethical obligation to animals, but only to other humans with regard to animals.26 The explicatory difference between the quality of “end-in-oneself-ness” and selflegislation as precondition of dignity becomes apparent in various places. Kant writes: “but that which constitutes the condition under which alone something can be an end in itself has not merely a relative worth, that is, a price, but an inner worth, that is, dignity.”27 Dignity is characterized here as an explication of the “con23 24 25 26

27

Immanuel Kant (note 12), p. 433. Immanuel Kant (note 12), p. 433. For a modern version of this view see Josef Santeler, Die Grundlegung der Menschenwürde bei I. Kant, p. 282. Immanuel Kant: Die Metaphysik der Sitten. Metaphysische Anfangsgründe der Tugendlehre, p. 442. Cf. Dietmar von der Pfordten: Ökologische Ethik. Zur Rechtfertigung menschlichen Verhaltens gegenüber der Natur, pp. 42 f. Immanuel Kant (note 12), p. 435.

18

Dietmar von der Pfordten

dition” of “end-in-oneself-ness,” not as a direct explication of “end-in-oneself-ness”. Elsewhere Kant writes: “Autonomy is therefore the ground of the dignity of human nature and of every rational nature”.28 Thus, self-legislation, the autonomy of man, is the central source of normativity in Kantian ethics. In the context of a kingdom of ends this self-legislation constitutes the dignity of man. In individual ethical conflict situations, it leads to the obligation to respect the “end-in himself-ness” of the other or of oneself as part of humanity. Among all living beings only human beings are to be respected as end in themselves and only humans have dignity. However, dignity is not the ultimate source of ethical obligation. The ultimate reason for ethical obligation rather lies in the capacity of the human being for self-legislation, in the “fact of reason”29 or in the “moral law within me”.30 Dignity as absolute “inner worth” is an idealistic-analytic specification of this ultimate source of ethical obligation, namely, the idea of the legislating status of the human being in the kingdom of ends. By contrast, the obligation to respect the “end-in-oneself-ness” in accordance with the second formula of the categorical imperative is an explication of this ultimate reason from the perspective of the direct norming of the act in the more specific conflict case. However, this specific Kantian view of the basis of ethical obligation is problematic.31 The premise of a moral law inherent to humans and of their autonomy in a strong sense is metaphysical and hence questionable. It goes without doubt that humans in contrast to animals have reasons. Only humans are able to reasonably qualify first order needs, wishes, and aims by recurring to second order needs, wishes and aim. For this reason they can unlike animals act morally and thus be moral agents and not only ethically or morally affected moral patients. A human being must not only be morally considered himself, but must himself consider other beings ethically or morally. He is able to qualify his first order wishes, needs, and aims with regard to second order ethical concerns. However, this does not explain why only second order interests or beings with second order interests are to be considered ethically, for in moral conflicts second order interests are normative like first order interests. Therefore, they do not deserve to be of exclusive or primary concern. 3. CRITICISM

OF

OTHER CONCEPTIONS

External or intersubjective interpretations of human dignity reduce its significance in comparison to our highest ranking interests such as life, health, mental and physical integrity. Such interpretations turn human dignity into one interest among others that can like contingent dignity be delimited. This shortcoming holds for the view that human dignity is constituted by the recognition of others32 or consists in

28 29 30 31 32

Immanuel Kant (note 12), p. 436. Immanuel Kant: Critique of Practical Reason, A 56, p. 31. Immanuel Kant (note 29), A 288, p. 161. For further criticism see Dietmar von der Pfordten (note 26), pp. 42 f. Hasso Hofmann: Die versprochene Menschenwürde; Peter Baumann: Menschenwürde und das Bedürfnis nach Respekt. In: Menschenwürde. Annäherung an einen Begriff, pp. 19–34, p. 26– 29, Ralf Stoecker (ed.), Wien 2003.

Some Remarks on the Concept of Human Dignity

19

the external representation of self-respect33 and, hence, leads to the demand of nondegrading, respectful and self-esteem promoting treatment by others. Nobody will deny that we have a legitimate interest to be recognized by others and be treated with respect. However, identifying this interest, high ranking as it may be, with human dignity is problematic for three reasons: First we know of disrespectful behavior which we would not consider as a violation of human dignity. If somebody sneaks something from someone else’s plate we would consider this as disrespectful and in certain cases even degrading though not as a violation of his dignity. Also, if somebody makes disparaging remarks about an absent third person we would consider this as disrespectful, however, not as affecting his human dignity. A second problem is that such an external and intersubjective view of human dignity has difficulties to explain human dignity as pertaining to certain stages in life or certain forms of life, e. g. serious disabled, comatose, and newborn children. These people have no present need for recognition or respect (with regard to the first group it must of course be checked for each particular case). Finally, such an external or intersubjective interpretation of human dignity contradicts our general view about its status in the structure of different interests. On the one hand we believe that the value of human dignity is at least on a level with life, health, mental and physical integrity (which does not say whether they can be balanced against each other). On the other hand we see that in all recent constitutions or human rights systems human dignity is either set above or at least on the same as these most important interests of people.34 Therefore, one has to conclude that human dignity cannot be interpreted as externally or intersubjective but needs to be interpreted as being internal and individual. It is at least on par with our most important interests such as life and bodily integrity. According to another view35 human dignity is part of a group of indispensable rights, first the right to have the goods necessary for biological existence, second the right to be free from heavy and constant pain, third the right to a minimum of general freedom, and fourth the right to a minimum of self-respect. It goes without question that these interests or rights are essential and need to be considered. However, it is questionable why just these rights should be assembled under the label “human dignity”. This compilation does not meet the common and at the same time specific aspect of human dignity.36 It is however correct that a violation of human dignity is equivalent to a special humiliation and degradation.37 Human dignity implies a right not to be degraded. But what does this mean? Somebody is degraded if he cannot respect himself. The dignity of a person exists in his self-respect. At first sight this appears to be clear. However, this characterization is still insufficient. Self-respect is nothing else than a form of self-assessment. However, self-assessment can refer to a variety of things. Some33 34 35 36 37

Cf. Avishai Margalit: The Decent Society, pp. 51 f., Cambridge 1986; Julian Nida-Rümelin: Über menschliche Freiheit, pp. 131 ff., Stuttgart 2005. Cf. Art. 1 I of the German Basic Law: “Human dignity shall be inviolable.“ UN-Charta; EUHuman Rights Charta. Dieter Birnbacher: Ambiguities in the Concept of Menschenwürde. In: Sanctity of Life and Human Dignity, pp. 107–121, p. 110 f., Kurt Bayertz (ed.), Dordrecht/Boston/London 1996. For a criticism see Philipp Balzer / Klaus P. Rippe / Peter Schaber (note 1), p. 27. Philipp Balzer / Klaus P. Rippe / Peter Schaber (note 1), p. 29.

20

Dietmar von der Pfordten

body can lose, for example, his self-respect if he does not pass an exam or is not as successfully at a sport as he wishes. However, in these cases we would not say that his human dignity was violated. Therefore, degradation and humiliation must be directed at a certain central quality of man, which is an essential and indispensable part of his self-respect. 4. HUMAN DIGNITY AND CONCERNS

AS

BEING

A

MASTER

OF ONE’S OWN

INTERESTS

The answer to the question after human dignity should start from the basic ethical insight of normative individualism. Accordingly, individuals have to be the ultimate point of reference for ethical justification.38 If only individuals can be the ultimate ethically authority and if they can decide about justifiable qualities, in principle, autonomously then the more concrete generalized interests such as mental and bodily integrity must not exhaust the amount of possible interests. The first and foremost interest is instead the second order wish or interest to have primary interests (which can be aims, wishes, needs or strivings). The key to the understanding of necessary (inherent) human dignity is found in an important insight: There is a basic difference between the four morally relevant qualities – aims, wishes, needs and strivings. Strivings and needs cannot be directed at other strivings, needs, wishes or aims. Hence, there are no strivings after strivings and no needs for strivings or needs. But there are second order wishes and aims with regard to first order strivings, needs, wishes and aims. Therefore, we can develop the wish to feel more often the striving to work-out or the wish to listen to nice music. We can also develop the aim to reduce our need for sleep, to limit our strivings for sweets, and to set ourselves more ambitious ecological aims. Wishes and aims are in contrast to needs and strivings iterable, i. e. they are possible second order qualities with regard to other morally relevant qualities. The reason is perhaps that only wishes and aims are necessarily intentional while this is questionable or contingent in the case of strivings. Only because wishes and aims are intentional they can refer to other morally relevant qualities. Intentionality is in these cases not only representational but evaluative. Because of our wishes and aims we have the ability not only to represent morally relevant qualities but to evaluate them. In this way we can establish among our morally relevant qualities our own, subjective order. We are, for instance, able to superordinate the aim to finish a letter over the need to eat something. Human dignity hence means self-determination and openness of decisions, i. e. of wishes and aims, concerning one’s own interests and their importance.39 An essential part of our self-understanding and of our self-respect is based on this selfdetermination and openness of our decisions over our aims, wishes, needs, and strivings. The need for recognition of this kind of self-understanding and self-respect is then only a secondary result of human dignity but not its basis. 38 39

Dietmar von der Pfordten: Normative Ethik, pp. 22 f., Berlin 2010. Harry Frankfurt: Freedom of the Will and the Concept of a Person. In: The Importance Of What We Care About, id., pp. 11–25, Cambridge 1988, argues that for the concept of a person secondorder-volitions are decisive. These are those that refer to first order motivational reasons.

Some Remarks on the Concept of Human Dignity

21

This interpretation of human dignity as self-determination of one’s own interests fits very well to the frequently found identification of human dignity with a ban of total instrumentalization of others as expressed in Kant’s second formula of the categorical imperative (it can however not be based on Kant’s writings at the time of the Groundwork of Metaphysics of Morals40).41 When asking what it can mean to treat someone only as a means the answer cannot merely be having disregarded a single ethically relevant quality, i. e. a first order interest. On the other hand, negating actual or potential wishes and aims concerning one’s own interests, i. e. negating second order ethical qualities, implies at the same time disregarding all first order interests as well. For if anyone cannot even decide over his wishes and aims with regard to his own interests then all first order interests are also devaluated as they are not genuine. Anyone negating second order interests also negates all first order interests even if he does not affect every first order single interest directly and independently. In this way it can be explained how a person can be used only as a means. Conceiving human dignity as self-determination of one’s interests can also explain why the notion of human dignity as a point of view on morality and law appears much later in constitutions and human rights declarations than the protection of first order interests such as life, bodily integrity, freedom, and property. As it is the case with all meta-phenomena, reflecting on self-determination of one’s own interests is an abstract activity that requires in the first place knowledge and protection of primary interests on the first level, such as life, bodily integrity, freedom and property. Dignity conceived as the ability of humans (or other rational beings) to reasonably evaluate one’s own aims, wishes, needs, and strivings on a meta-level, is the indispensable basis for self-respect, which in turn is the necessary ability of restingin-oneself and having internal independence. However, this ability is not just the ability to act morally as first order needs, wishes, and the aims need not necessarily be directed at other but can also pertain only to the agent himself. Nevertheless, it is a necessary condition to act morally because every genuine moral action requires a restriction of one’s desires and appetite on an evaluative meta-level. Defining dignity as ability to assess one’s own and other’s wishes and interests on a meta-level has the advantage that it does not require strong metaphysical or religious premises. It can also be accepted by metaphysical skeptics and agnostics. However, Christians or other believers may interpret dignity in a religious way. An essential aspect of man being created in god’s image would then consist in the ability of humans to reflect on a meta-level one’s own and other’s interests.

40 41

See above and Dietmar von der Pfordten: Zur Würde des Menschen bei Kant (note 12). Immanuel Kant: Foundations of the Metaphysics of Morals, p. 429: “Act in such a way that you treat humanity, whether in your own person or in the person of any other, always at the same time as an end and never merely as a means to an end.”

22

Dietmar von der Pfordten

5. CONCRETE DANGERS: FORCIBLE TUBE FEEDING, LIE DETECTORS, TORTURE Defining necessary, inherent dignity of man as his actual or at least potential ability to reasonable or at least potentially reasonable reference to his own or other’s first order needs, wishes and aims can help to explain concrete dangers for dignity, such as forcible tube feeding, the use of lie detectors and torture. If prisoners decide to go on hunger strike they have assessed their first order needs and wishes in a highly unusual way. They have subordinated their highest need of absorbing food for life preservation, which usually trumps all the other needs, to the secondary wish for political or humanitarian protest. This is an act that strikingly demonstrates the ability to relativize one’s first order needs and wishes on a second, higher level. It is thus an act that manifests the dignity and internal independence of prisoners in an eminent way. Forcible tube feeding suppresses this exercise of independence and manifestation of dignity of prisoners and therefore violates their human dignity – at least as long as the prisoners are conscious. If they lose their consciousness tube feeding does not violate their dignity as it is strictly speaking no longer forced. However, the wish not to be tube fed even in case of unconsciousness needs to be heeded as well. Using a lie detector works in a comparable way. If defendants lie they evaluate their own interests and the interests of the prosecuting body on a meta-level. They decide against cooperating with the prosecuting body and accept the risk of being proven untruthful. The possibility of second order assessment and with it the exercise of the human dignity is barred by using lie detectors. Therefore, using it or similar means like psychiatric drugs violates human dignity. Why is torture a violation of human dignity? Inflicting pain without approval as well as the purpose of breaking someone’s will contradicts important needs, wishes, and aims of the affected person and is therefore to be evaluated as negative. However, there can be certain situations in which some forms of negative effects on individuals are justified, such as a conviction to imprisonment because of a criminal offence (inflicting pain) or usage of force by the police to avert dangers (breaking the will). The characteristic of torture lies in the purpose-directed connection of both negative evaluated effects, thus the instrumental connection of inflicting physical and mental pain with the aim of breaking the will. Thus physical or mental pain is afflicted with the very aim to break the second order will. Because of the pain the body or the psyche of the tormented person does not express, as it is usually the case, his own will but virtually the foreign will of the torturer. The will of the tormented person to reveal nothing and his own body or his own psyche, which make the pain for him intolerable and force the confession, are this way set in a destructive opposition. The natural unity of man, of will and body or psyche is “torn apart”. The tormented experiences that his natural unity as a free, self-determined being and as a sensitive body and soul is being denied. The natural ability to decide through wishes and aims over one’s physical strivings and needs is hence eliminated.

Some Remarks on the Concept of Human Dignity

23

6. BORDERLINE CASES One may ask at this point whether according to this definition embryos, babies, and severely mentally disabled have inherent dignity. If one conceives human dignity in the narrow way, as just explained, one cannot hold for these persons that an existing ability to assess aims, wishes, needs, and strivings at a second order is violated. The interests of these persons are to be ethically considered, such as their interest to continue to live or their interest to be free of pain. However, they cannot be violated in their existing second order self-determination. Indeed, one has to take into account pre-effects and after-effects of abilities on the second order. In the same way, as actions that damage somebody only in the future, are already morally wrong in the present, the future actualization of the ability to asses on a second level is already vulnerable in embryos and babies, for instance if they are cloned or selected. In the same way inherent dignity of mentally disabled and comatose continues to exist as a claim on others as the now mentally disabled and comatose have had directed their self-determination upon a future up to the end of their lives and, in some aspects, even post mortem. Moreover, one can never be certain that a person does not gain the ability to exercise his self-determination about his interests again. Therefore, one has to hold that from the beginning of life – that is already before the birth with the fusion of ovum and spermatozoon, up to the end of life and, with regard to some concerns, even after life human beings – have inherent dignity.

PAUL TIEDEMANN*, FRANKFURT AM MAIN HUMAN DIGNITY

AS AN

ABSOLUTE VALUE

Abstract: On the basis of a strict revisionist explication and a subjective theory of value, it is possible to reconstruct the legal concept of human dignity as a value judgment. This judgment awards human persons an absolute value by virtue of their authenticity, i. e. their ability to form their own free will. Such a reconstruction satisfies the requirements for the rational explication of concepts, namely a connection to ordinary language use, distinctness, metaphysical parsimony, and empirical significance. It is reasonable to deliver this value judgment because it is the condition under which the consciousness of our own dignity can be developed and maintained.

1. HUMAN DIGNITY

AS A

LEGAL CONCEPT

Human dignity is nowadays a buzzword. No politician, union leader, or priest can afford to do without it in their speeches. The concept of human dignity as a legal concept might be different from the meaning of that concept in other contexts. This is due to the fact that human dignity, as a legal concept, does not work as a linguistic expression that is supposed to produce awe-inspiring feelings, as it might do in religious contexts, or to produce a theoretical connection or combination of certain ideas, as it might do in mere philosophical contexts. Nor does it produce a certain feeling of outrage about states of injustice in the world, as it might do in a political context. The function of a legal concept is rather to tell us what we should do or what we should avoid to do. Legal concepts serve the purpose of giving directives. Legal texts, in particular international treaties or national constitutions, contain not only legal concepts but also philosophical or political concepts. Sometimes it is difficult to recognize whether in a legal text a concept is used as a legal concept or as a philosophical one. In a professionally drawn up legal text, however, we should be able to expect a clear distinction between legal and extra-legal concepts. Extralegal concepts should appear in the preamble, while legal concepts should figure in the authoritative part of the legal text. For the first time in a legal document, the concept of human dignity appeared in the preamble of the Charter of the United Nations Organization.1 The drafters’ idea was to introduce a religious or, even better, a philosophical concept.2 They called for “more soul and a greater popular appeal”3 in the opening words of the Charter. During the process of drafting the Universal Declaration of Human Rights the opinion gained more weight that human dignity in a legal text should be understood as a legal concept and that it should be incorporated into the authoritative * 1 2

3

The author thanks Prof. Dr. James Simeon (York University, Toronto) for the review of the text in terms of grammatical, stylistic and orthographic mistakes. All remaining errors are my sole responsibility. Earlier references can be found in the German constitution of 1919 and in two other European constitutions (Portugal 1933, Ireland 1937) which I cannot discuss further in this essay. Christof Heyns: The Preamble of the United Nations Charter: The contribution of Jan Smuts. In: African Journal of International and Comparative Law 7 (1995), p. 329; Cf also: Paul Tiedemann: Menschenwürde als Rechtssubjekt. Eine philosophische Klärung, S. 10 ff., 3. Aufl. Berlin 2012. UNICO Doc 817 I/1/31 v. 6 June 1945. In: UNICO vol VI, p. 365 f.

26

Paul Tiedemann

part of the declaration. The drafters eventually reached a compromise and mentioned human dignity both in the preamble and in Article 1.4 A similar discussion arose during the drafting process of the German “Grundgesetz” (Basic Law – Constitution) in 1949. Now the opinion prevailed that human dignity should be understood as a legal concept and therefore it was included only in the first article of the constitution and not in the preamble.5 Many other national constitutions and supranational legal texts subsequently followed this example. In the meantime, most countries in Europe6 and Latin America7, some Asian8 and African9 states and some U.S. federal states10 have adopted constitutions that include the principle of human dignity in the authoritative part, i. e., as a legal concept. Although the concept of human dignity has been integrated into many constitutions nearly across all continents, the concept of human dignity remains largely unexplained. For example, whereas the Constitutional Courts in countries like Italy11, Portugal12, or Spain13 mention human dignity in their case law only as rhetorical decoration, academics in other countries express their helplessness in interpreting the concept.14 Other authors try to approach the problem by studying the human dignity discourse in Germany.15 Indeed, there is no country in the world where the concept of human dignity has been discussed as intensively and continuously as in Germany.16 The reason for this lengthy discussion 4

Jan Martenson: The Preable of the Universal Declaration of Human Rights and the UN Human Rights Programme. In: Asbjorn Eide / Gudmundur Alfredsson / Göran Melander / Lars Adam Rehof / Alan Rosas (ed.): The Universal Declaration of Human Rights: A Commentary, p. 19, Oslo 1992. 5 Der Parlamentarische Rat 1948–1949. Akten und Protokolle Vol 5/I, pp. 63, 71, Boppard 1993. 6 Albania Art. 2, Bulgaria Art. 4, Estonia Art. 10, Croatia Art. 25, Latvia Art. 21, Lithuania Art. 95, Macedonia Art. 11, Poland Art. 30, Russia Art. 21, Serbia Art. 22, Slovakia Art. 12, Slovenia Art. 21, Hungary Art. 54, Art. 1 European Charta of Fundamental Rights. 7 Brazil Art. 1, Bolivia Art. 6, Chile Art. 1, Columbia Art. 1, Mexico Ar. 1, Nicaragua Art. 5, Guatemala Art. 4, Venezuela Art. 2. 8 Afghanistan Art. 24, Iran Art. 2, South Korea Art. 10, Israel Basic Law on Government Sec. 50 d. 9 Malawi Sec. III No. 12, South Africa Sec. 1, 10. 10 Louisiana Sec. 3, Montana Art. II Sec. 4. 11 Corte cost. RU 2000 III 79; RU 1987, 445; RU 1987, 893. 12 José Manuel Cardoso Da Costa: The principle of human dignity in European Case-Law. In: The Principle of Respect for human dignity, pp. 50 ff., European Commission for Democracy through Law (ed.), Strasbourg 1999. 13 Pedro Serna: Dignidad de la Persona. In: Persona y Derecho 41 (1999), 141; TC JC XI, 546. 14 Tholakele Hope Mandala: The Principle of Respect for human dignity. The Principle of Respect for human dignity, pp. 80 ff., In European Commission for Democracy through Law (ed.), Strasbourg 1999; Francois Venter: Human dignity as a Constitutional Value: a South African Perspective. In: FS Dietrich Rauschning Köln 2001, p. 335; Antonio Rugeri / Antonio Spardaro: Dignitá dell’uomo e giurisprudenzia Constitutionale. In: Libertà e Giurisprudenzia Costituzionale, p. 228, Vittorio Angiolini (ed.), Torino 1992. 15 Edward J. Eberle: Dignity and Liberty. Constitutional Visions in Germany and the United States, Westpoint 2002; Franco Bartolomei: La dignità umana come concetto e valore constitutuionale, Torino 1987; Francois Venter loc.cit.; Arthur Chaskalson: human dignity as a fundamental value of our constitutional order. In: South African Journal on Human Rights 16 (2000), 193. For the discussion in Israel see David Kretzmer / Eckart Klein (ed.): The Concept of human dignity in Human Rights Discourse, The Hague 2002; Tiedemann (note 2), pp. 71 ff. 16 For details see Tiedemann (note 2), pp. 74 ff.

Human Dignity as an Absolute Value

27

was the case law of the German Federal Constitutional Court (Bundesverfassungsgericht), which started to refer to the concept of human dignity in the early 1950s and subsequently used the term as a guideline in many various major cases. Thus, for instance, the reference to human dignity clause in Article 1 Grundgesetz, led to the decision that lifelong imprisonment is not acceptable, for according to the human dignity principle, every prisoner has the right to expect to be released one day.17 It also led to the creation of the unwritten human right to informational self-determination18, the right to sexual identity for transsexuals19, and the right to privacy.20 In all of these cases and in many others, the Federal Constitutional Court emphasized its conviction that human dignity is the highest and most fundamental constitutional value, the core principle (Konstitutionsprinzip) of the constitution.21 Therefore, the constitutional court argued, it is sacrosanct and inviolable. Under no circumstances can it be called into question or weighed against other values and interests.22 Clearly, the Federal Constitutional Court conceives of human dignity as an absolute value. However, this approach is increasing facing resistance and criticism from academics and legal scholars. There is a growing opinion within academia saying that this approach is useless in practice.23 Indeed, there is evidence showing that when dealing with concrete conflicts of interest, the Federal Constitutional Court tends to depart from human dignity and emphasize competing values and principles which overrule the demands of human dignity.24 In other words, while on an abstract level, it is firmly committed to the idea of human dignity as an absolute value, it often ignores that very idea on a concrete level. The present situation thus invited us to reconsider whether the concept of human dignity, in legal terms, should be understood as an absolute value. It also invites us to rethink whether the idea of an absolute value is in itself at all rationally

17 18 19 20 21

22 23

24

BVerfGE 45, p. 187. BVerfGE 65, p. 1. BVerfGE 49, p. 286. BVerfGE 101, p. 361. BVerfGE 54, p. 341 [357]; 96, p. 375 [378]; 102, p. 370 [389]; Peter-Alexis Albrecht: Menschenwürde als staatskritische Absolutheitsregel, KritV 2006, p. 295; Brun-Otto Bryde / Hans-Joachim Jentsch: Die Kriterien der Einschränkung von Menschenrechten bei der Verfassungsrechtspflege, EuGRZ 33 (2006), p. 617 [622]; Ralf Poscher: Die Würde des Menschen ist unantastbar, JZ 2004, p. 756. BVerfGE 75, p. 369 [380]; 93, p. 266 [293]. Manfred Baldus: Der Kernbereich privater Lebensgestaltung – absolut geschützt, aber abwägungsoffen, JZ 2008, p. 218 [224]; Winfried Brugger: Würde, Rechte und Rechtsphilosophie im anthropologischen Kreuz der Entscheidung. In: Rechtsphilosophie im 21. Jahrhundert, Winfried Brugger / Ulfrid Neumann / Stephan Kirste (ed.), Frankfurt/Main 2008; Thomas Elsner / Klara Schobert: Gedanken zur Abwägungsresistenz der Menschenwürde, DVBl 2007, p. 228; Matthias Herdegen in Kommentar zum GG, Maunz/Dürig, Art. 1 not. 43 ff., (44. Erg.Lfg. 2005); Oliver Lepsius: Der Große Lauschangriff vor dem Bundesverfassungsgericht, JURA 2005, p. 433 [440]; Horst Schlehofer: Die Menschenwürdegarantie des Grundgesetzes — absolute oder relative Begrenzung staatlicher Strafgewalt, GA 1999, p. 357 [359]; v. Mangoldt/Klein/Starck: Kommentar zum Grundgesetz, Art. 1 Abs. 1 GG not. 79, 5. ed. 2005; Horst Dreier, Grundgesetz, 2.ed. 2006, Art. 1 Abs. 1 not. 133. Paul Tiedemann: Vom inflationären Gebrauch der Menschenwürde in der Rechtsprechung des Bundesverfassungsgerichts, DÖV 62 (2009), p. 606.

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possible and practically useful. As they are philosophical in nature, both of these questions require a philosophical approach. 2. THE RULES

OF

EXPLICATION

What is required is an explication of the legal concept of human dignity. We can distinguish two types of explication. One simply aims to describe the use of the term in ordinary language. The other aims to adjust the intuitive understanding to suit a specific purpose such as legal practice.25 This essay will follow the revisionist variant of explication, as the intuitive use of the term human dignity is vague and obscure. Which is precisely why it is so difficult to reach an adequate understanding of the concept. In order to be conclusive, a revisionist explication of the concept of “human dignity” is successful if it complies with the following four conditions: 2.1. A CONNECTION TO ORDINARY LANGUAGE USE The interpretation of the concept cannot be arbitrary. It has to be linked to the intuitive understanding of the concept in ordinary language. Words like “human dignity” are not part of everybody’s ordinary language. They essentially belong to a literary register. In order to discover the intuitive meaning of those words we have to study the literature in which they have played a role in the past. For a long time, the concept of human dignity appeared exclusively in philosophical literature. Different philosophers associated different meaning with the concept. Any explication should thus take account of that philosophical usage and tradition. 2.2. DISTINCTNESS In order to be reconstructed as a legal concept, the term human dignity needs to be formulated clearly and unambiguously enough to be applied within legal orders. A legal provision must be sufficiently clear and unambiguous for everyone to be able to tell whether or not a certain behavior is allowed, prohibited, demanded, lawful or unlawful. For this reason, a legal concept must be what is called a controlled term. Controlled terminology is free from homonyms and from synonyms, vagueness must be reduced to a minimum. 2.3. PRINCIPLE OF METAPHYSICAL PARSIMONY In the intuitive sense, and according to traditional philosophical sources, human dignity can be understood, on the one hand, as an universal and valid idea. On the other hand, it can be interpreted as a concept based on very strong metaphysical or 25

Dirk Greimann: Regeln für das korrekte Explizieren von Begriffen. ZphilF 61 (2007), p. 3.

29

Human Dignity as an Absolute Value

ontological assumptions about the substance of the human being and its position in the world. Such metaphysical ideas always relate to a specific ideological or religious background. As a result, we can find, for example, a Christian concept of human dignity26, a Confucian concept27, an “African” concept28 and so on. All these various conceptions of human dignity are quite useless, as they give various answers to the question of what we are allowed to do or not and what is lawful or unlawful. On the basis of diverging metaphysical ideas, it is thus not possible to reconstruct human dignity as a universal and valid legal concept. This is why, in interpreting the concept of human dignity, we need to avoid appealing to metaphysical or religious arguments. It is important to be frugal with metaphysical ideas in our attempt to reconstruct the concept of human dignity. We need to find an approach which is comprehensible and acceptable for every human being, regardless of their cultural background. Such a reconstruction requires a starting point shared by all individuals. 2.4. EMPIRICAL SIGNIFICANCE We need to ensure that there is a link between language and life. There is no sense in devising a highly sophisticated and complex concept that might satisfy us intellectually, if we are not able to think of empirical situations in which an application of the concept would imply changes in our awareness, evaluations or actions. This is why our interpretation of the concept of human dignity should be linked to empirical reality. 3. HUMAN DIGNITY

AS

NAME

OF A

VALUE JUDGMENT

Talking about human dignity is different from talking about human life, human education, human health, human intelligence etc. While life, education, health and so on can be understood as attributes of human beings, dignity is never an attribute of anything and especially not of a human being. To say that a human being has dignity is a bit like saying that a human being is good. Goodness is not an attribute of the entity considered to be good, but expresses a certain attitude of someone to something.29 In this sense, “x is good” or “x has dignity” is not information about x, but rather information about the person who makes the judgment. It conveys certain attitudes of that person, namely his or her taste, interests, preferences. The sentence “human beings have dignity” is always a personal statement articulating the speaker’s evaluation of human beings. It is a value judgment. The expression “human 26 27 28 29

Theo Kobusch: Nachdenken über die Menschenwürde, AZP 31 (2006), p. 207. Qunianfan Zhang: The Idea of human dignity in Classical Chinese Philosophy, p. 299, Journal of Chinese Philosophy 27 (2000). John Bhengu: Ubuntu. The Essence of Democracy, Cape Town 1996. George Edward Moore reconstructed good as an attribute of an entity like the colour yellow can be an attribute of an entity. (Principia Ethica 1903). This approach provokes more questions than it answers. Should any moral dispute be based on the fact that one of the parties is colour blind?

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dignity” refers to the idea that human beings have dignity. It is an abbreviation or a label for a certain value judgment that we can call the human dignity judgment. At this stage, two things should have become clear: Firstly, that it makes no sense to interpret human dignity in terms of good life, physical integrity, privacy, property, free speech and so on, that we can protect or threaten. Therefore, the human-dignity-clause cannot be considered as a particular human right among other human rights. It makes no sense to say that we should protect human dignity like we should protect human life or bodily integrity. Human dignity is rather the idea behind human rights, the idea from which human rights can be derived, as the International Covenant on Political and Civil Rights (ICESCR) and other international treaties state. Secondly, it should have emerged that the human-dignity-judgment is a performative speech act.30 It refers to the person who performs the act and it is dependent on the condition that there be someone who performs it. We can understand it only if we know the person who makes the judgment or who agrees with it. Contrary to factual judgments, value judgments are not true or false. They are only valid or invalid and their validity depends on the approval of certain persons. The point of view that value judgments are statements and not descriptions of a certain reality is not uncontested. The advocates of a school called Value Realism believe that value judgments are nothing else than factual judgments and values are particular kinds of facts in the objective world.31 As for us, however, we have to reject this approach, because it is based on strong metaphysical assumptions which are unacceptable according to the rule of the principle of metaphysical parsimony. A third observation strikes us when we consider the full structure of value statements at large. We realize that the human dignity judgment is highly elliptical and vague. This explains why it is so hard to understand what is meant by human dignity. Value judgments have the following general structure: p prefers x compared to y on the basis of the standard of evaluation v.32 If we compare this model with human-dignity clauses as they have been incorporated into various states constitutions, we can easily recognize that these clauses conceal what is p and v. They only reveal x (= the human being), but x is very vague and unclear. Concerning p the gap is easy to fill. Taking as our starting point the subjective theory of value judgments, we can say that such a judgment is only valid if there is at least one person p who agrees with it. It is up to us to decide whether or not human beings have dignity. A state which lays down the principle of human dignity in its constitution or legislation assures that the body of citizens or at least the politically most influential part of the population agrees with the human dignity judgment. Furthermore, the human dignity judgment is also very vague because the definition of the “human being” (variable x) remains in the dark. The term could refer to a single specimen of the human species, the “normal” human individual, every human individual, the human community or communities, the idea of a “true” human 30 31 32

John L Austin: How to do things with words, Oxford 1962. David McNaughton: Moral Vision. An Introduction to Ethics, Oxford 1988. This depiction is a little bit different from the one of Gerhard Schönrich: Optionen einer philosophischen Werttheorie, AZP 33 (2008), p. 97, but fully sufficient for our purposes.

Human Dignity as an Absolute Value

31

being or mankind as such. As we don’t know which meaning is being referred to, we cannot tell what kind of things it is compared to which the human being is preferred (variable y). At the current stage of our consideration we have no way of answering that question. It must remain open for the time being. The human-dignity-judgment is also elliptical because it conceals the variable v. This variable stands for the relevant standard of evaluation. The standard of evaluation is the unit of measurement that makes the value judgment rationally comprehensible and understandable. Standards of evaluation are, in fact, values on a higher level of abstraction. The only reference to the value standard we can find is the word “dignity” as such. Contrary to the word “good”, which tells us nothing about the relevant value standard, the word “dignity” indicates a certain standard of measurement. The word “good” tells us only that something has a value, but not what kind of value that is. The word “dignity”, in contrast, tells us something about the kind of value that is implied. And different kinds of values are founded on different standards of value. We are here drawing on a long tradition of linguistic use of the concept of the scope of value or – as the ancient philosophers said – the concept of the scope of goodness.33 That tradition dates back to the ancient Greek philosophy of the Stoa.34 In our times the locus classicus for this understanding is a famous passage in Immanuel Kants Grundlegung zur Metaphysik der Sitten (Foundation of the Metaphysics of Morals – 1786).35 According to this tradition, there are three types (categories) of values. Value is the generic term, while dignity is one of the subordinate terms to value. The difference between the different subordinate terms of value arises from different evaluation standards. We can distinguish: 3.1. INTRINSIC VALUE (FANCY PRICE): We prefer something intrinsically if we are interested in the thing as such. The standard of intrinsic value is love. Example: We are intrinsically interested in stamps if we are philatelists. We are intrinsically interested in our children if we are parents who love them.

33

34 35

Cf. Jürgen Gebhardt: Die Werte. Zum Ursprung eines Schlüsselbegriffs der politisch-sozialen Sprache der Gegenwart in der deutschen Philosophie des späten 19. Jahrhunderts. In: ANODOS. Festschrift für Helmut Kuhn, Weinheim 1989. Maximilian Forschner: Marktpreis und Würde oder vom Adel der menschlichen Natur. In: Henning Kössler (ed.): Die Würde des Menschen, pp. 33 ff., Erlangen 1997. BA 78: “In the kingdom of ends everything has either price or dignity. Whatever has a price can be replaced by something else which is equivalent; whatever, on the other hand, is above all prices, and therefore admits of no equivalent, has a dignity. Whatever has reference to the general inclinations and wants of mankind has a market price; whatever, without presupposing a want, corresponds to a certain taste, that is to a satisfaction in the mere purposeless play of our faculties, has a fancy price; but that which constitutes the condition under which alone anything can be an end in itself, this has not merely a relative worth, i. e., price, but a worth in itself, that is dignity.” (Translation following Thomas Kingsmill Abbott with some alterations – http:// www.gutenberg.org/dirs/etext04/ikfpm10.txt).

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All the objects we love are related to each other in order of preference. Their value is dependent upon the value of other objects. Therefore, intrinsic values are relative values. Example: It is a question of our individual or socially adopted order of preference whether we prefer our stamp collection to our children or our children to our stamp collection. 3.2. EXTRINSIC VALUE (MARKET PRICE): We prefer something extrinsically if we are not interested in that entity as such but only because we can use it as a means of exchange. The evaluation standard of the extrinsic value is exchange value. Extrinsic values are relative to the intrinsic values we desire in themselves. Example: If we want to send mail then we are extrinsically interested in stamps not as such but only as a means of exchange. Parents are extrinsically interested in their children if they think of their own subsistence in old age. 3.3. ABSOLUTE VALUE (DIGNITY): Whereas something that has an extrinsic value is valuable only in relation to an object of intrinsic value, and something that has intrinsic value is dependent on a whole order of preference of intrinsic values, we speak of an absolute value if something is always paramount and always enjoys priority, regardless of what it might be compared to and in which situation it might be compared. We prefer something absolutely if there is nothing and if nothing could ever exist which we would prefer to it, whatever the circumstances under which we have to make our choice. In the philosophical tradition, “absolute” further means that value is independent from any individual and subjective human evaluation. An entity has dignity in that sense if it is endowed with dignity by God or by nature or by any other supreme authority. We must reject this concept of the absolute because it is based on very strong metaphysical presuppositions. According to the principle of metaphysical parsimony, we cannot accept such an idea of the absolute. Something has absolute value if its value is independent from its relationship to any other valuable thing. But nothing can have absolute (or relative) value without being personally and subjectively evaluated by a person. While we are definitely aware of evaluation standards of the “market price” type (exchange value) and of the “fancy price” type (love), we are not sufficiently aware of the evaluation standard of dignity. This lack of awareness could lead to the assumption that there is no specific evaluation standard beyond the standards of exchange value and love. But if that assumption is right, then the concept of dignity loses its meaning. Thus, the question of the evaluation standard is crucial to any attempt at defining the term “dignity”. If a particular evaluation standard beyond exchange value and love exists, then dignity has a semantic content, i. e., is a concept. If such a standard is inexistent, then dignity is semantically empty and the expression human dignity is a mere empty formula.

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Human Dignity as an Absolute Value

4. PERSONAL IDENTITY

AS THE

VALUE STANDARD

OF

DIGNITY

I am going to defend the view that personal identity is the standard of value peculiar to dignity. This is the only imaginable standard of value beyond exchangeability and love. And it indicates absolute value. 4.1. WHAT IS PERSONAL IDENTITY? The concept of personal identity combines two aspects: the awareness that I am (pure existence) and the awareness of who I am (authenticity). I can only know who I am if I am aware that I am the author of my actions. I am aware of myself as the author of my actions if I can understand my actions as movements generated by my will and if I am aware of my will as based on my own considerations and reflections. A will that is based on my own considerations and reflections is called a free will. In other words, my personal identity (the awareness of who I am) is based on my awareness of my own free will. Authenticity means a free will and actions that are based on a free will. I am aware of my authenticity through my lifelong identification of my actions with myself as the author of my actions. This lifelong stream of experience called authenticity creates myself as the person who I am. 4.2. WHY IS PERSONAL IDENTITY ABSOLUTELY VALUABLE? Everything that I can wish or desire is already always related to me. I am the source of my desires and the author of my reflected and deliberated interests. Identity allows me to understand my reflected wishes as my own. Without identity I would understand all my wishes as natural events which hold sway over me, but not as the expression of myself. Thinking of my wishes and desires, I would be forced to understand myself as an object or as something. I could not distinguish between the things around me and myself. By understanding myself as the ultimate convergence point of all my wishes, desires, and values, I am able to understand myself as someone and not just as something.36 Being someone is the basis for any real self-esteem. People who are aware of themselves as someone and not only as something assign dignity to themselves. They do so because they fulfill the standard of value of personal identity. 4.3. TO WHOM CAN WE ASSIGN DIGNITY? While we can in principle assign a market price or a fancy price to every imaginable object, it is not possible to assign dignity to every object. Only objects endowed with personal identity or at least with the potential for personal identity are possible candidates for human dignity. Therefore, it is not possible to assign dignity to mere 36

Robert Spaemann: Personen. Versuche über den Unterschied zwischen »etwas« und »jemand«, Stuttgart 1996.

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Paul Tiedemann

material things, but no more to animals or plants, or to mankind, to groups of human beings, to societies, states, an idealist idea of a “true” human being, and so on. Furthermore, it is not possible to assign dignity to every human individual, i. e. to every specimen of the human species, because not every specimen of the human species has at least the potential to develop personal identity.37 We can only assign dignity to human individuals who are able to develop personal identity. We call such individuals “persons”. On the other hand, persons are not, by definition, necessarily human individuals. It is theoretically possible that there are non-human persons. It is only possible to assign dignity to persons, whether or not they are humans. However, for the time being, we are not aware of any species other than the human one from which persons can emerge. This is why it makes no difference in practice whether we speak of human dignity or of personal dignity. At this point of our considerations, we are able to understand what is meant by x and y in the scheme of the value judgment above. If the scheme is applied to the human-dignity-judgment, x is always a person and y is everything that has an effect against the conditions of personhood.38 The human-dignity judgment expresses the evaluation that personhood is always paramount in comparison to everything that is contrary to the safeguarding and development of personhood. 5. IS HUMAN DIGNITY POSSIBLE? In chapter 3 and 4, I have tried to explicate the concept of dignity. As a result, we now know what dignity is. It is a type of value that is defined by its specific standard of evaluation, personal identity. From this concept it follows that dignity can only be assigned to objects that are endowed with personal identity (persons). However, this explication does not clarify whether human dignity is possible in reality, that is if we can assign dignity to every person. At this stage of our consideration, the rule of empirical significance comes into focus. The human dignity judgment implies the statement “Every human being has dignity” and not “Only my friends have dignity”. If we consider human beings as having extrinsic and intrinsic value, we have to realize that it is not possible to assign these kinds of values to every human being or at least to every human person at the same time. There is, if not always, only a certain number of human beings who for us have extrinsic or intrinsic value. In contrast, the idea of human dignity states that we assign or should assign dignity to every human person in the world, regardless of whether or not we know them or whether or not we have a relationship with them. The question is: how can we understand that it is possible to accredit every human being in the world with dignity? Before we consider every human being in the world, it makes sense to start with the person most familiar to us. This is (from everybody’s point of view): “myself.” I can be aware of myself as the author of some of my actions and I appreciate this 37 38

Think e. g. on akephal born humans. We have to distinguish between personhood and personality: Personhood means the capacity to reflect on oneself and to lead the own life according to a self-determined life plan. Personality is the result of a life according to a certain life plan (as well as the result of certain heteronomous conditions). Personhood is an ability; personality is (partly) the result of the use of our ability.

Human Dignity as an Absolute Value

35

authenticity absolutely because it enables me to understand myself as someone and not only as something. However, we cannot be sure that everybody else has the same evaluative attitude towards himself. On the contrary, we have to reckon with the fact that many human individuals are not able to establish such a relationship to themselves. People who are not able to appreciate their own dignity cannot understand what we are talking about. The following argumentation can therefore only be addressed to persons, who have an awareness of their own authenticity and can therefore appreciate it absolutely. How can a person who evaluates him or herself as having dignity also evaluate other persons as having dignity? This is only possible under two conditions: (1.) The person must be aware that other persons are the authors of their actions. This is usually the case because it is the condition of common actions such as thanking and blaming. (2.) The person must respect the authenticity of others absolutely (just like their own). The reason why I respect my own authenticity absolutely is that my authenticity is a condition of my being aware of myself as someone (and not only as something). Therefore, in order to respect the authenticity of others just as absolutely, the authenticity of others must be another condition of my self-awareness as someone. I think that the authenticity of others is indeed a condition of my self-awareness as someone. After all, my identity and the identity of others are equiprimordial. They are two sides of the same coin. Therefore, it is not possible for me to respect my identity absolutely if I do not respect the identity of others absolutely. If I do not respect the identity of others absolutely I cannot absolutely respect my own identity. All persons who are interested in safeguarding their awareness of their own dignity (and every person who has that awareness is interested to do so) are rationally compelled to be aware of all other person’s dignity. If they ignore the dignity of others they will lose their awareness of their own dignity. 6. CONSEQUENCES The equiprimordiality of both a person’s identity and the identity of his or her fellow persons means that the preservation and development of those identities are mutually dependent. Therefore, every act that is contrary to human dignity hurts not only the victim but also the agent. People who do not appreciate their fellow persons’ human dignity are not able to appreciate their own human dignity. They lose their capability of authenticity. They become victims of self-alienation. Example: Adolf Eichmann defended himself before the court in Jerusalem with the argument that he had only obeyed orders of his superiors, in the last instance Adolf Hitler. He portrayed himself, so to speak, as a mere small cog in the machine, as an instrument in the hands of Adolf Hitler, and not as an authentically acting person. By treating his victims as non-persons, he lost the capability to understand himself as a person. Or else: Since he could not understand himself as a person, he was not able to understand his victims as persons.39 39

The lack of awareness of our own dignity and the dignity of others does not mean that the person concerned is not responsible for his actions. We assign responsibility if we suppose that

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It is very important to understand that respect for human dignity is not based on reciprocity but on a rational understanding of our conditions of identity. We have to respect the identity of others regardless of those people’s behavior towards us. This is why we have to recognize and to protect the dignity of those who are committing crimes, living immorally, or acting contrary to our interests. We need to recognize their dignity, if we do not want to lose the awareness of our own dignity. Personal identity is vulnerable. It is violated when a particular person loses his capability of reflection and deliberation or when he or she is deprived of the control over his or her reflections and deliberations through manipulation and deception. The faculty can be reduced or destroyed by others or by very inhumane living conditions. To subject persons to conditions under which they lose control over the process of free decisions making is contrary to the value of human dignity. There cannot be any justification of an act contrary to human dignity because dignity is an absolute value. It is absolutely irrational and illegitimate to act contrary to human dignity. There are some typical situations in which the human race in its history again and again has demonstrated its disregard for human dignity. Some of these specific experiences are addressed in the various human rights. 7. DOES FOR A

CONCEPT OF HUMAN DIGNITY FULFILL LEGAL CONCEPT?

THE

THE

REQUIREMENTS

7.1. A CONNECTION TO ORDINARY LANGUAGE USE I have reconstructed human dignity as the fundamental and absolute value to be found in every person’s faculty to be aware of him or herself as someone and not only as something. This value requires absolute respect for everybody’s mental integrity, and the protection of everybody’s authenticity. The question is whether this concept of human dignity is linked to the philosophical tradition. The answer is: Yes and No. Following the historical language use of human dignity, we are facing different traditions of understanding. On the one hand there is a very old tradition that we might call the heteronomical tradition. In Western culture, this tradition goes back to Cicero.40 In the Middle Ages, Thomas Aquinas41 was an important exponent of that idea and there are also important exponents in our times.42 It is an idea that also appears in philosophical traditions outside of Europe, for example in Confucianism

40 41 42

someone is able to learn and that he can influence his behavior on the basis of information. People who have no awareness of dignity can, nevertheless, be able to learn and act strategically. This is why they are responsible for their actions. Marcus Tullius Cicero: De Officiis I, 105 f. Thomas Aquino: Summa Theologica II-II qu 64, art. 2 resp. ad 3. Hans Wagner: Die Würde des Menschen, Würzburg 1992, p. 540.

Human Dignity as an Absolute Value

37

(Mencius)43 or in the African Ubuntu philosophy.44 The core of the heteronomical idea of human dignity is the opinion that dignity follows from an appropriate obedience to certain duties and obligations. Dignity means to respect someone who is appropriately exercising an office to which he has been called by another authority, for instance God or nature. Although dignity is connected with a certain degree of freedom, freedom is granted man only in order to fulfill his duties. Those duties are heteronomical duties. They are not based on autonomy and authenticity. It is clear that the concept of human dignity proposed here is hardly connected to the heteronomical tradition. But there is also another tradition that we can call the autonomical one. The earliest representative of this concept is St. Augustine.45 However, the approach only reached its zenith in the European Renaissance (Pico della Mirandola46) and in the European Enlightenment (Immanuel Kant47). According to this tradition, dignity refers to the freedom of man to shape his own life according to his plans and according to rules that he has imposed on himself. It is obvious that the concept of human dignity proposed here is very closely connected with that very idea of human dignity as a value of autonomy and authenticity. Thus, the historical connection is ensured. 7.2. DISTINCTNESS The suggested interpretation of human dignity can provide a controlled terminology that is free from homonyms and synonyms. In particular, it allows a clear distinction between human dignity and other legal values such as liberty, equality, solidarity, democracy, etc. In particular, human dignity does not refer to all kinds of freedom or to a vague scope of freedom. It refers to a very narrow and clearly defined concept of freedom, namely only to the freedom to develop our own free will based on own considerations and reflexions. In other words, it refers only to freedom of the will and not to freedom of action. Much confusion in the judgments of the German Federal Constitutional Court could have been avoided if that very distinction between the freedom of will and the freedom of action had been observed. The freedom of action (liberty) as well as equality, solidarity, democracy, etc. are also very important constitutional values in a free society under the rule of law. But they are different from the value of human dignity both in terms of content and in terms of relevance. They do not refer to human freedom of will and their validity is not absolute but only relative. Human dignity is of course most relevant in any order of value because freedom of the will is the basis for every evaluation and therefore absolute. But human dignity is not the only value of a given value order and it is not 43

44 45 46 47

Heiner Roetz: Chancen und Probleme einer Reformulierung und Neubegründung der Menschenrechte auf Basis der konfuzianischen Ethik. In: Menschenrechte und Gemeinsinn – westlicher und östlicher Weg?, Walter Schweidler (ed.), St. Augustin 1998; Qunianfan Zhang: The idea of human dignity in Classical Chinese Philosophy: A Reconstruction of Confucianism. In: Journal of Chinese Philosophy 27 (2000), pp. 299–330. John Bhengu: Ubuntu. The Essence of Democracy, Cape Town 1996. Aurelius Augustinus: De libero arbitrio III, p. 15. Giovanni Pico della Mirandola: De Dignitate Hominis 1487. Immanuel Kant: Grundlegung zur Metaphysik der Sitten 1786.

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the only value of the constitutional order of a liberal State. Human dignity is not everything, but without human dignity, everything is nothing. I am not saying that there is no vagueness in the concept of human dignity I propose. Vagueness is unavoidable because the precision of our language depends on our living conditions. The more these conditions change, the vaguer our language becomes. New threats to human authenticity raise new uncertainties in our language. What we can say is that the suggested interpretation of human dignity reduces the vagueness to a minimum because it allows us to identify clear cases of dignity and of disregard. So it is much more precise than the intuitive concept of human dignity. 7.3. PRINCIPLE OF METAPHYSICAL PARSIMONY The suggested interpretation of human dignity is not dependent upon metaphysical assumptions and religious ideas. It is only based on the anthropological fact of personal identity and on a subjective theory of value. The experience of personal identity as well as the experience of subjective evaluation is universal. It is not associated with particular cultural or religious traditions but only with the general structure of personhood. The proposed explication of human dignity is, therefore, universally acceptable. 7.4. EMPIRICAL SIGNIFICANCE Our account is clearly tied down to the empirical world. The idea of personal identity and of the equiprimordiality of identity have an empirical basis. The subjective value theory throws light on the fact that human dignity only “exists” where it is empirically true that certain real persons evaluate real persons as subjects having dignity. 8. OPEN QUESTIONS There are many questions which have to remain open. We can distinguish three different types of questions. 8.1. QUESTIONS CONCERNING A MORE PRECISE UNDERSTANDING OF THE CONCEPT OF THE PERSON. Here we have to answer the question whether or not we have to consider, for example, little children, embryos or coma patients as persons. A detailed discussion of these questions goes beyond the scope of this paper. The general answer is: Every human being who has the capacity to develop personhood is a person. According to that principle human embryos are, of course, persons. A more difficult case are

Human Dignity as an Absolute Value

39

patients who have been in a coma for a very long time. We have to consider them to be persons as long as we can expect them to recover. 8.2. QUESTIONS OF PUTTING AUTHENTICITY IN MORE CONCRETE TERMS Since authenticity is the value standard of human dignity, it is strictly contrary to that value to take away a person’s capacity to develop authenticity or to restrict their capacity to develop their own authentic will. We know that certain treatments lead to a loss or restriction of authenticity, as it is the case with torture and some forms of what is called “inhumane treatment”. But are there still other dangers and threats? According to the preambles of the ICESCR from 1966, human rights “derive from the inherent dignity of the human person”48. Should we therefore think that all protected areas of human rights cover particular threats to human authenticity? Is that also true for rights like the right to education (Article 13 ICESCR) or the right to health (Article 12 ICESCR)? Or are there some codified human rights that have no connection with personal authenticity and thus cannot be derived from human dignity? If so, are they based on other fundamental principles? This would mean that some human rights are derived from human dignity and others from other principles. Or are “human rights” which we can’t derive from the human dignity, in fact no human rights at all but merely propaganda or ideology? How should we deal with the fact that many codified human rights can be restricted by law, whereas the value of human dignity is absolute and can by no means be limited? On the other hand, are there protected areas that are not covered by any written human right so that we have to reckon with unwritten human rights? All these questions require a very careful response. We have to discuss right by right from the international covenants and treaties and investigate if they are derived from human dignity or if they have another basis. And we have to discuss particular risk areas of authenticity that are not yet covered by codified human right treaties so that we have to recognize a lack of human rights protection. Another question in this context is if the right to life is a human right that can be derived from human dignity. I think the answer must be: Yes. If we take someone’s life, we do not put him into a state in which he would suffer from a lack of authenticity. After all, someone who does not exist cannot suffer from anything. By killing someone against his will, we nevertheless disregard his authenticity. And, as mentioned above, the violation of human dignity hurts not only the victim but also the agent.49 All these discussions require a clearer understanding of human dignity and the present study is only supposed to make some relevant contributions.

48 49

UNTS vol. 999, p. 171; vol. 993, p. 3. cf. Paul Tiedemann: Is There a Human Right to life?, JRE 20 (2012), p. 345.

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8.3. QUESTIONS CONCERNING THE CONNECTION BETWEEN DIGNITY AND RIGHTS There is still another and a rather logical question about the connection between human dignity and human rights. The term derivation in the preambles of the two human rights covenants does not only imply spelling out the particular aspects of authenticity that need protection. If we understand human dignity as a value then it also refers to the idea that it is possible to derive rights from values. Strictly speaking, human rights are norms or prescriptions. As for us, in contrast, we reconstructed human dignity as a value. Therefore, we are facing the question of how it is possible to derive norms from values, prescriptions from evaluations, something we must do from something we want to do? Answering this question requires a clear concept of value as well as a clear concept of right and duty. The present study can only cover the concept of value. A careful examination of the other terms will have to wait for another study.50 9. DEUTSCHE ZUSAMMENFASSUNG Auf der Grundlage einer strikt revisionistischen Begriffsexplikation und einer subjektiven Werttheorie lässt sich der Rechtsbegriff der Menschenwürde als ein Werturteil rekonstruieren. Dieses Werturteil spricht menschlichen Personen im Hinblick auf ihre Authentizität, d. h. im Hinblick auf ihre Fähigkeit, einen eigenen freien Willen zu bilden, einen absoluten Wert zu. Die Rekonstruktion erfüllt die Anforderungen, die an eine rationale Begriffsexplikation zu stellen sind, nämlich Anschlussfähigkeit, hinreichende Bestimmtheit, metaphysische Sparsamkeit und empirische Signifikanz. Es ist vernünftig, dieses Werturteil zu fällen, weil dies die Bedingung ist, unter der das Bewusstsein der eigenen Würde entwickelt und erhalten werden kann.

50

cf. Paul Tiedemann in this volume p. 193.

WINFRIED BRUGGER †*, HEIDELBERG DIGNITY, RIGHTS, AND LEGAL PHILOSOPHY WITHIN ANTHROPOLOGICAL CROSS OF DECISION-MAKING

THE

Abstract: Human decision-making in hard cases both on the individual and collective levels is influenced by four anthropological perspectives: motives and arguments relating to basic needs, normative ideals, “good old ways” of understanding one’s identity, and means-ends-reflections. The article visualizes this insight by using the symbol of the cross in which these four perspectives look downward, upward, backward and forward, and “cross” each other in the “self ” of the actor who has to take a decision in a hard case. The usefulness of this approach is then explained by three examples: Robert Nozick’s theory of justice, justice towards poor countries, and ecological justice.

1. ACTIONS

WITHIN THE

ANTHROPOLOGICAL DECISIONAL CROSS

The law must correspond with human nature and be based on criteria equal to all human beings. Many schools of legal philosophy agree on these points. However, some of them tend to disagree as soon as more detailed criteria for “humanity” and the “nature of man” are suggested. This is where the empirical understandings of basic needs clash with loftier concepts such as “reason” and “spirit” over what the actual indicators of humanity are. Relativistic schools point skeptically to the plurality and historicity of many legal convictions. Proceduralists look for a way out of the vagueness and controversy of appropriate indicators of humanity and human law by relying on concretization processes. Such processes are expected to exclude at least violence and in the best case include as much integration as possible of all those affected by legal provisions. This paper proposes that the most important insights into good and human law can be discovered by analyzing the character of human agency (“Handeln”). All life forms usually act in a functional manner, doing what is required to preserve themselves; many animals are able to learn and communicate to a certain extent. By contrast, humans not only “behave”, rather, they “act” – they sense, interpret, evaluate, articulate and decide. As trivial as that sounds, using “human action” as an indicator of what aspects a good legal system should represent, is an illuminating starting point. This is especially true concerning hard cases in the law that, in spite of being typically contested, lead to legally binding decisions. They are burdened by the “anthropological cross of decision-making” or,

*

Winfried Brugger was Professor of Public Law and Philosophy of Law at the University of Heidelberg, Germany. He passed away November 13th 2010. Thanks go to Jonathan Gast of UC Hastings College of the Law for his generous help in translating this article from German to English. The Article is a slightly corrected version of its first publication in the German Law Journal.

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as one could also say, the “decisional cross”. 1 The crucial question is: What exactly is meant by the decisional cross? Human action can be divided up roughly into two: routine actions and problematic actions. Routine behavior consists of habits that we practice day-in and day-out in order to manage our everyday problems in a timely fashion. However, once a routine way of dealing with a particular situation does not longer lead to the desired results anymore, a case of disturbance or crisis arises. It transforms our habits in decisional situations, revives our attentiveness, and forces conscious considerations. Within those situations that require a conscious selection of the proper course of action to follow, one can distinguish between decisions that can be taken lightheartedly, such as “Should I go to see a movie or stay at home?” and those that put a real burden on our shoulders. The latter situations remind us of the phrase “to bear our cross”. In the original and narrower religious sense, this phrase alludes to the Christian cross, labor, pain and suffering. The term, however, has undergone a kind of secularization. Colloquially, this phrase nowadays refers to all situations in which one is stressed or heavily burdened by someone or something and is swaying between various options. This colloquial understanding of the term is also present in the literary “crux”. A literary crux – probably deriving from the Latin “crux interpretum” – relates to a text that is difficult to interpret and resolve because of significant defects that lead the interpreter to different options of elucidation instead of to the one, self-evident meaning. When one speaks of the “crux of the decision”, one is also giving credit to this everyday understanding of pointing to the core of a decision that has been – or should be – influenced by several competing aspects.2 We can be more precise with regard to the kind of situations that challenge human agency. Whenever we feel the “decisional cross” as a serious burden on our shoulders, we are faced either alternatively or aggregately with (1) morally contested courses of action, with (2) actions loaded with heavy consequences, and/or (3) actions that define or transform our innermost being, our identity.3 On first inspection the “decisional cross” only reveals an awkward predicament, a problem, not a solution for decisions regarding the task of leading a good life, either individually or 1

2

3

The following remarks are based on my book Winfried Brugger: Das anthropologische Kreuz der Entscheidung in Politik und Recht, 2nd ed. 2008 (providing many citations and sources that are left out here), and the article Winfried Brugger: Würde, Rechte und Rechtsphilosophie im anthropologischen Kreuz der Entscheidung. In: Rechtsphilosophie im 21. Jahrhundert, pp. 50–71, Winfried Brugger, Ulfrid Neumann and Stephan Kirste (eds.), 2008. For dis-cussions of the “decisional cross” from different disciplines, ranging from philosophy and law to psychology and economics, see Hans Joas, Matthias Jung (eds.): Über das anthropologische Kreuz der Entscheidung, 2008. See, for example, the following formulation taken out of a court decision: “This is the crux of the decision: The arrest warrants are retained even though they are, at least in part, based on the torture declaration”, Summary of Immigration Board’s Decision, available at www. peoplescommission.org/files/ivan/IvanSummaryOfDecision.pdf. Or see the article: The Crux of the Decision, Novatownhall, 17 April 2008, available at http://novatownhall.com/2008/04/17/ the/, on the difficulty of deciding between Hillary Clinton and Barack Obama as presidential candidate of the U.S. Democrats. Taken to its extreme, one can see the link to existentialism that in its many forms deals with human beings having to create themselves in the face of, for example, dread that results from the fact that the decision to be taken is morally suspicious and loaded with far-reaching consequences.

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collectively. On closer inspection it is possible to develop a systematic anthropology of human action that helps orient the actor toward leading an individual life as well as to orient collective actions, such as those taken in politics and law. In order to develop these standards, we first have to describe and distinguish two different ways of analyzing hard cases in human decision-making. 1.1. THE HORIZONTAL AXIS OF THE CROSS Only human beings understand one another, communicate and interact in a timeframe of past, present, and future — including the knowledge about the finiteness of one’s life and to say nothing of the phenomenon regarding the subjunctive case of what one “could, should, would have done” in complex cases. This is, visually and metaphorically speaking,4 the horizontal axis of the cross of decision-making.5 In the here and now of a problematic decision, the past – one’s former life experiences and biography – pushes from behind and the future pushes from in front in order to gain consideration amongst the options for a plan of action. Goals must be selected. Considerations of choosing which means or which end must be taken into account. The worth of the goal, compared to other goals, needs to be assessed, as well as the chances of achieving it, at what cost, and in light of all relevant social circumstances. Whether anything at all is decided or whatever finally is decided will have an effect on the reassurance, correction or abandonment of previous lines of continuity and biographical understandings. Further, any decision taken will have an effect on the chances of carrying out future plans within the same context. 1.2. THE VERTICAL AXIS OF THE CROSS The visual and metaphorical vertical axis of the cross of decision-making comes into play because humans are not entirely determined by their instincts. Man is “his own project – he is a being that takes stances” and “is what he makes of himself ”. 6 Although many basic needs pressure human beings, ranging from the desire for food and drink, or from sexual contentment to recognition and love, repose and activity, the exact ways and the selection of proper objects to satisfy these needs as well as their specific worth are not detailed in the genetic code of human beings. Rather, due to the influence of God, nature, and/or evolution, we humans are inevitably faced with the torment of having to make up our mind about every hard case of decision-making. We are faced, as the German language aptly puts it, with the Qual 4

5

6

As to the enlightening accomplishments of visualization and metaphorical thought, see Ralf Konersmann: Einführung. In: Wörterbuch der philosophischen Metaphern, Wissenschaftliche Buchgesellschaft, Ralf Konersmann (ed.), 2007. In social and legal philosophy, references to “horizontal” and “vertical” arguments and reflections abound, as is demonstrated in the many citations in my book. See Winfried Brugger (note 1). The “decisional cross” offers, for the first time, a systematization of these two levels of reflection for a specified area of situations. See the German anthropologist Arnold Gehlen: Der Mensch. Seine Natur und seine Stellung in der Welt, 32, 12th ed., 1978.

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der Wahl, the torment of choice. In hard cases, humans are confronted with the torment of choice between means, ways, and ends in their external relations to the world of objects, with regard to fellow humans and social rules of appropriate behavior. Connected with this torment of choosing externally is the torment of inner guidance through one’s self or identity which is composed of a complex mixture of vital impulses, emotions, cognitions and ideals. All these complications find themselves on the map of human anthropology between initial impulse and ultimate execution, and they transform behavior into action. They create the characteristic of human destiny, which in every hard case of decision-making has to master interpretive tasks, even while pursuing the impulses “from below”. Think of the different ways we deal with hunger: We may dine, eat, or devour our food, and each term carries a different connotation dealing with hunger and food. According to Kant, humans are influenced but not necessarily determined by their urges and inclinations, which is why they can and should be responsive to social and legal norms that can be scrutinized and approved of by everyone concerned, using the categorical imperative. Thus, in compliance with Kant, humans have the task to discipline, cultivate, civilize, and moralize their empirical inclinations. 7 Psychoanalysis is one of the disciplines that has systematized the main drift of these ideas. Sigmund Freud speaks of the configuration of the human psyche in the categories of Id, Ego, and Super-Ego. The Id is our animalistic nature pressuring the ego “from below,” representing our most basic human needs and their desire for satisfaction. 8 The norms and ideals of what is beautiful, good, just, and transcendent, herald “from above”, visually and metaphorically speaking. These highest ideals – fostered in all individuals through their socialization and enculturation – expand or delimit the basic needs “from below” and turn the human eye “forward” toward the future. They point toward ways, objects, and goals that satisfy our basic needs. Sometimes these basic needs are even transcended. Think, for example, of the perception of a reigning God, who lets the physical needs of an individual become less important or even unimportant, as in the case of a hermit. Such imaginativeness “from above” is partly object and body oriented, ranging from asceticism to gluttony; it is partly unto itself a set of standing creative products of the human soul, which at least fractionally distances itself from the structure of human needs, or creates new realms of experience like in love or in the religious realm of the holy. 1.3. THE CENTER OF THE CROSS If we are crossed with a difficult decision, the ego or self stands at the crux of operating impulses coming “from below” and “from above”. The horizontal and vertical axes of consideration cross one another with two energized poles each – thus equaling four decisional perspectives in total. We have not just “two,” but “four souls in our breast”. The four factors act as informational currents and a set of motives in 7

8

For an analysis of these Kantian themes, see Gerhard Funke: Kants Stichwort für unsere Aufgabe: Disziplinieren, Kultivieren, Zivilisieren, Moralisieren. In: Akten des Vierten Internationalen Kant-Kongresses, Mainz, 6. bis 10. April 1974, pp. 1–25, Gerhard Funke ed., 1974. See Sigmund Freud: Abriss der Psychoanalyse, pp. 9–11, paperback edition 1953/1972.

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every problematic situation. There, they exhibit two main variants: (1) They become apparent in the conscious reflection of the actor when considering and making decisions. (2) The conscious decision is strengthened or in the borderline case supplanted by emotional impulses impinging upon the deliberation process ranging from “green lights” (Go!), and “yellow lights” (Go?) to “red lights” (Stop!). 1.4. THE FUNCTION OF THE ANTHROPOLOGICAL CROSS To summarize the argument so far: The anthropological cross of decision-making allows for a first-order differentiation between behavior and action, animal and human. Aside from this classificatory or definitional level, the cross of decision-making contains an analytical or comparative and a normative or prescriptive dimension. Analytically and comparatively, it ventures to deciphering and assessing the relative weight of the input of the four perspectives in problematic human decisions; and this can be done either from the objective view of an outside observer (depending on the level of information) or from the internal perspective of the actor. The upward, downward, backward, and forward-looking views (reflections) of one’s ideals, basic needs, biographical self-conceptions and future plans taken together with comprehensive considerations of means and ends provide a roadmap to the underlying structure of human decision-making. Human decision-making does not constitute a “black box”, even if, admittedly, nowhere near enough information exists precisely elucidating the interaction between cognition, evaluation, emotion and decision, or between neurobiological processes and human decision-making. The normative or prescriptive potential of the cross of decision-making, although less rigorously developed, is nonetheless nontrivial. A “good”, “successful” or “fulfilling action” is one – based at least in the long run on consideration – of all four perspectives before the actor decides on a specific course of action. Bad, or at least laden with danger are the decisions that not only once or once in a while, but more and more structurally, phase out one or more of the perspectives and thus make themselves a slave to the tyranny of a single anchor of human existence, that is: their biographical past, their natural instincts, the maxim “the ends justifies the means”, or the social standards as defined by the “Zeitgeist”. In contrast, the four anchoring points of the decisional cross give a deeper mooring, even if it cannot afford safety in every situation. 1.5. ORGANIZATIONAL DECISIONS The insight provided so far by the use of the decisional cross as a map and magnifying glass to analyze hard cases has been illustrated on the level of individual actors. But its analogical use reaches collective actors and organizations as well, be they companies, legal systems, nation states or supranational entities. These are not natural persons with identities, personalities with minds and bodies, or hearts and souls of their own. Rather, they are artificial bodies, organizational entities, and legal persons established by humans for the execution of specific purposes that are usually laid down in a specified organizational text called an “enabling act” or an “organic

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act”. On a closer look, it seems not surprising that most, if not all of these organizations are faced with taking care of one or several of the four perspectives. Thus, at first glance, one could say that museums “look back”, think tanks “look ahead”, religious organizations deal with the “vertical” interpretation of the spiritual needs of their believers, and social services ply the “downward” perspective in providing food and shelter for those who are sick or poor. Every organization with a longer history of existence probably serves primarily one important “basic need” of human existence and interaction, but does so “vertically” by integrating the need for, say, the production of goods (economy), security (law), love and respect (family, religions) in a broader interpretive and legitimizing context that is provided in the reflection “from above”. At the same time, the “vertical axis” of every organization is grounded in the “horizontal” temporal reflection of the historical progression of its development, betterment or worsening. We “look back” at feudalism and industrialism; we live in modernity and look forward to – or are already enmeshed in – post-modernity. The structural relevance of all four perspectives is apparent even in the illustration of a museum, which prima facie only “looks backwards”. A museum is only planned and financed if it addresses a relevant aspect of the respective community, be it an especially outstanding or depressing aspect of its history. Thus, a Holocaust museum in Germany or elsewhere addresses the violations of the bodies and minds of the Jewish people (reflection downward). It reflects upon them in the light of the ideals from above (universalism and dignity of everyone against Aryan race theory), and it puts these violations in an historical context by looking backwards (how could this happen?) in order to educate every visitor about how to prevent something similar from happening in the future (never again!). Put more abstractly, all collective actors – having been invented and established on purpose, or having developed more or less organically over time in order to serve human beings that define themselves in the “decisional cross” – act within the same cross. The differences mostly concern two aspects: Collective actors and organizations, such as legal systems and nation-states, usually “live longer” and have more or less “specific purposes”, while individuals lead shorter lives and are necessarily “allpurpose” beings who have to merge an identity that covers all kinds of needs, activities and interpretive horizons. 9 1.6. CAUSES FOR HARD CASES TO DECIDE As pointed out earlier, human action tends to be either habit-based or problembased. The decisional cross deals with the latter category of human action. Hard cases to decide are either caused by inner-tensions such as conflicting emotions or ideals, instances of becoming sick, or they arise because some envisioned course of action will lead to serious frictions with actors or organizations in the external world. In both cases, one could say that the actor either remains immobile and de9

Closer analysis would of course reveal that there exist more constricted types of organizations and institutions as well as multi-purpose institutions which in the extreme case, such as with a comprehensive religious body of rules for leading one’s life, can embrace all aspects of hu-man existence.

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nies the problem, 10 or attempts something that can be called ego growth through crisis resolution. Likewise, all these other persons and institutions act within their anthropological cross of decision-making. Thus, in shorthand, and as noted in the table, “action” turns to “interaction” (Max Weber would say “social action”). This phenomenon usually occurs within the framework of the “socialization” of the respective actors and the cultural ways of evaluating the envisioned courses of action on all sides – “enculturation”. The actor under the Anthropological Cross of Decision-Making

Socialization Interaction Enculturation

Personal ideals, values; the ideal Ego / Self

Socialization Interaction Enculturation

Upwards: Backwards:

Decision in the Present

Forwards:

Where do I come from? Past

The true, genuine Ego / Self

Who do I want to be? Future

Downwards: Socialization Interaction Enculturation

Urges, Needs; The empirical Ego / Self

2. HUMAN DIGNITY AND HUMAN RIGHTS OF DECISION-MAKING

WITHIN THE

Socialization Interaction Enculturation

ANTHROPOLOGICAL CROSS

2.1. PERSON AND PERSONALITY Stand — with body and mind, instinct and reason — at the point where the horizontal axis, with its time and its means-and-ends reflection, and the vertical axis with its interpretive and prescriptive reflection, meet in a hard but inevitable case of decision-making, a non-exclusive yet important understanding of the concept of human dignity is gained. Motives and arguments pull at us from all four directions. The four perspectives are poised against and contradict each other, but even within each per10

Denial or suppression is a familiar example taken from psychology, showing that human beings sometimes cannot act in the face of conflicting motives or options.

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spective conflicts can arise, such as when the ideal of living up to the highest standards of a husband and father collides with the ideal of being the best professional possible who works day and night. Such situations let us feel the “crux” of the decision and turn the decision-maker into a “subject”: Who is better suited than the actor himself to sense the weight of each choice when finalizing a decision and interpreting possible actions? The agent carries responsibility for his decisions; in most cases, those decisions are attributed to him by the social environment. The entire legal system affiliates to this concept of attributing responsibility to the actors that reaches those decisions, as long as extreme circumstances are not present. Here the difficulties of taking responsibility for what one does can be so overwhelming (think of instances of coercion or mental illness) that the law characterizes such actions as being heteronomously caused instead of autonomously initiated or at the very least controllable by the individual. The concept of the person is rooted deeply in the cross of decision-making, and it entwines with the human potential to reflect, select, and justify. This is a potential for every human being. Under regular circumstances and as a result of socialization and enculturation, it gleams in every adult with varying degrees of conforming socially versus uniqueness and creativity. This gives rise to the necessary differentiation between person and personality. Whereas the characteristic of the “person” is species-oriented – as it can be applied to every human being and its potential for reflection in the horizontal and vertical axis of the decisional cross –, the characteristic of “personality” refers to the unique, varying ways in which specific actors form their identities (personalities) and present themselves in public. They elaborate here either more socially conforming or alternative ways. However they transform themselves from the generic human person into the particularistic individual, every one of them unconsciously or consciously will develop a personality that has the best possible fit for synthesizing basic needs, biographical inputs, ideal values and forward-looking goals for exactly this one and only human character. The dominant social and legal philosophy of “legitimatory individualism” in the West is based on this interwoven understanding of person and personality, whereas more traditionalist societies pay stronger attention to backward and upward-looking perspectives of “how one always has lead a good and productive life in our society”. If we understand human dignity’s place within the four perspectives of the decisional cross, we can reveal the link between dignity as the dominant social and legal value and the seminal legal concepts of person, personality, responsibility, and attribution. All of these four terms presuppose human agency in the sense explicated by the backwards, forwards, downwards and upwards oriented reflection, as centered on the decision-maker in a problematic situation giving him the impression that he has to bear a heavy cross. This insight uncovers why constitutions and human rights agreements protect human freedom of action and the right to develop one’s personality; it is because these rights are necessary for standards of good law— meaning a legal system that is in accordance with the basic facts of human existence. Personality is individualized, because it essentially perceives itself from the firstperson perspective – even “John Doe” is unique from his own inner-perspective. Freedom of action does not suppose a causal non-determinacy of action; rather it presupposes various influences on our behavior from the inside (the four perspectives) and the outside (socialization, interaction, enculturation). With regard to the

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legal order, it presupposes the right of every individual to “lead a life,” to have some leeway, flexibility or choice within his or her “quadricity” of feelings and perspectives.11 The equality of mankind as expressed in the principle of and right to equality in constitutions and human rights treaties, results from the equal position of all human beings in hard cases of decision-making which challenges one’s status of person and seriously affects one’s development of personality. If this is what differentiates us from animals and the rest of the natural world rather than skin color, race, sex, or any other immutable traits, then indeed equality qualifies as a necessary component of good and just law. As already pointed out, coupled to the principle of equality or equal respect is the basic regard for dignity. Furthering to both standards, one should distinguish between “basic standards” and “higher, more challenging standards of excellence”. Every human being as such – not taking into account whether he acts rationally or irrationally, legally or illegally, setting a good or a bad example – should receive the basic equal respect due to all human beings by reason of their potential for acting and reflecting and justifying their actions before themselves and others, even if this potential is not fulfilled, even violated, as in the case of a criminal act. Higher, unequal respect is paid legitimately to those members of our community that set standards of excellence, whom we can look up to and try to live up to, such as “statesmen” or “heroes” in whatever field of human action and interaction they may be positioned. The German penal law protecting one’s honor and dignity embodied in the tort of defamation in § 185 et seqq. of the Criminal Code (Strafgesetzbuch) encompasses both layers: One cannot be allowed to call into question a criminal’s status as a person or human being; one may only call him a cruel person and his deeds bad or reprehensible. The good reputation of the respectable citizen may not be harmed by a third party without good cause, that is, if one utters or publishes harmful assertions about someone, they better be true! 2.2. DIGNITY IN THE DECISIONAL CROSS With the exception of one’s withdrawal into the private sphere, action – that is to act – is usually interaction or, as Max Weber would put it, social action. It can be done routinely or creatively, in a smooth, problem-solving manner or in a way proned to conflict. In conflict-laden cases the law and the state usually are being involved in order to cope with such crises in a productive manner that avoids the use of coercion for as long as possible. In all interactions it should be presumed that every agent counts as an independent source of analysis, assessment, and action, and is thereby free, equal, and disposed to reciprocity. This implies the right to have one’s dignity respected. Respect for dignity is wedded to the respect for the four perspectives in which every human being finds the anchor for his status and person 11

In other writings of mine, I have analyzed these aspects within the “Menschenbild der Menschenrechte”, the model of person as identified by modern human rights instruments. See Winfried Brugger: Zum Verhältnis von Menschenbild und Menschenrechten. In: “Vom Rechte, das mit uns geboren ist”. Aktuelle Probleme des Naturrechts, pp. 216–246, Wilfried Härle and Bernhard Vogel (eds.), 2007, and an earlier English version: Winfried Brugger: The Image of the Person in the Human Rights Concept, 18 Human Rights Quarterly 594 (1996).

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and molds his unique personality: in terms of basic needs, such as the corporeal need for food, water, sleep, propagation, and sexuality. However, this holds true also in relation to biographical self-conception in the form of a family narrative as son or daughter of parents. As well, one wants to develop a life plan for the future, based on one’s version of the ideals and values that one’s family and culture have ingrained in them, which needs to be taken into account. In this sort of interaction one sometimes cultivates common solutions; in other cases, disputed questions remain. The consensus itself provides a basic recognition concerning the importance of the aspects of being a person, which present themselves in the four perspectives, and consequently the general right to develop one’s personality for all human beings in action. The dividing line between consensus and dissention often resides where the action of the isolated individual meets or challenges, through interaction, the expectations and rights of other actors. Legally formulated, regarding the lone actor’s perspective with his cross of decision-making, the relevant “rights to” respect and protection can be argued for persuasively. The “right to” specifies, however, not the addressee of the respective duty to provide a service or good, so much as the “right against”. It also does not concrete the breadth of the bilateral or multilateral duties, and says nothing about the absolute or relative character of the entitlement in question.12 This is where the dissent and the competition of giving and taking begin (to say nothing about the contested question of what should be the reaction in cases of injuries to pertinent legal rights and duties). Neither the “decisional cross” with its four perspectives nor the principles of human dignity are specific enough to resolve such disputes in detail. Additional considerations are necessary, which positive law must provide. Nevertheless, three requirements for solving such conflicts that should guide the establishment of legal concretization procedures can be formulated: 2.2.1. Legal Requirements for solving Problems of Decision-Making In such balancing decisions, all humans who are basically affected persons and personalities should have a right to voice themselves and be heard. Politically speaking, this leads to democracy as a human right, from upfront rights of communication like the freedom of opinion, assembly, and association as well as to subsequent rights of court hearings.

12

To put it in more concrete terms: Should the respective right be “absolute”, inalienable, or be relativized by “limitation clauses”? In the U.S., such a discussion was led in the 1960s on the first amendment by the “absolutist” Justices Black and Douglas against the other “relativist” balancing Justices. In the German Constitution, some constitutional rights (freedom of religion, the arts, and the right of dignity) are without limitation clauses, which transform them, at least at first glance, into absolute rights.

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2.2.2. Dignity as Integrity Aside from this procedural argument, a core or essential content argument should be considered13: In any case, a base element of each of the four perspectives of the cross should be respected and furthered by other actors to be particularly specified. Here are a few examples in the cross of decision-making that come to mind and are typically guaranteed by modern constitutions and declarations of human rights: looking downward, we see the organization safeguarding the minimal existence of every human being,14 whereas looking upward we see the safeguarding of freedom of religion and world view (Weltanschauung).15 Looking backwards into the past, we see the respect for and facilitation of marriage and family in which we develop our biographies.16 Looking forward, we recognize the need for options around which we can plan our futures and secure purposeful choices – choices regarding activities which are dear to us, which define our personality, for example in the personal or professional area.17 One can summarize these four levels of reflection and link them to human dignity by using the concept of integrity: Respecting human dignity requires that in core areas its integrity is secured, both in regards to its physical vulnerability and neediness and the integrity of its psyche or identity, which shape humans throughout their entire life story. 2.2.3. Dignity and Responsibility Eventually the resolution of conflicts with regards to demanding versus delivering and taking versus giving requires a specification of “rights and responsibilities” based on the huge variety of communal spheres of interaction.18 Human associations that give accuracy to what we owe each other range from small to large, from faceto-face to anonymous communities, from emotion to calculation, from sectorial and specific to universal aspects of belonging, and from societal to legal organization. Some thinkers or countries advocate the primacy of the local, regional or national community. Unlike such particularists or conservative communitarians, as we can call them, universalists or egalitarian communitarians campaign for their preference of humans as being part of a universal community comprised of all human beings; then most reciprocal obligations embrace every member of mankind, and equal concern applies to all human beings. Liberal communitarianism intercedes in a meditative manner: It argues for the gradation of mutual responsibility ranging from the familial to the universal community in both their inner and outer relations. 13 14 15 16 17 18

As an example, take Art. 19 II of the German Constitution: “In no case may the essence of a basic right be affected.“ See, for example, Henry Shue: Basic Rights, 2nd ed. 1996, with regard to “subsistence”. See, for example, Art. 4 I of the German Constitution: “Freedom of faith and of conscience, and freedom to profess a religious or philosophical creed, shall be inviolable.” See, for example, Art. 6 I of the German Constitution: “Marriage and the family shall enjoy the special protection of the state.” See Art. 2 and 12 of the German Constitution, respectively. See the articles on “communitarianism” in Winfried Brugger: Liberalismus, Pluralismus, Kommunitarismus (1999); Winfried Brugger: Communitarianism as the social and legal theory behind the German Constitution, 2 International Journal of Constitutional Law 431 (2004).

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The regard herein for every human’s autonomy is a result of his position in the cross of decision-making. In concordance with the cross of decision-making (although not a direct result of it) modern constitutions and human rights treaties separate spheres of spiritual and worldly power in order to avoid totalitarianism. We have to divide governmental authority using some method of checks and balances aiming to avoid being overpowered by too much governmental regulation, while at the same time accomplishing the legitimate businesses of the government in the most effective way possible. 2.3. EXPLANATORY POWER OF THE ANTHROPOLOGICAL CROSS If we summarize the merits of the cross of decision-making by elucidating the concepts of human dignity and human rights, one notices a difference between positive and negative aspects: Concerning the positive aspect, the cross of decision-making exhibits an ensemble theory of human dignity; but it is not a haphazard, chaotic ensemble, rather, it is a systematized, architectural theory fully extrapolated in the four perspectives of analysis, valuation, and decision. Thus it falls into place that several competing conceptions of “humanity” or “dignity” can be integrated, find their anchor or a home in the decisional cross: This is true of approaches that look “actionistically”, self-regarding, downward to the necessary needs of every human being; it is true of identity-oriented approaches of dignity that primarily look backwards and upwards; it is true with regard to Kantian reason-oriented approaches that look upwards to a specific version of morality which focuses on reciprocity of liberty; and it is true concerning religious-oriented approaches that look upwards as well but with an emphasis on ways of transcending, while not necessarily forgetting, the mundane needs of humans; and this is finally true of creative-oriented approaches of dignity that are positioned at the productive crossroads between the four perspectives. A glance at the cross bespeaks the dimensions important to all humans relating to all aspects of dignity. The same holds true “interactionistically”, other-regarding, in shaping relations of respect, recognition and care between humans in communities small and large, of a private, societal or legal character. All such interactions take place within the rich realm of “enculturation” that affords a well of interpreting and evaluating specific ways how to organize a social life. The cross of decision-making also illustrates that it is possible and sensible to step progressively forward from the dignity of the human species (the general potential of agency) to the dignity of the person (the individual potential of agency) to the dignity of the irreplaceable individual (who acts from the “I” perspective). The cross of decision-making is relevant for all these aspects: It points to a generic characteristic of the species and the individual as well as to the difficulty of particular individuals to present themselves more or less creatively and uniquely as an “I” or “self ”. Nonetheless, one should not expect too much from this formula. It excludes some answers to the question of which policies and laws conform to human nature (agency), but leaves many others open. The exclusionary function of the decisional cross is directed against all theories of human nature and dignity that are reductive. The term, reductive, here is understood as singling out one of the four perspectives as the defining element while at the same time marginalizing or totally suppressing

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the other ones. If, for example, a theory such as Marxism, denies the relevance of the vertical dimension in humans by disqualifying the upward reflection towards religion as mere “opium for the masses,” and it then combines this axiom with brutal repression of believers in religion, then we are faced with a reductive view of mankind. This reductive view cannot come up with a legal regime that is in concordance with the nature of humankind. The cross of decision-making also excludes theories that do not adjust to the equality in status of all human beings with their “four souls” in their breast. For this reason theories of racial superiority are rejected. It also excludes theories, which within the scope of the four perspectives, would want to omit an entire perspective, for example the physical and mental vulnerability of all humans. This vulnerability – affecting all human beings – gives rise to the postulate of respect for physical and mental integrity, thus excluding dire humiliation or torture. Nonetheless, many questions remain unanswered. This does not mean to say that relevant arguments cannot be anchored to the cross of decision-making. The difficulty arises because the cross does not have just four perspectives, but allows within each perspective varying interpretations of past, future, ideality, and basic needs. What necessarily remains unsettled is the particular emphasis on individual aspects within the four perspectives, because the task to find the right balance of and interpretation within each of the four perspectives is up to the particular human being. This is not only his “right”; it is a challenge that no human in hard cases can avoid. Every individual, apart from following well-functioning routines, is at least latently occupied with evaluating and arranging tension-filled preferences. Through this process, the individual attains his personality. This applies even more so to collisions of interpretations, valuations, and decisions between individual and collective actors, for example in cases of life against life or dignity versus dignity. Such unique disputes are not ended by reference to the cross of decision-making or by a single theory of dignity, since they are relative abstractions and initially stand for themselves, thus comprising uncontextualized valuations. At this point the aforementioned steps toward contextualization and proceduralization have to be taken within the legal system. In every such procedure all those affected by the problem at hand should be heard and the basic elements of all rights potentially affected should be respected. The cross of decision-making cannot determine detailed results in this respect, but it can instead be viewed as helpful in searching topically for relevant aspects to troubleshoot. Here are some illustrations based on German law and decisions of the Federal Constitutional Court: 2.3.1. Illustrating Cases Should an adopted child have the basic right to know its ancestry? Within the four poles of the decisional cross it is clear that this knowledge is relevant when looking downward toward the natural basis of this child and its identity, which is formed along the horizontal axis. However, one must understand the situation of the adopting family as well. The adopting family satisfies the basic needs of the child, opens it up to the world of values, and offers it its own social instead of genetic line of identity. Thus, from its perspective, depending on the circumstances, it may have a

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legitimate interest in the anonymity of the genetic parents. The cross of decisionmaking cannot as such determine what exactly should take priority, given the fact that in such a case of complex interaction, contextualization needs to be added to the bare outline of the case. According to the Bundesverfassungsgericht (German Federal Constitutional Court), in volume 79 p. 256 et seqq. of its compilation of judicial decisions, as long as the appropriate pieces of information are present, an adoptive child has the fundamental right to know his genetic lineage.19 This is one possible answer, although not necessarily the only correct answer to be argued from the viewpoint of dignity as pertaining to the cross of decision-making. 2.3.2. Life Sentence for Murder The cross of decision-making is not specific enough to be able to say something about the consequences of a violation of rights, for example the form and length of a punishment. That would require additional theories concerning punishment and a look at the circumstances of the case. Nonetheless, the following is clear: Whoever commits a murder, who under § 211 of the German penal code20 destroys the life of another human being for especially abject reasons and thereby removes the vital basis of dignity of the victim, has to expect serious sanctions for his actions. Whether such a sanction should take the form of the death penalty or compulsory life imprisonment, or just a basic life sentence that as a rule may only amount to 15 years in prison, is something the cross of decision-making cannot determine on its own merits. It can, however, on the level of the isolated mindset of the felon, call attention to the four decisional perspectives, and point out what kinds of biographical data, urges, rationalizations and goals were guiding his actions. This leads to an assessment of the perpetrator’s motives, intent, and guilt. Moving from the analysis of the felon’s actions to the interaction, to the victim’s side, the level of injury to as well as the impact on the victim, his family, and even the public in general – its expectation of being safe in their daily activities – come into the fore. Ultimately this will devote our attention to questions of enculturation: One relevant point of discussion is outbalancing the one fact that capital punishment is an effective way to prevent future criminal acts of the felon, with the other fact that allowing capital punishment can or actually will lead to a brutalization of the legal system.21 The Bundesverfassungsgericht decided in BVerfGE 45 p. 187 et seqq. that the compulsory life sentence for murder, provided for under § 211 of the penal code, was constitutional, however, as a general rule, a review would be required after 15 years, which often ends with an early parole.22 The cross of decision-making explains why this constitutional decision is at least one appropriate answer to the question of how to deal with murderers. Being human incorporates the choice of opting between good and evil, legal and illegal. Those who commit a serious criminal offense fail in their 19 20 21

22

BVerfGE (Reports of the Federal Constitutional Court) 79, p. 256 et seqq. Strafgesetzbuch, § 211. As is well known, the U.S. balances this differently from Germany and Europe. While there the death penalty is constitutionally acceptable (with exceptions and only in some states), in Europe the death penalty is mostly outlawed. BVerfGE (Reports of the Federal Constitutional Court) 45 p. 187 et seqq.

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choices; despite this, they do not absolve themselves of the potentiality and duty to, in the future – after serving their deserved and adequate penalty for their crime – behave lawfully and to respect the lives of others. Moreover, the future-oriented dimension is one of the remarkable qualities of human life. A perpetrator, whose future is completely obstructed by a life sentence, who is consequently confined to a part of his past, ends up losing a part of his humanity and his dignity. Preventing this from happening is certainly one relevant consideration even though this argument does not always yield the deciding answer – to the extent that the perpetrator may commit more criminal offenses after his release from prison, one can expect other competing viewpoints to be considered. 2.3.3. Animals as Objects In looking downwards in the cross of decision-making we understand the structure of needs and desires, especially those needs that our corporeal life brings with it, falling within the territory of being human; this is especially true in cases of threats to life and limb. Yet this is a characteristic that humans share with animals, and is thus not distinguishing. Neither human nor animal should be tantalized; their physical integrity should be respected. Despite this, we eat animals but not other human beings. This can only be explained and may be justified if one does not exclusively define dignity with regard to the physical “ability to sense suffering” and “pain”. Rather, one must add to the definition reflexivity, individuality, and identity — or in other words, one has to include a comprehensive conception of dignity or humanity in the other three dimensions of the definitional cross. In this sense, § 90a of the German Civil Code is correct in saying: “Animals are not objects. They are protected by special laws”.23 These special laws are bundled together with the physical ability to sense suffering and pain as well as a few other approximations of “human behavior,” but they do not extend into all four dimensions of the cross of decisionmaking. For this reason animals share a world with humans as well as a few human characteristics, but in the end they are only “close” to us, not the “same” as us. 2.3.4. No Hierarchy of Interests in the Decisional Cross Here we can locate and to some extent assess the controversy concerning the “highest” or “most pressing” aspects of human dignity and the rights needed for their protection. In this conflict, one can look upwards towards transcendence, reason or “Geist” as being the most important part of a human being; or one can look downwards towards the integrity and protection of life and limb, upon which all living things depend. To formulate this somewhat differently: Depending on where one puts his emphasis, the human can seem “cogital” or “animal”-like24; he can seem like a “creation of God” or an “accomplished ape”.25 Within the analytical framework of 23 24 25

Bürgerliches Gesetzbuch, § 90. See Friedrich Nietzsche: Vom Nutzen und Nachteil der Historie für das Leben. In: Deutsche Geschichtsphilosophie von Lessing bis Jaspers, 360, Kurt Rossmann (ed.), 1959. See Gehlen (note 6), at p. 9.

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the decisional cross, such hierarchies seem not really convincing, because both aspects necessarily come with the territory of being human, including the aspects of biography and future planning, which are still missing in the vertical axis of this reflection. Depending on the circumstances, one of the dimensions may be especially endangered so that in this situation, one might tend to protect this particular human interest through a provision in the constitution.26 3. DIMENSIONS

OF

FUNDAMENTAL RIGHTS

IN THE

CROSS

OF

DECISION-MAKING

Now we can add another facet to the question of how rights in constitutions and human rights treaties are connected. Fundamental rights respond to past infringements of important basic needs and important values in order to guard against similar dangers in the future.27 In this sense, the entire fundamental rights portion of the German constitution (just as in every international human rights agreement that was enacted after the Second World War) stands by the motto: Never again! Never again should the barbarism of the national socialist terror apparatus be allowed to prevail in our community. Due to the function of legitimation, fundamental rights cannot easily be restricted by a simple voting majority of the parliament; tightened standards for the existence and proof of heavy public interests are needed. The final check is therefore, in most countries, incumbent upon a constitutional as opposed to a non-constitutional court. However, fundamental rights have a second dimension that fits precisely in with the four perspectives of the cross of decision-making. Do fundamental rights guard only against acts of governmental authority in the past – illustrated by infringement of a fundamental right that leads to some sort of compensation –, or do they also guard against future acts? The textual phrasing of “fundamental rights” alone does not answer this question for us: Fundamental rights are either shaped as liberties to protect oneself against the actions of public authority, which also indicate an area of life (i. e. the family sphere) or a form of action (i. e. congregating) that should be protected; or fundamental rights indicate the criterion for equal and unequal treatment within the scope of a guarantee of equality, which is either granted or forbidden by the constitution (for example the equality of all human beings under the law, the prohibition of unequal treatment based on origin or sex). If fundamental rights are so meaningful for the legitimacy of a political body, then they should operate backwards as well as forwards. This reflects also the situation under German law. Fundamental rights should generally guarantee the integrity of an outlined area 26

27

Think of the history of the U.S. Constitution. The freedom of religion in combination with (religious) censorship was especially endangered under the old English regime and even in some of the newly founded colonies. That is why we find the freedom of religion and the freedom of speech clauses in the First Amendment of the Constitution. Some of these infringements are extraordinary, bound to a special situation that will not repeat itself easily – one example would be the quartering of soldiers in citizens’ houses without their consent; see the Third Amendment of the U.S. Constitution. Some infringements constitute “standard threats” that in a politically organized community can easily repeat themselves and thus require constitutional prevention. As for the term “standard threat,” see the discussion in SHUE (note 14).

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under the scope of protection of the law, or they should protect the integrity of respective variants of action against unjustified governmental intrusion. If an inappropriate restriction has already occurred in the past in the form of an “infringement on a fundamental right”, then the bearer of fundamental rights is accorded – depending on the situation and corresponding to the specifics of the parliamentarian law – the right to a remedy, reinstatement of the law, just compensation or a claim for damages. If there does not appear to be any final harm done to a fundamental right, and instead the harm lurks on the horizon in the future, the notion of integrity turns around “from behind” to face “forward” and transforms itself into injunctive relief, which is inspired by fundamental rights and detailed mostly by law to protect against the impending injury. The notion of integrity in fundamental rights reveals a dimension of protection that is directed backwards as well as forwards; when looking downwards it diagnoses important basic needs such as property and honor, and when looking upwards it normatively ennobles them as fundamental rights to respect. Thus, by transforming the four perspectives of the cross into constitutional and parliamentary law, a good and just legal system can develop. 4. LEGAL PHILOSOPHIES DECISION-MAKING

AND

METHODS

OF

INTERPRETATION

IN THE

CROSS

OF

Let us now shift our attention to the link between the decisional cross and the philosophy of law. As said at the outset, rivalry and diversity dominate the schools of legal philosophy. Yet only a limited number of ideal types in legal philosophy can really be found amongst the diversity of thought. Four of these are consistent with the perspectives of the anthropological cross of decision-making. Here is an example of each: If we stand along the horizontal axis in the present and look “backwards” into the past, and if we understand the law primarily in the sense of the leading line of tradition at the present time, then we are at the core of the German “Historische Rechtsschule,” the historical school of law. One famous representative from the 19th century is Friedrich Carl von Savigny. His basic question is: “In what relation does the past stand with regard to the present, or becoming in regard to being?” The answer is: “Every single human being is essential … to think as a part of a family, a nation, a state, and every nation’s era as the continuation and development of all previous times …”. “History is … not just a collection of examples, rather it is the only way to truly be aware of our own condition.” Thus, the main focus is on evolution and continuation of the “Volksgeist” (the national character). This is different in legal doctrines that look “upwards” and thus fall under “idealism”. They understand the law to be comprised primarily of values and ideals. The “value” of a legal and political system can be determined in varying ways, like in the sense of protecting human dignity and human rights, but also in the sense of protecting the ways of acquiring power, or protecting the advancement of a certain culture, religion, class or race — to name but just a few. In the broadest sense possible, legal idealism includes every type of theory that compliments a fact (particularly a basic need) with an interpretation and a justification in the form of the argumentative “because”. If one refers to present-day criteria for legitimation that are

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able to draw a consensus, then one must think especially about justice or fairness being the highest virtue of a legal system. Natural law and the law of reason are two classic strands of justice theories. Modern variants of these theories distinguish themselves insofar as they assume equal rights of all citizens and/or human beings in determining their social and political organization. All of these theories represent a version of legal idealism that distinguishes itself from the Savigny-like legal historicism and evolution by emphasizing the independent character of judgments of right and wrong. Thus Kant – the most important legal philosopher in our tradition of conceptualizing justice – admits and emphasizes that man is influenced (“affiziert”) by his drives from below; but at the same time he points to the possibility, indeed duty, of letting the principle of the categorical imperative or the legal principles of reciprocity restrict the natural inclinations of “Willkür” (arbitrariness). The prevalence of will (Wille over Willkür) makes him into an idealist who primarily pays attention to the upward-oriented view. Now let us move our legal philosopher’s gaze “from above to below” to the collective Id, the anthropological constant in human drives and basic needs. In the cross of decision-making, these include not only “life and limb”, “appetite” and “libido”, but all specific needs that can be found spanning all personalities and cultures in most human beings and their communities, including for instance the need for respect, love, fellowship, activity, development, repose, etc. This is where legal philosophies typically make a choice. We encounter some legal philosophies that tend to conceive of human reason as the executor of the empirical drives present in human beings – thus, reason mutates into the prudential optimization between means and ends. Sometimes these drives are characterized in a less good-natured way as threatening or dangerous, which results in a relatively pessimistic view of the human being. Consequentially, this corresponds with emphasizing the coercive role of the state. The function of the state is mainly directed at ensuring the most elemental needs of human beings: securing survival and ascertaining security and order. One could call this type of theory a narrow legal anthropologism. The best example for this is Thomas Hobbes, who in the 17th century witnessed the English civil wars and in his book “Leviathan” opined that every man is a wolf to every other man. Thus, if a strong authority does not intervene, the state of nature persists, “which is the worst of all, continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short”.28 It is no wonder that in such a situation Hobbes advises creating a social contract in which a stronger, even overpowering ruler is charged with providing life and security for all. Now we have to look “forwards” at legal philosophies that define the role of the law primarily from the perspective of creating a successful future. Most variants of this kind of thought fall under the category of legal instrumentalism. One famous example is the school of Critical Rationalism, which was developed by Karl Popper and championed by Hans Albert in Germany. His catchphrase is: law as social technology.29 Science has to enlighten the political and legal actors as to the correlations between personal, institutional and technical aspects of existing or envisioned organizations and find the best ways to achieve the desired state of social order. 28 29

Thomas Hobbes: Leviathan, p. 84 (1998). See Hans Albert: Kritischer Rationalismus, pp. 64–76 (2000).

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Those were examples of reflections of legal philosophy in all four dimensions of the anthropological cross of decision-making.30 An attractive and convincing legal philosophy differentiates itself in such a way that it articulates all four perspectives structurally and intertwines them to each other – with different emphases, of course. But it should not exclude one or more of the perspectives from the outset.31 That would be misguided, even foolish, because the four perspectives are themselves always present in us. They belong constitutively to the lifeworld (“Lebenswelt”), or in law to the legal world. They should be related to each other in practical concordance or praktische Konkordanz. All of the schools of philosophy of law mentioned above enunciate implicitly or explicitly all four perspectives and even integrate them to a certain degree, however, with differing accentuations on evolution, idealism, anthropologism, and instrumentalism. Likewise, the cross of decision-making features an instrument for analyzing methods of interpretation. Laws do not have a natural “texture of personality” around which an individual’s identity must form and remodel themself; instead, laws possess a democratically agreed-upon “textual structure”. In place of the task of “leading one’s life” incumbent on individuals, we see the “execution of tasks” incumbent on laws according to the main purpose of the organic act or ratio legis. In connection and continuation with maxims espoused by Friedrich Carl von Savigny, the modern canon of interpretation is comprised of textual, systematic, historical, and teleological interpretation.32 Looking “backwards,” the interpreter sees a date lying in the past, a problematic case and the enactment of a law designed to solve it, which during the period of enactment was itself a collective decision in the purview of the cross of decision-making. Looking further into the past, historical continuity and clarity of legal terminology helps the interpreter as far as it is relevant for solving the case.33 Voluntative genesis and continuous development both belong to “his30

For examples of these four strands of philosophy of law (and methods of interpretation) from the U.S., see Winfried Brugger, Legal Interpretation, Schools of Jurisprudence, and Anthropology: Some Remarks from a German Point of View, 42 AMERICAN JOURNAL OF COMPARATIVE LAW 395, pp. 415– 421 (1994). 31 See, for example, Karl Lewellyn, cited in Winfried Brugger (note 30), p. 416: “In a going lifesituation, fairness, rightness, minimum decency, injustice look not only back but forward as well, and so infuse themselves not only with past practice but with good practice, right practice, right guidance of practice, i. e., with felt net values in and for the type of situation, and with policy for legal rules”. Harold Berman formulates as follows: “The essence of historical jurisprudence is not historicism but historicity, not a return to the past but a recognition that law is an ongoing historical process, developing from the past into the future … Indeed, history without political and moral philosophy is meaningless. Yet those philosophies without history are empty. In American jurisprudence the time is ripe to restore the historicity of law to its proper role alongside political principles of legal order and moral principles of legal justice”. This citation, in: Winfried Brugger (note 30), p. 416, is taken from an article of Berman on “Integrative Jurisprudence”. The decisional cross provides such a framework. 32 For a comparison between German and American methods of legal interpretation, see Winfried Brugger, (note 30) and Winfried Brugger: Einführung in das öffentliche Recht der USA, § 2 II and § 16, 2nd ed., 2001. 33 Put differently, there are, in German jurisprudence, two different variants of “historical interpretation”: (1) the will of the legislature at the particular time; here voluntarism prevails, and (2) the (hopefully organic) development of a legal term or doctrine in time, such as “contract” or “constitution”; here tradition and evolution prevail.

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torical interpretation” in the all encompassing sense. The interpreter, however, does not define legal rationale only as past-oriented, since the law should be “reasonable” and “appropriate” not only for yesterday, but also for today and tomorrow, and should be able to hope for the greatest possible acceptance. These measures of value reside in the cross of decision-making along the vertical axis: Laws are oriented to the satisfaction of sectoral basic needs: social welfare law is primarily oriented towards upholding standards of subsistence; criminal and criminal procedure are supposed to protect “life and limb” of the population, but, after the crime, also of the perpetrator; marital and family law are oriented to “companionship, stability, sexuality, procreation”, etc. In looking upwards, we expound the meaning and worth of these basic needs, either by reference to values explicitly mentioned in the statute or constitution, or by reference to legal, religious or moral ideals. At the intersection of the four perspectives, initially the lawmaker, and then later the citizen, jurist, and judge in the act of interpreting the law, all must take responsibility for the particular valuation or rather the detailed weighting and fitting of legal rules. In both stages of concretization, subjective elements of assessment cannot be avoided. An appropriate decision in a contested case cannot usually be “objectively” detected in the mere text of the pertinent provision; the characteristics of the “situation” and the mindset of the “interpreter” also play a role. This stands parallel to an individual’s decision concerning personality formation or identity, which is likewise not predetermined or in any case not only predetermined but a matter for active and creative determination — at least in instances that put a heavy burden on our shoulders. If in this respect, it is said individuals are both creature and creator of their personality and culture, then this parallel also pertains for the interpretation of legal norms: For the interpreter, they are authoritative “creatures” created by constitution and lawmaker to be discovered. At the same time, the interpreter is the “creator” of the specific and situational meaning of the corresponding rule.

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The Anthropological Cross of Decision-Making in Legal Philosophy and Methods of Interpretation Looking at ideals/values in or beyond law and constitution – Positivized or Moral Idealism Upwards:

Backwards:

Interpretation in the Present

Forwards:

Historical Interpretation: (1) Looking at the development of legal terminology - Legal Historicism; (2) Genetic Interpretation: Looking at the will of lawmakers - Legal Voluntarism

Looking at legal text and context – textualism. Goal: Correct interpretation by looking forwards and backwards, upwards and downwards

Teleological Interpretation: Looking to the future - Legal Instrumentalism

Downwards: Looking at needs of the affected / the interpreter - Legal Anthropologism

5. CONCLUSION The cross of decision-making does not offer a “model of subsumption” to deduce correct decisions either for individual or collective actors. It does not provide detailed rules of decision-making, and it is not about the maximization of the four perspectives as separate principles. Rather, in disputable actions and interactions, it is geared towards structuring a field of interpretation, valuation, and decision, in which the human being has always been situated. The decisional cross presents a map of decision-making in hard cases; it affords binoculars with built-in crosshairs, displaying the vertical and horizontal lines within the horizon of socialization, interaction and enculturation. A “good shot” or a worthwhile decision has to find the crossing point of the four modes of reflection – only there we expect the “right fit” of the decision to be made by this person in this situation.

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Having to carry the burden of the crux of decision-making is an inevitable part of the human destiny that God, nature, or evolution has chosen for us. The decisional burden affects every human being as a physical and mental, emotional and deliberative actor – it is a privilege and a curse. It is not in vain that we sing our praises to the routine, in which, for purposes of the cross of decision-making, all four perspectives point in the same direction, and the end decision is self-evident. However, if the four perspectives cross each other at the core of the personality, and if acting in the emphatic sense is demanded, then the “cross” has to show some backbone.34 In balancing competing aspects, we should not try to act as the average person does; we should not exclusively base our judgment on the input of “the skilled, the prudential or the wise”, but on our own sense of what is right for us and our fellow men. Thus, the decisional cross helps us to switch off simple-minded notions of just having to follow our “preferences” in order to live a good life. It points to the diversity of motives within ourselves and others. Every human being is a subject, a person and at least in some instances a unique personality. This is what we learn from the decisional cross, and this is what the legal order should recognize and organize as well. In the words of an old German saying: “In the cross, man comes to know himself more than ever”.

34

In the German language, the back of a person is called Kreuz, meaning “cross”. In hard, existentialist cases, one has to show backbone, one has to act within the decisional cross.

STEPHAN KIRSTE, SALZBURG A LEGAL CONCEPT

OF

HUMAN DIGNITY

AS A

FOUNDATION

OF

LAW

Abstract: The principle of human dignity seems to have a meaning that is too broad and its form as a right seems to be too strong to conform to law. There are two strategies to cope with these problems; one is to reduce its meaning to general ideas of personhood; the other is to weaken its form by assuming that dignity is either an extra-legal principle or a mere legal value, but not an individual right. In this article, I will try to avoid both, the dissolution of a particular meaning and a weakening of the form which entails a danger of insignificance, by conceptualizing human dignity as a right to be recognized as a person in law. Legal personhood means the capability of being a subject of rights and duties. In this way, human dignity has the form of an individual right and a content that makes it the foundation even of a right to have rights and of further individual rights.

1. INTRODUCTION The idea of human dignity seems not to be suitable for law. It is the most fundamental material principle in all constitutions which have acknowledged it. Apparently, the principle of human dignity has a meaning that is too broad and, as a right, a form that is too strong to achieve a systematically satisfying position in legal argumentation1. Because of its fundamental content, it serves either as the universal legal solution to any kind of molestations such as a wrong spelling of names in public files. Alternatively, it is taken as a trump that always wins the trick, because dignity is so closely linked to the human being as such. If this latter meaning is cast into the legal form of an individual right, it surmounts every other right in a legal order. Actually, modern constitutions like the German Basic Law2 and the Charter of Fundamental Rights of the European Union3 put further emphasis on the form because human dignity cannot be weighed against any other right. However, if this right is considered as an absolute right that cannot be weighed against any other right or constitutional value, what are we to do in cases of a collision of the human dignity of one person with the human dignity of another, for instance when after having been raped, a mother does not want to bear the child?4 Since we want to analyze the dignity of the human person in its legal form, it is helpful to get a short glimpse of the form of law to begin with: Law is a certain kind of norm, the establishment and enforcement of which is regulated by other norms5. It is not important that the norm be actually enforced – though we would not have 1

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For a critical analysis of legal argumentation based on human dignity cf. Ulfrid Neumann: Die Tyrannei der Würde. Argumentationstheoretische Erwägungen zum Menschenwürdeprinzip, ARSP 84 (1998), p. 426; Eric Hilgendorf, Die mißbrauchte Menschenwürde. Probleme des Menschenwürdetopos am Beispiel der bioethischen Diskussion, Jahrbuch für Recht und Ethik 7 (1999), p. 137. Art. 1, par. 1 German Basic Law: Human dignity is inviolable. To respect and protect it is the duty of all state authority”. Art. 1 EU-ChFR “Human dignity is inviolable. It must be respected and protected”. Winfried Brugger: Würde gegen Würde, Baden-Württembergische Verwaltungsblätter (1995), pp. 414 and 446 ff. Stephan Kirste: Einführung in die Rechtsphilosophie, Darmstadt 2010, pp. 87 ff.

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anything to analyze, were it not actually enacted. Such a norm is valid, if it fulfills the requirements the respective norms set for its establishment. Often the enactment is a transformation of values, norms or rights of extra-legal origin into law6. I will call such a transformation the legal institutionalization of the respective value or norm. Since norms imply an “ought” and not a “must” like natural laws, they appeal to the freedom of the addressee. Furthermore, democratically legitimized law not only appeals to freedom, but is in itself an expression of freedom. Freedom as autonomy again does not only constitute a central value of justice7, but is also a mode of action for human beings in law. This autonomy is formed and protected by subjective rights. Finally, these subjective rights are addressed to legal persons. In this legal context, the concept of person is the fundamental legal institution. As a legal person, man has a legal standing, can make use of his rights, have legal objects and defend his or her interests. In law, the institute of person has a technical value. It can be attributed to whatever entity should be legally capable of having rights and use them. Accordingly, a company may have the status of a juridical person. At the same time, in history, members of social groups were often denied the status of a person in law: Take the slaves or Jews under the national-socialist regime in Germany. Two problems coincide here: On the one hand, it is difficult to find the appropriate legal form for the fundamental material principle of human dignity; on the other hand, we need a material criterion to decide who should receive the status of a person. In this paper I will argue that both problems can be tackled, if human dignity is understood as a right to be acknowledged as a legal person. Before I get to this, let us investigate, to some extent, the principle of human dignity and later on the development of the concept of a person in law. 2. HUMAN DIGNITY 2.1. SOME ASPECTS OF THE HISTORY OF THE CONCEPT OF HUMAN DIGNITY The roots of the history of the concept of human dignity date back to Antiquity. Theologically as well as philosophically, it is many-faceted. In stark contrast, the history of its legal institutionalization is relatively short. It begins with a reference in Art. 151 I of the German Weimar Constitution of 19198. More explicit was the Irish Constitution of 1937, which mentioned the “dignity and freedom of the individual” in its preamble. The Franco Constitution of Spain made inflationary use of the term9. After World War II, the institution of human dignity began its unrivaled tri-

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Stephan Kirste: Recht als Transformation. In: Rechtsphilosophie im 21. Jahrhundert. Ed. by. W. Brugger, U. Neumann und S. Kirste. Frankfurt/Main 2008, S. 134–156. Kirste 2010, pp. 132 ff. Die Ordnung des Wirtschaftslebens muß den Grundsätzen der Gerechtigkeit mit dem Ziele der Gewährleistung eines menschenwürdigen Daseins für alle entsprechen“. Art. I 1. “Dignity of human life”, Art. I 2. “personal dignity of the one who works”, but also Art. I 3. “dignity of the fatherland”; and also in the Charter of the Spaniards (17th July 1945), Art. 1, 25.

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umphal procession through the texts of international law10, human rights declarations11 and constitutions. In the Federal Republic of Germany, the concept of human dignity was first codified in several state constitutions and finally in the Basic Law of 1949. The latest step of its victorious march through the 20th and 21st century constitutions is Art. 1 of the Charta of Fundamental Rights of the European Union, which is now binding European Law (Art. 6 I of the Treaty of Lisbon): “Human dignity is inviolable. It must be respected and protected”. 10 11

Preamble of the UN-Charter: “…reaffirm faith … in the dignity and worth of the human person”. Universal Declaration of Human Rights (10th Dec. 1948), Preamble: “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”, “ Whereas faith in fundamental human rights, in the dignity and worth of the human person…”; Art. 1: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”; compare also the International Covenant on Civil and Political Rights of 16th Dec. 1966, Preamble: “Recognizing that these rights derive from the inherent dignity of the human person”; Art. 10: “1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”; also in the Preamble and text of the International Covenant on Economic, Social and Cultural Rights of the same date, and its Art. 13: “They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms.” For regional conventions confer also the African [Banjul] Charter on Human and Peoples’ Rights, adopted 27th June 1981, Art. 5: “Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited”; Charter of the Organization of American States, entered into force 13th Dec. 1951, Art. 45: “a) All human beings, without distinction as to race, sex, nationality, creed, or social condition, have a right to material well-being and to their spiritual development, under circumstances of liberty, dignity, equality of opportunity, and economic security; b) Work is a right and a social duty, it gives dignity to the one who performs it.”; American Convention on Human Rights entered into force 18th July 1978, Art. 5, 2.: “No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person”, Art. 6. Freedom from Slavery: “1. No one shall be subject to slavery or to involuntary servitude, which are prohibited in all their forms, as are the slave trade and traffic in women. Forced labor shall not adversely affect the dignity or the physical or intellectual capacity of the prisoner”, Art. 11, 1.: “Everyone has the right to have his honor respected and his dignity recognized”; American Declaration of the Rights and Duties of Man, adopted by the Ninth International Conference of American States (1948), Preamble: “The American peoples have acknowledged the dignity of the individual, and their national constitutions… All men are born free and equal, in dignity and in rights, and, being endowed by nature with reason and conscience”; European Convention for the Protection of Human Rights and Fundamental Freedoms, entered into force 3rd Sept. 1953, Art. 3: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”; European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, entered into force 1st Feb. 1989; European Constitutional Treaty 2004, Art. I-2 The Union’s values: “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities”, Part II, Preamble: “Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity…”, Article II-61: “Human dignity is inviolable. It must be respected and protected”.

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The remarkably short legal history in contrast to the centuries-old philosophical and theological tradition of the concept may explain why the legal discourse on the institution of human dignity has not yet definitely moved away from the other discourses about this concept. The importation of the extra-legal idea of human dignity into law causes two problems however: On the one hand, these concepts are developed against an ethical, political or theological background and have the above-mentioned broad content and implications that do not easily fit into a legal context. On the other hand, the plurality of these concepts calls for a decision among them or an abstraction of certain common aspects of them. Choosing one of the concepts requires criteria for that choice. Where should they come from? Furthermore, the search for a common meaning in all of these concepts reuires a focal point. This again may entail the danger of a vague general concept that is incapable of providing argumentative grounds for legitimate legal decisions. The intensive jurisprudential discussion partly concerns the question if there should be a philosophical or theological foundation of the legal concept of human dignity at all, and in case there is an agreement about this, which one it should be. Should the constitutional concept of human dignity be understood in a moral, theological catholic way12, in a protestant way as “the community of God’s children” (“Gotteskindschaft”)13, in the humanist sense of Pico della Mirandola14, aesthetically as Friedrich Schiller15 conceptualized it, according to the doctrine of the Enlightenment philosophers Christian Wolff or Samuel Pufendorf, in the light of Kant’s16, Fichte’s17 or Schelling’s18 Idealism, or rather of Karl Marx’19, Ferdinand Lassalle’s20 or Ernst 12 13

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Eberhard Schockenhoff: Naturrecht und Menschenwürde. Mainz 1996. Eugen Biser: Gotteskindschaft und Menschenwürde. Limburg; Martin Leiner: Menschenwürde und Reformation, in: Des Menschen Würde – entdeckt und erfunden im Humanismus der italienischen Renaissance, ed. Rolf Gröschner, Stephan Kirste and Oliver Lembcke. Tübingen 2007, pp. 49 ff. Giovanni Pico della Mirandola: Über die Würde des Menschen / Oratio de hominis dignitate. Hamburg 1990. Friedrich Schiller: Über Anmut und Würde. Stuttgart 1994, pp. 69 ff. Immanuel Kant: Grundlegung zur Metaphysik der Sitten. Werke Vol. 7. Frankfurt/Main 1985, pp. 59 ff.; Immanuel Kant: Die Metaphysik der Sitten Tugendlehre, A 77 ff. Kant-Werke Vol. 8. Frankfurt/Main 1974, pp. 557 ff. Über die Würde des Menschen, beim Schlusse seiner philosophischen Vorlesungen gesprochen von J. G. Fichte. Friedrich Wilhelm Joseph Schelling: Neue Deduktion des Naturrechts. In: Schriften von 1794–1798. Unveränd. Nachdr. d. Ausg. Stuttgart-Augsburg 1857, ed. Friedrich Wilhelm Joseph. Ort 1980, pp. 125–161. Karl Marx / Friedrich Engels: Manifest der kommunistischen Partei, in: MEW Bd. 4, ed. Karl Marx / Friedrich Engels. Berlin 1980, pp. 464 f.: “Die Bourgeoisie, wo sie zur Herrschaft gekommen, hat alle feudalen, patriarchalischen, idyllischen Verhältnisse zerstört. Sie hat die buntscheckigen Feudalbande, die den Menschen an seinen natürlichen Vorgesetzten knüpften, unbarmherzig zerrissen und kein anderes Band zwischen Mensch und Mensch übriggelassen als das nackte Interesse, als die gefühllose ‘bare Zahlung’… Sie hat die persönliche Würde in den Tauschwert aufgelöst und an die Stelle der zahllosen verbrieften und wohlerworbenen Freiheiten die eine gewissenlose Handelsfreiheit gesetzt. Sie hat, mit einem Wort, an die Stelle der mit religiösen und politischen Illusionen verhüllten Ausbeutung die offene, unverschämte, direkte, dürre Ausbeutung gesetzt”. Ferdinand Lassalle: Das Arbeiterprogramm. In: Ges. Reden und Schr., ed. E. Bernstein 2. Berlin 1919, pp. 173 f.

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Bloch’s21 socialism, in an existentialist way following Jean-Paul Sartre22 or rather Heidegger23, should it be based on the discourse theory of Jürgen Habermas24, or rather founded on of the assumptions of the theory of social systems of Niklas Luhmann25, or finally in the theoretical framework of utilitarianism26. The more these concepts are attached to natural law theories, the more difficult it is to transform them into legal provisions. Even today, some scholars claim that human dignity has an extra-legal foundation, and the codification only shows the acceptance of this fact. Positive law is most severely dominated by natural law concepts of human dignity when – following a tradition that goes back to the Church Fathers (Origenes)27 – dignity is considered to mean that man is an image of god and law has to guarantee this as an individual right. All human beings have an individual right to the recognition of their dignity, which they obtain because of their nature. According to this genesis of the right to dignity, it is absolute. This means that it cannot be weighed against any other right. The strategy behind this argument is to extend human dignity to an infinitesimal point compared to which all other basic rights seem to be finite points of lower quality. This theologically inspired concept has been subject to heavy criticism. Its foundations are too strongly attached to a certain world view. This is not suitable for a secular state with its neutrality towards religion. The absolute character of human dignity is not convincing when it comes to a confrontation of dignity with dignity as in the case of using torture against a kidnapper to save the life of the victim, if its hideout is unknown28. In addition, the strong metaphysical assumptions about the beginning of human life are contested on the grounds of modern scientific findings and ethical criticism. When texts as contrary as the Code of the Canon Law29, the Constitution of the Islamic Republic of Iran30 or the Constitution of the People’s Republic of China31 21 22 23 24 25 26 27

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Ernst Bloch: Naturrecht und menschliche Würde. Vorwort. Frankfurt am Main 1972, pp. 11 ff., p. 14. Jean-Paul Sartre: Ist der Existenzialismus ein Humanismus? in: Drei Essays, ed. Jean-Paul Sartre. Frankfurt am Main/Berlin 1986, pp. 7–51, pp. 10 f. Martin Heidegger: Über den Humanismus. Frankfurt am Main 1981, pp. 12 f., pp. 37 f., pp. 43 f. Jürgen Habermas: Die Zukunft der menschlichen Natur. Frankfurt am Main 2001, pp. 62 ff. Niklas Luhmann: Grundrechte als Institution. Berlin 4. Aufl. 1999, pp. 53 ff. Norbert Hoerster: Ethik des Embryonenschutzes. Ein rechtsphilosophischer Essay. Stuttgart 2002, pp. 11 ff.; the same: Abtreibung im säkularen Staat. Frankfurt am Main 1991, pp. 121 ff. Theo Kobusch: Die Würde des Menschen – ein Erbe der christlichen Philosophie. In: Des Menschen Würde – Wiederentdeckt und erfunden im Humanismus der italienischen Renaissance, ed. Rolf Gröschner / Stephan Kirste / Oliver Lembcke (Tübingen: Mohr Siebeck, 2008), pp. 235 ff. Winfried Brugger: Darf der Staat ausnahmsweise foltern? In: Der Staat 35 (1996), pp. 67- 97; Winfried Brugger: Vom unbedingten Verbot der Folter zum bedingten Recht auf Folter? In: Juristenzeitung (2000), pp. 165–173. CIC 1983, Canon 208: “Can. 208 From their rebirth in Christ, there exists among all the Christian faithful a true equality regarding dignity and action by which they all cooperate in the building up of the Body of Christ according to each one’s own condition and function”, cf. to Can. 212 and 768 also. Adopted on 24th Oct. 1979, Preamble: “This Constitution regards as its highest aim the freedom and dignity of the human race.”, Art. 22: “The dignity, life, property, rights, residence, and occupation of the individual are inviolate, except in cases sanctioned by law”. Adopted on 4th Dec.1982, Art. 38: “The personal dignity of citizens of the People’s Republic of China is inviolable”.

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are capable of a reference to human dignity, this illustrates the uncertainty in developing an autonomous, legally coherent concept of human dignity in general. The increasingly differentiated constitutional provisions about particular aspects of the violation of human dignity – namely the prohibition of torture, the protection against arbitrary arrest (habeas corpus), the protection of honor, the protection of the embryo and other medically endangered values32 – are signs of the attempt of constitutional framers to reach clear distinctions, hereby conveying juridical manageability to the principle. The general concept of human dignity does not lose its significance because of these developments. The question is, however, what remains as its proper legal function and how we can determine it. A lawyer would first think of the classical methods of interpretation of law in order to find out about the proper meaning of the principle of human dignity. However, I will show that this approach has limited success. If the principle is too broad in content and too strong as the form of a right, a reduction of either the meaning or the form could be a strategy to adjust the principle to law. I will come to this later. 2.2. HUMAN DIGNITY AS A LEGAL TERM The interpretation of the term dignity only partly follows the common paths of legal hermeneutics. Taking its breadth and vagueness into account, the term does not tell very much. Neither can the historical interpretation provide clear results – at least not for the German Basic Law: The opinions of the framers were too heterogeneous and so is the history of the idea. Only the distinguished provisions of Art. 1 of the German Basic Law provide some room for a systematic interpretation. Even this method has to take the term itself for granted. The still not very technical understanding of the term, its generality as a value and its short legal tradition favor the import of extra-legal convictions. It is not surprising then that especially in the early stages of the development of the interpretation of human dignity, many Christian theological assumptions were made33. The more or less secular character of the western legal traditions, however, has resisted this approach. It seems that the integration of the term into a constitution produces a certain self-contained meaning. Regardless of the vagueness of the term, this creates a filter against taking over the rationales of arguments from other social systems. Seemingly, this filter allows philosophical conceptions to pass through, admitting them as patterns for the interpretation of human dignity. It is not surprising that the approaches, which initially dominated the legal discussion, relied on widely 32

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Cf. Art. 119a of the Constitution of Switzerland, adopted on 18th Dec. 1998: “Article 119a Transplantation Medicine (1) The Federation provides regulation for transplantation of organs, tissue, and cells. It thereby protects human dignity, personality, and health”, Art. 120 II: “It shall take into account the dignity of creation.”. Ernst-Wolfgang Böckenförde: Zur Eröffnung. In: Menschenrechte und Menschenwürde. Historische Voraussetzungen – säkulare Gestalt – christliches Verständnis, ed. the same / R. Spaemann. Stuttgart, 1987, 14 f.; Christian Starck: GG-Kommentar. München 1999, Art. 1 I marginal no. 6: Art. 1 rejected an innerworldly claim to absoluteness. Critical: Norbert Hoerster: Zur Bedeutung des Menschenwürdeprinzips, Juristische Schulung (1983), pp. 93 ff.

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accepted authors who were unsuspicious of totalitarian utilization. This is one of the reasons why an interpretation that argued in the tradition of Immanuel Kant dominated the field. Kant opened up a view that could give room for a Christian interpretation, without restricting the secular understanding of the constitution too much34. Another method to reach a legal understanding of human dignity is the investigation of preconceptions of the word, the attitude or the convictions of people concerning human dignity35. Here too, the consciousness of the violation of human dignity will be unclear in the beginning. But starting with his “moral sentiment” (David Hume), the positive principles can be elaborated through abstraction and refinement. Against this background, it is not surprising that a historical interpretation in a broader sense has been introduced to understand the term human dignity. This method is supported by the fact that the principle of human dignity was often inserted into constitutions as a reaction to the experience of injustice committed by former dictatorial or totalitarian regimes. The German Basic Law adopted it as a reaction to the massive violation of human rights by the Nazi regime, which especially denied legal capacity to the Jewish and other members of the German people based on race legislation. Other countries reacted with a ban on torture as a concrete violation of human dignity. Taken together, these approaches argue more juridically, because they refer to the function of the constitution to secure the rule of law, thereby preventing regimes from arbitrarily disregarding human beings. From these patterns, a rather systematical conception emerged, holding that it is impossible to define human dignity positively, but only negatively through possible violations of it36. The negative approach thereby replaces the question of what human dignity is by the question when and under what conditions it is violated. In Germany, Günther Dürig wrote: “Naturally one should not claim to interpret the principle of human dignity as positively binding; one can only say what infringes it”37. Degradation, denunciation, arbitrary persecution, ostracism are violations of human dignity just as torture, corporal punishment, the use of lie detectors or the injection of truth enforcing serums. As convincing as they may be, however, these theories depend on three conditions: First, they presuppose respective experiences. This prevents them from being useful for new challenges to human dignity. Second, without a positive understanding of what human dignity means, they cannot tell what infringes it. Which criteria would this experience have to comply with in order to qualify as a violation of human dignity, if there was no idea of what it is? Finally, 34 35 36 37

Immanuel Kant: Kritik der reinen Vernunft. In: Werkausgabe Vol III, ed. W. Weischedel. Frankfurt am Main 1988, p. 32. Michael S. Pritchard: Human Dignity and Justice. Ethics 82 (1972), pp. 300 f. Cf. e. g. Philipp Kunig: Art. 1 Rn. 22. In: Grundgesetz. Kommentar, ed. v. Münch and Kunig. München 5th ed. 2000. Günther Dürig: Zur Bedeutung und Tragweite des Art. 79 Abs. III des Grundgesetze. In: Festgabe für Theodor Maunz zum 70. Geburtstag. ed. H. Spanner. München 1971, 41 ff.; also Oscar Schachter: Human Dignity as a Normative Concept. In: The American Journal of International Law 77 (1983), p. 849, who adds however: “Without a reasonably clear general idea of its meaning, we cannot easily reject a specious use of the concept, nor can we without understanding its meaning draw specific implications for relevant conduct”, compare the long catalogue of infringements, p. 852.

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this concept is lacking clear criteria for the distinction, if the feeling of injustice relates to a violation of dignity in particular or of another value: the negative approach provides no exhaustive catalogue of criteria for estimating which kind of disrespectful behavior infringes human dignity and which does not. This theory, however, pertains to constitutions containing the rule of law principle. It is the central task of the law to prevent infringements of rights. This is the positive aspect on which this theory can rest and relative to which unjust action can be qualified as negating human dignity. Thus, it is not necessarily attached to non-legal, philosophical or theological justification of human dignity, but to the law itself and its function, approaching the concept from the perspective of the legal prevention of violations. If on the one hand, law has the task to decide social problems, meaning that we expect the legal staff to give definitive answers, and if on the other hand, there is a plurality of understandings of human dignity, it may be a good idea to set out to define the term by considering infringements of rights. Legally positive rights stem from discursively legitimated decisions of legislators and other law creating procedures. When defining the legal term of human dignity, we should take this form into account as well. This tendency suggests that we look for a juridical foundation of human dignity. Before further elaborating this approach, I will give a short overview of the existing concepts of human dignity. Here too we will focus on the question to which extent extra-legal considerations have shaped the respective concept. 2.3. FORMAL SPECIFICATION OF HUMAN DIGNITY In their attempt to make human dignity an operable legal concept, constitutional framers as well as jurisprudence have tried to qualify the form of human dignity. A first step into this direction was to understand dignity not as an individual right, but as an objective principle or value38. As an objective legal principle, dignity imposes an obligation on the state, but does not grant the individual a corresponding right to recognition and protection of his dignity39. Some modern constitutions have adopted this idea, when they mention dignity in the preamble or in another position in the text outside of the part on basic rights, for instance the Spanish Constitution (Art. 10)40. With respect to the immediate impacts for our personal interests, human dignity as an objective principle is weaker than as an individual right. This tendency to weaken the legal form of dignity is even further pursued when authors deny it the character of applicable law altogether. In a classical formulation, 38

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Günther Dürig held that human dignity were a value which was only recognized and confirmed by the constitution, but not an individual right, Günther Dürig: Der Grundrechtssatz von der Menschenwürde, AöR 42 (1956), p. 119. Christoph Enders: Die Menschenwürde in der Verfassungsordnung. Zur Dogmatik des Art. 1 GG. Tübingen 1997, p. 118: “Der Absolutheit des Begriffs der Menschenwürde und der Unbestimmtheit ihres Schutzbereichs entspricht es demnach, wenn sich positivrechtlich aus Art. 1 I GG kein eigenständiges subjektives Recht ergibt, dieser vielmehr nur in einer objektiv-rechtlichen und auf alle Grundrechte bezogenen Funktion zum Tragen kommt”. Ignacio Guterrez Gutierrez: Menschenwürde als europäischer Verfassungsbegriff. – Rechtsvergleichender und verfassungsgeschichtlicher Beitrag zur Debatte um die Menschenwürde. In: Kritische Vierteljahresschrift 2006, pp. 384–400.

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the German scholar of public law, Ernst Forsthoff, put it this way: Human dignity would be a “general concept” (ein “allgemeiner Begriff ”) under which “it is impossible to subsume”41. Others speak of an axiom of the constitution with “appellative character”42, a constituting principle43, a supreme goal of all law44, a confession or a sentence with the obligatory force of a preamble. The advantage of this relativization of the form is the risk-free import of strong conceptions of the content of human dignity. If no one can claim human dignity, the principle may suggest dignity as an image of god and may have absolute status. As an objective principle, the state has to take it into account, especially in interpreting, but no concrete legal consequences can be deduced from it. If we deny dignity legal character, it also need not be weighed against other constitutional values or principles. As a principle, we can hold it in high regard even if the deducible legal consequences are negligible. There is a gap between pathos and legal consequences. Because of the diminution of the form, the legal term dignity would be open to a Christian, a transcendental-philosophical and an immanent understanding. 2.4. SPECIFICATION OF THE CONTENT OF HUMAN DIGNITY Other theories try the opposite method: By reducing its meaning, they strengthen the formal impact of human dignity as a right, especially as a fundamental right. These theories include two main groups with different sub-distinctions. First, there are theories that aim at specifying the content of dignity based on a qualitative change of its meaning. Secondly, there are theories that establish a quantitative threshold below which a violation will be considered mere pestering, not a substantial infringement of human dignity. In a systematic perspective, the first kind of concept takes into account the secular character of most western constitutions. If we gave dignity the meaning of man as an image of God, this would collide with the right to religious freedom, the right to anti-discrimination because of religion and the abolition of a state church. Unlike others, the Irish constitution begins with a full invocatio dei thereby opening up a theological perspective on the constitution. In secular constitutions, a strongly religious concept of human dignity is an alien element. To give human dignity a meaning, interpreters often rely on Immanuel Kant. In his view, man’s dignity is an expression of his autonomy45. What follows from this is an orientation of human dignity towards individual action. This again means that all human beings have the right to the recognition of these abilities. Based on Kant, human dignity can be constructed as a subjective right.

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Ernst Forsthoff: Rezension. In: Der Staat 18 (1969), p. 524. Rolf Gröschner: Des Menschen Würde. Humanistische Tradition eines Verfassungsprinzips. In: Des Menschen Würde – Wiederentdeckt und erfunden im Humanismus der italienischen Renaissance, ed. Rolf Gröschner, Stephan Kirste and Oliver Lembcke. Tübingen 2007, p. 14. BVerfGE 93, 266 ff. (293) – Soldaten sind Mörder; E 87, 209 ff. (228) – Tanz der Teufel. BVerfGE 12, 45 ff. (51) – Kriegsdienstverweigerung. Immanuel Kant: Grundlegung zur Metaphysik der Sitten. In: Werke Vol. 7, ed. W. Weischedel. Frankfurt/Main 1974, p. 69.

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This theory, which is very prominent in Germany and which the Federal Constitutional Court adopts as the so called “object formula”46, leaves open the problem, however, that it is closely committed to the idealist assumptions of Immanuel Kant. It is also associated with strong metaphysical assumptions on the reasonable nature of man that hardly everyone can subscribe to – not even all philosophers. This obstacle helped search for theories that refuse a strong claim of man as a homo phaenomenon or homo noumenon. For this, the universalist renaissance scholar Pico della Mirandola is a promising candidate47. He assumes that man, as a second Adam, has to find himself his position in the world. He is – as many other renaissance authors thought – a being that resembles a chameleon, capable of constant change. This ingenious ability distinguishes him from all other creatures. Both the problem of a tension setting the neutral western democratic state against a strong concept of human dignity on the one hand, and the problem of a concept of human dignity that is to be protected only in general on the other hand, could be avoided when we rely on Pico. However, some questions remain: Almost no constitutional framer referred to Pico della Mirandola, Petrarca, Giannozzo Manetti or other renaissance authors48. Finally, it is not yet clear which quality expresses the specifically human capability. Conceptions which consider dignity not as a substance of a human being, but as an achievement, can avoid strong metaphysical assumptions. The sociologist Niklas Luhmann holds that dignity is the result of a self-demonstration of the individual49. Human dignity, then, is a value attributed by communication. Some human rights declarations support this view, thus Art. 45b of the Charter of the Organizations of American States: “Work is a right and a social duty, it gives dignity to the one who performs it.”. However, such formulations are rather the exception than the rule. If dignity is relative to achievements, this right is unable to address a problem for whose solution the concept was introduced, namely the dignity of those persons who are, because of mental or other handicaps, incapable of acting or articulating themselves. It is also quite clear that this theory would altogether exclude unborn life from the protection of this principle. From Niklas Luhmann’s sociological perspective, it may be true that dignity is a result of ascription based upon communication. But as a concept of a legal right it is problematic, because it does not protect a human being in a state of his development, when help is needed the most: during its prenatal existence. Other approaches emphasize the context specificity of “dignity”50. One can subscribe to the Christian understanding of the human being as an image of God; one 46

47 48 49

50

First elaborated by Günther Dürig: Der Grundrechtssatz von der Menschenwürde, AöR 42 (1956), pp. 117–157 and later being received by the Court: BVerfGE 9, 89 ff. (95); E 27, 1 ff. (6); E 28, 386 ff. (391); E 45, 187 ff. (228); E 50, 166 ff. (175); E 50, 205 ff. (215); E 57, 250 ff. (275); E 72, 105 ff. (116); E 87, 209 ff. (228). Cf. Supra note 14. Des Menschen Würde: (wieder)entdeckt oder erfunden im Humanismus der italienischen Renaissance? Hrsg. v. R. Gröschner, S. Kirste, O. Lembcke. Tübingen (Politika 1) 2008. Niklas Luhmann: Grundrechte als Institution. Berlin 2009, pp. 68 ff.; for Luhmann’s concept of human dignity cf. also: Andreas Noll: Die Begründung der Menschenrechte bei Luhmann – Vom Mangel an Würde zur Würde des Mangels. Basel – Genf – München 2006, 369 ff. Cf. Habermas (note 24); Hasso Hofmann: Die versprochene Menschenwürde, AöR 118 (1993), pp. 353–377.

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can agree to the assumption that man is distinguished by his reason or self-determination; yet, one has to make a difference between these aspects of human beings and their dignity. In addition, it is important for the understanding of dignity to make sharp distinctions between dignity and the relevant subject. Dignity itself expresses the recognition or the claim to recognition. It is a normative principle. There is no necessary connection between any anthropology, be it scientifically oriented, Christian or secular, and the claim to recognition. What dignity is, results from the context in which it is situated. The dignity of a Christian as such differs from the dignity as a partner of social communication. Within different systems of communication, one can also distinguish between several dignities. Because of this context specificity of dignity, a Christian obligation to recognize an elaborate dignity of man as an image of God is not excluded. Nevertheless, these religious obligations as a foundation of law cannot be equaled with legal duties in its application. The task is to grant man a legal dignity that is the equivalent of his ethical dignity as a moral agent or his dignity as an “image of God” or a “child of God” in a Christian catholic or Lutheran context etc. Again, there are other theories which relativize human dignity by establishing certain quantitative thresholds51. Molestations up to a certain level would not be regarded as violations of human dignity, although they may relate to aspects of honor or social status. Their general aim is not to make inflationary use of the term, thereby ultimately playing down its role. This restriction of the principle, however, suggests a rather periphery correction and at the same time fails to provide criteria for the threshold. All attempts to specify the concept of human dignity try to fit this general, fundamental concept that is based on strong philosophical or theological presuppositions into the legal system. The formal attempts were driven by the intuition that law could only embrace such a demanding philosophical idea, if its formal status was reduced from a right to an objective principle or even to a non-normative “axiom”. The other group of theories, which I called material theories, tried to specify human dignity by excluding certain connotations from its content. That way, they could keep up the strong formal status of human dignity as a right. While the first group runs the risk of making the application of human dignity irrelevant, because it does not have concrete legal consequences, the other group runs the risk of eroding human dignity from the inside, because it is a right but does not protect in situations where it is meant to help the individual. The task would be to avoid both problems and produce a conception of human dignity that combines its formal relevance as a subjective right with the traditional content that human dignity is the highest value in moral philosophy.

51

Eric Hilgendorf: Die mißbrauchte Menschenwürde. In: Jahrbuch für Recht und Ethik 7 (1999), pp. 137 ff.; Hofmann (note 50).

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2.5. FOUNDATION AND RELATION OF DIGNITY A way to do so could be to employ the idea of context sensitivity of dignity and ask what function human dignity has to fulfill in the context of law. The idea that dignity is context-sensitive has a long tradition. The stoic philosopher Marcus Tullius Cicero spoke of “excellentia et dignitas”, pointing out that dignity is a characteristic of a person, not her essence52. He made a distinction between dignity as a value and its bearer. Accordingly, dignity was not restricted to human beings. The state (“dignitas rei publicae”) or the Roman people (“dignitas populi Romani”) could also have dignity. Founded on the concrete social status, dignity was a comparative and relative value53. Medieval philosophy considered dignity itself to be eternal. Accordingly, dignity is dissociated from the respective bearer as a mortal being. Dignity is therefore connected to hierarchical orders (God – men, Pope – bishop, king – officers), within which a person may receive a dignity, but may also lose it again. The dignity of a human being as such has prevalence over these other dignities: His character of being an image of God cannot be taken away from any human being. For Samuel Pufendorf and Christian Wolff54 – to mention only two enlightenment philosophers – dignity referred to man as a moral agent. Not the whole of the human being was acknowledged dignity, but only its better, reasonable, moral part. Thomas Hobbes spoke of dignity as the “public value of man”55. This hints at the idea that dignity expresses the validity of its bearer in a certain social or philosophical context. Even Immanuel Kant, who considered human dignity to be an “intrinsic”, “absolute” value and not a mere relative price, referred to the substrate, the bearer of the dignity, as a reasonable human being. Only as such is man absolute, not as an empirical subject. This historical sketch may show that dignity always refers to a certain, distinctive aspect of man, not to his entirety. The dignity of the office reflects its importance in the hierarchical order of the state. The dignity of man in a Christian perspective refers to the order of all creatures, within which man obtains a special position because he is an image of God. Dignity in a philosophical sense may refer to participation in a moral order. This supports the idea that in determining the meaning of dignity, we have to distinguish between its basis in a substrate (man, animal, office etc.) and the respective framework. With respect to the later, dignity is relative, whereas with respect to the former, the substrate, it may be absolute. Dignity has different relations, depending on whether it concerns a Christian in its religious surrounding, asking for mercy regardless of his deeds, or a criminal asking for the 52 53 54

55

And this again was the basis for an unequal dignity. As Cicero put it: “Equality is unequal, if it does not know steps in dignity”, Marcus Tullius Cicero: De officio 1, 30, 105 f. Marcus Tullius Cicero: De re publica I, 27, 43. Martin Lipp: “Persona moralis”, “Juristische Person” und “Personenrecht” – Eine Studie zur Dogmengeschichte der “Juristischen Person” im Naturrecht und frühen 19. Jahrhundert. In: Quaderni Fiorentini per la storia del pensiero giuridico moderno 11/12 (1982/83), pp. 217–263; Theo Kobusch: Die Entdeckung der Person. Metaphysik der Freiheit und modernes Menschenbild. Darmstadt, 2nd ed. 1997, pp. 67 ff. Thomas Hobbes: Leviathan, ed. P. Smith. Oxford 1965, Part I, chap. 10. p. 68: “the publique worth of a man, which is the Value set on him by the Common-Wealth, is that which men commonly call Dignity”.

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same from the head of the state. From this framework, to which dignity relates, we have to distinguish its foundation in a certain substrate. In the case of human dignity, the substrate is a human being. This foundation can have a dominating position with respect to other substrates. To be a human being can be of utmost importance. Dignity, then, is the expression of the systematic value of this substrate, the human being. If dignity refers to a value acknowledged to a certain substrate with respect to a specific context, we may ask more precisely: Is there a way to respect the request of the framers to recognize human dignity as an utmost value, or do we have to speak of it pathetically, without giving it solid legal relevance. The answer will be found by understanding human dignity as the right to be a legal person. 3. THE CONCEPT

OF

PERSON

IN

LAW

In the concept of the legal person, we are facing a technical term that has gradually developed from its philosophical roots. It refers to the position of a homogeneous substrate in law. With the formula of the “natural person”, it denotes man’s position in law. Founded in his legal subjectivity, it is his ability of being addressed by rights and duties56. The philosophical development brought first aspects of a specific function of the originally unspecified understanding of the term as a mask (“prosopon”) when the theological problem of the trinity was discussed by the church fathers. The well known definition by Boethius (475–524) expressed this quite well: “Persona est rationalis naturae individua substantia” – “The person is the individual substance of a rational nature”. Accordingly, the quality of being a person does not refer to an empirical nature, but to reason. However, this does not mean reason in general, but reason as it appears in an individual substance57. Bonaventura (1221–1274) developed a theory of moral action that understood all men as responsible “moral persons”. Thomas Aquinas perceived the person as the “most dignified”, reasonable nature. The person is characterized by a special way to exist, the “per se existere”58. With respect to the form, he emphasized that the person holds a middle position between the species – like man – and an individual name – like Socrates59. Taken together, “person” is the name of a privation of universal reason in a singular human being, seizing its higher essence. William of Auxerre introduced the concept into law: 56

57

58

59

Kobusch (note 53); Stephan Kirste: Verlust und Wiederaneignung der Mitte – zur juristischen Konstruktion der Rechtsperson. In: Evangelische Theologie 60 (2000), pp. 25–40; Stephan Kirste: Dezentrierung, Überforderung und dialektische Konstruktion der Rechtsperson. In: Verfassung – Philosophie – Kirche. Festschrift für Alexander Hollerbach zum 70. Geburtstag, ed. J. Bohnert, Chr. Gramm, U. Kindhäuser, J. Lege, A. Rinken u. G. Robbers. Berlin 2001, pp. 319–361. Persona est rationalis naturae individua substantia. Ernst Fuhrmann: Person I. Von der Antike bis zum Mittelalter. In: HWbPh VII, ed. K. Gründer. Basel 1989, Column 269–283, Column 280; Kobusch (note 54), p. 28. Brigitte Kible: Person II. Hoch- und Spätscholastik; Meister Eckhart; Luther. In: HWbPh VII. Basel 1989, Column 283–300, Column 287 f., Column 291; zum Begriff der Würde bei Thomas von Aquin und seinen rechtlichen Implikationen cf. Christoph Enders: Die Menschenwürde in der Verfassungsordnung. Zur Dogmatik des Art. 1 GG. Tübingen 1997, pp. 180–184. Kible (note 58), Column 292.

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“Persona est nomen iuris, id est potestatis et dignitatis”60. The connection of person, law, power and dignity are commonplace in the medieval era. Starting with late Scholasticism and later in its most elaborated form in the enlightenment philosophy of Samuel Pufendorf and Christian Wolff, “persona moralis” becomes a term for the nature of man as part of a moral world. From this second nature as a moral person, man derives his specific dignity. Man is divided in two persons, so to speak, a natural and a moral person. From this construction, it becomes clear that person refers to a specific function within a different ontological framework. While Pufendorf considers the status in the world of morals as a basis for personality, Christian Wolff takes norms as a starting point for his argumentation and considers personality to be the ability of being ascribed or imputed norms. Persona moralis is now the status of having moral rights and duties.61 Immanuel Kant could finally separate the legal and the moral foundation of the person. Although he spoke of the duty to respect all other human beings as persons in his “Groundwork of the Metaphysics of Morals”62, he does not mention this duty in his legal theory, but only again in the foundation of ethics63. Accordingly, respect for others as legal persons is not a legal duty. The ability to be the subject of imputation is the decisive criterion to distinguish between person and object. This ability – at least in principle – is inherent in all human beings. Kant makes it clear that personhood is always relative to a certain system of norms. It follows from this that there can be moral persons and, separately from them, legal persons. It is not surprising that the term “person” was now ready to be introduced into law. This reception led to a differentiation of the term that followed legal necessities. When Friedrich Carl von Savigny – head of the Historical School of Law – took up the term, he could decidedly reject the use of “persona moralis”, but insisted on a distinctive legal meaning of the term “person”64. For this specific legal understanding, von Savigny concentrated on legal capacity. Legal capacity is a strictly legal term that can be attributed without any ties to other systems, including morals. Anyone who has legal capacity is a legal subject. The bond with morals is not cut, however. Von Savigny holds that “Each and every human being, and only the indi-

60 61

62

63 64

Kible (note 58), Column 287. Wolfgang Schild: Artikel: Person, IV. Recht- Rechtsperson; Rechtspersönlichkeit. In: HWbPh VII. Basel 1989, Column 322 – 335, Column 324; Martin Lipp: “Persona moralis”, “Juristische Person” und “Personenrecht” – Eine Studie zur Dogmengeschichte der “Juristischen Person” im Naturrecht und frühen 19. Jahrhundert, Quaderni Fiorentini per la storia del pensiero giuridico moderno 11/12 (1982/83), pp. 217–263, p. 238. Immanuel Kant: Grundlegung zur Metaphysik der Sitten, ed. W. Weischedel. Frankfurt am Main 1974, pp. 7–102, p. 61: “Handle so, daß du die Menschheit sowohl in deiner Person, als in der Person eines jeden andern, jederzeit zugleich als Zweck, niemals bloß als Mittel brauchest”. Immanuel Kant: Die Metaphysik der Sitten (1797 u. 1798), ed. W. Weischedel. Frankfurt am Main 1977, AB 31, 600. Friedrich Carl von Savigny: System des heutigen römischen Rechts. Zweyter Band. Berlin 1840, pp. 240 f.: “Früher war sehr gewöhnlich der Name der moralischen Person, den ich aus zwey Gründen verwerfe: erstens weil er überhaupt nicht das Wesen des Begriffs [der juristischen Person, S. K.] berührt, der mit sittlichen Verhältnissen keinen Zusammenhang hat: zweytens weil jener Ausdruck eher dazu geeignet ist, unter den einzelnen Menschen den Gegensatz gegen die unmoralischen zu bezeichnen, so daß durch jenen Namen der Gedanke auf ein ganz fremdartiges Gebiet hinüber geleitet wird”.

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vidual human being, is capable of holding rights and duties” 65. While von Savigny derives the legal capacity from his notion of human beings, his student, Friedrich Puchta, turns the argument upside down. He says: “This is the first step to the ascertainment that man as a being with a will is a legal subject because the subjective right is a power of the will, and not: The subjective right is a power of the will because it serves the realization of the human will” 66. Finally, Hans Kelsen ended the process of the legal differentiation of the person, declaring it his concern to “bring physical und legal persons on the common denominator, on the denominator of law” 67. Person is a functional term. It has to be understood within the respective normative system as a focal point for the ascription or imputation of norms. Each normative system has different criteria for attributing the status of a person. These criteria are not dependent upon arguments from natural conditions or other normative systems. These persons are not created out of bones and flesh; their body consists of rights and duties. Accordingly, it is possible to treat a mentally disabled or even an unborn subject as a person in law, which may have certain rights even if it is incapable of acting. This also means that new knowledge from neuroscience68 does not determine whether we can acknowledge someone as a person in law or not. The term person gives human beings a status in law, but one that is shaped according to the needs of men as well as of the legal system. This status is the legal body of the natural person or other entities endowed with the power to be addressed by rights and to act legally. It is, in medieval words, the “mystic” or the juridical body the person in law possesses69. The pure capacity is also the basis for freedom and equality70. In this capacity, all legal subjects are equal. Accordingly, Gustav Radbruch was right, stating that the concept of the legal person is a concept of equality71. At the same time, the legal person is the basis for legal liberty: To have rights means to have legal power independent of public or private influence. From this development, it is clear that with the differentiation of law and morals in the 19th Century, the legal person has acquired the same position in law as the moral person in the world of morals. From our reflections on dignity, we may conclude that the dignity of the person is a legal dignity that stems from its participation in the legal world just as the dignity of the moral person corresponds to its status in a moral world. 65 66 67 68 69 70

71

Savigny (note 64), 2. Uwe John: Einheit und Spaltung im Begriff der Rechtsperson, Quaderni Fiorentini per la storia del pensiero giuridico moderno 11/12 (1982/83), pp. 947–971, p. 949. Hans Kelsen: Allgemeine Staatslehre. Berlin 1925, p. 63. Cf. the paper of Warren S. Brown and of Philip Clayton. Cf. Ernst Hartwig Kantorowicz: The Kings two Bodies. Princeton 1966, p. 209. In der Rechtsperson wird der moralische Minimalgehalt der Gleichheit festgehalten, Helmut Coing: Europäisches Privatrecht. Band I. Älteres Gemeines Recht (1500 bis 1800). München 1985, p. 171. Gustav Radbruch: Rechtsphilosophie, ed. E. Wolf and H.-P. Schneider. Stuttgart, 8 th 1973, 225; for Radbruch the fundament of equality is the idea of man being an end in himself, however. He considers it to be sufficient for collective legal persons to be an expression of the human beings behind them. Accordingly, he summarizes: “Alle Personen, die physischen wie die juristischen, sind Geschöpfe der Rechtsordnung. Auch die physischen Personen sind im strengsten Sinne ‘juristische Personen’” (ibid, p. 227).

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4. THE RESPECT FOR HUMAN DIGNITY LEGAL PERSON

AS THE

RIGHT

TO BE

RECOGNIZED

AS A

There is a dispute among German scholars of constitutional law about how the first sentence of the Basic Law is to be understood: “The dignity of the human being is inviolable” (“Die Würde des Menschen ist unantastbar”)72. Is it a descriptive sentence because norms necessarily contain an ought which is formulated as an indicative? Whereas normative sentences contain contra factual provisions, descriptive sentences can – in general – be proven to be true or false. If it were a descriptive sentence, it would have been falsified long ago, because obviously human dignity can be and has been violated. Accordingly, in order to make sense of it, we have to understand the sentence as a normative sentence: the “is inviolable” has to be understood as “shall not be violated”73. I further suggest that it is to be understood as a legal sentence74. However, it can have this form only if understood as containing a right. Would it contain a principle only, this legal principle could be balanced against other legal principles. This again means that it could be infringed in some cases. To be subject of infringement, it would not be compatible with the apodictic formulation “inviolable”. However, it can contain a right only if we understand human dignity in terms of legal subjectivity. Being a legal subject is the highest dignity law can provide. It means the ability to make legal use of one’s liberty. This ability is realized if certain rights are attributed to the individual. To have a right means to be able to act legally. The right that human dignity provides is the claim to the recognition of the legal capacity of each human being. If, then, legal capacity means to be a subject of rights, this claim is satisfied as soon as a human being is subject to the attribution of rights and not a mere object of rights of others. Now, if we understand human dignity as a right to be recognized as a legal subject and if being a legal subject means having rights and duties, then this right is legally proclaimed and fulfilled at the same time. In the form of an individual right it bestows upon all human beings the claim to be recognized as a legal person; since being a legal person means being a subject of legal rights and duties, the right is fulfilled by the very act of proclaiming it. Therefore, the right to human dignity is unique indeed. While other claims are fulfilled by further action, the right of being recognized as a person in law is fulfilled by its codification as a basic right. By its codification, the human being is awarded a right which is necessary for it to become a legal subject. The content of the right of human dignity is the basic right to be 72 73

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Equal wording in Art. 1 of the Charter of Fundamental Rights of the European Union. Cf. Horst Dreier: Art. 1 I GG, Rn. 42 f. In: Grundgesetz. Kommentar. Band 1, Präambel, Art. 1–19, ed. Horst Dreier. Tübingen 2nd ed. 2004; Matthias Herdegen: Art. 1 Abs. 1, Rn. 17 ff. In: Grundgesetz. Kommentar. Band I, Art. 1–5, ed. Maunz-Dürig-Herzog-Scholz. München, 49th additional supply, March 2007; Christian Stark: Artikel 1, Rn. 13 u. 23 f. In: Bonner Grundgesetz. Kommentar. Vol. 1, ed. v, Mangoldt-Klein-Starck. München, 4th ed. 1999; Christoph Enders: Art. 1 Rn. 47 ff. In: Berliner Kommentar zum Grundgesetz. Vol. 1, ed. Friauf-Höfling. Berlin 2005. This is my major disagreement with Christoph Enders (Art. 1 Rn. 47 ff., 68 f. In: Berliner Kommentar zum Grundgesetz. Vol. 1, ed. Friauf-Höfling. Berlin 2005; Christoph Enders: Die Menschenwürde in der Verfassungsordnung. Tübingen 1997, pp. 94 ff., who denies the legal character of human dignity in Art. 1 I of the German Basic Law.

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recognized in a legal subject. This content is indeed elementary for the law. This claim is fulfilled by the form of a right. The indicative form of the sentence is appropriate because once this right is acknowledged in the constitution, it cannot be violated. Human dignity understood in this legal, technical way provides an aspect which the concept of the legal person did not contain. The mere concept of the legal person as I have sketched it before, does not say anything about who should have the quality of a legal subject. With the separation of the legal person from the concept of “persona moralis”, the law had to find its own criteria for the attribution of this quality. Whoever has legal rights and duties is a legal subject and a legal person. But who should that be? This is the question. Human dignity answers: All human beings have to be treated as legal subjects. There is of course a key objection to this interpretation of human dignity as a legal concept: In its reduction of the content of human dignity to the right of being recognized as a legal subject, it changes and minimizes this concept, leaving only a formal and technical tool. In this hollowed form, the concept seems to be incapable of providing human beings with the protection they deserve. On the one hand, however, reducing the content of human dignity to the right of being recognized as a legal subject means strengthening it legally: The individual receives a right to be recognized as such. Such a right would have prevented Jews or gypsies from being denied legal status as persons in the Third Reich. This right need not and cannot be weighed against other rights or values and is in this sense absolute. No one can be a legal subject more or less. Either he or she has the capability to have rights and duties, or not. If he has a right, he must have the capability, and if he does not, he is no legal subject. One can further object that if one right should be enough to fulfill the right to be recognized as a legal subject, then why not give the individual the right to be a slave? However, this is no convincing objection, either. Here, the form of the right undermines his position and does not grant him a right. Having the right to be a slave means having the right not to have rights or duties. Being a slave means not to have any rights or duties and being a mere object in the hands of the master. In 1824, when Dred Scott returned from Illinois, where slavery was forbidden, to Missouri, where it was permitted, he or his wife were not asked to fulfill their duties, they were simply considered to be part of Sanford’s mobile private property. As such, they belonged to Sandford’s objects and were not treated as subjects75. If on the other hand, a slave was given the freedom he deserves as a human being, not by an act of paternalism, but because the master acknowledged his right to be free, he would at the same time be recognized as a legal subject. By the mere recognition of this right, he is respected as a person and loses the status of a slave. If we apply this rationale to our problem of giving a legal subject the right to be a slave, then we see that there can never be a right to slavery because slavery means having no rights. This is not the last constitutional word on human dignity, however. In particular, if a constitution not only states that human dignity is inviolable, but also demands its respect and protection, it imposes an obligation on the state to grant the individual more rights. We should remember that we saw the legal subject as having 75

Dred Scott v. Sandford, 60 U.S. 393 (1856), 60 U.S. 393.

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equal potential for being attributed basic rights, liberties and equality rights. Fulfilling the obligation of respect for and protection of human dignity means that the state grants the individual these rights. Just as man is a human being even without arms and legs, he is a legal subject if he has a right to be recognized as such, but no further rights. In such a state, he would obviously be missing important abilities. His self-determination would have a very small scope. He is not only a person, but also a personality. As a personality, he has the potential to act reasonably. Respecting him as such means granting him more rights to realize his potential. Modern constitutions take this into consideration by protecting the individual against torture, abolishing the death penalty, respecting his privacy and protecting him against other “inhuman or degrading punishment or treatment” (Art. 15, 1 of the Spanish Constitution or Art. 5 III of the Brazilian Constitution76). Just as legal capacity does not mean the capacity to act legally, but is a prerequisite of it; human dignity is a right to be respected as having potential to have further rights and does not mean to actually have them. The other basic rights give persons the freedom to act unimpaired by public intervention. But, as Hans Carl Nipperdey has put it, human dignity is “the last root and fountain of all later formulated fundamental rights”77. It guarantees persons the ability to have further rights. This root is not necessarily bound to individual life. The unborn may have dignity, just like dignity does not necessarily end with death. It may go too far if Baldus wrote: “The emperor in his person must die, but the Dignity itself is immortal”78. He conceives the person as having two bodies, one natural and one mystical – or in modern words: an empirical one and one based on social expectations. The latter, he says, is the bearer of dignity. Baldus makes the point that dignity is dependent upon ascription and not bound to natural matter. Law has kept Baldus’ distinction, but turned it upside down: Every human being has the right to legal social recognition. That is his dignity. The legal expression of this dignity is his juridical personhood. This right remains, even if the person – both, the natural and the legal – has ceased to exist. From his dignity, man can derive a right to the posthumous protection of his personality79. The proposed concept of human dignity as a right to be recognized as a legal subject avoids any further substantial theological or philosophical assumptions. The basic elements of it were once developed by theological and philosophical speculation. However, they were transformed into legal arguments. Accordingly, it fits well into constitutions that have a neutral attitude towards religion and world views. If, however, a constitution like the Irish one contains a stronger, religious or philosophical concept of human dignity, this does not contradict the interpretation just 76

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For a thorough investigation and comparison of human dignity in the German and Brazilian Constitution cf. Ana Paula Barbosa: Die Menschenwürde im deutschen Grundgesetz und in der brasilianischen Verfassung von 1988. Ein Rechtsvergleich. Dissertation. Münster 2007; also Ana Paula Barbosa: A Legitimação Moral da Dignidade Humana e dos Princípios de Direitos Humanos. In: Legitimação dos Direitos Humanos, ed. R. Lobo Torres. Rio de Janeiro- São Paulo-Recife, 2nd ed. 2007, pp. 137–168, who applies the approach of Carlos Santiago Nino. Hans Carl Nipperdey: Die Grundrechte II. München 1966, pp. 1 ff., pp. 11 f. Kantorowicz (The king’s two bodies, Fn. 69), p. 398. Federal Constitutional Court of Germany, in: Neue Juristische Wochenschrift 2001, pp. 594– 596.

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presented. The concept of dignity as a right to be recognized as a legal subject does not rule out that the amount of rights that fulfill this claim could be broader, could include autonomy, creativity, self-determination etc., if only the constitution indicates this. This broader content of the term depends, however, on respective constitutional indications and does not stem from the term “human dignity” itself. Human dignity as a legal concept demands the basis, the right to be able to have rights and that means to be acknowledged as a legal person. This concept is free from any extra-legal values, thereby omitting value conflicts in the interpretation of human dignity. It is, however, open to values. It necessarily determines the value that every human being has the right to be recognized as a legal subject. What this legal subject “looks like”, what further rights it should have, is up to the decision of the constituent power or the legislator, who decides about them with the legitimation of the respective procedure. “The state exists for the human being, not human beings for the state”80. This goal, discussed among the framers of the German Basic Law, can be achieved by the state that obeys the rule of law only by means of the law. Because this state is directed towards the individual, it achieves this aim by guaranteeing the individual rights. The state therefore transforms the pre-legal human being into a legal human being, and that means into a legal person. This is no abstract ideal, which has the practical relevance of a Sunday speech. On the contrary, the law depends on the fulfillment of this ideal. Without legal persons, there would be no law. Their capability of being subjects of imputation is the basis of all legal relationships. The contrary is also true, however: without the law, there would be no legal persons. Oriented towards the ideal, which the framers and legislators understand in different ways, they force it through the eye of the needle of the legal form. Just as the ethical perfection of man is free personality as the basis of its dignity as a persona moralis, in law, legal personhood is the foundation for all further rights, including the rights he deserves as a reasonable personality. In morality, autonomy is the basis for dignity, as Kant said. In law, legal subjectivity is the basis for liberties. In these rights, the legal subject expresses itself. The legal person becomes richer, however, receiving more spheres of action without public intervention. The transformation of dignity into law turns foundation and result inside out: the dignity that follows autonomy in ethics is the basis for liberties in law and the status as a person that is the expression of his liberty becomes the legal basis for the execution of his freedom in a legal form. It seems to be part of the dialectic of human dignity as a legal principle that it loses legal importance the more it is burdened with extra-legal content and that it fulfills its function the more it is reduced to the subjective foundation of the legal system. Someone who demands everything from it from the point of view of morals or natural law is in danger of devaluating it as law altogether. Understood as a right to be acknowledged as a legal person, human dignity avoids these dangers.

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Artikel 1 of the draft of the Herrenchiemseer Konvent: “(1) Der Staat ist um des Menschen willen da, nicht der Mensch um des Staates willen. (2) Die Würde der menschlichen Persönlichkeit ist unantastbar. Die öffentliche Gewalt ist in allen ihren Erscheinungsformen verpflichtet, die Menschenwürde zu achten und zu schützen”.

JULIAN NIDA-RÜMELIN, MÜNCHEN WHY HUMAN DIGNITY RESTS

UPON

FREEDOM

Abstract: The notion of human dignity does not merge into (or lead to) human rights, though they complement one another. Thus, substantiating the concept of human dignity in an ethically coherent way is a task of utmost importance which still has to be coped with. The content of this paper is connected with – but also differs from – Margalitean arguments on the relatedness between freedom and human dignity. The aim of the paper is to develop a definition of human dignity in five steps: (1) it will explicate the concept of human dignity by relating it to the notions of humiliation and self-respect: respect for “the dignity of man” requires that nobody should be given a reason to feel humiliated or to have his self-respect injured. These are postulates that confer individual rights an essential role (step 2). Based on the first two steps, a normative content of human dignity, both universalistic and individualistic, will be developed in steps 3 and 4. Finally, step 5 will outline a new position – ethical humanism – about the theory and ethics of human dignity.

1. HUMILIATION In The Decent Society, Avishai Margalit attempts to clarify the normative basis of a respectable society.1 The humiliation, persecution and murder of the European Jews during the Nazi Era underlie Margalit’s thoughts, even though the Shoa is not explicitly the topic of his work. Although I do not agree with essential sections of Margalit’s reasoning, I was very impressed by it and I will therefore begin by examining his ideas. Margalit understands humiliation as a form of behaviour that gives a person reason to feel that her self-respect has been injured. Seen this way, humiliation is not a psychological phenomenon, but an objective ethical issue. Thus, there may be people who have in fact been humiliated, but do not feel humiliated. The contrary holds as well: There may be people who do feel humiliated without having in fact been humiliated in this ethical sense. This ethical understanding of humiliation requires that feelings are not something given, i. e. something independent of rational judgement. Instead, some feelings – and those pivotal to humiliation are certainly among them – are backed up by reasons and not only brought about by causes. Just as there is reasonable and unreasonable fear, so there is a reasonable and an unreasonable feeling of humiliation. The feeling of humiliation is reasonable or well-grounded if I have actually been humiliated. These considerations raise the following question: What is it that humiliates, i. e. which entities can count as the reason for a feeling of humiliation? First and foremost we think of actions. Margalit holds that living conditions may be humiliating as well, if they are caused by human actions.2 But this seems to be mistaken and I want to contend that in the end it is only actions and not living conditions that can humiliate, regardless of whether the latter were caused naturally (such as most forms of physical or mental disability are) or by individuals (which generally holds 1 2

See Avishai Margalit: The Decent Society, Cambridge 1996. See Margalit (note 1), Part I.

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for social circumstances). Thus, when we speak of “humiliating poverty” or “humiliating dependence” we should understand these formulations as a kind of abbreviation for “the dimension of poverty only allows for a life in which individuals are exposed to humiliating actions”. This interpretation upholds two philosophical principles, which seem indispensable to me: On the one hand, it is in line with the principle of individualism, according to which only human beings act. This is because acting implies intentionality, a mental faculty that only persons possess to a relevant extent. On the other hand, it goes with the rejection of any kind of animism. Animism, which is apparently characteristic of preliterate culture, attributes intentionality to entities that do not have any mental faculties. Thus, it conflicts with modern natural science and has vanished as a common belief to a large extent. Nevertheless, it lives on in different varieties of esotericism, everyday beliefs in miracles, numerous pseudo-medical practices and most notably our language. As long as our parlance is interpreted metaphorically this is unproblematic. Hence we can call weather conditions that are detrimental to our well-being “unfriendly”, as long as we do not intend to imply that the weather has an unfriendly attitude towards us. But strictly speaking not even a hurricane can humiliate somebody, even if it causes a lot of people to suffer greatly: These people were not humiliated, but thrown into a state of disaster. They might feel humiliated given their helplessness before the force of nature, but this feeling is unfounded, as hard as this might sound. If the hurricane was only able to wreak havoc because the residents of the coastal region did not get permission to build an embankment dam despite numerous petitions, then the damage caused by the hurricane may certainly arouse a founded feeling of humiliation. But this feeling results from the humiliating behavior of the authority in charge, which is also responsible for the damage. If it is characteristic for a decent society, as Margalit claims, that its institutions do not humiliate individuals, then we must understand this definition as metaphorical. A more precise version would claim that a society is decent insofar the actions which are constitutive of its relevant institutions (i. e. which correspond to the normative rules that the institutions set up) do not humiliate. 2. SELF-RESPECT, HUMAN DIGNITY

AND

RIGHTS

You should not do anything that damages the self-respect of another person. As selfevident as this norm seems to be, it must be stated more clearly: You should not do anything that gives another person a reason to feel humiliated. One can think of people who often feel humiliated, although they do not have any reason to feel that way. In such cases, we should not accuse the person whose behaviour led to another’s feeling humiliated of actually humiliating her. That is, we are strictly concerned with well-founded feelings. Is it possible to determine more precisely when feeling humiliated is justified? As a first approximation one might say that humiliation is closely connected conceptually to self-respect or human dignity. That is, to humiliate a person means to take away her self-respect or dignity. But then, how are we to spell out those two concepts? A possible answer to this question is presented by the so called identity thesis. According to this thesis, the notion of human dignity is dispensable as it can

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be fully replaced by the human rights catalogue. Thus, the notoriously fuzzy notion of human dignity can be corrected by developing an explicit theory of human rights. This explains why the concept of human dignity does not play a constitutive role in Anglo-Saxon law, even though the latter’s take on humanity and basic norms does not diverge substantially from the German conceptions thereof, where the notion of human dignity is very important. Talking about the invulnerability of human dignity would then be a sort of abbreviation as it would imply the invulnerability of human rights in toto. And the discussion whether the human rights catalogue ought to be broadened to include so-called second and third generation human rights – a debate persisting since the end of WWII – could be understood as quarrel about how to spell out the notion of human dignity. For all practical purposes, there is something to be said for this proposal: Not only does it preserve the close connection between ethics and law, but human rights can rightly be considered the guardians of the most fundamental conditions of human life, thus making freedom and responsible action possible. Seen this way, an existential humiliation would be a human rights abuse. But does this thesis really hold? To answer this question we have to take a look at the human rights as stated in the Universal Declaration of 1948. Article 1 says that all human beings are born free and equal in dignity and rights, that they are endowed with reason and conscience, and that they should act towards one another in a spirit of brotherhood. Article 2 prohibits any form of discrimination. Article 3 states the right to life, liberty and security of person. Further regulations like those in Article 12 prohibit arbitrary interference with another person’s privacy, family, home, or correspondence as well as any attacks upon another’s honor and reputation. But even these human rights of the first generation contain rules that can hardly be understood as protecting human dignity: Thus, the right to a nationality (Article 15) or the right to own property (Article 17) do not seem essential for the preservation of human dignity – as statelessness or having no possessions does not necessary imply a loss of self-respect. A fortiori this holds for the human rights of the second and third generation as stated in the International Covenant on Economic, Social and Cultural Rights of 1966. The rights stipulated by this contract, as the right to rest and leisure as an employee or to periodic paid holidays, do not seem to be imperative for a life without humiliation. To sum up: Human rights – meaning universal equal rights for everybody regardless of their respective political order – go considerably beyond the normative content of human dignity. But is it not the purpose of human rights to prevent humiliation? Not even this interpretation of the identity thesis seems reasonable, as on the one hand there are cases in which the infringement of a human right does not justify a feeling of humiliation. This is shown by the following – albeit bizarre – example: The cultic killing of a person as a venerated being can hardly be interpreted as a humiliation. Thus, the human right to life and physical integrity cannot be spelled out as the right not to be humiliated. On the other hand, the observance of human rights is by far not enough to exclude humiliation. There are actions that do not infringe upon a human right albeit they do humiliate. Likewise, there are actions that infringe a human right without humiliating. Thus, the identity thesis is not tenable. But even if we are forced to reject the identity thesis, we can acknowledge the important role the prohibition of humiliating others plays in substantiating the hu-

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man rights discourse. Persons have a right not to be injured or mutilated and not to have their life taken away without their explicit consent or wish. This fundamental human right is essential to prevent existential humiliation and thus to protect human dignity. It is, however, also valid when the self-respect of an individual is not at stake. Human life in itself has a high intrinsic value and must not be sacrificed, even if this could be done without humiliation. Each human being has a right to live. No human being can be killed without her explicit consent, even in cases in which the killing would not imply any humiliation. One might try to safe the identity thesis by citing Kantian ethics: According to Kant even a painless killing could be regarded as a humiliation since it would infringe on the murdered person’s condition as an end in itself.3 But in view of the cited example of the cultic killing, this attempt to rescue the identity thesis seems unreasonable. Can we imagine a society that knows the phenomenon of humiliation, but does not have a concept of human rights? Those who regard human rights as a cultural achievement of European Humanism and Enlightenment will have to answer affirmatively, since it is difficult to imagine that the phenomena of self-respect and humiliation only appeared with modern thinking in Europe. People have been humiliated, i. e. their self-respect has been damaged, throughout history – whatever the concepts used to describe this were. The human rights discourse from the European Enlightenment to the present day is thus not constitutive of humiliation. Self-respect is rooted in a deeper level, both culturally and biographically, since even very young children may rightly feel aggrieved or humiliated from time to time. But even if we do not want to link up the phenomenon of humiliation with rights established only a few centuries ago, is it not difficult to imagine having a well-founded feeling of humiliation without having a well-founded feeling of the infringement of a right as well? The idea of universal human rights might be historically young, but the idea of individual rights is old. The more accurately you imagine a particular situation of humiliation, the more plausible the thesis becomes that the normative (not psychological) concept of humiliation cannot do without the normative concept of individual rights. When asked why she feels humiliated, a person that believes to have a good reason to feel humiliated will answer by pointing to an infringement of her individual rights. We do not have to conclusively decide whether the concept of an individual right is more fundamental than the concept of humiliation normatively understood. But even if we assume that the well-founded feeling of humiliation could only be caused by infringing upon someone’s individual rights that would still not support the identity thesis, since not every relevant individual right can also be characterized as a human right. A substantial concept of human dignity enables us to supplement the human rights catalogue with the right to not be humiliated – without claiming the reduction of all the other human rights to the right to human dignity. Thus, the defence of individual human dignity constitutes an essential part of human rights. But the right not to be humiliated adds something essential to the other human rights, and these are not deducible from this right alone.

3

See Immanuel Kant: Grundlegung zur Metaphysik der Sitten, Hamburg 1999.

Why Human Dignity Rests upon Freedom

3. UNIVERSALISM

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HUMAN DIGNITY

To humiliate means to injure the self-respect of a person. As stated in the first section, adopting the concept of humiliation as a normative concept implies that selfrespect cannot be defined by a mere empirical approach. On the one hand, it is possible to in fact humiliate a person without her feeling it; on the other hand, there can be a person who feels humiliated even though she has in fact not been. The moral obligation not to injure the self-respect of fellow human beings also applies to those who have an imperturbable psychic disposition. That is, we should also act considerately towards people who cannot be shaken in their feelings due either to the firmness or the servility of their character. Since we regard humiliation as a normative concept, we need ethical principles to spell out what self-respect, human dignity and non-humiliating conduct consist in. This normative take on humiliation makes a universal conception of human dignity possible. There are cultural practices, like the genital mutilation of young women in Africa, which are humiliating – even if the young women concerned and their parents consent to the practice. Norms that shape a culture over a long period of time are generally difficult to question for members of that community. That is because challenging those norms would place the person outside her corresponding community. But if we understand human dignity via the concept of universal individual rights, criticizing inhumane cultural practices is normatively permissible or even necessary. To put it differently: In the second section we argued for a connection between human dignity and individual rights. Now we see that the criticism of inhumane cultural practices presupposes the universal validity of certain individual rights. Individual responsibility and universal validity are thus mutually dependent: Only because they know that certain individual rights are universally valid, members of an oppressive community can oppose the norms humiliating them. While at a first glance self-respect only presupposes the concept of locally or culturally established individual rights, the fact that criticism of inhumane cultural practices must be possible leads us to the thesis of a universal validity of certain individual rights. As we have seen before, these are related to the concept of dignity, even though their normative content vastly outgrows the defense of human dignity. Thus, while those who oppose humiliating norms that are locally established are threatened with exclusion by their society, a community whose constitutive elements contain certain inhumane cultural practices is itself threatened by exclusion: The representatives of the given community have to stand before a reproachful international public and see their political legitimacy shattered. The universalism of individual rights and accordingly of human dignity thus constitutes cosmopolitism even in the absence of transnational and global institutions.4 But how are we to substantiate the concepts of universal individual rights and human dignity? We have already seen that it is not feasible to rely on the existing legal codices of human rights. And since we want to understand these concepts normatively we cannot build our theory only on the feelings of humiliation people actually display. But nevertheless, a concept of human dignity which completely detaches itself from what people actually perceive as humiliating would be limitless. 4

See Otfried Höffe: Demokratie im Zeitalter der Globalisierung, München 1999.

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That sort of concept would be completely arbitrary and prone to being instrumentally used by either ideologies or religions. What is required instead is a normative reconstruction of those concepts starting from our everyday moral intuitions. That is, we begin by examining the moral judgements we constantly make in our lifeworld (Lebenswelt). By isolating those judgements which are distorted by hatred or love, vanities or the strife for political or economical power we assume the point of view of an impartial observer and establish our well-considered moral judgements. And to those the theory we are building has to correspond to. This is by no means an unorthodox procedure in practical philosophy: The theory of rational choice cannot be developed either by relying only on principles which are regarded as self-evident. Instead, it has to assume that some of our judgements about what is rational are correct and work its way up from this assumption, exposing and rectifying incoherencies and systematically establishing a strong explanatory theory that relies on a few basic concepts and rules. The reciprocal entanglement of our everyday normative judgements on the one hand and of abstract principles that systematize the former on the other is indispensable for all fields of normative theory – as John Rawls demonstrated in his theory of reflective equilibrium in an especially striking way.5 Thus, there is a connection of the actually given and the normatively correct which can only be loosened at the cost of weakening the justification and efficacy of the ethical theory in question. Due to this connection, cultural embedded judgements on humiliation and self-respect remain normatively relevant. With regard to the theory of human dignity, that which is in fact considered humiliating is a touchstone the theory has to take account of. In other words: When the actual findings of humiliation and selfrespect come into conflict with the normative theory of human dignity, the burden of proof lies on the theorist. He must demonstrate why certain cultural practices which are in fact not regarded as humiliating still infringe dignity. To do this the theorist will have to rely on certain well-chosen anthropological assumptions. Martha Nussbaum’s capabilities approach is a wonderful example of such an anthropologically infused theory substantiating a universal concept of human dignity.6 The basis of her argumentation is a list of elementary human capabilities inspired by Aristotle, which, if fully developed, constitute a good life. Thus, a normative theory about human dignity can never be merely theoretical. It cannot determine the constitutive elements of a worthy human being life without taking into account what is de facto regarded as good. A theory which substantiates a universal concept of human dignity thus consists of both normative and empirical elements.

5

6

See John Rawls: Outline of a Decision Procedure for Ethics (1951). In: Collected Papers: Edited Samuel Freeman, John Rawls, Cambridge/Mass. 19992, pp. 1–19, and John Rawls: A Theory of Justice, Cambridge/Mass. 1971, § 4 and § 9. See Martha Nussbaum: Women and Human Development. The Capabilities Approach, Cambridge 2000.

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4. INDIVIDUALISM Humiliation, self-respect and human dignity are concepts attached to a single human person. Nobody has a reason to feel humiliated because another member of the community they belong to was humiliated. Correspondingly, nobody has a reason to feel proud because a member of the community they feel attached to did a great deed or to feel ashamed, if a member of their family committed an atrocity in the 18th century.7 This form of collective guilt might occasionally be politically useful, but it relies on a collectivism that is itself dangerous to humane interaction. The human rights infringements that occurred on a large scale during the Kosovo conflict had a lot do with this form of irrational collectivism. (Almost) every Albanian was held responsible for crimes that other Albanians had committed by (almost) every Serb and vice versa. The execution of civilians as a reaction to the attacks of the Resistance – a practice that was still accepted under international law during WWII – is also rooted in such a collectivistic conception of responsibility and guilt. An adequate normative concept of human dignity is thoroughly individualistic.8 This commitment does not deny that a lot of people identify with certain cultural, ethnical, national or regional communities. But these feelings are not rational, even though some of them are quite harmless: Football supporters feel pride or shame according to their team’s performance. Nevertheless these people usually know that the feelings they are experiencing are not rational. Asked whether they really have a reason to be proud or ashamed, they would probably say: “Of course not, since I did nothing to contribute to the result. It was due to Oliver Kahn and a benevolent referee, perhaps due to the trainer and the rest of the team…” We can be sad or happy because of an event we did not influence – but we cannot reasonably feel pride or shame for such an event.9 The Kantian concept of human dignity is thoroughly individualistic in this sense: Human dignity relies on the ability to act autonomously, i. e. out of respect for the moral law. A person acts autonomously insofar she imposes subjective rules of action (maxims) upon herself that could be generalized. The moral obligation not to humiliate only extends to the circle of individuals who can be humiliated, that is, whose self-respect can be injured. Human dignity can only serve as a global normative fundamental consensus if it is not threatened by careless overexpansion. There is a clear and comprehensible concept of human dignity, as I have tried to demonstrate, which can be substantiated with the help of Kantian10 or Margalitean ethics, but can also refer to elements of Aristotelian theory, 7 8 9

10

This point – individualism – constitutes the sharpest contrast to Margalit. See especially Margalit (note 1), Part IV. On individualism in law in general see Dietmar von der Pfordten: Rechtsethik, München 2001, chapters 6–8. This sort of individualism is not meant to exclude collective action which is constituted by cooperative attitudes and we-intentions. Concerning this type of action there is an individual responsibility which actually goes beyond the causal effects of individual action. That cooperative intentions (we-intentions) can be conceptualised in the context of a consequent individualism was demonstrated by Raimo Tuomela: The Philosophy of Sociality: The Shared Point of View, Oxford 2007. See Guido Löhrer: Menschliche Würde. Wissenschaftliche Geltung und metaphorische Grenze

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as Nussbaum’s theory does. It is important to keep the concept of human dignity substantial to avoid exposing it to political interests and ideological conflicts. If we take the ability to act autonomously to constitute the dignity of an agent, being part of the human species is not decisive. But are we not thus restricting the field of strong moral obligations and moral rights to that part of mankind that is capable of self-respect? Do we not exclude embryos or mentally disabled persons by focusing on autonomy?11 The answer is both yes and no. Yes, to the extent that embryos, the severely mentally disabled and infants cannot be bearers of human dignity in this specific sense, since they lack the ability of self-respect. No, because it does not follow that embryos, the severely mentally disabled or infants lose their intrinsic moral status. The reason for this ultimately lies in the fact that the entirety of moral judgments cannot be reduced to the principle of the inviolability of human dignity. The idea that human life is in itself valuable, as discussed in the second section, plays an important part here – as it does in other crucial ethical questions as well. Thus, an innocent person must not be killed even if her execution would by deterrence prevent further killings. That is because one human life cannot be weight against another, so that the killing of one person cannot be justified by the fact that the lives of others might be saved by her sacrifice. Human life has absolute value. Human dignity has such an absolute value as well, as the dignity of one person cannot be weight against that of another: The humiliation of one person is never justified, even if it could prevent the humiliation of many others. Humiliating someone is categorically prohibited. It is obvious that this absolutistic deontological position has pragmatic limits, which are discussed, for example, in the theory of just war. We can speak of a consequentialist mitigation of the deontological point of view which allows the sacrifice of one life for the sake of others in particular cases. But for our argument it is only relevant that, in spite of the equal absolute value of both human life and human dignity, one cannot be reduced to the other. From an ethical point of view, it is certainly inappropriate to trace the whole of moral judgment back to merely one fundamental principle, e. g. the absolute protection of human dignity. The complexity of moral reasoning is too high for such a strategy to succeed. 5. HUMAN DIGNITY

AND

FREEDOM

The theory which evolves around the concept of human dignity as stated could be called “ethical humanism”. Self-respect plays a central role in ethical humanism, but it does not exhaust the entirety of ethical judgment. This is the only way ethical humanism does not mutate into an ethical rationalism, which considers only rational beings as morally relevant. Human dignity is central to ethical reasoning since (a) human dignity is an expression of our human self-perception, (b) its rejection would question the whole of our moral sentiments and reactive attitudes, and (c) it claims universal validity. But what are dignity and self-respect founded on? As said in section four, for Kant it is the special ability to act autonomously, i. e. to act only on those maxims

11

der praktischen Philosophie Kants, Freiburg/München 1995. See Julian Nida-Rümelin: Ethische Essays, Frankfurt am Main 2002, pp. 463–469.

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one could wish to become universal law. Kantian freedom thus consists in not merely doing what one’s inclinations suggest (whatever these might presently be), but in detaching oneself enough from them as to follow only those inclinations which let others follow theirs as well. The freedom to pursue one’s own inclinations reaches its limits where the freedom of others to pursue their own inclinations is at stake. According to Kant to live and act rationally thus means to move within structures of interaction that express respect towards others. The Kantian dualism between inclination and reason, between hypothetical and categorical imperatives becomes obsolete when one acknowledges the variety of reasons for action. Even those reasons which would be regarded as pragmatic according to Kantian theory, i. e. which concern my own well-being, must satisfy certain conditions of coherence in order to be good reasons for action. That is, my self-oriented wishes must be situated in a plausible structural context to facilitate a good life. The demands of intrapersonal coordination correspond with the respective demands of interpersonal coordination. Thus, if it is really action and not mere behavior I display, my actions are always guided by reasons. My affections (or inclination, to use the Kantian term) alone never lead me to perform any particular action.12 But the fact that reasons come in a wider variety than Kant acknowledged does not render the core of his conception of practical reason obsolete: The insight that human beings are influenced by reasons holds true as well as the insight that being able to reasonably control one’s own inclinations is indispensable for a good life, shaped by self-respect and respect towards others. Freedom which is essential for a life of self-respect and respect towards others (let us call it “Kantian freedom”) demands an autonomous weighing of reasons for our actions and judgements. It requires my actions and judgements to be the result of my contemplation and not a mere causal consequence of formative influences, whether these are genetic, biographical or due to environmental conditions. Kantian freedom is thus not compatible with the naturalistic determination of our actions and judgements. On the contrary, it implies that our reasons for action and judgement are naturalistically underdetermined, and that we are able to act according to those reasons. Freedom interpreted as the naturalistic under-determination of reasons is necessary for respect and self-respect as well as for human dignity. This Kantian freedom is existentially radicalized by some contemporary theorists as Jean-Paul Sartre. Margalit as well understands freedom as “the ability to change one’s life from this moment on.”13 As Margalit considers freedom the prerequisite for respect, he continues: “Even the worst criminals are worthy of basic human respect because of the possibility that they may radically re-evaluate their past lives”.14 This is certainly a stronger concept of freedom than the one I consider necessary in order to substantiate dignity and self-respect. The naturalistic underdetermination of our practical and theoretical reasons and the ability to act in accordance with the results of rational deliberation do not imply that radical freedom in this sense is possible, that is, that I can radically chance my life or reinterpret myself completely at any time. Thus, my interpretation of freedom is closer to the 12 13 14

See Julian Nida-Rümelin: Strukturelle Rationalität. Ein philosophischer Essay über praktische Vernunft, Stuttgart 2001. See Margalit (note 1), p. 70. See Margalit (note 1), p. 70.

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one of Albert Camus than to Sartre’s or Margalit’s: Since it consists in weighing and acting upon the reasons I have, my freedom is always limited. This goes well not only with our everyday notions of ourselves but with psychological research, which suggests that self-invention and radical new beginnings have very narrow confines. Our freedom is limited: What we do and think is certainly not completely determined by our genetic inheritance or by what we have experienced – nevertheless the control we exert over our lives is framed by reasons and occurs within the boundaries of our genetic inheritance and biographical impressions. These boundaries are not inflexibly rigid, and traumatizing experiences are able to shatter existing boundaries and to frame them anew. Severe life crises force us to reflect upon our lives and can thus lead to a re-evaluation of the reasons we have. The language of morals as well as the language of (criminal) law have been developed over centuries – and none of them relies on the chimera of radical freedom, which has to be regarded as refuted long ago by the natural sciences. Instead, our both moral theory and judicial practice are built on a complex network of moral judgments, sentiments, reactions and expectations. Central for these judgments and sentiments is the irrefutable assumption that we consider each other reciprocally capable of being influenced by reasons. We respect each other as responsible people because we consider each other capable of following good reasons. We respect ourselves because we regard ourselves as capable of letting reasons guide us. We know that we cannot escape the boundaries defined by genetic and biographical characteristics and that reasons will only work within these boundaries. We know, in short, that this freedom which is constitutive for our self-respect exists and we know that it is a limited one.

BERNHARD JAKL, MÜNSTER/MÜNCHEN HUMAN DIGNITY

AS

A FUNDAMENTAL RIGHT

TO

FREEDOM

IN

LAW

Abstract: The concept of human dignity plays a crucial role in human rights discourse. Human dignity is commonplace in national (constitutional texts) and international law (in the UN Charter and several declarations and conventions). It is frequently used in judicial decisions by courts all over the world (the US Supreme Court and the Federal Constitutional Courts in Germany and South Africa, for example). But beyond the political and juridical acceptance a more sound and coherent meaning of dignity is still missing. I will therefore discuss how human dignity can be interpreted as a legal term. First of all, I present briefly the interpretation of human dignity by the German Federal Constitutional Court and one of its recent problems, the discussion of whether human dignity is an absolute right or not. Secondly, I will analyze the relation between dignity and the innate right to freedom on the basis of Kant’s practical philosophy. I will argue that a Kantian interpretation of human dignity in legal contexts must refer to the innate right to freedom of the doctrine of right and not to the dignity of the groundwork for providing some crucial elements for a more specific meaning of human dignity. Thirdly, I will conclude with a short outlook on the effects of this more specific meaning of human dignity in national and international law.

The concept of human dignity plays a crucial role in human rights discourse. Human dignity is commonplace in national (e. g., in constitutional texts) and international law (e. g., in the UN Charter and several declarations and conventions). It is frequently used in court decisions all over the world, such as by the US Supreme Court and the Federal Constitutional Courts in Germany and South Africa. The concept of human dignity enables different cultures with different conceptions of the state, variant views on the basis of human rights, and divergent moral viewpoints to put aside these normative differences and agree on a basic minimum content for the meaning of human dignity: Each human being possesses an intrinsic worth that should be respected.1 Beyond cross-cultural political and juridical acceptance of this minimum content (or common core of human dignity), however, a more sound and coherent meaning of dignity is still missing. It is quite unclear, for example, what the “intrinsic worth” of a human being stands for. Therefore, some people even see human dignity as a useless concept.2 Others suggest that human dignity should be realized in other ways than by asserting claims of right.3 If the diagnosis is correct that human dignity is still a vague concept nevertheless frequently used in legal texts, the question arises of how human dignity can be interpreted as a legal term. Does human dignity have a specific legal meaning? 1

2 3

See the International Covenant on Civil and Political Rights, for example, which was adopted and opened for signature, ratification, and accession by General Assembly resolution 2200A (XXI) on 16 December 1966 (entry into force 23 March 1976): “Recognizing that these rights derive from the inherent dignity of the human person …”. It was also signed by the People’s Republic of China on 29 Aug 1990. For further examples see Christopher McCrudden: Human dignity and judicial interpretation of human rights. In: European Journal of International Law, Vol. 19.4 (2008), pp. 655–724; esp. pp. 722, 723. Ruth Macklin, for example: Dignity is a Useless Concept. In: British Medical Journal, Vol. 1419 (2003), p. 327. Oscar Schachter, for example: Human Dignity as a Normative Concept. In: American Journal of International Law, Vol. 77 (1983), pp. 848–854, 853.

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The purpose of this essay is to attempt further exploration of the relation between the specific legal meaning of human dignity and a deontological practical philosophy. First of all, I briefly present the German Federal Constitutional Court’s interpretation of human dignity and one of its recent problems, the discussion of whether human dignity is an absolute right. This discussion provides a prism for the problems faced when interpreting human dignity as a right. Secondly, I analyse the relation between dignity and the fundamental right to freedom within the liberal and strictly deontological practical philosophy of Classical German Philosophy of Law. I will argue that, in order to provide crucial elements for a more specific meaning of human dignity in legal contexts, a Kant-inspired deontological interpretation must refer to a fundamental right to freedom rather than to the different ideas of dignity which can be derived from different ethical positions. Thirdly, I conclude with a brief look at the effects this more specific legal meaning of human dignity can have on law. 1. THE GERMAN INTERPRETATION: HUMAN DIGNITY RIGHT

AS AN

ABSOLUTE SUBJECTIVE

Human dignity plays a significant role in many legal orders.4 Nevertheless, for at least two reasons, the German discussion about the interpretation of human dignity seems to be an appropriate prism when interpreting human dignity as a legal term. First of all, the German Constitutional Court’s jurisdiction adopts dignity as a juridical criterion for decision-making. Secondly, the German legal discussion concerning the meaning of dignity refers to Kant. Worldwide, Kant’s theory is seen as the basis of an enlightened, autonomy-based version of human dignity and therefore functions as a global frame of reference for discussing the meaning of human dignity.5 Insofar, the German discussion provides insights on the application of dignity, as well as its traces to the theoretical infrastructure presupposed for supporting the search for a juridical meaning of human dignity. Due to these “laboratory conditions”, one can expect to identify elements for a more specific and coherent meaning of human dignity in legal contexts by confronting the German discussion on dignity with the Classical German Philosophy of Law. Human dignity is the fundamental principle of the German Constitution. Article 1, paragraph 1 reads: “Human dignity is inviolable. To respect and protect it is the duty of all state authority.” The recent trend in the German discussion on dignity reveals a gap between jurisdiction and jurisprudence.

4

5

Gerald L. Neumann, for example: Human Dignity in United States Constitutional Law. In: Zur Autonomie des Individuums. Liber Amicorum Spiros Simitis, pp. 249, 270, Dieter Simon / Manfred Weiss (eds.), Baden-Baden 2000, concluding that, despite the fact that there is no constitutional right to dignity in the U.S. Constitution, human dignity has become an important element in the interpretation of U.S. constitutional rights in many particular cases. Cf. Christopher McCrudden (note 1), pp. 659, 724; Cf. George P. Fletcher: Human Dignity as a Constitutional Value. In: Vol. 22 U.W. Ontario L. Rev. (1984), pp. 171–182 stressing Kant’s Anti-Utilitarianism, p. 174.

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1.1. JURISDICTION Jurisdiction emphasizes the fundamental and absolute character of dignity.6 No justification can be given for an infringement of dignity. According to the German Constitutional Court, human dignity is violated if a person is treated as a mere object.7 This so-called “Object-Formula” derives from one of Kant’s formulas of the categorical imperative, the so-called “End-in-itself-Formula”: “Act in such a way that you treat humanity, whether in your own person or in the person of any other, always at the same time as an end and never merely as a means to an end.”8 The Object-Formula is the criterion on which the German Constitutional Court has based several decisions. § 14, clause 3, of the “Aviation Security Act” (Luftsicherheitsgesetz), for example, would have allowed the German Federal Army (Bundeswehr) to shoot down hijacked airplanes at any expectation of terrorists using them as weapons. The law was declared unconstitutional on the grounds of human dignity: killing a small number of innocent people (the crew and passengers of the hijacked airplane) in order to save a larger number cannot be legalized since innocent people (the smaller number) are treated as mere objects in order to ensure the safety of others (the larger number on the ground).9 1.2. ACADEMIC CRITICISM In contrast to this jurisdiction, many academics criticize the formality of the idea of the Object-Formula, as well as its consequence, the absolute character of dignity. This formality becomes visible in article 1 of the German Constitution, where the term dignity provides a bridge for transferring ethical beliefs into the juridical discourse. Especially when controversial political decisions are at stake, many people try to use the absolute juridical character of dignity in article 1 to enforce their own individual ethical beliefs by purporting an unquestionable dignity-argument: some demand higher sums for welfare entitlements, saying that the current sums violate the idea of dignity as stated in article 1.10 Others want to ban embryodestructive research in the name of dignity because it violates their religious belief that human embryos deserve full respect by the political community.11 6

7

8

9 10 11

Cf. BVerfG, 1 BvR 357/05 from 15 February 2006: the Aviation Security Act (Luftsicherheitsgesetz). (BVerfG refers to decisions by the German Federal Constitutional Court, followed by the file reference and date). Matthias Herdegen: Kommentar zu Artikel 1 Abs. 1 Grundgesetz (Commentary on Article 1 of the German Constitution). In: Kommentar zum Grundgesetz. (Commentary on the German Constitution), M. Herdegen et al. (eds.), Maunz/Dürig, München 2004; see Art. 1 Abs. 1 GG no. 28. Immanuel Kant: Grundlegung zu einer Metaphysik der Sitten (Groundwork of the Metaphysics of Morals, translated by Mary J. Gregor), Akademie Edition Vol. IV, p. 429; cf. Matthias Herdegen (note 7), Art. 1 I no. 28, 34. BVerfG, 1 BvR 357/05 from 15 February 2006. Cf. Former German Federal Minister for Youth, Family and Health, Heiner Geißler, in Passauer Neuen Presse, 5 September 2007. For Germany, cf. Robert Spaemann: Gezeugt, nicht gemacht. In: Biopolitik. Die Positionen, Christian Geyer (ed.), Frankfurt am Main 2001, 41–50 and Dietmar Mieth. In: chrismon 06/2006,

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The Federal Constitutional Court’s decision in the Aviation Security Act case is criticized for drawing an ethical distinction between the “disabler” and “enabler”.12 A person used as a means for a rescue action is – according to this critique – designated as an enabler. Accordingly, a person whose death is not used as a means for a rescue operation is only a regrettable side-effect of a permissible rescue operation (so-called “collateral damage”), and he or she is then called a disabler. Applying this ethical disabler/enabler distinction to the case of the Aviation Security Act, some critics conclude that the German Constitutional Court has misunderstood this distinction because the death of innocent people aboard the airplane is only a side-effect of a permissible rescue operation. Thus, since the innocent people only have the claim of being disablers, there is no severe violation of their rights if the hijacked airplane is shot down.13 However, the idea of disablers not having the same juridical rights as enablers is not a concept shared by the German legal order. This distinction also does not take into account that the German legal order equates conditional and unconditional intentions. Insofar, the distinction between disabler and enabler has no connection to the legal order. Moreover, reference to this distinction means instrumentalization of article 1 in order to apply into a legal order the ethical belief that deontological approaches do not categorically prohibit killing a small number of innocent people in order to save a large number. Due to its formality and the subsequent possibilities for projecting a whole variety of ethical beliefs into article 1, the Object-Formula is widely seen as unhelpful for substantial legal decision-making. Most academics argue that dignity should be used as a relative, non-absolute right which can possibly collide with other rights, such as the dignity, life, or property of others.14 Especially in the field of bioethics, academics argue for a gradual approach with regard to human dignity. For some of them, dignity grows and increases in the same way that an embryo’s life materializes. Such positions attempt to establish a gradually shifting understanding of dignity which enables flexible solutions and avoids rigid absolute protection.15 According to this academic opinion, an infringement of dignity can be justified by balancing it in comparison with other rights. In consequence, dignity would lose its prominent and fundamental position based on its absolute character.

12 13

14

15

p. 36. For the United States, cf. Patrick Lee / Robert P. George: The Nature and Basis of Human Dignity. In: Ratio Juris, Vol. 21, No 2 (June 2008), pp. 173–193, 191. Alec Walen: Doing, Allowing and Disabling: Some Principles Governing Deontological Restrictions. In: Philosophical Studies, Vol. 80 (1995), pp. 183–214. Cf. M. Kumm: Political Liberalism and the Structure of Rights: On the Place and Limits of the Proportionality Requirement. In: Law, Rights, Discourse: Themes of the Work of Robert Alexy, Paulson and Pavlakos (eds.), pp. 131, 153–164, Oxford 2007 and Aaron Dessauer: Philosophische Überlegungen zum Luftsicherheitsgesetz (Philosophical Reflections on the Aviation Security Act), umpublished manuscript, p. 54. Matthias Herdegen (note 7), Art. 1 Abs. 1 GG no. 45; Grundgesetz-Kommentar (German Constitution. A Commentary), Horst Dreier (ed.), 2nd edition Tübingen 2007, Art. 1 Abs. 1 no. 133; Winfried Brugger: Darf der Staat ausnahmsweise foltern? (“Are there any exceptions which allow torture by the state?”). In: Der Staat, Vol. 35 (1996), pp. 67–97, esp. 67. Matthias Herdegen (note 7), Art. 1 Abs. 1 GG no. 56; For an abridgment: Oliver Lepsius: Human Dignity and the Downing of Aircraft: The German Federal Constitutional Court Strikes Down a Prominent Anti-terrorism Provision in the New Air-Transport Security Act. In: German Law Journal, Vol. 7 (2006), pp. 761–776.

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1.3. THE PARADOX The gap between jurisdiction and jurisprudence points to the difficulties in translating the absolute structure of dignity and its formality into a specified juridical function. On the one hand, the Kantian-inspired interpretation of jurisdiction stresses the absolute character of human dignity, while dignity itself remains a vague concept, only defined by special cases concerning infringement of dignity. On the other hand, critics stress that a positive concept of dignity (going beyond the ObjectFormula) is still missing, while denying the absolute character of dignity. This shows that juridical use of the concept of “human dignity” seems to be paradoxical: we can claim the absolute character of dignity, but we cannot identify its positive general meaning beyond individual cases. Or we can outline dignity as a standard right, like property, but, as a result, we have to relinquish its absolute character. This situation gives rise to the question: How should this paradoxical gap be handled? One strategy is to suggest that human dignity should be realized in different ways than by asserting claims of right.16 The decision made by the Supreme Court of Canada would thus be consistent: dignity would no longer be used as a guiding notion of its anti-discrimination doctrine because “(…) human dignity is an abstract and subjective notion that (…) can not only become confusing and difficult to apply; it has also proven to be an additional burden (…) rather than the philosophical enhancement it was intended to be”.17 However, pursuit of this strategy means the loss of one of the few key concepts in global human rights discourse. Another strategy is to ask whether a positive juridical meaning of dignity could be combined with its absolute character. Since the problem originates from the use of human dignity in juridical texts and references to Kant’s categorical imperative, it seems appropriate to have a closer look at Kant’s ideas (with references to Fichte and Hegel) in order to find a convincing deontological infrastructure for further explication of the paradoxical situation as a legal problem. 2. A “MORE

DEONTOLOGICAL”

FOUNDATION

FOR

HUMAN DIGNITY

A deontological approach to the meaning of “human dignity” has to take into account at least two different Kantian sources. First, the foundational level of the Groundwork and, secondly, the applicative level of the Metaphysics of Morals. After Kant’s arguments in his first Critique that there is space for practical reasoning due to the limits of theoretical reasoning, his Groundwork is the starting point (and foundational level) for the positive version of his practical philosophy.

16 17

Oscar Schachter (note 3), p. 853. R. v. Kapp 2008 SCC 41; (2008) 2 S.C.R. 483 (27 June 2008) § 22.

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2.1. ETHICS The arguments presented in Groundwork deal with the question: what ought I to do? After identifying the categorical imperative — the law of freedom in the area of practical reasoning, Kant offers varying formulas as an indication of how to apply the categorical imperative for individual decision-making.18 In one way or another, all the formulas stress the Kantian point of view that every human being has the faculty, as well as the duty to choose his or her ends freely. Kant’s theory of structured, lawful freedom stands as the point of reference in endless debates that cannot be addressed here. Nevertheless, a kind of Kantian standard procedure can be assumed in all the discussions: first, a summing-up of one’s own individual actions under more general practical hypotheses, the so-called maxims; secondly, submission of the maxims to a generalization test by asking whether one’s own maxims entail structures incoherent with their own premises.19 In this foundational context of Groundwork, dignity is not an essential concept for argumentation for the categorical imperative. Dignity is a traditional concept used by Kant to exemplify his new idea that pure reason can be practical: “whatever (…) is above all value, and therefore admits no equivalent, has dignity”20 Dignity is a very broad cultural concept, and Kant transforms its meaning within his practical philosophy. For Kant, dignity is no longer a concept of aristocratic exclusion, but a concept of republican inclusion because every being in human form can be seen as autonomous.21 The meaning of dignity is now derived from autonomy instead of the other way around. It is only on the basis of identification of the moral law that the idea of dignity as an absolute inner worth for every human being can be justified.22 However, cultural concepts, even with a new meaning, are not juridical concepts. Furthermore, the idea of respect for every human being by reason of it being part of a structure, whereby pure reason in itself can be practical, seems very formal indeed. Even if the Kantian standard procedure for applying the categorical imperative admittedly might be helpful as a guideline for individual decision-making and dignity is an attribute of every human being, some important legal questions remain unanswered, such as: What is the specific legal meaning of dignity? To whom should “dignity” be ascribed? Only to self-determined adults? What about children, elderly persons suffering from dementia, and disabled persons? Are all of them addressees of the categorical imperative in the same way?

18 19

20 21

22

Cf. Immanuel Kant (note 8), p. 421. Cf. Andrea Esser: Eine Ethik für Endliche. Kants Tugendlehre in der Gegenwart (Ethics under the conditions of finitude. Kant’s doctrine of virtue in the present day). In: Spekulation und Erfahrung II, 53, pp. 281–292, Stuttgart – Bad Cannstatt 2004. Immanuel Kant: (note 8), p. 434. Cf. Michael J. Meyer: Kant’s Concept of Dignity and Modern Political Thought, History of European Ideas, Vol. 8 (1987), pp. 319–332; esp. 327, and Oliver Sensen: Kants Begriff der Menschenwürde (Kant’s concept of human dignity). In: Abwägende Vernunft, F.-J. Bormann and Chr. Schröer (eds.), pp. 220–236, esp. 231, Berlin/New York 2004. Cf. Immanuel Kant (note 8), p. 436.

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2.2. LAW OF REASON The idea of autonomy as an ideal and, insofar, necessarily formal standard expressed in the categorical imperative differs from its realization under the conditions of finitude. Kant’s Metaphysics of Morals can be interpreted as the missing link between the idea of autonomy and its application in the real world, a world with different forms of external constraints for an autonomous life.23 Within the practical field of norms, Kant draws a distinction between ethics and law. While the Doctrine of Virtue provides further information on the question of how an individual can live according to moral law, the Doctrine of Right explores the question of how binding norms for a society of free individuals can be identified. For Kant, as well as for Fichte and Hegel, the central question in modern normative orders of how individual autonomy can be collectively organized in a way that respects and supports the individual freedom of the norm addressees is a legal question.24 Kant, Fichte, and Hegel share the conviction that a binding normative order for autonomous individuals is a legal and not an ethical question. While ethical beliefs (or maxims) can be made binding only by individual (and insofar internal) reflections, juridical norms can be enforced within a collective institutional order (by external means, such as coercion). In answer to the legal question, Kant transforms the abstract universal law of the categorical imperative to the more specific “universal principle of right”: “Any action is right if it can coexist with everyone’s freedom in accordance with a universal law of freedom”.25 The object of the law is the coordination of different actions (or choices, “Willkür”). Action means being “by means of one’s representations (plans) the cause of the realization (object) of these representations (plans)”.26

23

Cf. Andrea Esser (note 19), p. 252 and Günter Zöller: Idee und Notwendigkeit einer Metaphysik der Sitten (Idea and Necessity of a Metaphysics of Morals). In: Kant’s “Tugendlehre”. A Commentary. Andreas Trampota, Oliver Sensen, and Jens Timmermann (eds.), pp. 11–24, Berlin/ New York, 2011. 24 For Immanuel Kant: Metaphysik der Sitten. Erster Teil. Metaphysische Anfangsgründe der Rechtslehre (Metaphysics of Morals. Metaphysical first principles of the doctrine of right, translated by Mary J. Gregor), Academic Edzion Vol. VI, p. 230, right is “der Inbegriff der Bedingungen, unter denen die Willkür des einen mit der Willkür des anderen (…) vereinigt werden kann.” (the sum of the conditions under which the choice of one can be united (= coordinated, B. J.) with the choice of another (…).) For Johann Gottlieb Fichte: Grundlage des Naturrechts, nach den Prinzipien der Wissenschaftslehre (Foundations of natural right, according to the principles of the Wissenschaftslehre). In: J. G. Fichte, sämtliche/nachgelassene Werke (collected works), ed. I. H. Fichte, Volume III, pp. 1–386 (1796), p. 85 the central question in law as science is: “Wie ist eine Gemeinschaft freier Wesen, als solcher, möglich?” (How is a community of free beings, qua free beings, possible?) And Georg Wilhelm Friedrich Hegel, Grundlinien der Philosophie des Rechts oder Naturrecht und Staatswissenschaft im Grundrisse (Elements of the Philosophy of Right or Natural Law and Political Science in Outline), a compilation by Eva Moldenhauer and Markus Michel, Frankfurt am Main 2000, states on p. 80 (§ 29) that right is the objective existence (Dasein) of our freedom. 25 Immanuel Kant (note 24), p. 230. 26 My amended translation of “(…) durch seine Vorstellungen Ursache der Gegenstände dieser Vorstellungen sein”, Immanuel Kant (note 24), p. 211.

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The focus on “action” excludes two other aspects from the legal standpoint of the doctrine of right: (a) the question of whether pure reason by itself can be practical, as suggested by the categorical imperative (= “Wille”), is not a problem of legal reasoning27; and (b) what someone wishes to do is not a problem concerning legal reasoning until a person starts implementing his or her ideas through an actionplan. Such ideas (i. e. that someone wants to implement) then have to be called “actions” (= “Willkür”)28. Kant’s universal principle of right is in line with Fichte’s argument that the law intends to retain every agent his own sphere of freedom, where he is free from external forces, but still part of a community of free beings.29 And even Hegel’s project to lay out the various forms of human freedom states that right is the objective existence (“Dasein”) of our freedom.30 According to Kant, Fichte, and Hegel, every collective codification of individual autonomy should be justified by freedom. The idea is not only to contrast freedom and form, but also to identify a structure of freedom.31 According to Kant, the empire of the law is not defined by a catalogue of norms, rules of recognition, or substantial principles of humanity. From the standpoint of the universal principle of right, the law must be seen as a never-ending coordination process of equal subjective rights of freedom.32 This universal principle of right can be interpreted as a reflexive generic rule for the meaning of the law as a cultural product. One can distinguish the law from other normative fields, such as ethics. For applying the highest universal principles of Groundwork to the objects of experience, the particular nature of the human being, Kant’s project in the Doctrine of Right is to “supply the immutable principles for any giving of positive law”33. The term “immutable” might suggest that such a Kantian (or Fichtean or Hegelian) version of deontological legal philosophy should be attached to a metaphysical (and insofar old) concept of natural law, but all of them (the “Doctrine of Right”, the “Foundation of Natural Right” and the “Elements of Right”) are neither part of the traditional natural law nor of the modern natural law. Natural law means presupposing as binding for all humans a system of legal norms which overrides positive legal norms in the case of a conflict.34 Traditional natural law refers to an order derived from God or nature and, in any case, independent of the human will. Modern

27 28 29 30 31 32

33 34

Immanuel Kant (note 24), p. 213. Immanuel Kant (note 24), p. 213. Georg Wilhelm Friedrich Hegel (note 24), p. 92 (§ 34). Georg Wilhelm Friedrich Hegel (note 24), p. 80 (§ 29). Cf. Ernst Cassirer: Freiheit und Form. Studien zur deutschen Geistesgeschichte (Freedom and Form. Studies in German Intellectual History), Reprint Darmstadt 1961, p. 150. Cf. Bernhard Jakl: Recht aus Freiheit. Die Gegenüberstellung der rechtstheoretischen Ansätze der Wertungsjurisprudenz und des Liberalismus mit der kritischen Rechtsphilosophie Kants (Right from Freedom. A Confrontation of the Positions of Canaris and Dworkin in Legal Theory with Kant’s Critical Philosophy of Right). In: Schriften zur Rechtstheorie, Heft 244 Berlin 2009, pp. 126, 131–137. Immanuel Kant (note 24), p. 229. Cf. Karl-Heinz Ilting: Naturrecht (Natural Law). In: Geschichtliche Grundbegriffe. Historisches Lexikon zur politisch-sozialen Sprache in Deutschland, (Basic historical terms), Otto Brunner, Werner Conze, Reinhart Koselleck (eds.), Volume 4 (1978), pp. 245–313, Stuttgart 1972–97.

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natural law argues that every rational human being can and must agree to a proposed normative order. The central question of how individual autonomy can be collectively organized in a way that respects and supports the individual freedom of the addressees of a norm abandons, in itself, the traditional natural law. The starting point is not a given divine, natural, or rational order, but only the possible clashes of individual actions. In contrast to the modern natural law, Kant (as well as Fichte and Hegel) accepts the binding force of positive laws. Kant, for example, denies a right to resist institutions in a positive legal order and, instead, demands a legal evolution.35 Fichte states clearly in his foundations of natural law: “There is no natural law”.36 And Hegel identifies the state and its positive laws as a cultural product with the realization of freedom as such.37 The idea that the law must be seen as a never-ending coordination process of equal subjective rights of freedom is not part of a natural law tradition. It is rather something like a meta-rule operating as an interpretation guideline within a positive legal order. It is part of a juridical self-understanding within the practical field of normative orders. Insofar, this idea is similar to Ernst Cassirer’s idea of relationalfunctional structures in his philosophy of symbolic forms. A Kant-inspired idea of right can be interpreted as an abstraction from specific legal orders which can be considered a system of relations in which all possible legislation is embedded.38 It is an extra-moral normative juridical standard which underpins rights and their interpretations in the positive-legal day-to-day work. 2.3. THE ABSOLUTE RIGHT TO FREEDOM The law of reason as outlined by a Kant-inspired idea of right presupposes, for its implementation, a fundamental subjective right. Within the doctrine of the juridical frame of right, “there is only one innate right”: “Freedom (independence from being constrained by another’s action/choice), insofar as it can coexist with the freedom of every other in accordance with a universal law, is the only original right belonging to every man by virtue of his humanity”.39 The innate right to freedom demands ascribing the faculty to act to every being of human form — that is, the ability to realize his/her representations, the agenda he/she has in mind, as far as the actions/agenda can be coordinated with the actions/agenda of others. As Fichte puts it a year earlier than Kant with “original right” (“Urrecht”): Individual human

35 36 37 38

Cf. Immanuel Kant (note 24), pp. 321, 322. Cf. Johann Gottlieb Fichte (note 24), p. 148. Cf. Georg Wilhelm Friedrich Hegel (note 24), pp. 398 (§ 257), 406 (§ 260). Cf. Bernhard Jakl (note 32), pp. 115–117. Jeremy Waldron: Torture and Positive Law: Jurisprudence for the White House. In: Columbia Law Review 105 (2005), pp. 1681–1750, aims at similar extra-moral normative standards. Yet, Waldron begins from a positive-legal order instead of philosophical reflection. He argues that there are so-called legal archetypes, provisions in a specific legal order which are “emblematic” of a larger commitment to normative standards. According to Waldron, the legal prohibition on torture, for example, must be seen as a commitment to non-brutality in the legal system. 39 Immanuel Kant (note 24), p. 237.

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beings must be seen as causes of objects in the observable (sensible) world.40 Fichte explicates the idea of such original right by the formula that the only universal human right is the right to have rights.41 With Hegel, things are more complex. For Hegel, every stage in the development of the idea of freedom has its own special right since it is the existence of freedom in one of its own determinations.42 Nevertheless, the starting point of abstract right is the right to be treated as a bearer of rights as such or a person.43 The adjective “innate” (as used by Kant) does not refer to a natural right in the sense of a given natural position. In contrast, the “innate right to freedom” is a necessary condition for the implementation of law as a construction of reason because it is the connection between the “universal principle of right” as a general rule and its concretization in a single case within a specific field of practical knowledge.44 Moreover, Kant’s “innate right”, as well as Fichte’s “original right” and Hegel’s “right to be a person” are necessary conditions for implementation of law as a social code of practice for human beings. Every positive legal order presupposes such a non-negotiable and insofar absolute right because it is the idea of subjective rights which guarantees the interconnection between a general principle and its concretization in a single case. It is the legal claim for participation in a legal order which enables the coherent realization of general and abstract legal norms in a single case. 3. HUMAN DIGNITY

AS

FUNDAMENTAL RIGHT

TO FREEDOM

From a Kant-inspired, deontological point of view, the transfer of dignity into a legal context confuses the ethical question of what I ought I to do with the more specific legal question of what kind of norms can be binding for a society of free individuals. The deontological differentiation between ethical rules for individual decision-making and legal norms addressing the interaction between individual rights, as well as the different levels of foundation and application in Kant’s practical philosophy, constitute two strong systematic reasons for referring to the innate right to freedom as the universal right if human dignity in legal texts is interpreted from a deontological point of view. Human dignity as a legal concept thus turns out to be every human being’s subjective right: to be seen as someone who has the faculty to act. Interpreting “human dignity” as such a fundamental right to freedom might not solve all the paradoxical problems related to human dignity within a juridical context. But it helps overcome the existing problems insofar as they originate from the missing, specifically legal meaning of dignity.

40 41 42 43 44

Johann Gottlieb Fichte (note 24), p. 113. Johann Gottlieb Fichte (note 24), p. 384. Georg Wilhelm Friedrich Hegel (note 24), p. 83 (§ 30). Georg Wilhelm Friedrich Hegel (note 24), p. 95 (§ 36). Cf. Jürgen Habermas: Die Einbeziehung des Anderen. Studien zur politischen Theorie (The inclusion of the other. Studies in political theory), p. 225, Frankfurt am Main 1996, but without reference to human dignity.

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3.1. WORKING WITH THE PARADOX On the one hand, the innate right to freedom demands an understanding of human dignity in legal contexts as an absolute right that cannot be counterbalanced against other rights. It is the normative core of the law: Some things/norms cannot be implemented into the empire of the law at all45 because of their incompatibility with the idea of an individual’s faculty to act or with understanding an individual being of human form as an agent. Within the empire of the law, their justification does not even have to be discussed, whereas such a discussion is possible from non-legal perspectives. On the other hand, the universally accepted idea of human dignity can be outlined a bit further. By referring to the faculty to act (i. e. the innate right to freedom), there is no longer any need to introduce non-legal values or a divine picture of personhood for a legal meaning of human dignity. The only function which the fundament right to freedom demands be taken into account is the faculty to act. From a Kant-inspired, deontological perspective, a specifically legal use of “human dignity” means asking whether further realization of representations is still possible or not for the persons concerned with a juridical norm or juridical action. A norm which denies the norm-addressees’ faculty to act (that is, to realize representations) infringes the innate right to freedom. Insofar, ethical arguments must be integrated into the normative structure of a legal order, and not the other way round. Turning dignity into a legal concept has many consequences which, due to their complexity, cannot be discussed here. However, I want to mention very briefly at least two characteristic ones. First, interpreting human dignity as a fundamental right to freedom means that all beings of human form must be regarded as capable of participating fully in a legal system. Insofar, dignity can be outlined in a legal context without recourse to its pre-Kantian (and insofar pre-autonomous) concept as a moral or social rank.46 Thus, dignity is not a moral rank or status ascribing nobility to every man. Given that dignity is a right to participate in a legal structure, it is not characterized by distinctive rights, duties, or liabilities, as are a status or rank. Secondly, interpreting dignity as a right excludes every simple transfer of ethical beliefs into a legal system. In discussions on the possibilities of modern medicine, for example, the ethical equation (especially popular in a Catholic context) that human beings are intrinsically valuable as a part of the human species, whose rational nature guarantees moral substance47, has no direct implications for the law. Instead, juridical life and biological, natural life are differentiated. A discussion also becomes

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Cf. for a “stop-function” of the idea of subjective rights in the German jurisdiction: Thomas Gutmann: Struktur und Funktion der Menschenwürde als Rechtsbegriff (Structure and Function of Dignity as Legal Term). In: Lebenswelt undWissenschaft. Deutsches Jahrbuch Philosophie 2. (Life-world and Science. German Yearbook of Philosophy 2), Carl Friedrich Gethmann. (ed.), pp. 309–330, Hamburg 2011. Cf. Jeremy Waldron: 2009 Tanner Lectures at UC Berkley – (1) Dignity and Rank and (2) Law, Dignity and Self Control, on 10.5.13 available at http://www.law.nyu.edu/news/Waldron_ Tanner_Lectures, pp. 12, 29, 51, 65. Cf. Patrick Lee / Robert P. George (note 11), p. 191.

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necessary in regard to when there is an existent being of human form and how its juridical life starts and ends.48 3.2. THE AVIATION-SECURITY-CASE REVISED Since the law involves making decisions, I will briefly and finally return to the present German discussion, where it is clear that critics of jurisdiction interpreting dignity through the Object-Formula have a good point, but for a different reason. The problem is not the absolute character of human dignity. The problem is that using the Object-Formula to interpret human dignity not only results in disregarding the different levels of the Kantian theory (Groundwork and the Doctrine of Right), but also confuses different fields of normative questions. Human dignity in legal contexts fails to deal with problems such as: What ought I to do? What are my maxims? What is in the best interest of a person or of a group? To this extent, only the implicit idea in the German Constitutional Court’s decision on the Air Security Act is relevant to the deontological point: each individual has the absolute right to be seen as an agent. This right cannot legally be taken away in the name of a collective goal, nor can a person be downgraded to a non-agent for legal reasons. No legal norm taking away innocent citizens’ capacity to have representations, as well as their capacity to realize their representations (or agenda) can be regarded as consistent with the general principle of right or the fundamental right to freedom. A positive law such as the Aviation Security Act would undermine the positive structure of already existing rights and destroy the normative idea of subjective rights within an existing juridical normative order. A situation such as the “trolley-scenario” (which corresponds to the case of the Aviation Security Act) can exemplify the limits of legal reasoning from different (e. g. economic) perspective on a law regime, but cannot evaluate or justify legal norms. From the point of view of Kantinspired deontological legal philosophy, the only two normative criteria for evaluation of a positive law are the general principle of right and the absolute subjective right to participation in this structure, the fundamental right to freedom.

48

For a liberal account, see Ronald Dworkin: Life’s Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom. New York 1993.

LUÍS PEREIRA COUTINHO, FACULTY OF LAW, UNIVERSITY OF LISBON HUMAN DIGNITY

AS A

BACKGROUND IDEA

Abstract: As a background idea, human dignity is the basic ethical idea reflected by Western constitutions. Although that is widely acknowledged, there is no consensus concerning its meaning. Indeed, whether dignity is to be understood as autonomy or as fundamental equality of all human beings in their common humanity is at present the object of disagreement and even conflict. This article points to the second alternative, within a non-secularist and non-decisionist theoretical framework.

1. A BACKGROUND IDEA 1.1. THE NOTION OF BACKGROUND IDEA The notion of a background idea1 corresponds to the Greek notion of paideia. In the Greek world, paideia was the moral idea according to which the politeia was structured: an idea that, when assimilated through education, made someone a good citizen, leading him to recognize legitimacy and to obey by the norms the city lived by. Paideia could thus be defined as the basic value reflected by each city’s constitutional order, materially structuring it and establishing its legitimacy from the perspective of those shaping their individual and collective existence according to it. A contemporary restatement of the relation between paideia and politeia – i. e., between the fundamental moral idea shared within a political community and its constitution – is implied in the notion of constitutional patriotism as developed by Dolf Sternberger.2 Indeed, that notion can be understood as referring to the loyalty of a country’s citizens to their constitutional order, especially after having assimilated the corresponding paideia. Paideia is an idea which serves as a moral framework. This depiction can be elucidated by appealing to Charles Taylor’s notion of moral frameworks3, and by distinguishing it from the notion of a norm. If norms are permissions, prohibitions and obligations, a moral framework is a substantive parameter within which those permissions, prohibitions and obligations (also referred to as ‘rights and duties’) are acknowledged as legitimate. In other words, a moral framework is a system of meaning within which norms ‘make sense’ – moral ‘sense’ – for those who acknowledge them as authoritative. One can say that a moral framework is the standpoint from which the

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The expression background idea is used by Jeremy Waldron when referring to the idea of fundamental equality among men – see Jeremy Waldron: God, Locke and Equality – Christian Foundations in Locke’s Political Thought, p. 2, Cambridge et al. 2002. See Dolf Sternberger: Verfassungspatriotismus, particularly: Der Staat des Aristoteles und der Moderne Verfassungsstaat, pp. 133–155, Die Neue Politie – Vorschläge zu einer Revision der Lehre vom Verfassungsstaat, pp. 156–231, Frankfurt am Main 1990. According to Charles Taylor, human beings inescapably move within a background made up of moral frameworks acquired within their communities – see Charles Taylor: Sources of the Self – The Making of the Modern Identity, pp. 1 ff., Cambridge-Massachusetts 1989, On the notion of background, see also, Charles Taylor: Engaged Agency and Background. In: The Cambridge Companion to Heidegger, Charles Guignon (ed.), pp. 317–336, Cambridge et al. 1993.

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“internal point of view” is formed, thus using Hart’s expression, even though within a different context.4 1.2. A CONTROVERSIAL MEANING Acknowledging the relevance of the notion of background idea – or paideia –, one can see without difficulty that human dignity is the paideia standing behind contemporary Western constitutions. Indeed, human dignity is precisely the idea reflected by constitutional orders that recognize human rights and institute a political power that cannot challenge those rights. The meaning of a paideia is always something assumed and believed in rather than substantiated and human dignity is no exception. Indeed, we are herein a realm of pre-understandings par excellence, i. e. of beliefs always shaped within a given tradition – possibly a religious tradition – and on the basis of which understandings (in our case, normative judgments) are reached.5 The meaning of a background idea may be an object of disagreement or even conflict within a given society.6 That is precisely the case with regard to human dignity in contemporary Western societies. Indeed, if it is widely accepted that what is at stake is human dignity– historical the historical idea of “dignity as honor”, which structured aristocratic-monarchical orders7, has been overcome – there is still fundamental dissension as to what this means. At present, a discussion is patently developing between those who understand human dignity as autonomy – consequently reaching certain judgments on issues such as the existence of a “right to autonomous procreation” or a “right to die”8 – 4 5

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See H. L. A. Hart: The Concept of Law, p. 89, 2nd ed., Oxford 1994. The hermeneutical category pre-understanding or previous understanding was developed by Rudolf Bultmann based upon Heideggerian premises. According to Bultmann, “man is inescapably dependent on conceptions inherited from a tradition, consciously or unconsciously”: his judgments inescapably reflect such a background – see Rudolf Bultmann: Jesus Christ and Mythology, p. 54, New Jersey 1958. Such conflicts may have different degrees of intensity, and at their lowest level take the form of a simple culture war. But insurmountable conflicts between different ideas of good (or between different conceptions of the same idea of good) shared by different members of the same society may, in extreme cases, damage the very possibility of internal peace in that society. This is something clearly understood in the Aristotelian tradition. Indeed, when praising justice as the first virtue of political life, Aristotle was suggesting that “a community which lacks practical agreement on a substantive conception of justice must also lack the necessary basis for political community” – see Alasdair Macintyre: After Virtue, p. 244, Notre Dame-Indiana 2003. Aristocratic-monarchical societies – also named honour societies – were structured upon an idea of dignity as honour, according to one’s status. Carrying a remarkably different meaning from dignity as honour, human dignity does not necessarily imply protection of reputation or honour. It implies respect to each individual as such. Its message posits that each human being is subject to the same basic rights “regardless of race, gender, nationality, etc., but not necessarily, and certainly not only, the right to protection of honour” – see Eyal Benvenisti’s comment in Eyal Benvenisti: Human Dignity. In: European and US Constitutionalism, Georg Nolte (ed.), pp. 125–127, Cambridge et al. 2005. On a “right to autonomous procreation”, see Ronald Dworkin: Freedom’s Law – The Moral Reading of the American Constitution, p. 44, Cambridge-Massachusetts 1996.

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and those who understand the same idea as referring to the intrinsic worth of human beings qua human beings, i. e., to the fundamental equality of all in their common humanity.9 Judges are included amongst those who are divided on the meaning of human dignity they are committed to. Thus, for a judge who understands human dignity as autonomy (judge A), a “right to autonomous procreation” will “make sense”. Consequently, the same judge will probably interpret a given constitution that acknowledges the idea of human dignity as guaranteeing that right. Most likely, a different interpretation will be reached by a judge who associates the idea of human dignity with the intrinsic worth of human beings simply as human beings, without distinction of any kind (judge B).10 Indeed, judge B will probably assert a right to life that encompasses the live of an unborn being. B will look suspiciously at the possibility of a woman to abort. And even if B does not exclude that possibility, he or she will probably consider there to be severe limits regarding abortion. Thus, for instance, constitutional decisions in Austria, France and Italy, which acknowledged the right to life of the fetus, accepted the termination of pregnancies by women only to a very limited extent. Those terms would be considered unacceptable within a constitutional culture such as the American one, which has evolved in these last decades towards a much more autonomist line.11 It is useless to deny that pre-understandings are shaping our understanding or, in other words, that background ideas lead to normative conclusions. It should be stressed however that admitting this does not necessarily lead us to subscribe to the skepticism of Legal Realists regarding the possibility of reaching inter-subjectively valid decisions. There is a difference between a downright capitulation before subjective relativities – which defines Legal Realism12 – and a sober recognition of the fact that normative judgments always reflect a background that must be understood for what it is. If it is not, judges will not feel the need to confront their own prejudices in the light of the background idea – or the right meaning of this idea – shaping the law to which they are supposed to remain faithful. In other words, faithfulness of judges to their constitution will not be promoted by concealing the fact that certain ideas acknowledged by constitutional texts are background ideas that potentially mean different things to different judges – according to their religious, political or philosophical beliefs – and that those ideas inevitably determine the conclusions reached by the same judges. On the contrary: awareness that there is always a background on which judicial conclusions rest will lead to the awareness that an accurate interpretation of a given constitution neces9

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According to Joseph Ratzinger, “constitutional charters of Western countries are based on a substantive conception of justice, on the conscience of a fundamental equality of all in their common humanity”, see Joseph Ratzinger: L’Europa di Benedetto nella Crisi delle Culture, p. 54, Siena 2005. The expression without distinction of any kind can be found in the Universal Declaration of Human Rights. On this, see Giovanni Bognetti: The Concept of Human Dignity in European and US Constitutionalism. In: European and US Constitutionalism, Georg Nolte (ed.), pp. 85–107, Cambridge et al. 2005. According to Legal Realists “the prejudices which judges share with their fellow-men decisively influence “the life of the law” – see Oliver Wendell Holmes: The Common Law. In: American Legal Realism, W. W. Fisher III / M. J. Horwitz / T. A. Reed (eds.), p. 9, Oxford et al. 1993.

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sarily depends on acknowledging the right meaning of the background idea reflected by that constitution. Evidently, the problem of determining how to establish that right meaning remains. At this level, different perspectives are worth considering, ranging from originalism (which concentrates on the historical ‘purpose’ endorsed at the moment of approval of the constitution), decisionism (which accepts the will of a given decisionmaker, such as the majority, as the criterion to determine the meaning in question) and secularism (according to which no meaning associated with a given religious tradition can be taken as that right meaning) to their theoretical opposites. We shall see below that, within Western European constitutional culture, decisionism and secularism have been grounds for the acceptance of the idea of human dignity as autonomy. Conversely, asserting a different conception – according to which, the right meaning of human dignity corresponds to the fundamental equality of all human beings in their common humanity – goes along with challenging decisionism and secularism. 1.3. THE ARTICULATION OF HUMAN DIGNITY BY WESTERN CONSTITUTIONS The conception of human dignity as a background idea is not incompatible with its articulation by Western constitutional texts, particularly when we consider the terms of Article 1 of the canonical German constitution.13 Indeed, what is stated by that article – after the assertion of the inviolable nature of human dignity (no. 1) – is that “the German people therefore acknowledge inviolable and inalienable rights” (no. 2). We may assume that such a formulation precisely implies that human dignity is the substantive framework on the basis of which legitimacy is assigned to basic rights precepts and in accordance with which they are to be interpreted. From this perspective, Article 1 of the Portuguese Constitution (according to which the Portuguese Republic is “based on human dignity”) and Article 10 of the Spanish Constitution (according to which human dignity “is the foundation of the political order”) are even more revealing. Indeed, it is clearly admitted by these latter precepts that human dignity, rather than being a meaning stipulated by a constitution, is a presupposed or assumed meaning on which the legitimacy of constitutions is based or founded. It should be stressed, however, that to acknowledge the accuracy of the formulations used by constitutional texts does not mean to assert that juridical concepts are strictly dependent on the same formulations. For example, the concept of norms would still encompass permissions, prohibitions and obligations even if constitution X stated the opposite in its first article. Correspondingly, even if the above mentioned formulations were not as accurate as they are, human dignity would still be a background idea – a moral framework or, in other words, an evaluative parameter – not to be confused with a norm. 13

On the German Constitution as canonical, see Winfried Brugger: Der moderne Verfassungsstaat aus Sicht der amerikanischen Verfassung und des Grundgesetzes. In: Archiv des Öffentlichen Rechts, Vol. 126 (3) (2001), pp. 337–402.

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Indeed, its meaning cannot be reduced to a permission, prohibition or obligation; it rather is a meaning within which permissions, prohibitions or obligations can be determined and acknowledged as legitimate. 2. THE MEANING

OF

HUMAN DIGNITY

2.1. HUMAN DIGNITY AS AUTONOMY? Within Western European juridical culture, and particularly through the influence of German doctrine and jurisprudence, human dignity has come to be understood as a core value established by a People exercising its constituent power. According to this conception, and taking the German constitution as an example, human dignity is understood to be the core value decided on by the German People and which stands at the pinnacle of the whole constitution14. We shall see below that such an assumption is arguable, since human dignity cannot be understood as a value decided on, but has to be regarded as a value accepted at a moment of collective moral awareness, henceforth framing a Sittlichkeit in the Hegelian sense. But before we reach that point we should start by questioning the substantive understanding of human dignity commonly shared by the authors for whom that value is a value decided upon, i. e., the understanding of human dignity as autonomy. Indeed, under a decisive Kantian influence,15 human dignity is very often associated with a philosophical conception of human beings as holders of a reason ex nihilo (autonomy, precisely), i. e., a reason emancipated from any given ‘truths’ (particularly that of a religious nature). Thus, endowed with that reason, man is portrayed as endowed with an unrestricted power of moral self-determination, if not of moral self-creation. Correspondingly, it is widely accepted that the constituent decision concerning human dignity envisions in particular the protection of that autonomy against all external constraints. In a logical extension of this line of thought, the same decision can be understood as achieving normative projections in rights such as a ‘right to autonomous procreation’ (usually referred to as the right to have an abortion) or a ‘right to die’.

14

15

The expression “at the pinnacle of the whole Constitution” (an die Spitze der gesamte Verfassung) is used by a reputed German Constitutional Law textbook – see Theodor Maunz / Reinhold Zippelius: Deutsches Staatsrecht, p. 163, 12th ed., Munich 1994. The idea of a constituent decision as standing at the height of normative systems relates to a very contestable recovery, within German post-war juridical thought, of the most important postulate of Carl Schmitt’s Constitutional Theory, i. e., that an ex nihilo decision constitutes the foundation of legitimacy of Constitutions – see Carl Schmitt: Constitutional Theory, trans. by Jeffrey Seitzer, p. 59, Durham 2008. The idea of dignity has often been associated – not only by Kant – to a central claim of modernity which precisely is the autonomy of human beings, their capacity for moral self-determination – see Yehoshua Ariel: On the Necessary and Sufficient Conditions for the Emergence of the Doctrine of the Dignity of Man and his Rights. In: The Concept of Dignity in Human Rights Discourse, D. Kretzmer / E. Klein (eds.), pp. 1–18, The Hague 2002. However, although the association between autonomy and dignity is not strictly Kantian, it culminates in Kant’s thought.

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A constituent decision on a philosophical conception of human beings is something very difficult to accept in itself. Indeed, how can any constituent power be granted with the option to define what defines human beings as such? Such an option would be even more questionable if one concludes that the conception of human beings often associated with the idea of human dignity is nothing but a fiction.16 The idea of autonomy as nothing but a fiction construed at a (flawed) moment of the history of moral philosophy is very cogently advocated nowadays by Communitarians. Indeed, taking into account Alasdair Macintyre’s and Charles Taylor’s critique of the Enlightenment,17 the philosophical conception of human beings 16

In Iris Murdoch’s ironic words, “how recognizable, how familiar to us is the man so beautifully portrayed in the Grundlegung, who confronted even with Christ turns away to consider the judgment of his own conscience and to hear the voice of his own reason. Stripped of the exiguous metaphysical background which Kant was prepared to allow him, this man is with us still, free, independent, lonely, powerful, rational, responsible, brave, the hero of so many novels and books of moral philosophy”, see Iris Murdoch: The Sovereignty of the Good, p. 80, London 1971. 17 Autonomy quintessentially defines the Enlightenment, according to Kant himself. Indeed, for Kant, the Enlightenment meant “man’s emergence from his self-incurred immaturity”, taken as “the inability to use one’s own understanding without the guidance of another”. Guidance in this context means reliance on substantive assumptions or presuppositions not provided by reason itself, particularly on ‘truths’ of a religious nature – see Immanuel Kant: An Answer to the Question: “What is Enlightenment?”. In: Kant: Political Writings, H. S. Reiss (ed.), trans. by H. B. Nisbet, pp. 54–60, Cambridge et al. 1991. Conversely, as autonomous, human beings were believed to be capable of authoring their own moral duties, which were understood as the possible product of reason itself. Indeed, through the strictly procedural itinerary of unassisted reason – i. e., through the categorical imperative, a how independent from a previously given what – the substantive rightness of norms would be assured independently of any heteronymous “guidance”. With autonomy being defined as moral self-determination within the said imperative, one can understand why the same is inseparably linked to a moral philosophy perspective according to which normative knowledge (i. e., knowledge of the right norms) can be reached with no dependency whatsoever on the said “guidance”. In Charles Taylor’s words, Kant’s notion of autonomy constitutes the utmost attempt towards an “internalization of moral sources”, see Charles Taylor (note 3), p. 364. Acknowledging that, it becomes clear that the Kantian notion of autonomy is as uncertain as that internalization is doubtful and indeed doubted, originally by Hegel, who questioned precisely the possibility of normative knowledge being reached within a strict how, i. e., within the categorical imperative in itself and by itself. Indeed, Hegel pointed out that there is nothing that cannot be converted into a right norm using the same imperative: “by this means any wrong or immoral line of conduct may be justified”, i. e., the categorical imperative does not say what is the (substantive) principle according to which one should universalise. In the absence of such a presupposition, it is able to justify any normative order whatsoever – see Georg Wilhelm Friedrich Hegel: Philosophy of Right, trans. by T. M. Knox, § 135, Oxford et al. 1967. Hegel’s critique is pursued today by Alasdair Macintyre and Charles Taylor when assessing, not only Kant, but different derivations of Kant’s theory. Indeed, according to Communitarians, moral knowledge cannot possibly be the product of an unassisted reason, i. e., of a merely procedural rationality independent from all substantive presuppositions. In Alasdair Macintyre’s words, “the Enlightenment has failed by its own standards”: if moral knowledge is detached from all presuppositions, it no longer is moral knowledge, or at the very least, it is moral knowledge with a radically transformed character, see Alasdair Macintyre (note 6), pp. 55–56. This can be dramatically illustrated if one remembers Eichmann’s example. As Hannah Arendt stresses, Eichmann “did indeed follow Kant’s precepts: a law was a law, there could be no excep-

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associated by many with the background idea of human dignity – and from which many, judges of constitutional courts included, derive normative conclusions – is certainly doubtful. A definition of human dignity as autonomy is arguable at other levels. Indeed, if dignity is attached to autonomy – and assuming, for the sake of argument, that such “lordship” actually existed18 – what would we say when considering those (for instance, mental patients) who are plainly incapable of the same? Are they not invested with dignity? After such questions, it is surely relevant to realize that autonomy – an eventually fictional autonomy – is not the only possible meaning of the idea of human dignity. As mentioned above, the same can be referred, not to autonomy, but to the fundamental equality of all men in their common humanity. In this latter case, dignity constitutes a quality of humans, not in virtue of their autonomy, but solely in virtue of their humanity.19 2.2. A NON-SECULARIST MEANING It should be stated that an assumption of the idea of human dignity as inherent to humans qua humans is necessarily non-secularist in the above mentioned sense – necessarily since the corresponding meaning, or right meaning, is not understandable outside of a religious tradition.

tions. In Jerusalem, he admitted only two such exceptions during the time when eighty million Germans had each had ‘his decent Jew’: he had helped a half-Jewish cousin, and a Jewish couple in Vienna for whom his uncle had intervened. This inconsistency still made him feel somewhat uncomfortable, and when he was questioned about it during cross-examination, he became openly apologetic: he had ‘confessed his sins’ to his superiors. This uncompromising attitude toward the performance of his murderous duties damned him in the eyes of judges more than anything else, which was comprehensible, but in his own eyes it was precisely what justified him (…). No exceptions – this was the proof that he had always (…) done his ‘duty’”, see Hannah Arendt: Eichmann in Jerusalem – A Report on the Banality of Evil, p. 137, New York et al. 1994. Through this passage one understands Eichmann to be the living example of the failure of a strictly autonomous procedural ethics within which a strict rational how – some rule of universalization, of strict coherence, of pure detachment or of strict impartiality – determines a what (namely, one understands that there is no violation of the categorical imperative if a fanatic racist is coherent to the point of believing that a law against a certain race is applicable to everyone, including himself in case of belonging to that race). Conversely, one understands that substantive norms according to which one is bound to respect a human as a human (norms that recognize basic rights) are not the product of reason itself, i. e., are not determined independently of any substantive presuppositions. 18 The expression “lordship” – more precisely “rational lordship over oneself ” (vernunftgeleiteten Herrschaft über sich selbst) – is used in a more recent edition of the German Constitutional Law textbook quoted in Note 14 – see Reinhold Zippelius / Thomas Württenberger: Deutsches Staatsrecht, p. 228, 32nd ed., Munich 2008. 19 In Hegel’s words, “man counts as man in virtue of his manhood alone, not because he is a Jew, Catholic, Protestant, German, Italian etc. This is an assertion which thinking ratifies and to be conscious of it is of infinite importance” – see Georg Wilhelm Friedrich Hegel (note 17), § 209.

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The idea of fundamental equality as inescapably religious, while not being new – it was cogently defended by Hannah Arendt20 and by Karl Löwith21 – has received particular attention recently, particularly due to the profound impact of Jeremy Waldron’s work on Locke. According to Waldron, the acceptance of the background idea that humans are equal in worth, sharing an inherent dignity, is “impossible apart from the principle’s foundation in religious teaching”.22 On the contrary, for Heinz-Gerd Schmitz, Locke’s negative argument (according to which God gave us no reason to make distinctions between those to whom we should extend our Christian love, and human beings, therefore, are equal in worth23), even if presented in theological terms, does not depend on those terms, since it is irrelevant for its validity to say that God gave us no reason to distinguish between human beings. According to Schmitz, what must be stressed, independently of a religious foundation, is that there is no normative justification to distinguish between men with regard to their worth, even if there are factual differences between them. Consequently, and since normative premises cannot be derived from factual premises, a fiction of equality should be understood as governing our normative systems.24 Schmitz’s argument is fallacious, I believe. Indeed, what is at stake is not stating human inequality and contrasting it with a fiction of equality, in spite of all the factual differences among human beings. What is at a stake is the answer to a question Schmitz takes for being already answered: why should a fiction of equality be understood as governing Western normative systems, rather than an opposite fiction of inequality? 20

Hannah Arendt referred to the American founding fathers as deists based on a superior “wisdom” when declaring men as “created equal” – see Hannah Arendt: On Revolution, p. 191, New York et al. 1990. 21 For Karl Löwith, “the historical world which gave rise to the ‘prejudice’ that everyone with a human countenance has, simply by virtue of that fact, the ‘dignity’ and ‘destiny’ of being human is not in the first instance the world (now fading away) of mere humanity, which had its origin in the ‘uomo universale’ and also ‘terribile’ of the Renaissance; it is rather the world of Christianity, in which the divine man Christ is the measure of man’s relationship to himself and to his neighbour. The image which converted the homo of the European world into a human being is basically determined by the idea which the Christian has of himself as the image and likeness of God. Thus the statement that we are ‘all’ human beings is restricted to the conception of humanity produced by Christianity in association with the Stoics” – see Karl Löwith: From Hegel to Nietzsche – The Revolution in Nineteenth Century Thought, trans. by David E. Green, p. 327, New York 1991. 22 See Jeremy Waldron (note 1), p. 243. See also George Fletcher: In God’s Image: The Religious Imperative of Equality under Law. In: Columbia Law Review, Vol. 99 (6) (1999), pp. 1608–1629. 23 The same argument is expressed in §§ 4 and 5 of The Second Treatise referring to the state of nature as a state of equality “wherein all the Power and Jurisdiction is reciprocal, no one having more than another: there being nothing more evident, than that Creatures of the same species and rank promiscuously born to all the same advantages of Nature, and the use of the same faculties, should also be equal amongst one another without Subordination or Subjection, unless the Lord and Master of them all, should by any manifest Declaration of his Will set one above another (…). This equality of man by Nature, the Judicious Hooker looks upon as so evident in itself, and beyond all question, that he makes it the Foundation of that Obligation of mutual Love amongst men, on which he Builds the Duties they owe one another” – see John Locke: Two Treatises of Government, ed. by Peter Laslett, Cambridge et al. 1988. 24 See Heinz-Gerd Schmitz: Created Equal – Lockes Negatives Argument zur Begründung der Menschenrechte. In: Archiv für Rechts und Sozialphilosophie, Vol. 86 (1) (2000), pp. 29–47.

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In other words, what is truly important is to know why we, as moral members of Western political communities25, base ourselves morally on the idea of fundamental equality (and acknowledge the legitimacy of constitutions that reflect the same idea) and not on an opposite idea of fundamental inequality. Answering this question honestly means to acknowledge that we are indebted to a religious source. It is important to remember that factual inequalities can hypothetically be converted into inequalities of value by appealing to this or that premise (for instance, disabled people should not live since they suffer). Why such a conversion is not acceptable is what is truly at stake. And it is in this context that we understand, with Locke, the inescapability of appealing to a religious foundation when considering human fundamental equality, which is inherent in human dignity. 2.3. A NON-DECISIONIST MEANING An understanding of human dignity as fundamental equality of human beings qua human beings is not only non-secularist, but also non-decisionist. In order to explain this, we must first take into account that decisionism, as developed by Carl Schmitt, is the affirmation that a power can decide ex nihilo regarding the ultimate value governing a given political order, drawing a line – a moral line – between friend and enemy. Indeed, for Schmitt, to follow David Dyzenhaus’ accurate reading, a friend is a fellow member of a homogeneous nation or people, and the criteria for homogeneity are determined existentially – by a genuine decision as to the existence of such a being within the parameters of a particular situation. Conversely, an enemy is an individual or a group excluded by the criteria of substantive homogeneity which shape the decision. Such a decision governs the political order (a political order created by it), determining the authority not only of law but also of morality. It carries the right to demand the unconditional obedience of the members of the political unit.26 Correspondingly, equality is not merely attached to the humanity of human beings, to their inherent dignity. On the contrary: for Schmitt, equality is a political concept which has at its heart a distinction among human beings – a distinction according to a criterion (possibly race) defined ex nihilo by the constituent decisionmaker.27 Thus, from a decisionist perspective, the national-socialist order – in which 25

26

27

The idea of moral membership of a community is understood here as relating to the assimilation by a person of the moral framework that binds the same community. The same idea only partially coincides with Ronald Dworkin’s idea of moral membership, see Ronald Dworkin (note 8), p. 20. See David Dyzenhaus: Legality and Legitimacy – Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar, p. 41, Oxford et al. 1997. See on this also Karl Löwith: The Occasional Decisionism of Carl Schmitt. In: Martin Heidegger and European Nihilism, ed. by Richard Wolin, trans. by Gary Steiner, pp. 137–169, New York 1995. According to Schmitt, equality among human beings according to their mere humanity is a “general and meaningless equality (…). The equality of everything ‘that bears a human face’ is incapable of providing a foundation for a state, a state form or a form of government”. For Schmitt, only a “democratic concept of equality” can provide such a foundation: “The democratic concept of equality is a political concept and, like every genuine political concept, involves

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the ultimate criterion of distinction is race – is as legitimate as any other. The ultimate criterion of distinction – which is the ultimate criterion of the political order – can be ‘about’ anything.28 Refusing decisionism depends on acknowledging that not every order based on whatever criterion is legitimate. We believe such an acknowledgment was implicit at the moment when the German constitution was approved. Indeed, when declaring explicitly its responsibility before God and before men – moreover, when suggesting that no will was involved in that declaration, with it also being made in the name of those (East Germans) prevented from participating in it at the given moment29 – the German people made it clear that it did not consider itself as endowed with the power to decide on the ultimate value structuring its constitutional order. I am thus suggesting that the constituent moment that took place in post war Germany – like other constituent moments where other European peoples made similar foundational commitments to the idea of human dignity in the wake of collective memories converted into transnational memories30 – was not a moment of decision but of moral awareness. An awareness that defines our moral condition after the diluvium,31 i. e., after having made the experience that a decision in the Schmittian sense – a liberation from all beliefs – can culminate in political crime on an unprecedented scale, as described by Hannah Arendt.32

28

29 30

31

32

the possibility of a distinction. Political democracy, therefore, cannot rest on the inability to distinguish among persons, but rather only on the quality of belonging to a particular people. This quality of belonging to a people can be defined by very different elements (ideas of common race, belief, common destiny, and tradition)“ – see Carl Schmitt (note 14), p. 258. In Ellen Kennedy’s words, in Schmitt’s thought, “the political can be ‘about’ anything – (…) its criterion, the intensity of association or dissociation into friend or foe, liberates political decisions from moral criteria” – see Ellen Kennedy: Constitutional Failure – Carl Schmitt in Weimar, p. 19, Durham 2004. The self-understanding of the German people at the moment the German Constitution was approved is made explicit in the original version of its preamble. Jan-Werner Müller refers to a “shared, European-wide constitutional patriotism”, meaning that all European peoples undertake the same responsibility – sharing the memories of other peoples – and assume the same foundational commitment with human dignity. In Müller’s words, “This could mean that Europeans acknowledge the collective memories of other countries, strange as that might sound initially. Or it could mean that ‘transnational memories’ might have to be the base of a European sense of belonging. On the surface, [that] seems awkward, perhaps even absurd: a national collective can take responsibility for its past (…). Yet it is far from clear that nations could – let alone should – argue about other nation’s pasts. Should the Germans judge France’s ‘Vichy syndrome’ (…)? Why should the French debate the British treatment of the Irish? Are the Spanish in a position to feel sorry for Portuguese colonialism? There is a sense in which one can acknowledge (…) the success of other countries in coming to terms with their pasts, but one cannot do it for them. And yet some European countries are actually moving forcefully in the direction of dealing with other nation’s pasts (…). It’s not prima facie impossible to ‘merge’ historical memories to some extent or to draw on ‘transnational memories’ and to forge a common political culture in the process of arguing about these pasts” – see Jan-Werner Müller: Constitutional Patriotism, pp. 10 ff., Princeton 2007. In Michael Stolleis’ expression – see Michael Stolleis: Après le Déluge. La Reconstruction de l’État de Droit et de la Démocratie en Allemagne de l’Ouest après la Seconde Guerre Mondiale. In: Revue Historique de Droit Français et Étranger, Vol. 81(3) (2003), pp. 353–366. No one has described such a moral condition better than Hannah Arendt, when referring to the foundational “self-evident truths” of the American polity, the first of which is that “all men are created equal”. Acknowledging those truths as religious truths accepted as such by the American

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3. A FINAL NOTE: HUMAN DIGNITY

AND

HUMAN RIGHTS

Before concluding I should clarify that questioning the idea of human dignity as autonomy does not mean to question the individual liberties guaranteed by Western constitutions. On the contrary: the issue at stake is to determine more clearly the moral framework behind those constitutions – in particular, behind the consecration of basic rights33 – and to acknowledge that this framework centers on the intrinsic value of human beings; not on a questionable philosophical conception of men as holders of total rational lordship over themselves, of an inherent power of ex nihilo self-legislation. A particularly conspicuous example: the consecration of religious freedom by Western constitutions is not based upon a conception of human beings as endowed with rational lordship over themselves. Behind the recognition of religious freedom, as with other liberties, lies the assumption that human beings are committed to their beliefs and practices – in this case, to beliefs and practices of a religious nature – and should not be prevented from them since that would mean the simultaneous denial of their intrinsic worth as human beings.34 And it should be added that a holistic vision of human dignity not centered on the idea of autonomy but on the idea of fundamental equality allows us more to understand the consecration not only of liberties but of other rights, such as basic social rights. Indeed, and with regard to these, it is clear that their consecration is not based upon this or that philosophical conception of human beings, but with regard to a basic moral assumption according to which there are essential human needs that must be satisfied.

33 34

founders, Arendt proceeds by saying that “We, who had ample opportunity to watch political crime on an unprecedented scale, committed by people who had liberated themselves from all beliefs in ‘future states’ and had lost the age-old fear of an ‘avenging God’, are in no position, it seems, to quarrel with the political wisdom of the founders”, see supra Hannah Arendt (note 20), p. 191. This passage can be interpreted as a direct repudiation of Carl Schmitt’s decisionism, of which Hannah Arendt was well aware, even if not explicitly. Indeed to sustain that we are not in a position to quarrel with the foundational “political wisdom” expressed in America’s Declaration of Independence means to acknowledge that we have no legitimacy to decide at such a level. That, after knowing all too well the consequences of a decision in the Schmittian sense. On human dignity as a Grundrechtskonzeption, see Hartmut Maurer: Staatsrecht, p. 257, Munich 1999. There is no necessary contradiction between the assertion that a religious presupposition lies behind a normative system and the assertion that the same guarantees religious freedom. To show it – i. e., to show that the conclusion according to which religious freedom must be guaranteed can be derived from a religious presupposition – it is relevant to remember the ideological context of the American Revolution. Such a context was not one of religious neutrality. On the contrary: religious freedom was guaranteed with regard to religious assumptions: the assumption according to which human beings were inherently dignified and perfectible through religious belief and experience and the assumption according to which true religious belief and experience necessarily had to be free and not imposed from the outside. This latter assumption was referred to, in the context of the American Revolution, as “the absurdity of advancing the Kingdom of Christ by penal laws” – see Bernard Baylin: The Ideological Origins of the American Revolution, p. 262, 2nd ed., Cambridge-Massachusetts 1992.

ELENA PRIBYTKOVA*, BASEL/NEW YORK THE HUMAN RIGHT TO A DIGNIFIED EXISTENCE: THE ETHICAL FOUNDATIONS OF THE CONTEMPORARY LEGAL ORDER Abstract: Dieser Artikel behandelt das Konzept des Rechts auf ein menschenwürdiges Dasein als Verwirklichung des unantastbaren Prinzips der Menschenwürde in der Rechtsordnung sowie den rechtlichen Weg der Armutsbekämpfung. Der Artikel konzentriert sich auf Fragen der Definition, Rechtfertigung und praktischen Realisierung des Rechts auf ein menschenwürdiges Dasein sowie auf seine gegenwärtige Bedeutung für die moderne Rechtswissenschaft. Hierbei wird der inneren Korrelation zwischen den Konzepten der Menschenwürde, der Menschenrechte und der sozialen Gerechtigkeit Rechnung getragen. Der auf die Einleitung folgende zweite Teil des Artikels ist dem durch Immanuel Kant formulierten “rechtmäßigen Anspruch” auf Achtung der Menschenwürde gewidmet. Der dritte Teil behandelt die Konzeption des Rechts auf ein menschenwürdiges Dasein des russischen Philosophen Vladimir Solov’ev. Im vierten Teil wird der spezifische Inhalt und Status des Grundrechts auf ein menschenwürdiges Dasein diskutiert. Der fünfte Teil analysiert Menschenwürde als ein Kriterium des „minimalen Kernbestandes“ an wirtschaftlichen, sozialen und kulturellen Rechten. Abschließend wird das Prinzip des Existenzminimums, das die Verwirklichung des Rechts auf ein menschenwürdiges Dasein voraussetzt, und seine Rolle im globalen System von Prinzipien der sozialen Gerechtigkeit erörtert.

1. INTRODUCTION My paper examines the concept of the human right to a dignified existence, as a realization of the absolute principle of human dignity in the legal order and as a legal way of poverty eradication. It concentrates on issues of defining, justifying and practically realizing the human right to a dignified existence, as well as on its importance for contemporary jurisprudence. I emphasize the internal correlation between the concepts of human dignity, human rights and social justice, as well as the interaction between philosophical discourse and legal reality in relation to understanding the guarantees of a dignified life. Following on this introduction, the second part of the paper is devoted to the idea of a legitimate claim to respect for human dignity as it has been conceived by Immanuel Kant. The third part deals with a conception of the human right to a dignified existence articulated by the Russian philosopher Vladimir Solov’ev. In the fourth part, the particular content and status of the human right to a dignified existence is discussed. The fifth part explores human dignity as a criterion for the “minimum core content” of economic, social and cultural rights. The last part deals with a social minimum principle, which provides for a dignified existence of every person, and its role in a global system of principles of social justice.

*

The research was supported by the Fritz Thyssen Foundation (Fritz Thyssen Stiftung). I am very grateful to Professor Winfried Brugger and Professor Stephan Kirste for inviting me to participate in this highly interesting workshop on human dignity as well as to all participants of the workshop for helpful comments. I also would like to thank my colleagues Oliver Smith and Jonathan Mahoney for their corrections of the English version of my paper. All remaining errors are, of course, mine.

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2. IMMANUEL KANT

ON

“A LEGITIMATE CLAIM”

TO

RESPECT

FOR

HUMAN DIGNITY

The significance of Immanuel Kant’s contribution can be seen primarily in his defense of two interconnected aspects of the principle of human dignity: (1) the capacity to be an autonomous subject, i. e. a legislating member of the universal kingdom of ends (the formula of autonomy and the formula of a kingdom of ends of the categorical imperative); and (2) the rule to treat humanity, whether in your own person or in the person of any other, never merely as a means to an end, but at the same time always as an end (the formula of the end in itself of the categorical imperative).1 The formula of the end in itself of Kant’s categorical imperative is the starting point for the justification of the legal claim to respect for human dignity. It is rooted in the perfect duty towards oneself as substantiated by Kant, which consists in the demand not to treat oneself merely as a means. This prohibition of self-instrumentalization equates to a ban on all sorts of voluntary enslavement and the disavowal of “the prerogative of a moral being”. It is important to note that, for Kant, this duty of a person towards oneself has a legal nature and is an essential attribute of the status of a legal subject. “Rightful honour (honestas iuridica)” presupposes the duty of maintaining one’s human dignity in relation to others as “expressed by the saying: ‘Do not make yourself a mere means for others but be at the same time an end for them’”.2 One of the central issues involved in substantiating the legitimate claim to respect for human dignity is the idea that fundamental legal principles are conditioned by the moral duties of subjects, an idea inherited from the legal philosophical system of Christian von Wolff (1679–1754). According to Kant, a right as a capacity for putting others under obligations derives from the moral imperative governing duty. In this context, he defends the duty to respect “the dignity of humanity in one’s own person”, which underlies “the right of humanity in one’s own person”. Humanity in one’s own person is “the object of the respect which [one] can demand from every other being, but which [one] must also not forfeit”.3 A consequence of the absolute moral principle of inalienable human dignity is the right of a person to implement the respect for human dignity practically, in the legal order of the state. Human dignity enables a person to assert a legal claim-right, i. e. a right which entails corresponding duties on the part of other subjects. “Every human being has a legitimate claim to respect from his fellow human beings and is in turn bound to respect every other”.4 Non-fulfillment of the duty of respect for human dignity equates, for Kant, not only to a violation of the moral law, but also to an infringement of legal duty and the “lawful claim” of a person.5 1

2 3 4 5

On the significance of the formulae of the categorical imperative for Kant’s concept of human dignity, see: Kurt Seelmann: Menschenwürde und die zweite und dritte Formel des Kategorischen Imperativs. Kantischer Befund und aktuelle Funktion. In Menschenwürde – Begründung, Konturen, Geschichte, Gerd Brudermüller, Kurt Seelmann (Eds.), pp. 67–77, Würzburg 2008. Immanuel Kant: The Metaphysics of Morals, M. Gregor (ed.), introduction by R. J. Sullivan, p. 29, Cambridge 1996. Immanuel Kant (note 2), p. 186. Immanuel Kant (note 2), p. 209. Immanuel Kant (note 2), p. 211.

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Following Kant’s argument, Alan Gewirth insists that human dignity is “the antecedent, the justificatory basis or ground of human rights”.6 The legal formulation of the principle of human dignity is inevitably connected to the itemization of the basic legal claims of its holders, alongside the corresponding legal duties of other subjects. Recognition of the principle of human dignity in the legal order is always expressed in the form of legal protection of claim-rights resulting from this principle. Joel Feinberg was right when he stated: “Indeed, respect for persons (this is an intriguing idea) may simply be respect for their rights, so that there cannot be the one without the other; and what is called ‘human dignity’ may simply be the recognizable capacity to assert claims. To respect a person then, or to think of him as possessed of human dignity, simply is to think of him as a potential maker of claims”.7 Within the legal order, human dignity grounds the capacity of its holders to make particular claim-rights.8 The special status of the principle of respect for human dignity manifests itself through the priority given to a complex of basic claimrights flowing from this principle, in relation to all other human rights. Hence Dieter Birnbacher concludes that to respect human dignity means to respect a certain minimum of basic rights which belong to a person regardless of his or her achievements, merits or qualities.9 Thus the legal core of human dignity is to be expressed in the form of a claimright. But a claim-right to what? With the help of some significant insights from Vladimir Solov’ev, the following section will endeavor to prove that the legal notion of human dignity necessarily contains the basic claim-right to a dignified existence. 3. VLADIMIR SOLOV’EV’S CONCEPTION EXISTENCE

OF THE

HUMAN RIGHT

TO A

DIGNIFIED

In Kant’s works, one cannot find sufficient grounds for definite conclusions about the right to a dignified existence, not to mention ideas on the welfare state as a mechanism of its implementation.10 But the principle of human dignity formulated by him contains all the necessary premises for these conclusions in an immanent form. Successive generations of scholars have been influenced by the Kantian concept of human dignity, elaborating it to overcome the limitations of his legal con-

6 7 8

9

10

Alan Gewirth: Self-Fulfillment, p. 163, Princeton 1998. Joel Feinberg: Rights, Justice, and the Bounds of Liberty: Essays in Social Philosophy, p. 151, Princeton 1980. In the common Preamble to the International Covenant on Civil and Political Rights (1966) and the International Covenant on Economic, Social and Cultural Rights (1966), it was recognized that fundamental human rights “derive from the inherent dignity of the human person”. Dieter Birnbacher: Ambiguities in the concept of Menschenwürde. In: Sanctity of life and Human Dignity, Kurt Bayertz (ed.), p. 110, Dordrecht 1996; Dieter Birnbacher: Menschenwürde – abwägbar oder unabwägbar? In: Biomedizin und Menschenwürde, Matthias Kettner (ed.), pp. 249–271, Frankfurt am Main 2004. Nevertheless, Allen D. Rosen’s argument that the idea of a constitutionally guaranteed right to a minimum level of well-being is in accordance with Kant’s conception of justice deserves mention here. Allen D. Rosen: Kant’s Theory of Justice, p. 206, 1993.

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ception and, in particular, to criticize his thesis that the duties corresponding to the lawful claim of respect for human dignity can only be “expressed negatively”. 11 Ironically, this very same apostle of liberalism produced a weapon which overthrew both the classical, liberal idea of justice as the equal distribution of freedom, and the principle of “laissez-faire”. At the instigation of Kant, who defined human dignity as an absolute, internal value, and an inalienable characteristic of every rational person, the vector of the discussions on the ethical foundations of the sociolegal order changed fundamentally: having outperformed the dominant categories of freedom and equality, the notion of human dignity came into the picture as a new foundation for social justice. The human right to a dignified existence was conceptualized at the turn of the twentieth century by a joint effort of competing intellectual traditions (solidarism, Marxism, social liberalism, Christian social doctrines). The conception of “the right to the whole produce of labor” of Anton Menger (1886); the article “The New Liberalism” by the British politician Llewellyn Archer Atherley-Jones (1889); the ideas of Auguste Comte, Leon Duguit, and Leon Bourgeois; and the first social encyclical of Pope Leo XIII “Rerum Novarum” (1891) all make the same claim: namely, that the state should take care not only of the security of a person but also of the conditions necessary for his or her dignified life. Kant’s ideas on human dignity, and their correlation with conceptions of human rights and social justice, are developed in the legal-philosophical doctrine of the Russian religious philosopher and publicist Vladimir Solov’ev (1853–1900). He considered it necessary to supplement the definition of justice as formal equality with a further definition: “equality in that which is due”, or “equality in fulfilling that which is due”. The category of human dignity enables an equalization of all human beings, who, while remaining unequal, nevertheless have an equal share in this universal characteristic of a moral subject or a “particular form of an endless content”, which consists in the capability to share in divinity through one’s spiritual life and to engage in perpetual self-improvement.12 Every person – regardless of his or her usefulness or of how he or she disposes of his or her life, talent or property – has an absolute dignity and an “absolute right” to live and develop his or her positive powers freely. In response to a questionnaire compiled by the French journalist Jules Huret on the subject of the social question in Europe (August 6, 1892), Solov’ev wrote: “each 11

12

Immanuel Kant (note 2), p. 211. A prominent attempt to justify socio-economic rights according to Kant’s thesis on negative duties was made by Thomas Pogge in his institutional conception of human rights. See: Thomas Pogge: World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms, Cambridge 2002. An additional source for Solov’ev’s ideas on this point may have been the social encyclical “Rerum Novarum” issued by Pope Leo XIII: “No man may with impunity outrage that human dignity which God Himself treats with great reverence, nor stand in the way of that higher life which is the preparation of the eternal life of heaven. Nay, more; no man has in this matter power over himself. To consent to any treatment which is calculated to defeat the end and purpose of his being is beyond his right; he cannot give up his soul to servitude, for it is not man’s own rights which are here in question, but the rights of God, the most sacred and inviolable of rights”. See: Rerum Novarum (Rights and Duties of Capital and Labour) – available at http:// www.vatican.va/holy_father/leo_xiii/encyclicals/documents/hf_l-xiii_enc_15051891rerumnovarum_en.html.

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man represents intrinsic value, and he possesses an inalienable right to an existence corresponding to his human dignity”. The human right to a dignified existence presupposes the guarantee of a “minimum of material resources” for each person in order to militate “against destitution and economic slavery”.13 He further argues in “The Justification of the Good” (1897) that a dignified existence is compatible with voluntary poverty, such as that preached by St. Francis,14 but incompatible with the reduction of a person to a mere means for producing material wealth. Such a situation would be “inconsistent with human dignity and with the moral norm of society”, as people would either be unable to support their existence, or be forced to spend so much time and strength in order to do so that they would have none left for intellectual and moral development.15 Extreme poverty and excessive manual labour inevitably result either in the loss of one’s higher purpose, or in the impossibility of realizing it. The human right to a dignified existence is thus meant to protect a person from degrading poverty, and to free him or her from conditions that may lead to moral or physical decline. This right derives from the prohibition of self-instrumentalisation and the duty to respect human dignity in one’s own person. The moral duty not to treat other persons merely as a means to an end (the prohibition of instrumentalisation) is realized by securing the conditions necessary for their dignified life and self-fulfillment. The claim to a dignified existence brings in its wake corresponding obligations on the part of society, organized and represented by the state, to guarantee a certain minimum of goods. These include not only food, clothes and dwelling, but also sufficient physical rest, and the provision of leisure for the sake of intellectual or moral development.16 A peculiarity of Solov’ev’s argument is his interpretation of the right to a dignified existence as a particular manifestation of the intrinsic correlation between justice, as the essential idea of law, and charity, as a moral norm of human communication. He describes the first as the minimum and the second as the highest degree of a single altruistic principle, which demands recognition of another person’s right to existence and the greatest possible happiness. (It is here that Solov’ev’s famous thesis about law as a “minimum of Good” has its roots). According to Solov’ev, the right to a dignified standard of living signifies ethical progress of the legal order, when legal requirements change in compliance with the moral law. A recognition that the claims of another person to our assistance are just, and that the moral duty to help one’s neighbor is a legal obligation, both shift a boundary which separates spheres of morality and law, and a moral demand is thereby transformed into a legal one.17 In other words, the right to a dignified existence is a realization of the “minimum of Good” within the sphere of law. 13 14 15 16 17

Vladimir Soloviev: The Social Question in Europe. In: Vladimir Soloviev: Politics, Law, and Morality, ed. and transl. by V. Wozniuk, pp. 33, 36, 2000. Compare with Avishai Margalit’s argumentation: Avishai Margalit: The Decent Society, pp. 228–229, Cambridge MA 1996. Vladimir Solovyev: The Justification of the Good; An Essay on Moral Philosophy, transl. by N. A. Duddington, B. Jakim (ed.), pp. 294–295, 237–238, Grand Rapids & Cambridge 2005. Vladimir Solovyov (note 15), p. 297. See: Vladimir Solov’ev, Značenie gosudarstva [The Meaning of the State]. In: Solov’ev, Sočinenija [Selected Works], Vol. 2, p. 559, Moscow 1989; Pavel I. Novgorodcev: Pravo na dosto-

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According to Solov’ev’s understanding, personal philanthropy is not enough to guarantee a dignified life. That is why it is important to substantiate the right to a dignified existence not merely as a request for charity, but as a legal claim appealing to the argumentation of justice.18 He formulates the demand for respect for human dignity as a categorical legal imperative and a foundation of the legal claim of a person, as well as the basis of the conception of social justice. Solov’ev thus contributes to a broader understanding of the legal concept of human dignity in two important respects: (1) in the sphere of law, human dignity should be expressed as the basic claim-right to a dignified existence; and (2) human dignity is a more appropriate criterion for the just distribution of social goods than formal equality in freedom. On this interpretation, the legal concept of human dignity refers to the priority claim-right to a dignified existence, which brings with it corresponding legal duties of other persons. The right to a dignified existence is a realization of the principle of human dignity in the legal order and its theoretical and practical recognition is a necessary foundation of the contemporary culture of human dignity. The basic right to a dignified existence is aimed at protecting persons from extreme poverty; ensuring their involvement in society and access to shared material and intellectual values; and, in the final analysis, providing the opportunity for their moral and intellectual flourishing. The next section addresses some important questions on the nature of the human right to a dignified existence in the contemporary legal order. What is the content and status of the claims engendered by the principle of human dignity which aim to guarantee its implementation in the legal order? Is the concern for a dignified existence a legal duty or a mere expression of charity? 4. THE STATUS

OF THE

HUMAN RIGHT

TO A

DIGNIFIED EXISTENCE

Contemporary literature and international legal practice proceed from the assertion that the right to a dignified existence is inalienably connected to, and presupposed by, the right to life, and acts as a guarantee of its effectiveness. “The right to life includes within it existence in human dignity with the minimum necessities of life”. 19

18

19

jnoe suščestvovanie [The Right to a Dignified Existence]. In: Pavel I. Novgorodcev, Sočinenija, p. 321, Moscow 1995. The human right to a dignified existence was a fundamental idea in the development of Russian liberal thought at the beginning of the twentieth century. Attempts to defend the claim to a dignified existence, not so much as a moral demand but rather as a basic claim-right to which the obligations of other subjects correspond, were further elaborated in the works of Russian legal philosophers such as Pavel Novgorodcev, Iosif Pokrovskij and Bogdan Kistjakovskij. Pavel I. Novgorodcev / Josif A. Pokrovskij: O prave na suščestvovanie [On the Right to Existence], Moscow 1911; Bogdan A. Kistjakovskij: Filosofija i sociologija prava [Philosophy and Sociology of Law], ed. V. Sapov, Saint Petersburg 1998. Commission on Human Rights resolutions on human rights and extreme poverty: 1999/26, 2000/12, 2005/16.

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“The essence of the right to development is the principle that the human person is the central subject of development and that the right to life includes within it existence in human dignity with the minimum necessities of life”.20

At the same time, there is no common agreement in jurisprudence on the exact status of the “rights” corresponding to the principle of human dignity. There exists a point of view that states that the “right” to a dignified existence is not a right in the strict sense because it does not vest rights in a person to demand its fulfillment from society and state. The guarantee of a dignified life has its source in the principle of the welfare state, which should provide a certain level of social justice. The concrete rights of a recipient of social help do not, however, follow from the principle of the welfare state. An indigent is not a subject of rights but the object of the self-obligation of the state.21 Iosif Pokrovskij’s statement that the right to a dignified existence is a “very special juridical figure” – one asserts the obligation of the state but there is not any right to demand its fulfillment – is, therefore, still relevant. Social assistance remains a sphere in which the “principle of mercy and alms” is put into practice.22 Let me now advance some objections to the position stated above. First of all, an appeal to the principle of human dignity as to a justificatory basis for demanding the minimum conditions necessary for a dignified life allows one to interpret it as a perfect duty of justice, the fulfillment of which every person can lawfully claim as his or her due.23 There has been recognition at an international level that every essential violation of the right to a decent standard of living (extreme poverty, excessive toil, working and housing conditions harmful to one’s health, lack of water, food or medicine, impossibility of education and cultural development, unhealthy environmental conditions etc.) is at the same time a tragic and serious violation of the principle of human dignity. According to the UN General Assembly resolution on human rights and extreme poverty (A/RES/47/134, 1992), “extreme poverty is a violation of human dignity and might, in some situations, constitute a threat to the right to life”.24 Secondly, it is clear that social assistance, which is a charitable exercise on the part of the state or its employees (relating to mercy, philanthropy, humanity or solidarity), has a humiliating character that contradicts a person’s intrinsic dignity.25 The condition of respect for human dignity is not met when a recipient of social help depends on the pity of benevolent subjects and cannot claim this help as that 20 21 22 23

24

25

Commission on Human Rights resolution on the right to development 1999/79. See: Volker Neumann: Menschenwürde und Existenzminimum, Antrittsvorlesung, 19. Mai 1994, Humboldt-Universität zu Berlin, pp. 5, 14. Josif A. Pokrovskij: Pravo na suščestvovanie [The Right to Existence]. In: Pavel I. Novgorodcev, Josif A. Pokrovskij: O prave na suščestvovanie, pp. 25–26. Contemporary scholars employing other criteria for the justification of guarantees of a decent life, such as basic needs (D. Miller), human capabilities (A. Sen, M. Nussbaum) or human flourishing (T. Pogge), are also forced in the final analysis to resort to the help of the argumentation of human dignity. The Sub-Commission for the Promotion and Protection of Human Rights resolution 2006/9 reaffirms that “extreme poverty and exclusion from society constitute a violation of human dignity; consequently, the inclusion in national and international plans of measures to eliminate them is a priority”. See: Avishai Margalit (note 14), p. 240.

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which is his or her due by right. The true goals of the welfare state can only be understood as social guarantees of the implementation of the principle of human dignity in the legal order, i. e. as a fulfillment of the human right to a dignified existence. Thirdly, the right to a dignified existence is based not on a selective feeling of pity or benevolence but on the principle of formal equality, since it belongs to every person who is unable to support his or her own life. The welfare state proceeds from the correct assumption that social and personal situations can change, and that every person may at some point reach a level of vulnerability where he or she is dependent on the assistance of others.26 Finally, it should be noted that the liability of the state for ensuring a dignified level of life is subsidiary. All persons should provide for their existence by themselves. The social mission of the welfare state is to promote the development of personal skills and talents. Helping the most needy individuals does not consist in making them passive recipients of assistance from the state, but rather in stimulating their self-reliant activity.27 The correct interpretation of the state’s social assistance (as a help to self-help), whose aim is similar to that of a good doctor in that it tries to eliminate the need for assistance, is only possible by appealing to the principle of human dignity developed by Kant. The human right to a dignified existence is the minimum condition necessary for free development and for a life corresponding to human dignity. It serves as a guarantee of the veto on the instrumentalisation of a person, and on the reduction of his or her life to a mere struggle for existence, or an existence without any meaningful life choices. The requirements to secure a minimum material and spiritual quality of life are therefore not a mere expression of charity, but claim-rights with corresponding legal duties on the part of other subjects. Moreover, the right to a dignified existence, as a legal embodiment of the principle of human dignity, is a composite basic right, i. e. a human right which, as observed by Henry Shue, needs “to be established securely before other rights can be secured”.28 Securing the conditions of a dignified life requires an implementation of a certain set of economic, social and cultural rights. However the idea of the human right to a dignified existence does not presuppose any socio-economic guarantees above the necessary minimum. Solov’ev, for example, demands that all people be prevented from falling into humiliating poverty: “this alone is absolutely essential (…) anything above this is from the evil one”.29 No additional social assistance results from the argumentation of human dignity. The claim to respect for human dignity can only be projected on a minimum essential set of economic, social and cultural rights indispensable to a dignified existence. This set of rights should be limited both from below and from above. In the next part of the paper I will focus on the following issues: To what extent is a fulfillment of second-generation human rights necessary for the realization of

26 27 28 29

See: Henry Shue: Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy, p. 64, Princeton, N. J. 1996; Avishai Margalit (note 14), p. 234. See: Georges Gurvitch: The Bill of Social Rights, New York 1946; Henry Shue (note 25), p. 40. Henry Shue (note 26), p. 20. Vladimir Solovyov (note 15), p. 297.

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the principle of human dignity in the legal order? And on whom does the obligation fall to recognize and implement a dignified standard of life? 5. HUMAN DIGNITY AS A CRITERION OF THE “MINIMUM CORE CONTENT” ECONOMIC, SOCIAL AND CULTURAL RIGHTS

OF

In the twentieth century, economic, social and cultural rights indispensable to the embodiment of the principle of human dignity in the legal order (Art. 22, UDHR) are steadily gaining acceptance in certain states and in international law. The Universal Declaration of Human Rights (1948), the European Social Charter (1961), and the International Covenant on Economic, Social and Cultural Rights (1966) recognized “the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions” (Art. 11, the International Covenant on Economic, Social and Cultural Rights).30 At the same time, second-generation human rights are still criticized as “manifesto rights” and currently represent the most unfulfilled category of human rights. One of the fundamental reasons for their violation is that their formulations in international human rights documents, as well as in the laws of individual states, are too vague and extensive, and go far beyond the minimum conditions necessary for a dignified life.31 The concept of the “progressive realization” of economic, social and cultural rights32 as well as their definitions as one of the future goals of the states are also used by the states as a pretext for not fulfilling the correlative obligations. At the turn of the twenty-first century, the attempt to increase the normative and obligatory force of second-generation human rights is finding implementation in the formula of “minimum core” economic, social and cultural rights. Certain “minimum core obligations” of states correspond to these rights. This formulation is dictated by the tendency to recognize that, at the very least, minimum essential levels of economic, social and cultural rights (in regard to essential foodstuffs, primary health care, basic shelter and housing, the most basic forms of education etc.), need to be satisfied as a matter of priority by states.33 These minimum core obliga30

31 32 33

The Universal Declaration of Human Rights (Art. 25); the International Covenant on Economic, Social and Cultural Rights (Art. 11); the Convention on the Rights of the Child (Art. 27); the Convention on the Elimination of All Forms of Discrimination against Women (Art. 14); Convention on the Rights of Persons with Disabilities (Art. 28); the European Social Charter (Art. 4, 13, 23, 31); the Charter of Fundamental Rights of the European Union (Art. 34); the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Art. 6, 7, 9, 12, 15). See: James W. Nickel: Poverty and Rights. In: The Philosophical Quarterly, Vol. 55, ǔ 220 (2005), p. 390. The International Covenant on Economic, Social and Cultural Rights (Art. 2). See: CESCR General Comment ǔ 3 (1990): The nature of States parties obligations (Art. 2, par. 1); CESCR General Comment ǔ 12 (1999): The right to adequate food; CESCR General Comment ǔ 13 (1999): The right to education; CESCR General Comment ǔ 14 (2000): The right to the highest attainable standard of health; CESCR General Comment ǔ 15 (2003): The right to water; CESCR General Comment ǔ 17 (2005): The right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic

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tions should be fulfilled regardless of the level of economic development of the country, meaning that resource scarcities cannot relieve states of these minimum obligations.34 An indubitable advantage of the formulation of a “minimum core content” of economic, social and cultural rights is that it increases the responsibility of states in two important respects. First, core human rights constitute the key areas of state policy, including financial policy, since they must make all efforts and use all resources at their disposal to guarantee their core obligations. Secondly, the definition of the “minimum essential level” of rights shifts the onus of proof in case of their violation. After a non-fulfillment of the core rights has been proven, the state must prove that all reasonable measures have been taken, and the maximum of its available resources used, in order to satisfy these minimum core obligations.35 However, the “minimum core content” of socio-economic rights cannot be confined to guarantees necessary for the mere physiological survival of a person, but presupposes a minimum level of social protection which enables living in dignity and ensures full participation in social and cultural life, and access to shared material and intellectual values. The demand for a dignified standard of life is non-derogatory and the rules governing a reduction of its content contradict the very nature of human dignity and fundamental human rights. I believe that the concept of human dignity is the most appropriate criterion and justificatory basis for the formulation of the “minimum core content” of economic, social and cultural rights, the fulfillment of which every person can claim from the state.36 Appealing to the concept of human dignity, this formulation aims to define an international minimum threshold of human rights requiring immediate implementation since, below this threshold, a dignified existence of a person and a life itself is imperiled. A set of core economic, social and cultural rights to the minimum essential level of food, water, sanitation, housing, clothing, medical care, prevention and control of disease necessary for a dignified living, to which the primary core obligations of the states correspond, forms the composite human right to a dignified existence. International law presupposes a two-level model of responsibility for the realization of the minimum core obligations: firstly, the primary national responsibilities of all states; and, secondly, the subsidiary international responsibilities of other agents of the international community (international organizations, developed countries, charitable foundations etc.) who are in a position to assist. If developing countries fail to guarantee the minimum conditions for dignified existence with the maximum of resources available to them, this gives rise to a subsidiary international

34 35 36

production of which he or she is the author; CESCR General Comment ǔ 18 (2005): The right to work; CESCR General Comment ǔ 19 (2008): The right to social security; CESCR General Comment ǔ 21 (2009): The right of everyone to take part in cultural life. The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (1997), in: Human Rights Quarterly, 1998, Vol. 20, ǔ 3, pp. 691–704. Katharine Young: The Minimum Core of Economic and Social Rights: A Concept in Search of Content. In: Yale Journal of International Law, Vol. 33 (2008), p. 159. Human dignity is interpreted as a criterion of the “core content” of human rights in Markus Schefer’s monograph. See: Markus Schefer: Die Kerngehalte von Grundrechten – Geltung, Dogmatik, inhaltliche Ausgestaltung, Bern 2001.

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responsibility to provide assistance in order to enable these countries to fulfill their core obligations.37 The global implementation of the human right to a dignified existence calls for two significant steps: first of all, the establishment of minimum universal standards guaranteeing the principle of respect for human dignity, which will be compulsory for all legal orders; and secondly, the creation of an international system of institutions, which will be able to control the fulfillment of minimum core rights on the national level, and has the power to bring states avoiding their responsibilities to account, as well as to provide effective methods of social assistance to those countries who are unable to execute their minimum core obligations. A discussion of the second problem – the global mechanism of the embodiment of minimum core rights – goes beyond the scope of this paper. In the final part, I will focus on the first issue: the minimum global standards needed to secure a dignified existence of humans as a matter of social justice. 6. THE RIGHT

TO A

DIGNIFIED EXISTENCE

AND

GLOBAL SOCIAL JUSTICE

The fulfillment of the right to a dignified existence can be guaranteed by ensuring that a person possesses the minimum level of well-being (the so-called ‘social minimum’). The goal of this section is to describe the role performed in the global system of social justice by the principle of a social minimum as well as its capacity to be translated into the language of human rights. The social minimum principle reveals a deep correlation between the concepts of human dignity and social justice. On the one hand, the principle of human dignity is a justificatory basis for the essential demands of social justice, assuring a dignified level of well-being to every person. On the other hand, only through a fair institutional order guided by principles of social justice can the demand to respect human dignity be put into practice. An ability to be a foundation for certain claim-rights is characteristic both to a demand of human dignity and to a demand of justice. The Kantian idea that human dignity gives rise to the capability of a person to assert a legitimate claim-rights is in harmony with a position of the Russian scholar Leon Petrazycki (1867–1931), author of the psychological legal conception, which points to the exigent character of justice. Petrazycki sought to prove (in a way not unlike Kant) that the demand for justice grounds a legal claim, to which correspond duties of other subjects to fulfill it.38 This means that the requirements of justice can always be expressed in the form of corresponding rights and duties.

37

38

See: The International Covenant on Economic, Social and Cultural Rights (Art. 2); The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, in: Human Rights Quarterly, 1987 (General Observations, par. 26); Poverty and the International Covenant on Economic, Social and Cultural Rights: 10/05/2001. Statement Adopted by the Committee on Economic, Social and Cultural Rights, UN Doc. E/C.12/2001/10 (Art. 16). Leon Petrazycki: Law and Morality, transl. by H. W. Babb, p. 47, Cambridge 1955.

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The psychological legal school’s39 understanding of the nature of justice can be used to reflect on global justice. It resonates to a large extent with the contemporary conception of Thomas Pogge, who supposes that “a complex and internationally acceptable core criterion of justice might best be formulated” in the language of human rights”.40 In this connection, we might also mention David Miller, who states that “the idea of a global minimum that is due to every human being as a matter of justice” can be “best understood as a set of basic human rights”.41 It is very important to emphasize the difference between the requirements resulting from the social minimum principle and all other demands for justice in respect of their capacity to be translated into the language of human rights. In my view, a distinctive feature of the demand for a social minimum, which relates to the universal core of social justice, is its capacity to be directly expressed in the form of basic claim-rights requiring immediate implementation. In this context, the composite basic right to a dignified existence, which includes the core socio-economic claim-rights to the minimum essential level of food, water, sanitation, housing, clothing, medical care, prevention and control of disease necessary for a dignified living, is the most adequate translation of the social minimum principle into the language of human rights. Guarantees as to the fulfillment of these core claim-rights should be included in the local and international institutional order and enforced through an effective legal system as a matter of priority. On the contrary, the demands engendered by additional principles of justice and related to the fair distribution of social goods beyond the social minimum, cannot be directly expressed in the strict form of priority claim-rights toward the state and other subjects of the international community. They can be formulated as principles of a just organization of the social order for which full implementation is to be achieved progressively. One of the central theses of this paper is that the social minimum principle, which provides for a dignified existence of every person, is a foundation and an intercultural core standard of global justice. One could argue that the idea of a social minimum is not enough for a complete conception of justice42, and that global justice, as a system, needs to supplement the social minimum principle with additional principles governing the fair distribution of social goods.43 Although the noble edifice of justice is not limited to its foundation, without this backbone, the whole construction can hardly maintain stability. Thus a global system of social justice, as well as national systems, so far as they recognize the principle of respect for human dignity, should provide a guarantee for a social minimum.

39 40 41 42 43

See works of Petrazycki’s students Georges Gins, Nikolaj Timasheff, Max Laserson, Georges Gurvitch, and Pitirim Sorokin. Thomas Pogge (note 11), p. 44. See: David Miller: National Responsibility and Global Justice, pp. 231, 166–167, Oxford 2007. See: Stuart White: Social Minimum. In: Stanford Encyclopedia of Philosophy – URL: http:// plato.stanford.edu/entries/social-minimum/. Jeremy Waldron: Rawls and the Social Minimum. In: Jeremy Waldron: Liberal Rights. Collected Papers 1981–1991, p. 268, Cambridge 1993. See also: Véronique Zanetti: Equality or a Minimal Standard in Global Justice? In: European Journal of Law Reform, Vol. 6, ǔ. 3/4 (2004), pp. 398, 405.

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SUMMARY To summarize, I will formulate some of the important theses defended in the paper: (1.) The principle of human dignity or, more precisely, the demand not to treat oneself merely as a means (the prohibition of self-instrumentalisation) expressed in the formula of the end in itself of Kant’s categorical imperative, is the source of the legitimate claim to respect for human dignity. (2.) As a realization of the principle of human dignity in the legal order, the basic right to a dignified existence is aimed at protecting persons from extreme poverty; ensuring their involvement in society and access to shared material and intellectual values; and, in the final analysis, providing the opportunity for their moral and intellectual flourishing. (3.) The requirement to secure the minimum conditions necessary for a dignified life is not a mere expression of charity or self-obligation of benevolent subjects, but rather a basic claim-right of every person with corresponding legal duties on the part of other subjects. (4.) In the contemporary international legal order, the composite basic right to a dignified existence should be guaranteed by a set of core economic, social and cultural claim-rights requiring immediate implementation, to which the primary core obligations of states as well as the subsidiary responsibilities of other international agents correspond. (5.) The social minimum principle, which provides for a dignified existence of every person, is the foundation and core of a global system of principles of social justice.

KLAUS MATHIS, LUCERNE HUMAN DIGNITY

AS A

TWO-EDGED SWORD

Abstract: Dieser Aufsatz soll aufzeigen, wie die Garantie der Menschenwürde zum Einfallstor für staatlichen Paternalismus werden kann. Nach einer einleitenden Erörterung der Fragestellung (1.) wird zunächst anhand von Fallbeispielen die praktische Relevanz der Problematik veranschaulicht (2.). Im Anschluss daran erfährt der Begriff der Menschenwürde eine theoretische Grundlegung, wobei insbesondere auf die Situation in Deutschland und der Schweiz eingegangen wird (3.). Den Kern der Analyse bildet in der Folge die Frage, ob die Definitionsherrschaft der Menschenwürde grundsätzlich jedem Einzelnen zukommt (autonomisches Verständnis) oder ob sie diesem entzogen werden kann (heteronomisches Verständnis) und sich in der Folge gestützt auf die Menschenwürde Forderungen der Gesellschaft gegen das Individuum richten können, die dieses in seiner Selbstbestimmung einschränken (4.). Die Schlussfolgerung ist deshalb, dass der Begriff der Menschenwürde in der juristischen Argumentation nur mit grösster Vorsicht verwendet werden sollte (5).

1. INTRODUCTION Human dignity can be used as an argument to legitimize paternalistically motivated state interventions in the freedom of individuals.1 The core of the problem is rooted in the definition of the concept of human dignity. This really is a two-edged sword because, depending on the underlying conception, it can provide justification either for individual self-determination or for state compulsion.2 David Feldman puts his finger on the issue thus: “[W]e must not assume that the idea of dignity is inextricably linked to a liberal-individualist view of human beings as people whose life-choices deserve respect. If the state takes a particular view on what is required for people to live dignified lives, it may introduce regulations to restrict the freedom which people have to make choices […] Once it becomes a tool in the hands of lawmakers and judges, the concept of human dignity is a two-edged sword.”3

If human dignity consists primarily of the ability for autonomous self-determination, as stated, does it then guarantee the right to this self-determination and selfexpression – as the pinnacle of human rights, so to speak? Or is human dignity that inviolable and inalienable characteristic that distinguishes humans from other beings, the metaphysical anchor of their personal being, from which human rights derive and which is non-negotiable in any form.4 In other words, is each and every individual fundamentally entitled to define human dignity in his or her own way (the autonomic view)? Or can individuals be deprived of this entitlement (the 1

2 3 4

For more extensive discussion of this paternalism problem, see Klaus Mathis / Ivo Cathry: Paternalismus und Menschenwürde. In: Die Unsicherheit der Väter. Zur Herausbildung paternaler Bindungen, Beiträge zur Rechts-, Gesellschafts- und Kulturkritik, Vol. 9, Malte-Christian Gruber / Sascha Ziemann (eds.), pp. 261–284, Berlin 2009. Deryck Beyleveld / Roger Brownsword: Human Dignity in Bioethics and Biolaw, p. 25, Oxford 2001. David Feldman: Human Dignity as a Legal Value – Part I. In: Public Law (1999), pp. 682–702, 685. Ernst-Wolfgang Böckenförde: Zur Eröffnung. In: Menschenrechte und Menschenwürde, ErnstWolfgang Böckenförde / Robert Spaemann (eds.), pp. 11–15, 14 f., Stuttgart 1987.

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heteronomic view), such that human dignity might become a basis for claims of society against an individual which constrain that individual’s self-determination. The debate outlined above concerning the authority to define human dignity is by no means only of academic interest. The issue manifests itself, for example, in the decisions of the Neustadt Administrative Court and the French Conseil d’Etat, in which the practice known as “dwarf tossing” was banned in order to protect the dignity of people of short stature.5 Other cases to be mentioned in this context are the decisions of the German Federal Administrative Court and the Swiss Federal Court concerning peepshows, in which the practice of naked women putting themselves on display – of their own volition – was deemed to violate human dignity and decency.6 2. EXAMPLE

CASES

2.1. “DWARF TOSSING” “Dwarf tossing” (or “midget throwing”) is a form of entertainment in which a member of the public hurls a person of restricted growth as far as possible onto a padded landing area. The growth-stunted artists wear protective clothing to avoid injuries. “Dwarf tossing” began in the 1980s in Australia and the United States, and was originally a fairground attraction. Today, it is generally staged as a form of entertainment in bars or nightclubs. In Australia, it gave rise to serious sporting contests and championships. It was not long before “dwarf tossing” events were also being held in Europe. Nor was it long before criticism was levelled at the throwing of people of small stature. Consequently, bans on such events were confirmed by courts in Germany and France.7 In the USA, resistance to “dwarf tossing” was such that the state of Florida prohibited it by statute in 1989. Following this example, in the year 2003 the Canadian province of Ontario passed the “Dwarf Tossing Ban Act”. 2.1.1. Germany This first case occurred in the German federal state of Rhineland-Palatinate. Company “X”, a GmbH or limited company, operated a leisure and amusement park with a disco, where it planned to stage a “dwarf tossing” event. Company “X” ran a disco which had been licensed to stage shows involving live performers (“Zurschaustellung von Personen”: “putting persons on display”) based on § 33a of the German Industrial Code (Gewerbeordnung, GewO). As a restriction, however, the license excluded shows which contravened moral decency. After the planned spectacle had been brought to the attention of the licensing authority, an explicit ban was issued.

5 6 7

VG Neustadt, Neue Zeitschrift für Verwaltungsrecht (NVwZ) 1993, pp. 98 ff.; Arrêt du Conseil d’Etat, 27 octobre 1995, Commune de Morsang-sur-Orge et Ville d’Aix-en-Provence. BVerwGE 64, p. 274; BGE 106 Ia 267. VG Neustadt (note 5), pp. 98 ff.; Arrêt du Conseil d’Etat (note 5).

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This was contested at the Neustadt Administrative Court by one of the dwarves affected.8 He argued that “dwarf tossing” should be seen as an artistic performance. This was contradicted by the Neustadt Administrative Court, which hold that throwing dwarves as far as possible for the amusement of the public overrides any sporting or acrobatic characteristics. Therefore the court refused to admit comparisons with circus performances. Such shows for popular amusement were deemed harmful to human dignity and hence in violation of moral decency.9 Abstractly considered, human dignity is deemed to be violated when someone is degraded to a mere object. Such behaviour robs people of the intrinsic value accorded to them on the grounds of their status as human beings. In the case in point, the court saw the violation of human dignity in the object-like role assigned to the dwarves, since they represented mere items of sporting equipment for members of the audience to throw. The court found the emphasis on their short stature a particularly offensive and discriminatory element. The Administrative Court furthermore expressed concern that such events harboured a considerable risk of reducing inhibition thresholds regarding the treatment of people of short stature. Consequently the court concluded that Article 1 of the Basic Law (Grundgesetz, GG) confers on the state an obligation to protect, which required it to avert such attacks on human dignity in its sovereign territory.10 It was deemed irrelevant, in these circumstances, that the performers of short stature took part voluntarily and that they themselves did not perceive it as behaviour which violated their dignity.11 Furthermore the court denied any interference in their freedom of occupation pursuant to Art. 12 para. 1 GG, since this protection only extended to occupations which do not contravene moral decency.12 2.1.2. France French courts have also had to confront the issues surrounding “dwarf tossing” (“lancer de nain”). In Morsang-sur-Orge and in Aix-en-Provence, planned “dwarfthrowing contests” were prohibited by the respective local mayors. Manuel Wackenheim, the person of short stature who featured as a performer in “dwarf-throwing contest” events, was directly affected by the ban imposed both in Morsang-sur-Orge and in Aix-en-Provence. Since it caused him a loss of income, he applied jointly with the promoter to the respective administrative courts to have the ban lifted. Versailles and Marseille Administrative Courts ruled in his favour. The mayors of Morsang-sur-Orge and Aix-en-Provence applied to the Conseil d’Etat, France’s supreme administrative court, for a reversal of the judgments passed by the respective administrative courts.

8 9 10 11 12

VG Neustadt (note 5), p. 98. VG Neustadt (note 5), pp. 98 f.; cf. BVerwG, Neue Juristische Wochenschrift (NJW), Vol. 35 (1982), p. 664. VG Neustadt (note 5), p. 99. Cf. Note 10. VG Neustadt (note 5), p. 100.

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In passing judgment the Conseil d’Etat invoked Art. L 131–2 of the “Code des communes”, according to which district and city police forces have to guarantee public order, safety and public health. This general clause on policing provides a means for intervention in areas like freedom of employment, commerce and trade if some ostensibly permissible action contravenes public order (“ordre public”). Respect for human dignity is deemed to be – like the guarantee of public order, safety and health – a component of “ordre public”.13 In the present cases, human dignity was found to be violated when a person affected by a physical handicap is used as a missile.14 Manuel Wackenheim had the ruling of the French Conseil d’Etat reviewed by the United Nations Human Rights Committee for conformity with the International Covenant on Civil and Political Rights (Second UN Covenant). He complained that his right to liberty of person, work and a private life was being violated; furthermore, he claimed that the ruling had made him a victim of discrimination. He further contended that there was no work for people of short stature in France and that his employment did not represent a violation of human dignity, since in his view dignity consisted in having a job. Nevertheless, the UN Council on Human Rights saw no discrimination in the Conseil d’Etat’s ruling, because the protection of people of short stature from exclusion was an objective reason. It therefore found that these bans were not improper, since they were necessary to safeguard public order.15 2.2. PEEPSHOWS In peepshows, a scantily clad or naked woman sits on a revolving stage and the customers sit in small booths constructed around it. By dropping coins of the right denomination into a slot the voyeurs buy a clear view of the performer, whereas, for her part, she cannot see into their booths. In both Germany and Switzerland, peepshows of this kind were prohibited by the courts. 2.2.1. Germany X applied for a licence to operate a peepshow pursuant to the requirements of § 33a GewO. The responsible authority rejected this application. X contested the decision before the responsible court of appeal. The latter found in favour of X, reasoning that it was not the task of the Industrial Code to prescribe a minimum standard of morality to people. The sole purpose of regulatory law, it ruled, is to regulate social life to the extent that issues are socially relevant, outwardly apparent, and could harm the common good. The court of appeal also denied any violation of Art. 1

13 14 15

Arrêt du Conseil d’Etat (note 5). Arrêt du Conseil d’Etat (note 5). Manuel Wackenheim v. France, Communication No 854/1999, U.N. Doc. CCPR/C/75/D/854/ 1999 (2002).

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para. 1 GG. Mere exhibition of the nude female body was not deemed to violate the performer’s dignity, provided that she was not required to engage in sexual acts.16 In a 1981 decision of the Federal Administrative Court, however, the original refusal of the permit was confirmed on the basis that putting naked women on show for profit contravened public morals.17 It ruled that human dignity has an objective value and is violated if an individual person is denigrated to the status of an object; in the event of attacks by private entities upon human dignity, the state has a constitutional obligation to protect it, and therefore to exhaust all adjudicative options in the attempt to thwart such attacks.18 It further clarified that the objectifying aspect of a peepshow was not the fact that women performed nude. In contrast to strip shows, in which the performer’s personal subjectivity was unaffected, in peepshows women were ascribed an object-like role.19 As a consequence of the arrangements contrived by the organizer of the peepshow, the court considered that women were presented as things serving the purpose of sexual stimulation. The fact that the women were performing of their own volition was deemed to be irrelevant.20 The Federal Administrative Court’s decision was widely rejected in the literature.21 Von Olshausen stated that the decision represents an “ultimately totalitarian value-absolutism”.22 Based on the guarantee of human dignity, the state has to respect the liberty of every individual and is therefore precluded from intervening in individual life decisions, provided that these do not pose a threat to others or themselves. According to von Olshausen, by linking common decency with human dignity, the court reduced the discretion of the regulatory authorities “to nil”.23 In a case from the year 1990, the Federal Administrative Court confirmed its adjudication and considered it unnecessary to respond in more detail to the criticism of the first peepshow judgment. Its one remark in its defence was that peepshows could be considered immoral even without reference to the values of the Basic Law.24

16 17 18 19 20 21

22 23 24

BVerwGE 64, pp. 274, 274 f. BVerwGE 64, pp. 274, 280. BVerwGE 64, pp. 274, 277. BVerwGE 64, pp. 274, 278 f. BVerwGE 64, pp. 274, 279. Henning von Olshausen: Menschenwürde im Grundgesetz: Wertabsolutismus oder Selbstbestimmung? In: Neue Juristische Wochenschrift (NJW), Vol. 35 (1982), pp. 2221–2224, 2221 ff.; Wolfram Höfling: Menschenwürde und gute Sitten. In: Neue Juristische Wochenschrift (NJW), Vol. 36 (1983), pp. 1582–1585, 1582 ff.; Christian Kirchberg: Zur Sittenwidrigkeit von Verwaltungsakten. In: Neue Zeitschrift für Verwaltungsrecht (NVwZ) 1983, pp. 141–143, 141 ff.; dissenting, in support, cf. Alfons Gern: Menschenwürde und gute Sitten (Fortsetzung). In: Neue Juristische Wochenschrift (NJW), Vol. 36 (1983), pp. 1585–1590, 1585 ff. Henning von Olshausen (note 21), p. 2224. Henning von Olshausen (note 21), p. 2222. BVerwG, Neue Zeitschrift für Verwaltungsrecht (NVwZ) 1990, pp. 668 ff.

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2.2.2. Switzerland In Switzerland, peepshows are commonly referred to as “Stützli-Sex”, after the slang-name for the one franc coin (“Stutz”) that was needed to open the shutter. Peepshows in Switzerland are also subject to obligatory licensing, which falls within the remit of the cantonal authorities. In BGE 106 Ia 267 the Swiss Federal Court dealt with a case from the region of Eastern Switzerland. In 1979, two owners of premises in St. Gallen applied to the Cantonal Office for Industry, Commerce, and Employment (KIGA) for the issue of a license to operate a peepshow. The KIGA refused the license and both the Canton government and the Cantonal Administrative Court rejected the appeals that were subsequently lodged.25 Economic freedom (known under the old Federal Constitution in force at the time as “freedom of trade and commerce”) extends to all private-sector activities, provided that these are not illegal. From the Federal Court’s point of view, it is of no fundamental relevance whether an activity appears to be morally offensive.26 Restrictions on liberties are generally only permissible if they are founded on a sufficient statutory basis, are in the public interest, and satisfy the principle of proportionality. Art. 7 of the St. Gallen Law on Market Trading and Door-to-Door Selling (Gesetz über den Marktverkehr und das Hausieren, MHG) of 28 June 1887 specifies that door-to-door selling and putting on shows for profit are subject to a licensing obligation pursuant to Art. 4 MHG. According to Art. 8 lit. a MHG, such licenses can be refused if actions associated with them provoke moral offence. According to the view of the Federal Court, decency is not an immutable term that is defined once for all time. It depends substantially on social and moral views, which can vary from time to time and from place to place. What may be considered perfectly moral in one canton might well cross the threshold of unacceptability in another.27 Since the concept of decency depends heavily on local circumstances, the Federal Court leaves it to the cantonal authorities to assess whether the operation of a peepshow is in accordance with local moral sensibilities. It supported the cantonal finding that the exhibition of naked women via a slot machine was perceived by the St. Gallen population as commercial exploitation of the sexual drive which violated human dignity.28 The refusal to issue a license which contravened the moral sensibilities of the St. Gallen population was in the public interest.29 Furthermore, the Federal Court differentiated between peepshows and strip clubs. Peepshow operators were unable to invoke equal treatment of fellow operators (under the new constitution: equal treatment of direct competitors). Although naked women were on show in both cases, the circumstances were deemed to be different: in a peepshow the performance took place through a vending machine whereas in a strip club the dancers performed directly to the audience. Based on this

25 26 27 28 29

BGE 106 Ia pp. 267, 268, A. BGE 106 Ia pp. 267, 268, E. 1. BGE 106 Ia pp. 267, 271 f., E. 3.a. BGE 106 Ia pp. 267, 272, E. 3.b. BGE 106 Ia pp. 267, 274, E. 3.b.

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differentiation the Federal Court saw legal grounds for assessing the two types of establishment differently from the viewpoint of moral offensiveness.30 3. HUMAN

DIGNITY

The earliest influences on the development of the concept of human dignity were primarily religious ones. Christian teachings saw human beings as made in God’s likeness.31 Following the Enlightenment and consequent secularization, humans no longer claimed their dignity on the grounds of being in God’s likeness. The profoundest influence on the modern understanding of human dignity was almost certainly Kant.32 According to Kant, by virtue of reason and free will, humans possess the capacity for moral autonomy. Free will is the capacity to determine one’s own ends and not simply succumb to inclinations.33 From people’s capacity to choose their own ends, Kant also derives human dignity. Dignity is constituted in that people should never be treated by others merely as means to an end, but always as ends in themselves.34 The same idea is given lucid expression in the following version of the categorical imperative: “So act as to use humanity, whether in your own person or in the person of any other, always at the same time as an end, never merely as a means.”35

According to Kant, then, human dignity is defined by the principle that people should never be merely instrumentalized for the ends of others. 3.1. GERMANY The guarantee of human dignity was incorporated into Article 1 of Germany’s Basic Law in 1949 in order to prevent, for all time, the kind of occurrences that had taken place under the Third Reich. It was intended to enshrine the principle that people always take priority over the state:36 Art. 1 GG (1) Human dignity is inviolable. To respect and protect it is the duty of all state authority. 30 31 32 33 34 35

36

BGE 106 Ia pp. 267, 276, E. 5.b. Markus Schefer: Die Kerngehalte von Grundrechten. Geltung, Dogmatik und inhaltliche Ausgestaltung, p. 126, Bern 2001. Dunja Jaber: Über den mehrfachen Sinn von Menschenwürde-Garantien. Mit besonderer Berücksichtigung von Art. 1 Abs. 1 Grundgesetz, p. 121, Frankfurt am Main 2003. Paul Tiedemann: Was ist Menschenwürde? Eine Einführung, p. 61, Darmstadt 2006. Immanuel Kant: Metaphysik der Sitten. In: Kants Werke, Akademie-Textausgabe, Vol. VI, pp. 203–493, 462, Berlin 1968. Immanuel Kant: Grundlegung zur Metaphysik der Sitten. In: Kants Werke, Akademie-Textausgabe, Vol. IV., pp. 385–463, 429, Berlin 1968 (quoted after Immanuel Kant / Mary Gregor: Groundwork of the Metaphysics of Morals, p. 38, Cambridge, Massachusetts 1998). Christian Starck, Kommentar zu Art. 1 GG. In: Kommentar zum Grundgesetz, Hermann von Mangolt (founder) / Friedrich Klein (cont.) / Christian Starck (ed.), pp. 25–171, no. 1 to Art. 1 para. 1 GG, 5th edn., Munich 2005.

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Legal theorists are in agreement that the guarantee of human rights not only represents an ethical commitment but also a norm of objective constitutional law.37 The more contentious question is whether Art. 1 GG forms the grounds of an individual basic right or just a fundamental constitutional principle.38 The guarantee of human dignity is accorded to all people by force of their existence.39 According to the view of the Federal Constitutional Court, it remains irrelevant whether individuals are conscious of their dignity or not. It has ruled that nobody can lose the protection of their human dignity – not even as a result of “undignified” conduct40 – nor effectively relinquish it. Thus, human dignity is inalienable.41 The scope of human dignity is designed to encompass protection, first and foremost, from degradation, stigmatization, persecution, ostracism and the like.42 Also to be included are abuses like slavery and systematic discrimination, or in very general terms: any act which downgrades a person to second-class status.43 Degradation of a person to a mere object or a replaceable entity can also constitute a violation. In this context, Günter Dürig’s object formula is highly relevant. In keeping with Kant, it states that: “Human dignity as such is affected when the concrete individual is denigrated to an object, to a mere means, to a fungible entity.”44

Accordingly, it is necessary to prevent anything from severe constraint to outright removal of an individual’s self-determination. For example, if an accused were made to testify against himself, he would be degraded to a mere object in the penal process, which violates his dignity.45 In its ruling on the German Air Safety Act (Luft37

38

39 40 41 42 43

44

45

Philip Kunig: Kommentar zu Art. 1 GG. In: Grundgesetz-Kommentar, Ingo von Münch (founder) / Philip Kunig (ed.), pp. 65–121, no. 18 to Art. 1 para. 1 GG, 5th edn., Munich 2000; Christian Starck (note 36), no. 27 to Art. 1 para. 1 GG. In consensus, cf. Matthias Herdegen: Kommentar zu Art. 1 GG. In: Grundgesetz LoseblattKommentar, Theodor Maunz (founder) / Günter Dürig (founder) / Roman Herzog / Matthias Herdegen (eds.), no. 26 to Art. 1 para. 1 GG, Munich 2007; Christian Starck (note 36), no. 28 ff. to Art. 1 para. 1 GG; dissenting, cf. Horst Dreier: Kommentar zu Art. 1 GG. In: Grundgesetz Kommentar, Horst Dreier (ed.), 139–287, no. 127 ff. to Art. 1 para. 1 GG, 2nd edn., Tübingen 2004. Philip Kunig (note 37), no. 14 to Art. 1 GG. BVerfGE 87, pp. 209, 228. BVerfGE 45, pp. 187, 229. BVerfGE 1, pp. 97, 104. Horst Dreier: Bedeutung und systematische Stellung der Menschenwürde im deutschen Grundgesetz. In: Menschenwürde als Rechtsbegriff, Kurt Seelmann (ed.), ARSP Beiheft 101, pp. 33–48, 36, Stuttgart 2004. Translated for convenience. Günter Dürig: Der Grundrechtssatz von der Menschenwürde, Entwurf eines praktikablen Wertesystems der Grundrechte aus Art. 1 Abs. I in Verbindung mit Art. 19 Abs. II des Grundgesetzes. In: Archiv für öffentliches Recht (AöR), Vol. 81 (1956), pp. 117–157, 127. BVerfGE 56, pp. 37, 43.

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sicherheitsgesetz), the German Federal Constitutional Court held that if a hijacked aircraft were deliberately shot down for the protection of others, the passengers would not only be made objects of the perpetrators but also objects of the state and its emergency response.46 In the “Laserdrome case”, concerning a mock battle game in which laser guns are aimed and shot at co-players (“playful killing”), the court similarly ruled that human dignity was violated since the person became a fungible object of their co-players.47 This object formula provides content for the concept of human dignity in terms of its violation.48 It does not, however, amount to a conclusive definition of the guarantee of human dignity. This is why, in its “wiretapping judgment”, the Federal Constitutional Court held that the object formula only indicates the direction in which a violation of human dignity may exist. Just because people are objects of society and the law, the court ruled, it is not necessarily the case that their dignity is violated. As an additional criterion, the individual must also be treated in a way that undermines his or her subjectivity as such; treatment amounting to serious disparagement.49 Attempts have also been made to describe the content of human dignity positively. The problem with this is that although human dignity is a protected interest, it cannot be attributed to a specific bounded domain – be it life, family, occupation, or similar. Hence, it functions as an umbrella concept, which at the same time demonstrates its versatility.50 Positive definitions of human dignity are found in the literature in the form of the endowment theory (or value theory), the effort theory, and the communication theory. The endowment theory sees dignity as a special quality or property endowed on human beings by God or by nature.51 There are two versions of the argument: one sees the special value of the human being as related to divine creation; the other is based on human reason and can be traced back to Kant.52 According to the effort theory, on the other hand, human beings are not ascribed their dignity merely on the basis of their existence. Instead, it is something they have to work for; it is made dependent upon the individual’s own efforts.53 In this approach, people attain their dignity through autonomous action.54 Compared to the endowment theory, the merit of this theory is that it does not rely on any particular religious or philosophical basis. Nevertheless, it fails with respect to individuals who are not capable of identity-formation.55 Endowment theory gets over this shortcoming by ascribing human dignity to every person. The danger there, however, is that dignity is simply

46 47 48 49 50 51

52 53 54 55

BVerfGE 115, pp. 118, 154. BVerwGE 115, p. 189. Matthias Herdegen (note 38), no. 33 to Art. 1 para. 1 GG. BVerfGE 30, pp. 1, 25 f. Klaus Stern, in conjunction with Michael Sachs / Johannes Dietlein: Das Staatsrecht der Bundesrepublik Deutschland, Vol. IV/1, Die einzelnen Grundrechte, p. 20, Munich 2006. Hasso Hofmann: Die versprochene Menschenwürde. In: Archiv für öffentliches Recht (AöR), Vol. 118 (1993), pp. 353–377, 357; Bodo Pieroth / Bernhard Schlink: Grundrechte Staatsrecht II, no. 354, 24th edn., Heidelberg 2008 Horst Dreier (note 38), no. 55 to Art. 1 para. 1 GG. Horst Dreier (note 38), no. 56 to Art. 1 para. 1 GG. Hasso Hofmann (note 51), p. 358. Bodo Pieroth / Bernhard Schlink (note 51), no. 355 f.; Klaus Stern (note 50), p. 22.

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equated with life.56 The most recent approach is the communication theory.57 It constitutes dignity in the context of the social and communicative environment.58 According to this theory, dignity is found in “social recognition through positive evaluation of social entitlements to respect”.59 In the opinion of the Federal Constitutional Court, human dignity comprises not just of the dignity of the individual but also the dignity of person as a species being.60 Yet this view is criticized by theorists in the field: the dignity under discussion is not that of a species, e. g. the “dignity of humanity” or “dignity of being human”;61 human dignity guarantees concrete protection to concrete individuals.62 3.2. SWITZERLAND In Switzerland, the guarantee of human dignity was only expressly incorporated into the new Federal Constitution (Bundesverfassung, BV) of 1999. From a systematic viewpoint, it is placed first in the list of basic rights: Art. 7 BV Human dignity must be respected and protected.

Nevertheless, human dignity had previously been recognized and applied by the Federal Court as an unwritten basic right and, furthermore, several Swiss cantons had already incorporated it into their constitutions.63 It is also worth noting that the concept of human dignity was mentioned in the form of Art. 24novies – albeit only in connection with reproductive medicine and genetic engineering – in the 1992 revision of the constitution dating back to 1874.64 According to Art. 7 BV, all state action must accord general protection and respect to human dignity. Among Swiss scholars, the character of human dignity as a basic right is overwhelmingly accepted.65 The guarantee of human dignity – like other basic rights – has a three-level norm structure if analysed as a multi-level model. It is seen, first, as a foundational constitutional principle; second, as a guideline for legislation and the interpretation of other basic rights; and finally, it can also be applied directly as a default basic right.66 In contrast to Germany where universal 56 57 58 59 60 61 62 63

64 65 66

Hasso Hofmann (note 51), p. 361. Jürgen Habermas: Die Zukunft der menschlichen Natur. Auf dem Wege zur liberalen Eugenik?, p. 62, Frankfurt am Main 2001; Hasso Hofmann (note 51), p. 364. Matthias Herdegen (note 38), no. 31 to Art. 1 para. 1 GG. Hasso Hofmann (note 51), p. 364. BVerfGE 87, pp. 209, 228. Matthias Herdegen (note 38), no. 29 to Art. 1 para. 1 GG. Horst Dreier (note 4338), p. 45. BGE 98 Ia 508, 522, E. 8.b; Philippe Mastronardi: St. Galler Kommentar zu Art. 7 BV. In: Die schweizerische Bundesverfassung Kommentar, Bernhard Ehrenzeller / Philippe Mastronardi / Rainer Schweizer / Klaus A. Vallender (eds.), pp. 164–178, no. 4 to Art. 7 BV, 2nd edn., Zurich/ St. Gallen 2008. Philippe Mastronardi (note 63), no. 4 to Art. 7 BV. Philippe Mastronardi (note 63), no. 13 ff. to Art. 7 BV. BGE 127 I 6, 14, E. 5.b; Philippe Mastronardi (note 63), no. 22 ff. to Art. 7 BV; Jörg Paul Müller / Markus Schefer: Grundrechte in der Schweiz, p. 1, 4th edn., Bern 2008.

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freedom of action assumes the function of a default basic right, in Switzerland this function is ascribed to the norm of human dignity.67 The core of the guarantee of human dignity is the prohibition of inhumane treatment and the mandate to respect and protect every person’s subjectivity.68 It takes on special significance in the contexts of imprisonment, interrogation, extradition and deportation and in the field of medicine. Actions such as torture, degrading treatment, discrimination or harassment are listed as violations.69 The state has to respect and protect the dignity of every individual.70 In a liberal state, however, the concrete content of human dignity must ultimately remain open-ended. The guarantee specifically aims not to construct a concrete view of personhood. Any such blueprint would tend to oppress people rather than affirm their dignity.71 In this context, Markus Schefer argues explicitly against an objective system of value, in as much as basic rights and particularly human dignity represent the specific needs of individuals for protection.72 Similarly, the Federal Court talks about “recognition of individuals in their intrinsic value and their individual uniqueness and perhaps differentness”.73 The emphasis on each person’s individuality and the open-ended content of the norm of human dignity also militate against the concept of a species dignity. 4. THE

BURDEN OF DIGNITY

Civil liberties are primarily intended as defensive rights vis-à-vis the state and its organs. This is not to say that the state must refrain from intervening in these rights at all; in fact, it is obliged to contribute actively to protecting them.74 Expressed negatively, the state must refrain from interventions in the liberties of its citizens, and is positively obliged to take appropriate steps to prevent infringements of its citizens’ liberties by third parties.75 In deriving protective obligations from human dignity, however, one risks concretizing them on the basis of a specific conception of the human being, and aligning this with values accepted and embraced by the majority.76 The problem manifested itself in Germany over the enactment of the Basic Law after the Second World War, when two conflicting views collided: the social democratic approach saw human dignity as the freedom of the individual to shape his or 67 68 69

70 71 72 73 74

75 76

BGE 132 I 49, 54 f., E. 5.1; Philippe Mastronardi (note 63), no. 28 and 47 to Art. 7 BV. Philippe Mastronardi (note 63), no. 43 to Art. 7 BV. Jörg Paul Müller: Geschichtliche Grundlagen, Zielsetzung und Funktion der Grundrechte. In: Handbuch der Grundrechte, Vol. VII/2, Grundrechte in der Schweiz und Liechtenstein, Detlef Merten (ed.), pp. 3–30, § 202 mn. 4 ff., Heidelberg 2004. Philippe Mastronardi (note 63), no. 37 to Art. 7 BV. Jörg Paul Müller / Markus Schefer (note 66), p. 3. Markus Schefer (note 31), p. 43. BGE 132 I 49, 55, E. 5.1. Georg Müller: Schutzwirkungen der Grundrechte. In: Handbuch der Grundrechte, Vol. VII/2, Grundrechte in der Schweiz und Liechtenstein, Detlef Merten (ed.), Heidelberg 2004, pp. 59–78, § 204 no. 1; Bodo Pieroth / Bernhard Schlink (note 51), no. 57 ff. Georg Müller (note 74), § 204 no. 4. Markus Schefer (note 31), p. 37.

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her own life, a freedom which the state fundamentally may not restrict. The sole permissible reason for restrictions on freedom was to acknowledge the freedom and rights of self-determination of fellow human beings. The Christian conservative approach, on the other hand, saw the concept of human dignity not only as the individual’s right to freedom but also as a foundation for imposing obligations upon individuals, namely obedience to God.77 Ultimately they worked out a compromise that glossed over the dissent.78 In this context, Paul Tiedemann distinguishes between the autonomic and the heteronomic conception of human dignity.79 4.1. AUTONOMIC CONCEPTION OF HUMAN DIGNITY According to the autonomic view, the individual should be granted autonomy. In this process, human dignity is conferred upon the individual on the basis of his or her ability for self-determination, regardless of how this is actually exercised.80 From this approach, respect for human dignity means respect for the individual’s self-determination. Admittedly, not all people are capable of self-determination; yet the idea of autonomy acts as a reminder that human dignity must be regarded as something open as opposed to something limiting. All individuals are to be protected in their uniqueness and diversity and, in this sense, human dignity can be understood as the prohibition of a legal conception of the human being.81 In a similar vein, the Swiss Federal Court takes the view that according to Art. 7 of the Swiss Constitution, human dignity with all its possible manifestations eludes any conclusive positive definition.82 Nevertheless the question arises as to whether it can be left entirely up to the individual to define his or her human dignity. In this connection, Horst Dreier rightly points out the danger that human dignity might be trivialized by an autonomic understanding of human dignity, since violations could be claimed “in case of constellations that are nothing short of ridiculous”.83 He illustrates this issue with court cases in which the requirement for advocates to wear robes of office or the (mis-)spelling of names in official letters (e. g. lazy use of “oe” rather than the accented character “ö”) give rise to complaints of human dignity violations.84

77 78

79 80 81 82 83 84

Paul Tiedemann: Menschenwürde als Rechtsbegriff. Eine philosophische Klärung, pp. 68, Berlin 2007. Cognizant of the different understanding on one side and perhaps also the unclarified status of their own understanding on the other, they agreed to the use of a particular form of wording and were conscious that they were only agreeing on words but not on their meaning. Paul Tiedemann (note 77), 71. Paul Tiedemann (note 77), pp. 84 ff. Paul Tiedemann (note 77), p. 92. Markus Schefer (note 31), p. 39. BGE 132 I 49, 55, E. 5.1. Horst Dreier (note 43), pp. 40 f. BVerfGE 26, pp. 14, 15; BVerwGE 31, pp. 236, 237 f.

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4.2. HETERONOMIC UNDERSTANDING OF HUMAN DIGNITY According to the heteronomic view, whilst human dignity is also based on the ability of individuals for self-determination, this is true only to the extent that this freedom of self-determination is used in harmony with normative claims which are stipulated heteronomically – in other words, externally by others.85 Thus, individuals no longer determine what constitutes their dignity themselves: “The Basic Law is a value-bound code which recognizes the protection of liberty and human dignity as the highest purpose of all law; its conception of the person is not that of the arrogant individual, but of the personality rooted in society and subject to a host of obligations.”86

Human dignity according to the heteronomic view represents not only the dignity of the individual, but also the dignity of the human being as a species being.87 Dignity is therefore accorded to the human being as a “person”, but in certain circumstances it can also conflict with the “individual” in the form of a legal challenge invoking the individual’s membership to the community bound by the law.88 The guarantee of human dignity, which was originally posited to protect against totalitarianism and inhumanity, can become – if defined heteronomically – a constitutionally enshrined basis for oppression, humiliation and cruelty in the name of ontological truth and justice.89 Legal protection of a certain conception of the human being easily mutates into paternalism, or in the worst case, belief-tyranny.90 In this way, the guarantee of human dignity can be used against “inconvenient” people whose lifestyles or convictions clash with what is believed to be the “right” way to live.91 Therefore, instead of protecting the individual, the objectification of human dignity robs the individual of his or her self-determination.92 5. CONCLUSIONS As these arguments show, a heteronomic definition of human dignity must be rejected, for reasons relating to the individual’s self-determination. Yet the definition of human dignity cannot simply be left to the individual, either. If it were, it could have any conceivable content. The content of human dignity must therefore be allowed to crystallize during the concrete processes of communication in each case and can be defined neither objectively nor purely subjectively.

85 86 87 88 89 90

91 92

Paul Tiedemann (note 77), 84. BVerfGE 12, pp. 45, 51. BVerfGE 87, pp. 209, 228. Kurt Seelmann: Rechtsphilosophie, § 12 no. 13 f., 4th ed., Munich 2007. Markus Schefer (note 31), p. 39. Ulfrid Neumann: Die Tyrannei der Würde. Argumentationstheoretische Erwägungen zum Menschenwürdeprinzip. In: ARSP, Vol. 84 (1998), pp. 153–166, 162; Ulfrid Neumann: Die Menschenwürde als Menschenbürde – oder wie man ein Recht gegen den Berechtigten wendet. In: Biomedizin und Menschenwürde, Matthias Kettner (ed.), pp. 42–62, 56, Frankfurt am Main 2004. Henning von Olshausen (note 21), p. 2222; cf. Kurt Seelmann (note 88), § 12 no. 14. Markus Schefer (note 31), p. 37.

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As a further recommendation, the boundaries of human dignity should not be drawn too broadly. A narrow definition is advantageous, first of all, because it upholds the claim that human dignity cannot be balanced. For when human dignity is defined broadly, it is almost unavoidable to make a distinction between an absolute core of dignity and a wider sphere that is subject to limitations. This diametrically contravenes the inviolability of human dignity. But above all, a narrow definition reduces the danger that human dignity can be misused to justify restraints on the liberties of citizens. In contrast, a broad definition and inflationary use of human dignity has fatal implications: human dignity, supposedly the very pinnacle of the basic rights, is used to legitimize state-imposed restraints on freedom. An especially serious flaw is that the human dignity argument cuts off the possibility of weighing the various legally protected interests against each other. As soon as human dignity enters the equation, the authorities applying the law no longer have any discretion. This turns human dignity into a killer argument. Accordingly, human dignity should only be at stake in instances of fundamental violations. As a consequence, the human dignity line of juristic argument is, in many cases, dispensable. Even though it may seem paradoxical at first sight, this does not diminish the significance of human dignity in any way: no harm comes from cautious use of human dignity; whereas inflationary use of human dignity, by trivializing it, reduces it to a meaningless concept. It nevertheless remains possible to prohibit activities that offend public morals by restricting rights of liberty – such as freedom of occupation or economic freedom – provided that the preconditions for doing so (statutory basis, public interest and proportionality) are met. The assessment of whether the private or public interest should take precedence is undertaken explicitly as part of the examination of proportionality. It goes without saying that even in the public interest, human dignity as a constitutional principle should not be used against an individual. This prevents the instrumentalization of human dignity to justify intrusions by the state into its citizens’ autonomy, turning dignity into a burden.

MIODRAG A. JOVANOVIC´, BELGRADE LEGAL VALIDITY

AND

HUMAN DIGNITY

ON RADBRUCH’S FORMULA Abstract: This paper dispels a widely held belief of certain prominent Anglo-American legal scholars that on the issue of defining criteria of legal validity the hatchets have been buried between legal positivism and natural law theory. It will demonstrate not only that this issue is not completely settled among Anglo-American scholars, but that it is the central problem of the German legal theoretical tradition, which is the most influential school in continental Europe. In particular, the paper will focus on Radbruch’s formula as one of the well-known modern refined versions of the traditional topic from the natural law tradition “lex iniusta non est lex”. After putting its analysis within the context of the major developments and shifts in Radbruch’s legal philosophy, the paper will advance the thesis that the ultimate criterion of legal validity in this formula concerns the most basic human right, that of human dignity.

1. INTRODUCTION In this paper, I will challenge the assumption widely shared by contemporary AngloAmerican positivists that in the debate on the criteria for legal validity, traditional natural law arguments can no longer play a critical role. In order to do so, I will first briefly overview the major findings of Anglo-American legal positivism (‘The Social Fact Thesis’ and ‘The Separability Thesis’) and demonstrate that, despite a wide consensus on the former, positivists themselves disagree about the latter, insofar as they hold different positions on the question to what extent and in what ways law is connected to morality (inclusivitsts v. exclusivists). Furthermore, some of the connections that they do acknowledge (e. g. Green’s ‘justice-apt’ character of law) may after all affect the central thesis of legal positivism – the rejection of any dependence of the validity of law on its merits. It will also be shown that if contemporary jusnaturalists (e. g. Finnis) have given up on the idea that lex iniusta non est lex has anything to do with the problem of legal validity, this conclusion is not quite warranted. This old slogan, commonly associated with natural law theory, may still be of significance in addressing the problem of legal validity, as will be demonstrated by referring to the case of the German jurisprudential tradition, which is the most influential school in continental Europe. I will particularly focus on Radbruch’s formula, which represents a modern refined version of the lex iniusta slogan. Apart from having sparked the famous Hart-Fuller debate, the work of this important German legal philosopher remains largely unknown, and hence undiscussed, in the sphere of Anglo-American jurisprudence. After presenting the crux of his theory, I will investigate whether the content of Radbruch’s formula for determining the invalidity of a law can be more precisely formulated. In arguing so, I will recall Radbruch’s teaching on ‘the nature of the thing’, which led him to abandon the robust version of value relativism and to introduce human rights as the minimal moral content of law. Finally, I will try to demonstrate that in advancing his formula, Radbruch essentially confined himself to the most basic human right, which is that of human dignity.

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2. ON CRITERIA

OF

LEGAL VALIDITY – IS THERE ANYTHING

TO

DEBATE ON?

Before entering any discussion on the problem of legal validity, it is reasonable to ask ourselves whether any such debate is justified within the contemporary legal theory. Anyone who is acquainted with the major findings of the main representatives of modern Anglo-American legal thought may come to the conclusion that with regard to defining the criteria of law’s positivity, the hatchets have been buried between the two mainstream schools: legal positivism and natural law theory. Bix points exactly at this direction: “It used to be commonly believed that the disagreement between natural law theory and legal positivism was about the legal or moral validity of unjust official actions. Contemporary theorists in both camps have shown that this topic is in fact one in which agreement, rather than disagreement, predominates.”

In particular, he praises Finnis’s contribution to jus-naturalism, since he “has been active in this clarification”,1 by contending that unjust laws still count as valid ones.2 This led MacCormick to conclude in a similar fashion that “there is then no serious difference between the ‘positivist’ and the proponent of ‘natural law’, despite all the generations of controversy directed to this very point of the ‘existence’ of the unjust law ‘as such’.”3 Not all among the Anglo-American scholars, however, would so easily subscribe to this opinion. Some of them take the substantive issues of legal validity and the concept of law to be inseparable from certain normative issues. Hence, in a famous rejoinder to one of Hart’s most influential papers, ‘Positivism and the Separation of Law and Morals’ from 1958,4 Fuller notes that one of the significant contributions of this discussion lies in its focus on “one of the chief issues” of legal theory, that of “fidelity to law”.5 Yet, he is of the opinion that Hart’s approach, just like any other approach of legal positivism, fails to throw light on this issue in a context which is indeed challenging. After all, “it is not only in the affairs of everyday life that we need clarity about the obligation of fidelity to law, but most particularly and urgently in times of trouble.” Consequently, Fuller concludes: “If all the positivist 1 2

3 4

5

Brian Bix: On the Dividing Line Between Natural Law Theory and Legal Positivism. In: Notre Dame Law Review, Vol. 75 (5) (2000), p. 1624. Yet, these laws are morally defective, insofar as they do not provide good reasons for action. John Finnis: Natural Law and Natural Rights, pp. 359–361, Oxford 1980. What Finnis primarily challenges in the theory of legal positivism is its view, typical of Hart’s analytical jurisprudence, that law can be studied without moral evaluation. See John Finnis: On the Incoherence of Legal Positivism. In: Notre Dame Law Review, Vol. 75 (5) (2000), pp. 1597–1611 and John Finnis: On Hart’s Ways: Law As Reason and As Fact. In: The American Journal of Jurisprudence, Vol. 52 (1) (2007), pp. 25–53. However, it will be demonstrated below that, in one of his latest pieces, Finnis does not completely abandon the idea that an unbearably unjust law loses not only its directiveness for judges and citizens, but also its legal validity. Neil MacCormick: Natural Law and the Separation of Law and Morals. In: Natural Law Theory – Contemporary Essays, Robert P. George (ed.), p. 109, Oxford 1992. It was first published in Harvard Law Review 71 (1957–1958) and was later republished – Herbert Hart: Positivism and the Separation of Law and Morals. In: Essays in Jurisprudence and Philosophy, pp. 49–87, Oxford 1983. Lon L. Fuller: Positivism and Fidelity to Law – A Reply to Professor Hart. In: Harvard Law Review, Vol. 71 (1958), p. 632.

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school has to offer in such times is the observation that, however you may choose to define law, it is always something different from morals, its teachings are not of much use to us.”6 In a recent collection of essays, Feinberg, for his part, holds that it still makes much sense to dwell on the dilemmas of judges who must interpret immoral laws. What he primarily has in mind is the Nazi experience, an issue he refers to as the “Nuremberg problem”, where the question was whether the post-war punishment of the Nazi war criminals was “a departure from law or the use of an implicit norm within the laws of all nations, ‘a law of nature’?”7 In supporting the latter thesis, Feinberg purports to defend what he believes to be the central tenet of natural law theory, the idea that “morality is an essential part of law as it is.”8 Nevertheless, he instantly recognizes what is the most troubling question about the viewpoint that morality (justice) affects legal validity – “How severely unfair must a statute be if it is properly to be declared invalid on the ground of conflict with natural justice?”9 It is exactly the aforementioned historical experience under a totalitarian regime that made German legal theorists far more sensitive to the issue of legal validity. No wonder, thus, that in the 2007 edition of his Rechtstheorie (Legal Theory) Rüthers, for instance, argues that even nowadays determining the criterion of legal validity represents “the central question of legal theory and judiciary.”10 This question, in his opinion, still causes ‘discomfort’ among lawyers, particularly when placed within the context of a totalitarian state (das Totalitarismusproblem).11 Another contemporary German scholar even more vividly expresses the dilemma of legally coping with the totalitarian past, by simply naming it ‘the Hitler problem” (Das Hitler-Problem).12 Having all this in mind, one may assume that the debate on the criterion of legal validity is not settled after all, despite the prima facie impression that jus-naturalists – at least the most prominent members of this camp – are finally ready to discard the well-known slogan lex iniusta non est lex as a formula of legal validity in favor of some arguments of legal positivism.13 The next section will, thus, briefly try to outline those views of legal positivism, which are widely perceived, especially among Anglo-American scholars, to be the undisputed last word in the discussion on law’s positivity.

6 7 8 9 10 11 12 13

Lon L. Fuller (note 5), p. 634. Joel Feinberg: Problems at the Roots of Law (Essays in Legal and Political Theory), p. vii, Oxford 2003. Joel Feinberg (note 7), p. 3. Joel Feinberg (note 7), p. 6. Bernd Rüthers: Rechtstheorie, p. 208, 3rd ed., Munich 2007. Bernd Rüthers (note 10), p. 214. Klaus F. Röhl: Allgemeine Rechtslehre, p. 302, Cologne 2001. It is often emphasized that this Aquinas’s formula “does not forfeit legal validity” of unjust laws. José Antonio Seoane: Three Ways of Approaching Unjust Laws: Aquinas, Radbruch and Alexy. In: Rechtstheorie, Vol. 37 (2006), p. 310. Nevertheless, in the history of natural law theory, it was accustomed to interpret this slogan as a legal validity formula.

148 3. LEGAL VALIDITY

Miodrag A. Jovanovic´ AND THE

TWO THESIS ARGUMENT

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One of the generally accepted features of legal positivist self-identification concerns the strict separation between law as it ‘is’ and law as it ‘ought to be’. In that respect, proponents of this view tend to take as their motto Austin’s words that “the existence of law is one thing; its merit or demerit is another”. This slogan further implies a crucial methodological distinction between the question of what law is (‘expository jurisprudence’) and the question whether the existing law ought to be in line with certain “assumed standard” (‘censorial jurisprudence’). What follows from this “simple and glaring” truth, on Austin’s view, is that not any or anyone’s standard on what law ought to be can be taken as the criterion for determining what law is.14 Consequently, what legal positivists of all sorts unequivocally abandon is the idea that justice or the moral content of the putative norm can serve as a necessary criterion of legal positivity (validity).15 This is the core of ‘The Separability Thesis’, according to which law and morality should be kept conceptually separated.16 Although all legal positivists share their views on what may not serve as a necessary criterion of legal validity, they differ among themselves when it comes to determining what may serve as one such criterion. Early Anglo-American legal positivists largely followed Hobbes in assuming that law is the order of the sovereign, and that the ultimate source of legal validity resides in the social fact of political sovereignty. Unlike them, Kelsen tried to ‘purify’ legal theory and expel all foreign, non-legal elements from it and, hence, he took the ‘basic norm’, as a transcendental category, to be the final criterion of law’s positivity. Finally, most contemporary legal positivists from the Anglo-American world tend to follow Hart’s ‘conventionalism’, arguing that there are conventional rules of recognition, that is, “social conventions which determine certain facts or events that provide the ways for the creation, modification, and annulment of legal standards.” These facts, e. g. legislative acts, judicial precedents, official customs etc., are “the sources of law conventionally identified as such in each and every modern legal system.”17 As pointed out by Coleman, “the general claim that the criteria of legality are conventional is itself an instance of the

14 15

John Austin: The Province of Jurisprudence Determined (1832), pp. 184–185, New York 2002. For the argument that, despite all differences, all legal positivists endorse this proposition, see John Gardner: Legal Positivism: 5½ Myths. In: The American Journal of Jurisprudence, Vol. 46 (2001), pp. 199–227. Contemporary German legal scholars also acknowledge this direct connection between ‘The Separability Thesis’ and the problem of legal validity. See, e. g. Günter Ellscheid: Strukturen naturrechtlichen Denkens. In: Einführung in Rechtsphilosophie und Rechtstheorie der Gegenwart, Arthur Kaufmann et al. (eds.), p. 222, Heidelberg 2004. 16 Reasons for sticking to the distinction between ‘is’ (Sein) and ‘ought’ (Sollen) are quite different though. Whereas the majority of mainstream Anglo-American legal positivists hold to it for more pragmatic reasons (e. g. Hart’s warning about the double danger of confusing ‘is’ with ‘ought’. Herbert Hart (note 4), p. 54, Kelsen, on the other hand, “placed essential reliance on epistemological arguments in defending legal positivism.” Stefan Hammer: A Neo-Kantian Theory of Legal Knowledge in Kelsen’s Pure Theory of Law? In: Normativity and Norms – Critical Perspectives on Kelsenian Themes, Stanley L. Paulson and Bonnie Litschewski Paulson (eds.), p. 177, Oxford 1998. 17 Andrei Marmor: The Nature of Law. In: Stanford Encyclopedia of Philosophy, Spring 2007 Editionat http://plato.stanford.edu/archives/spr2007/entries/lawphil-nature/.

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even more basic social fact thesis.”18 Consequently, the idea that the criteria of law’s positivity lie in social facts is the core of ‘The Social Fact Thesis’. Contemporary Anglo-American legal theorists, thus, share the commitment to ‘The Social Fact Thesis’,19 but they differ with regard to the question whether morality can under any circumstances serve as a criterion of positivity.20 This is the dividing line between the two camps within the school of legal positivism – exclusivists and inclusivists. In an often quoted aphorism, this dividing point is defined in the following way – while the former hold that “it is necessarily the case that there is no connection between law and morality”, the latter claim that “it is not necessarily the case that there is a connection between law and morality.”21 Marmor, who is an exclusivist, argues that the problem of legal validity is settled by reference to what count as conventional sources of law. That is, “all law is source based, and anything which is not source based is not law.”22 This does not imply denying that many moral principles are part of law, but only that “a norm is never rendered legally valid in virtue of its moral content.”23 If this were not so, we would, according to Shapiro, undermine the logic of planning, which is the central feature of legal activity, insofar as the existence of law would no longer depend on empirical observation, but on moral deliberation.24 In that respect, this thesis has potential implications for the objectivity and impartiality of jurisprudence. For instance, Raz says: “Since the validity of a law depends on its source, and since the source is an action or a series of actions, doubts and discussions about the validity of laws revolve on factual questions, on issues susceptible of objective determination to which one’s moral or political views are essentially irrelevant.”25

Inclusivists, for their part, allow that the morality of a norm can at times be a condition of its validity. This camp “rests on a distinction between the grounds and the content of the criteria of legality.” Whereas the former must always be social facts (some convention among officials), the latter “need not state social facts.”26 This means that, contrary to the opposing camp, inclusive legal positivism acknowledges the possibility that certain moral principles be legally binding in virtue of their merits or value, and not simply because of their source or pedigree. However, unlike 18 19

20 21 22 23 24

25 26

Jules L. Coleman: The Practice of Principle – In Defence of a Pragmatist Approach to Legal Theory, p. 103, fn. 1, Oxford 2001. Coleman argues that “the more accurate view is that legal positivism is defined by its commitment to the social fact thesis.”, Jules L. Coleman: Beyond the Separability Thesis: Moral Semantics and the Methodology of Jurisprudence. In: Oxford Journal of Legal Studies, Vol. 27 (4) (2007), p. 586. Cf. Andrei Marmor: The Separation Thesis and the Limits of Interpretation. In: Canadian Journal of Jurisprudence, Vol. 12 (1) (1999), p. 135. Leslie Green: Legal Positivism. In: Stanford Encyclopedia of Philosophy, Spring 2007 Edition, at http://plato.stanford.edu/archives/spr2007/entries/legal-positivism. Andrei Marmor: Positive Law and Objective Values, p. 49, Oxford 2001. Andrei Marmor (note 22), p. 50. “If the law is to guide conduct in the manner of plans, then it follows that its existence cannot be determined through deliberation on the merits.” Scott J. Shapiro: Was Inclusive Legal Positivism Founded on a Mistake? In: Ratio Juris, Vol. 22 (3) (2009), p. 333. Joseph Raz: The Authority of Law – Essays on Law and Morality, p. 152, 2nd ed., Oxford 2009. Jules L. Coleman (note 18), p. 107.

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Dworkin who believes that determining what is law always and necessarily requires moral and political considerations,27 inclusivists hold that this connection between law and morality is merely a contingent one, and that it depends on whether moral principles are established by a recognized rule of recognition as the criterion of validity.28 Examples include ‘the due process’ and ‘the equal protection’ clauses of the American constitution, or legal provisions that bind judges to apply what justice requires.29 Nevertheless, inclusivists perceive “theoretical motivations” for adopting this, rather than the opposite version of legal positivism.30 Green, who declares himself an adherent of ‘legal positivism’, believes that both of the aforementioned slogans that express the exclusivist and inclusivist positions towards ‘The Separability Thesis’ are essentially simplified and flawed. He argues that there are at least three necessary connections between law and morality that go to the heart of our concept of law. The first one is that law necessarily deals with moral matters; the second is that law makes moral claims on its subjects, insofar as it purports to obligate its addressees; and, finally, law is necessarily “justice-apt”, because unlike in cases of some other human practices, “it always makes sense to ask whether law is just”. That is, “law is not best when it excels legality; law must also be just.” And yet, Green argues that each one of these profound connections between law and morality is perfectly consistent with the key thesis of legal positivism “that the existence and content of law depends on social facts, not on its merits.”31 It may seem that Green tries to loosen the stringency of ‘The Separability Thesis’ of legal positivism, by making an important concession to the natural law camp (the ‘justice apt’ character of law), while simultaneously retaining the key position with respect to the issue of legal validity.32 As already noticed, many legal theorists believe that Finnis makes a similar decisive concession to legal positivism when 27 Ronald Dworkin: Law’s Empire, especially Chapters 2 and 3, Cambridge, MA 1986. 28 Wilfred J. Waluchow: Inclusive Legal Positivism, p. 82, Oxford 1994. 29 Cf. Herbert Hart (note 4), p. 55. 30 In Coleman’s opinion, Waluchow thinks that the most praising potential of inclusive legal positivism is its descriptive accuracy, while he believes that the dispute between the two versions of legal positivism cannot be resolved on descriptive grounds, because it is primarily an interpretive dispute. Jules L. Coleman (note 18), p. 109 f. In a more recent article, however, Coleman tends substantially to restructure the argument in favor of Inclusive Legal Positivism, dropping three notions that are either mistaken or inessential to law: the separability thesis, the rule of recognition, and the idea of criteria of legality. Jules L. Coleman: Beyond Inclusive Legal Positivism. In: Ratio Juris, Vol. 22 (3) (2009), pp. 359–394. 31 Leslie Green (note 21). In a more recent article, Green adds the fourth necessary connection, that “law is morally risky”, which leads him to conclude that law is “morally fallible”. That is, “there is no guarantee that law will satisfy those moral standards by which law should be judged”. Leslie Green: Positivism and the Inseparability of Law and Morals. In: New York University Law Review, Vol. 83 (2008), pp. 1035–1058. 32 In a somewhat similar fashion, Coleman now argues that ‘The Separability Thesis’ “cannot shoulder the philosophical burdens that it has been asked to bear”, and that, while sticking to ‘The Social Fact Thesis’, legal positivists have every reason to incorporate ‘the moral semantics claim’, according to which legal content is best understood as moral directives what is to be done and who is to decide what is to be done, because these two claims are not inconsistent with one another. Jules L. Coleman (note 19) For an assessment of this position, see, Kenneth Einar Himma: Positivism and Interpreting Legal Content: Does Law Call for a Moral Semantics? In: Ratio Juris, Vol. 22 (1) (2009), pp. 24–43, Stephen Perry: Beyond the Distinction between Positivism and Non-Positivism. In: Ratio Juris, Vol. 22 (3) (2009), pp. 311–325.

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holding that morally defective laws are still binding in the legal sense of the word. Both assumptions, however, deserve brief comments. As for Green, it is very difficult to claim that “law must also be just” and then to argue that this view is completely consistent with the requirement of legal positivism “that it be in virtue of its facticity rather than its meritoriousness that something is law”. As it will be demonstrated in the next section, Green is very close to Radbruch’s position, at least to the pre-War one, which states that justice is not “the only, or even the first, virtue of a legal system.” However, Green’s other statement, that “it always makes sense to ask whether law is just”,33 is also very similar to one of the basic postures of Radbruch’s philosophy of law that “Law is the will to justice” (“Recht ist Wille zur Gerechtigkeit”), which, in the post-War period, led this German author to conclude that ‘unbearably unjust laws’ were not laws at all. Consequently, if Green argues, I believe rightly, that this ‘justice-apt’ nature of law is something that profoundly distinguishes this social practice from some other human practices, then this might critically affect those rules which meet the formal requirement of legal validity as they are ‘source-based’, but which gravely violate justice. As for Finnis, although one may find that a number of his statements are warmly welcomed by legal positivists, such as, for instance, the assertion that classic jusnaturalism “has always enthusiastically affirmed” the thesis that there is no necessary connection between law and morality,34 he does not altogether discard the famous slogan of natural law theory, lex iniusta non est lex.35 In a more recent paper, he discusses Hart’s well-known saying “This is law; but it is too iniquitous to be applied or obeyed.”36 Finnis asks whether “the law as settled by social-facts sources, in losing its directiveness for judges and citizens, lose also its legal validity?” He instantly responds by saying that, depending “upon the discursive context in which the question arises”, the answers might be both yes and no. In other words, each of the answers “tells an important part of the truth”. Furthermore, Finnis argues that the meaning of Hart’s aforementioned saying is “essentially identical” to the one of the jus-naturalistic motto “an unjust law is not a law”. In that respect, he considers the positivistic hostility towards this motto to be “unwarranted”. No one, for instance, has problems in understanding locutions such as ‘an invalid argument is no argument’, ‘a disloyal friend is not a friend’, or ‘a quack medicine is not medicine’. Finnis concludes that lex iniusta non est lex has exactly “the same logic”.37 Hart not only 33 34 35

36 37

Cf. Note 21. John Finnis: On the Incoherence of Legal Positivism. In: Notre Dame Law Review, Vol. 75 (5) (2000), p. 1606. Anglo-American legal positivists commonly believe that Finnis interprets this thesis as not being directly connected to the problem of legal validity. See, e. g. Neil MacCormick (note 3), p. 108. Herbert Hart: The Concept of Law, with a Postscript edited by Penelope A. Bulloch and Joseph Raz, p. 208, 2nd ed., Oxford 1994. Finnis says that this slogan “acknowledges, in its opening words, that what is in question is in certain important respects – perhaps normally and presumptively decisive respects – a law, but then in its withdrawal or denial of that predicate it affirms that, since justice is the very point of having and respecting law at all, this particular law’s deficiency in justice deprives it of the decisive significance which all law purports to have. It is thus law only in a sense that should be judged… to be a distorted and secondary, non-central sense”. John Finnis: ‘Natural Law Theories’, at http://plato.stanford.edu/archives/spr2007/entries/natural-law-theories/.

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overlooked this, but he insisted that a “historically and logically indefensible” assessment of this slogan is discouraging or confusing the moral critique of law. Finnis, on the other hand, underlines that this motto is “unintelligible” unless it is used precisely as an incitement to engage in such a critique.38 Radbruch’s formula represents the most famous modern reformulation of the lex iniusta thesis,39 and it is the topic of the next section. 4. RADBRUCH’S FORMULA AS

A

TEST

OF

LEGAL VALIDITY

I suppose that it would be quite normal if I could start this section by saying: “As is very well known, the main tenets of Radbruch’s legal philosophy are…”. This would be normal to assert, insofar as this legal philosophy represents one of the first attempts to find a ‘third way’ between or beyond natural law theory and legal positivism,40 and as, furthermore, it decisively affected the judicial practice in the post-Nazi and post-unification period of German history.41 Unfortunately, I cannot use this opening, because Radbruch’s work is still not studied enough outside of the German speaking world, and this particularly holds for contemporary AngloAmerican jurisprudence. Apart from their initial post-war interest in German legal thought,42 and with the notable exception of Stanley Paulson,43 who together with Bonnie Lischewski Paulson has just recently translated two of the most important post-war papers of Gustav Radbruch,44 the majority of contemporary Anglo-Ameri38 39 40

Cf. note 37. Cf. José Antonio Seoane (note 13), p. 310. Kaufmann argues that finding a ‘third way’ is now a widely acknowledged theme of legal theory. At the same time, he says that Radbruch was the first to make such an attempt. Arthur Kaufmann: Problemgeschichte der Rechtsphilosophie. In: Einführung in Rechtsphilosophie und Rechtstheorie der Gegenwart, Arthur Kaufmann et al. (eds.), p. 89, Heidelberg 2004. This stance is also endorsed by some Anglo-American scholars – “Until Radbruch, no major legal philosopher attempted to combine dialectically the central theses of traditional natural law and legal positivism”. Heather Leawoods: Gustav Radbruch: An Extraordinary Legal Philosopher. In: Journal of Law and Policy, Vol. 2 (2000), p. 489. 41 Its application was particularly challenged in the latter context, in several cases regarding East German Border Guards. See e. g. Robert Alexy: Mauerschützen, Hamburg 1993. For an overview of developments in English language, see e. g. Peter E. Quint: Judging the Past: The Prosecution of East German Border Guards and the GDR Chain of Command. In: The Review of Politics, Vol. 61 (2) (1999), pp. 303–329. 42 This was the period when Radbruch’s major work, Rechtsphilosophie, from 1932, was translated as a part of the larger book, containing also works of two other authors. See Gustav Radbruch: Legal Philosophy. In: The Legal Philosophy of Lask, Radbruch, and Dabin (translated by Kurt Wilk), with an introduction by Edwin W. Patterson, pp. 43–224, Cambridge, MA 1950. Neither Radbruch’s work, nor the whole volume was subsequently reprinted. 43 Besides his works in German language, Paulson has written several articles on Radbruch’s legal philosophy that are published in renowned Anglo-American legal journals. See Stanley L. Paulson: Radbruch on Unjust Laws: Competing Earlier and Later Views? In: Oxford Journal of Legal Studies, Vol. 15 (3) (1995), pp. 489–500; Stanley L. Paulson: Lon L. Fuller, Gustav Radbruch and the “Positivist” Theses. In: Law and Philosophy, Vol. 13 (3) (1999), pp. 313–359; Stanley L. Paulson: On the Background and Significance of Gustav Radbruch’s Post-War Papers. In: Oxford Journal of Legal Studies, Vol. 26 (1) (2006), pp. 17–40. 44 These are the papers ‘Gesetzliches Unrecht und übergesetzliches Recht’, first published in the

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can scholars tend to mention this author’s ideas, if they mention them at all, in passing remarks as they comment on the previously mentioned Hart-Fuller debate.45 Radbruch’s legal philosophy is commonly presented as consisting of two phases, where the moment of the fall of Nazi regime is taken as a clear turning point between the two.46 Although all commentators acknowledge that after 1945, he introduced some significant new ideas into his legal philosophy, most notably in the two aforementioned short papers, the scholars largely disagree on a number of interpretative issues. Hence, some German scholars, as well as Hart, argue that Radbruch fundamentally revised his positions after the War.47 Others believe “that his earlier and post-war writings reflect different aspects of a single position”,48 but disagree on whether the 1932 stance was “the prevailing expression of his material views”,49 or whether it was the post-war papers that actually represented “the correction of mistake in his earlier work”.50 There are, then, scholars who reject the perception of Radbruch’s post-war work as some sort of “weapon” of the larger policy of ‘coming to terms with the past’ (Vergangenheitsbewältigung, Vergangenheitsaufarbeitung),51 but there are also those who consider this work to be barely consistent with his initial neo-Kantian philosophical premises.52 Finally, there are authors who interpret Radbruch’s post-war views as evidence of an important shift in the explanation of the

45

46

47 48 49 50 51 52

Süddeutsche Juristen-Zeitung 1 (1946), pp. 105–108, and ‘Fünf Minuten Rechtsphilosophie’, first published in the Rhein-Neckar Zeitung (Heidelberg), 12th September 1945. English translations were published in the Oxford Journal of Legal Studies 26 (1), as ‘Statutory Lawlessness and Supra-Statutory Law’ (2006a): pp. 1–11 and ‘Five Minutes of Legal Philosophy’ (2006b): pp. 13–15. To my knowledge, no other Radbruch’s work, apart from the mentioned 1950 English edition of his Legal Philosophy was translated into English. This is but an illustration of the lack of a more serious exchange of ideas between the two major legal theoretical traditions – German, which has not only a remarkable heritage in this field, but also probably the largest annual production of legal theoretical writings; and Anglo-American, which is, no doubt, today more influential among scholars around the world. Interestingly enough, Radbruch himself made at the time a symbolic contribution to the establishment of such a dialogue between the two traditions, by maintaining the mail correspondence in English with one of the younger colleagues whom he happened to meet while shortly visiting Oxford in 1935 and 1936. See Carola Vulpius: Gustav Radbruch / Archibald H. Campbell Briefwechsel 1935–1949, Münster 2005. However, the other phasal categorizations of Radbruch’s work are possible as well. Discussing the problem of purpose (Zweck) of law in Radbruch’s legal philosophy, Adachi divides his work into two different phases – the first, from 1898 to 1918, and the second, from 1918 until 1949. Hidehiko Adachi: Die Radbruchsche Formel – Eine Untersuchung der Rechtsphilosophie Gustav Radbruchs, Baden-Baden 2006. See e. g. Ralph Dreier: Recht – Moral – Ideologie, p. 189, Frankfurt am Main 1981; Hart speaks of Radbruch’s ‘conversion’. Herbert Hart (note 4), p. 73. Stanley L. Paulson (note 43), p. 319. Erik Wolf: Revolution or Evolution in Gustav Radbruch’s Legal Philosophy. In: Natural Law Forum 3 (1958), p. 3. Stanley L. Paulson (note 43) p. 500. See e. g. Karl Engisch: Gustav Radbruch als Rechtsphilosoph. In: Arthur Kaufmann (ed.), Gedächtnisschrift für Gustav Radbruch, Göttingen 1968, pp. 67–68. See e. g. Lukas H. Meyer: Gesetzen ihrer Ungerechtigkeit wegen die Geltung absprechen” – Gustav Radbruch und der Relativismus. In: Neukantianismus und Rechtsphilosophie, Robert Alexy et al. (eds.), pp. 319–361, Baden-Baden 2002.

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nature of law and legal validity,53 and those who take his famous formula primarily as “an important statement about judicial decision-making.”54 For obvious reasons, not all of these issues can be addressed in this paper. Instead, I will tackle the last of them, trying to show that Radbruch’s formula should be seen primarily as a theory about the problem of legal validity and not merely as a statement about judicial reasoning.55 Furthermore, I will shortly address Hart’s critique of Radbruch’s formula in the light of his defense of ‘The Separability Thesis’, as well as what I believe to be Fuller’s successful refutation of this critique.56 In order to properly assess Radbruch’s formula, one needs to go back to his first major account in legal philosophy, where he already grounded it in value relativism and methodological dualism. As for the first thesis, it states that neither theoretical, nor practical reason is able to determine or reach absolute values. Justice is one such value. Consequently, each attempt to define ‘just law’ is bound to be relative in nature.57 According to the second view, the worlds of the ‘is’ (Sein) and the ‘ought’ (Sollen) are separate, insofar as one may not say that something ought to be simply on account of the fact that it is, or that it was, or that it will presumably be. In short, no ‘ought’ can be inferred from an ‘is’.58 However, unlike Kelsen, who is also commonly regarded as a disciple of the neo-Kantian school,59 Radbruch does not hold that the worlds of the ‘is’ and the ‘ought’ are divided by “an unbridgeable gap”.60 On the contrary, he considers the concept of law to be a ‘cultural concept’, falling neither solely into the world of ‘Sein’, nor into the world of ‘Sollen’.61 More precisely, Radbruch defines law “as the 53

See e. g. Hans Michael Heinig: Was ist so attraktiv an der Radbruchschen Formel? In: Kommunikation (Festfrischt für Klaus F. Röhl), Stefan Machura and Stefan Ulbrich (eds.), p. 325, BadenBaden 2003. 54 Brian Bix: Robert Alexy, Radbruch’s Formula, and the Nature of Legal Theory. In: Rechtstheorie, Vol. 37 (2) (2006), p. 149. 55 In doing so, I will necessarily reflect on some other aforementioned issues as well. 56 I will not discuss in details Hart-Fuller debate. For a more detailed account, see e. g. William F. Cahill: One Phase of The New Debate on The Iniquitous Law – Hart and Fuller on Radbruch. In: Catholic Lawyer, Vol. 5 (1959), pp. 119–129. Two more recent articles that try to reassess this debate are: Thomas Mertens: Radbruch and Hart on the Grudge Informer: A Reconsideration. In: Ratio Juris, Vol. 15 (2) (2002), pp. 186–205 and David Dyzenhaus: The Grudge Informer Case Revisited. In: New York University Law Review, Vol. 83 (2008): pp. 1000–1034. 57 Gustav Radbruch: Grundzüge der Rechtsphilosophie, pp. 24 ff., Leipzig 1914. 58 Gustav Radbruch (note 58), p. 3. 59 According to Bulygin, there are four fundamental ideas of Kelsen’s Reinerechtslehre that have its origin in Kantian philosophy: 1) ‘Basic norm’ as a transcendental category 2) the characterization of legal norms as ideal entities belonging to the world of Sollen (‘ought’), distinct from the world of natural reality or the world of Sein (‘is’); 3) the conception of validity qua binding force; and 4) the normativity of legal science. (Eugenio Bulygin: An Antinomy in Kelsen’s Pure Theory of Law. In: Normativity and Norms – Critical Perspectives on Kelsenian Themes, Stanley L. Paulson and Bonnie Litschewski Paulson (eds.), p. 299, Oxford 1998. For a critical examination of the view that Kelsen’s theory is grounded in Kant’s philosophy, see e. g. Frank Haldemann: Gustav Radbruch vs. Hans Kelsen: A Debate on Nazi Law. In: Ratio Juris, Vol. 18 (2) (2005), pp. 162–178. 60 Hans Kelsen: Hauptprobleme der Staatsrechtslehre, p. 8, Tübingen 1911. Ultimately, it is for this reason that Kelsen dispels sovereign power as the final criterion of norm validity (it belongs to the ‘is’ world) and introduces the ‘basic norm’. 61 Paulson, thus, argues that “Radbruch’s neo-Kantianism is suppressed by his relativism”. Stanley

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reality whose meaning is to serve the legal value, the idea of law.”62 Although he instantly adds that “the idea of law can be none other than justice”, and that law is thus oriented toward justice as an absolute value63, Radbruch later introduces two other elements of the idea of law – purposiveness (Zweckmäßigkeit) and legal certainty (Rechtssicherheit). Justice tells us that alike cases should be treated alike – equals equally and unequals unequally – but we are still lacking the point of view from which we can judge what are to be treated as alike cases. In order to determine the content of law, we need to appeal to the purpose of law, which reflects a political decision on a worldview (Weltanschauung). There are three typical worldviews, serving three types of values – individualist, trans-individualist, and trans-personal.64 Since all these views are relativist in nature, we have to resort to legal certainty. That is, when it cannot be objectively and scientifically “determined what is just, then what ought to be legal must be laid down.”65 Three elements of the idea of law stand in a perpetual tension. This antinomical character of the concept of law directly affects the problem of legal validity. Discussing this problem, Radbruch dismisses “the wrong doctrine of natural law”, which assumes that just law is valid simply on the account that it is just, and unjust law is invalid simply on the account that it is not. Natural law theory would be correct if we could establish just law by means of an exact science, because “no justification can be conceived of verifiably false law.”66 However, relativism teaches us that this kind of exactness is not possible in law, and consequently we must turn to “will and power”. In that respect, Radbruch notes: “The one who is capable of enforcing the law proves that way that he is competent to lay down the law.”67 Nevertheless, the established connection between power and the law does not take us back to some sociological theory of legal validity. Law is not valid because it can be enforced, but rather, it is valid if it can be enforced, because only then it can safeguard legal certainty. That way, justice becomes only “the second big task of law”, while the first one is legal certainty i. e. peace and order.68 It is only within this comprehensive statement on the nature of law and legal validity that one can fully comprehend the role of the judge as the key representative of the legal profession. Unlike an ordinary citizen, who may refuse to obey “disgraceful laws”, a judge has the professional duty “to validate the law’s claim to validity… to ask only what is legal and not if it is also just.” However, in submitting himself even to the unjust statute, “the judge is not thereby simply serving arbitrar-

62

63 64

65 66 67 68

L. Paulson (note 43), p. 30. Gustav Radbruch: Rechtsphilosophie, Erik Wolf (ed.), p. 123, 7th ed., Stuttgart 1970. Paginations and all the translations are from the German original. Translation is mine, but where possible, I stick to Paulson’s translation used in his own works. Gustav Radbruch (note 62), p. 124. Radbruch discusses them at length in the chapter on “Legal-philosophical teaching about political parties” Gustav Radbruch (note 62), pp. 156–167. However, Paulson observes that “individualism itself is very broadly conceived in Radbruch’s pre-war texts, reaching from libertarianism to socialism, with the result that the other so-called world views… are in large part idle notions”. Stanley L. Paulson (note 43), p. 339, no. 38. Gustav Radbruch (note 62), p. 169. Gustav Radbruch (note 62), pp. 178–179. Gustav Radbruch (note 62), p. 179. Gustav Radbruch (note 62), pp. 180–181.

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ily fixed purposes”, because “even when he ceases to be the servant of justice, he remains the servant of legal certainty.”69 As already indicated, these new tendencies in Radbruch’s legal philosophy are best reflected in two brief post-war papers. In the first of them, ‘Five Minutes of Legal Philosophy’, published immediately after the fall of the Nazi regime, Radbruch blames legal positivism for leaving German jurists “defenseless”70 against some arbitrary, cruel, or extreme criminal laws. Even a soldier may decline his duty to obey unlawful orders, but a jurist that is trained in the spirit of the maxim ‘A law is a law’ “recognizes no such exceptions to the validity of law”.71 Holding to the 1932 thesis that ‘Law is the will to justice’, Radbruch notes that “There can be laws that are so unjust and so socially harmful that validity, indeed legal character itself, must be denied them.” These are laws that “deliberately betray the will to justice – by, for example, arbitrarily granting and withholding human rights”. Such laws “lack validity, people owe them no obedience, and jurists, too, must find the courage to deny them legal character.”72 In the second paper, ‘Statutory Lawlessness and Supra-Statutory Law’, Radbruch discusses several post-war cases before the German courts in the light of the antinomical triad of elements of the concept of law. He reaffirms his 1932 position that “the positive law, secured by legislation and power, takes precedence even when its content is unjust and fails to benefit the people”. However, if “the conflict between a statute and justice reaches such an intolerable degree”, then “the statute, as ‘flawed law’, must yield to justice.” He instantly acknowledges that it is not possible “to draw a sharper line”, which might always direct us toward cases of ‘statutory lawlessness’. However, one thing is for sure: “Where there is not even an attempt at justice, where equality, the core of justice, is deliberately betrayed in the issuance of positive law, then the statute is not merely ‘flawed law’, it lacks completely the very nature of law.”73 Furthermore, “Legal character is also lacking in all the statutes that treated human beings as subhuman and denied them human rights”, as well as “in all the caveats that, governed solely by the momentary necessities of intimidation, disregarded the varying gravity of offences and threatened the same punishment, often death, for the slightest as well as the most serious of crimes.”74 69 70

71 72 73 74

Gustav Radbruch (note 62), p. 182. This ‘defenselessness thesis’ (Wehrlosigkeitsthese) is subject to harsh criticisms, both from German and Anglo-American scholars. Ellscheid argues that, “from the historical point of view, to blame statutory positivism for the perversion of legal system would seem to be a strong exaggeration.” Günter Ellscheid (note 15), p. 152. Cf. Hans Michael Heinig (note 53), pp. 323–324; Hart considers this thesis “an extraordinary naïvety”. Hart (1983, p. 74). Paulson also demonstrates that this thesis is hardly sustainable. Paulson (note 43), pp. 328–341. Radbruch himself was not consistent in blaming the doctrine of legal positivism for the perversion of the legal order. Hence, in one of his post-war works he says that, from 1933 to 1945, the prevailing idea was that law is what benefits the people. Accordingly, the era of Nazi law might be best comprehended not by reference to legal certainty, but to “the extremist form of the transindividual idea of purpose”. Radbruch (1965, p. 32). Gustav Radbruch: Five Minutes of Legal Philosophy. In: Oxford Journal of Legal Studies (2006), p. 13. Gustav Radbruch (note 71), p. 14. Gustav Radbruch: Statutory Lawlessness and Supra-Statutory Law. In: Oxford Journal of Legal Studies, Vol. 26(1) (2006), p. 7. Gustav Radbruch (note 73), p. 8.

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It is, again, only in this context of the reformulation of Radbruch’s thesis of legal validity that one should interpret his words that the judge’s role is to serve the law, not to pervert it,75 and that “the judge’s ethos ought to be directed toward justice at any price, even at the price of his own life.”76 Accordingly, I disagree with the view that Radbruch’s formula “offers an important statement about judicial decision-making, but is arguably much more doubtful and ungrounded when recast as a theory about the nature of law.”77 In fact, just the opposite is true.78 Radbruch’s formula represents a significant modification of the entire architectonics of his legal philosophy,79 in which the central position is reserved for the problem of legal validity.80 Only in virtue of this modification of Radbruch’s theory about the nature of law and legal validity one can assess his ‘instructions’ to judges.81 At this point, I will briefly turn to Hart’s critique of Radbruch’s formula. The essence of his criticism lies in Hart’s claim that this formula unwisely violates ‘The Separability Thesis’. He criticizes the course of the post-war German judiciary that routinely declared a number of pieces of Nazi legislation invalid and particularly focuses on the case of a woman who was subsequently punished for “an outrageously immoral act” according to one such invalidity decision.82 Although Hart says that “many of us might applaud the objective”, he notes that there were two other possible choices. One was to let the woman go unpunished, “which might have been a bad thing to do”, and the other was to introduce “a frankly retrospective law”.83 Hart argues that as “odious” as retrospective criminal punishment may be, it

75

76 77 78

79 80 81

82

83

Radbruch says: “Objectively speaking, perversion of the law exists where we can determine, in light of the basic principles we have developed, that the statute applied was not law at all, or that the degree of punishment imposed—say, the death sentence pronounced at the discretion of the judge—made a mockery of any intention of doing justice”. Gustav Radbruch (note 73), p. 9. Gustav Radbruch (note 73), p. 10. Brian Bix (note 54), p. 149. Alexy says that “the conflict about Radbruch’s formula is a philosophical conflict, because it is a conflict about the concept of law.” Robert Alexy: A Defence of Radbruch’s Formula. In: Recrafting the Rule of Law: The Limits of Legal Order, David Dyzenhaus (ed.), p. 17, Oxford 1999. Whether this modification is coherent with his initial position is contestable, but it is completely different question. It will be tackled in the next section. The fallacy of Bix’s argument might stem from the fact that he did not bother much to go beyond Radbruch’s formula, deeper into his legal philosophy. Again, whether a theory of law has or should have implications for the decision of real life cases is a completely separate issue. As Bix notes, there are those who argue that a legal theory always has such an impact on judicial decision-making (Dworkin), those who limit this impact to a small number of cases (Alexy), and those who deny that such an impact exists or that it should exist (Bix himself). Brian Bix (note 54), p. 143. This problem will not be discussed here, but it is prima facie clear that a legal theory, which allows that judges can at times decide on the validity of laws, has to acknowledge its influence on the judiciary in a limited number of real life cases. It turned out that Hart initially wrongly reported the facts of the case. He admits this in a long footnote, but he obviously thinks that there is no big difference between the original case and the one he subsequently qualifies as “a hypothetical one” and that his solution stands anyway. (Herbert Hart (note 4), p. 75, no. 43). Some authors argue, however, that implications are quite serious, especially for the problem of responsibility of judges during the Nazi era. Thomas Mertens (note 56), p. 200. Cf. David Dyzenhaus (note 56), p. 1007. Herbert Hart (note 4), p. 76.

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is still a lesser evil than to forfeit “the simplest”, and yet “the most powerful” form of moral criticism, that “laws may be law but too evil to be obeyed.” 84 In a response, Fuller discusses whether the proposed retroactive criminal legislation could be considered in line with ‘The Separability Thesis’ advanced by Hart. Fuller finds not only that this could not be the case, but also that such a solution would in fact be very similar to the ‘invalidity thesis’ of Radbruch’s formula. Namely, “it would be a necessary implication of a retroactive criminal statute against informers that… the Nazi laws as applied to the informers or their victims were to be regarded as void.”85 It is exactly in virtue of our moral judgment of Nazi legislation as ‘iniquitous’ that we propose a new one with ex post facto validity, thus suspending the validity of Nazi laws themselves. Ultimately, it is morality that determines what counts as a valid law. Having this in mind, Fuller concludes that “the question seems no longer to be whether what was once law can now be declared not to have been law, but rather who should do the dirty work, the courts or the legislature.”86 Interestingly enough, Hart opts for the legislature, even though his theory is famous for advancing ‘the internal aspect’ of the law,87 where judges are in the centre of a legal system. Fuller argues that Hart actually avoids confronting judges with “the true issue”.88 If he had confronted them with that question, he would have had to explain whether his ‘simple’ distinction between legal validity and morally motivated disobedience applies to judges as well. That is, Hart would have had to state openly whether judges can also say ‘this is law, but too evil to be obeyed (applied)’, and if so, what would be the consequence of their disobedience. As pointed out by Fuller, “moral confusion reaches its height when a court refuses to apply something it admits to be law”.89 Even though Hart never explicitly asserts that the prescriptive duty of ‘the officials’ is to apply law, such a conclusion follows from his theory. The officials, according to Hart, accept the rules “as critical standards of official behaviour.”90 The judicial duty implies that the ‘rule of recognition’ provides judges with “a public, common standard of correct judicial decision.”91 Accordingly, it seems “inconceivable, within Hart’s concept of law, that a judge could consider a rule valid according to the rules of recognition provided by the legal system and nevertheless neglect it.”92 If judges do disregard the rule, by ‘disobeying’ it, “they would transform the system and the rule would cease to exist.” Hence, the problem of morally evil laws “is a genuine legal problem for the judges, and it is left unresolved by Hart.” Had Hart addressed this problem, it would have profoundly affected his concept of law.93 84 85 86 87 88 89 90 91 92

93

Herbert Hart (note 4), p. 77. Heinig also argues that “morally motivated legal disobedience is not strange to legal positivism”. Hans Michael Heinig (note 53), p. 324. Lon L. Fuller (note 5), p. 649. Cf. Note 85. Herbert Hart (note 36), p. 91. Lon L. Fuller (note 5), p. 655. Cf. Note 88. Herbert Hart (note 36), p. 117. Herbert Hart (note 36), p. 116. Thomas Mertens (note 56), p. 203. Dyzenhaus also argues that Hart’s own theory leads to the conclusion that “the judge is under a duty to apply the rule, because that is what he is required to do qua judge.” David Dyzenhaus (note 56), p. 1016. “A serious reflection on the position of the judges in wicked legal systems in connection with

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5. HUMAN DIGNITY

AS THE

ULTIMATE CRITERION

OF

‘STATUTORY LAWLESSNESS’?

Let me now turn to the question of Radruch’s own standards of ‘statutory lawlessness’. As already noticed by commentators, Radbruch’s formula introduces two somewhat different standards. According to the first, a law is deemed invalid when its departure from justice reaches “an intolerable degree”. Hence, the first standard concerns the ‘intolerability formula’ (Unerträglichkeitsformel). According to the second standard, a law looses its validity when equality, the core of justice, is deliberately disavowed. Accordingly, the second standard concerns the ‘disavowal formula’ (Verleugnungsformel). Although, in general, these two standards should overlap, it is possible to differentiate between them.94 Adachi says that the analytical distinction between the two formulas is justifiable, insofar as it helps us understand the subtle difference between two grounds for denying legal validity to extremely unjust laws. He argues that the concept of ‘justice’ within the ‘intolerability formula’ should be taken in a narrower sense, as one of the elements of Radbruch’s triad, that of purposiveness. While before 1945, Radbruch argues in favor of robust relativism, after the War, he gives preference to the individualistic understanding of purposiveness, which takes human rights to be the ultimate purpose of law that shall not be infringed.95 Understood this way, the purposiveness of law may, however, come into conflict with the formal requirement of equality and, then, it is up to the judges to “weigh” whether the implementation of formal equality would lead to an intolerable breach of justice i. e. human rights.96 In contrast, the ‘disavowal formula’, according to Adachi, offers far more clear guidance,97 because no such conflict exists here, insofar as equality, which is “the core of justice”, is taken in the material sense and equated with human rights. Consequently, “When a statute breaches both principles, which must be served by every law, the judge does not have a single ground to apply such a statute.”98 Even if both standards are interpreted to essentially amount to human rights as the content of justice, and despite the fact that Radbruch himself has not developed one systematic account of the material concept of justice,99 it is prima facie clear that his formula does not entail that any violation of any human right leads to ‘statutory lawlessness’. In fact, it is obvious that Radbruch’s formula implies “the criterion of extremity”,100 which means that only in “ultimate cases” of injustice, the positivist’s dogma of the separation of law and morals would have forced him to reconsider the notoriously difficult relation between the internal aspect of law and its morality.” Thomas Mertens (note 56), p. 203. 94 Alexy (note 78), p. 16. 95 Hidehiko Adachi (note 46), p. 83; Cf. Hans Michael Heinig (note 53), p. 327. 96 Hidehiko Adachi (note 46), p. 83. 97 Bix, on the other hand, argues that “the second formulation would be hard to implement”, insofar as it presupposes bad intentions of lawmakers, which is almost never the case. Yet, he acknowledges the other possibility that, despite subjective beliefs of lawmakers, some Nazi laws are to be regarded “so clearly contrary to the requirements of justice and equality.” Brian Bix (note 54), pp. 140–141. Adachi demonstrates that the latter reading is more plausible. Hidehiko Adachi (note 46), p. 85. 98 Hidehiko Adachi (note 46), p. 84. 99 Cf. Erik Wolf (note 62), p. 71. 100 Frank Haldemann (note 59), p. 166.

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one may affirm the invalidity of a given statute.101 Radbruch reluctantly admits that it is not possible “to draw a sharper line” for determining the instance of ‘statutory lawlessness’. Yet, he confines himself to the exempli causa method, stating that such statutes include, for instance, those in the Nazi era that “treated human beings as subhuman and denied them human rights”, or those “arbitrarily granting and withholding human rights.”102 One may wonder whether, apart from sporadically mentioning plausible candidates for the status of ‘statutory lawlessness’, Radbruch relies on some other method for determining which cases of injustice should be treated as ‘ultimate’ ones. In that respect, there has been a lot of discussion whether his formula implies the departure from one of the methodological premises of his legal philosophy, that of relativism. It seems less disputable that with the endorsement of his formula, Radbruch undermines his initial stance of strict relativism.103 However, it remains open whether his post-war position can be interpreted as grounded in “at least a rudimentary nonrelativist ethic”,104 or is rather to be equated with full-fledged moral objectivism (realism).105 While I assume that the former qualification would more suitably describe Radbruch’s post-war position,106 I would like to draw attention to a plausible 101 Cf. Reinhold Zippelius: Rechtsphilosophie, p. 30, 5th ed., Munich 2007. Radbruch himself also emphasizes that his formula applies “in altogether exceptional, indeed, unique cases, only in cases rivaling what we have experienced in the Nazi period – and hope never to experience again.” Gustav Radbruch: Gesamtausgabe, Vol. 3, Winfried Hassemer (ed.), p. 99, Heidelberg 1990. 102 To be sure, Radbruch, on many occasions, mentions a number of concrete pieces of Nazi legislation (such as the notorious Nuremberg race laws) as plausible candidates for the category of ‘statutory lawlessness’. See e. g. Gustav Radbruch: Vorschule der Rechtsphilosophie, p. 113, 3rd ed., Göttingen 1965. Many of them were in actual judicial proceedings eventually regarded as invalid. 103 Cf. Hans Jörg Sandkühler: “Natur” des Rechts und Relativismus im Recht. In: Neukantianismus und Rechtsphilosophie, Robert Alexy et al. (eds.), p. 153, Baden-Baden 2002. Meyer is of the same opinion, and thus he proposes “a revisionist interpretation of Radbruch’s relativism”, which he prefers to associate with a modest version of ‘value skepticism’. Lukas H. Meyer (note 52), pp. 335, 339–346. Sieckmann also argues that it is preferrable to reconstruct Radbruch’s relativism “within a model of principles”. Jan-R. Sieckmann: Reconstructing Relaitivsm. An Analysis of Radbruch’s Philosophy of Law. In: Archiv für Rechts und Sozialphilosophie, Vol. 95 (1) (2009), pp. 14–27. Heinig holds that Radbruch’s pre-war relativist stance was in the function of a legal theory of knowledge, whereas his post-war formula belongs to practical philosophy and as such lacks any substantial grounding. Hans Michael Heinig (note 53), p. 328. 104 Robert Alexy (note 78), p. 33. 105 Waldron says that this position amounts to the following claim: “There are facts which make some moral judgments (that is, some statements of value or principle) true and others false, facts which are independent of anyone’s beliefs about the matters in question.” Jeremy Waldron: The Irrelevance of Moral Objectivity. In: Natural Law Theory – Contemporary Essays, Robert P. George (ed.), p. 158, Oxford 1992. Spaak believes that Radbruch’s post-war view can be seen as the rejection of meta-ethical relativism, and the adoption of “some form of moral objectivism”. He argues that Radbruch’s pre-war theory should be preferred, insofar as the former theory is “a defensible meta-ethical theory”, whereas the latter is not. Torben Spaak: Meta-Ethics and Legal Theory: The Case of Gustav Radbruch. In: Law and Philosophy, Vol. 28 (2009), pp. 261–290. 106 Spaak rejects the possibility of justifying some middle-ground position between the two stances, arguing that “the very idea of a moderate meta-ethical relativism seems to be arbitrary.” Torben Spaak (note 105), p. 286. However, as Gowans demonstrates, a number of contemporary works in this field advance “mixed positions” and their central theme is “that neither relativism nor

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source of his modified ethical stance. This is Radbruch’s teaching on ‘the nature of the thing’ (rerum natura),107 which he partly discussed in 1924, but more substantially developed only after the War.108 For Radbruch, ‘the nature of the thing’, as a form of legal reasoning, serves to “relax” the sharp dualism between ‘value’ and ‘being’, between ‘ought’ and ‘is’.109 He argues that the ‘thing’ (Sache) in the phrase refers to a “substratum”, that is a “material” (Stoff) which law has to shape, but which in certain important respects also predetermines the final outlook of the very law.110 As for the ‘nature’ in the phrase, it refers to an inner character, meaning (Wesen, Sinn) of the thing, but one in “the objective sense” of the word, which can be rationally determined.111 The overall ‘substratum’ of the idea of law i. e. justice is “the livingtogether” (Zusammenleben),112 and in this respect, one may also define law as “the embodiment of general directives for the living-together of human beings.”113 When it comes to determining more precisely the inner ‘nature’ of this ‘substratum’ of law, Radbruch concludes that we are forced to adopt “relativist resignation”. However, this relativism no longer points into the pre-war direction. Radbruch instantly inserts that, whatever design of ‘the living-together’ is advanced by the three typical worldviews, human rights ought never to be violated, since they represent “absolute nature”, which each law has to serve.114 Conversely, “the total denial of human rights”, either by the trans-individualistic or by the transpersonal worldview, would be an instance of “absolutely false law.”115 While in the Rechtsphilosophie (1932), methodological dualism leads Radbruch to strict value relativism, and relativism, consequently, implies giving preference to legal certainty over justice, in the Vorschule der Rechtsphilosophie (1948), it is the rerum natura teaching, as the ‘relaxation’ of the sharp methodological dualism, that leads Radbruch to ‘a rudimentary non-relativist ethics’ (Alexy) and, consequently, to pri-

107 108

109 110

111

112 113 114

115

objectivism is wholly correct”. Chris Gowans: Moral Relativism. In: Stanford Encyclopedia of Philosophy, 2008, at http://plato.stanford.edu/entries/moral-relativism/. Cf. Karl Engisch (note 51) pp. 65–67. A part of this teaching is presented in Gustav Radbruch (note 102), pp. 22–23, but a more fully account is available in Gustav Radbruch: Die Natur der Sache als juristische Denkform, Darmstadt 1960. This work was for the first time published in Italian language in Riv. intern. di Fil. del Dirito in 1941, while the revised and final version in German language was published in 1948, in Festschrift für Rudolf Laun. Gustav Radbruch (note 102), p. 23. However, Radbruch underlines that ‘the nature of thing’ is not a direct source of law. It is, nonetheless, both “a guiding idea” for the legislator when enacting laws, as well as “ultima ratio” in the process of judicial interpretation. Gustav Radbruch: Die Natur der Sache als juristische Denkform, p. 15, Darmstadt 1960. Radbruch in particular refers to the methodological apparatus of Rickert and Weber and notes that in Rechtsphilosophie (p. 99) he mistakenly held that this reasoning was “a lucky case of intuition”, and not “a method of knowledge”. Gustav Radbruch (note 110), p. 14. Gustav Radbruch (note 102), p. 23; Gustav Radbruch (note 110), p. 10. Gustav Radbruch (note 62), p. 128. This conclusion stems from what Radbruch considers to be “the doctrine about the general nature of duty”. He says that law cannot directly serve the task of ethical fulfilling of legal duties, because this is essentially “an act of freedom” and it cannot be achieved through a mere act of coercion. However, law “can make it possible”, by protecting the external freedom, without which the internal freedom of an individual cannot exist. To guarantee one’s external freedom, according to Radbruch, is “essence and core of human rights”. Gustav Radbruch (note 102), p. 29. Gustav Radbruch (note 102), p. 29.

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oritize human rights as the ultimate purpose of law and, thus, the very essence of justice. This way, Radbruch introduces minimal morality of law as a necessary condition of legal validity.116 His well-known formula fully reaffirms this stance, by establishing further standards for determining the cases of ‘statutory lawlessness’. However, in doing so, Radbruch does not endorse the doctrine of classical natural law, which is universally valid, both temporally and spatially,117 but “a natural law with changing content”, changeable from epoch to epoch.118 After demonstrating that Radbruch does eventually rely on some other method, apart from the exempli causa one, for determining the plausible cases of invalid laws, I will now turn to the final question – which human rights Radbruch has in mind when introducing ‘the extremity criterion’ in his formula? I will try to show that what he essentially takes as the threshold of extreme injustice amounts to the infringement of human dignity.119 First of all, when referring to the examples of Nazi legislation that illustrate the concept of ‘statutory lawlessness’, Radbruch basically appeals to demonstratively clear cases of a brutal violation of the idea of law. The content of the discussed legislation is such that one has to consider it as absolutely incompatible with the concept of law, which serves the aim of “the living-together of human beings.” Radbruch, for instance, asks “whom genuine man of law, whom truly persuaded advocate of legal thinking in the long run appear bearable to recognize disgraceful statutes, such as, for instance, Nuremberg race statutes… as law.”120 In the ‘Five Minutes of Legal Philosophy’ he refers to “principles of law… that are weightier than any legal enactment, so that a law in conflict with them is devoid of validity. These principles are known as natural law or the law of reason.” Although he reiterates that “their details remain open to question”, he believes that “the work of centuries has in fact established a solid core of them, and they have come to enjoy such far-reaching consensus in the so-called declarations of human and civil rights that only the dogmatic skeptic could still entertain doubts about some of them.”121

In his last comprehensive legal philosophical exposition, Vorschule der Rechtsphilosophie, Radbruch discusses more explicitly the ‘core’ principles of natural law that in the post-war age gained ‘far-reaching consensus’. He introduces “humanity” as a legal concept, and immediately charges large portions of Nazi legislation to be the prime example of “bestiality” and “negation of humanity and human rights”.122 Radbruch then speaks about “a proud history” of the concept of humanity and praises Kant who “coined” the concept of “humanity in the sense of human dignity” 116 Cf. Lukas H. Meyer (note 52), p. 336. 117 Radbruch is explicit in distinguishing this doctrine from ‘the nature of thing’ reasoning. Gustav Radbruch (note 102), p. 7. 118 ‘Naturrecht mit wechselndem Inhalt’ originated from Rudolph Stammler’s work. Gustav Radbruch: Gesamtausgabe, Vol. 4, Arthur Kaufman (ed.), p. 234, Heidelberg 2002. Kaufmann uses an even more appropriate term “das zeitgerechte Recht” to denote the historically changing content of natural law principles. Arthur Kaufmann: Naturrecht und Geschichtlichkeit, p. 31, Tübingen 1957. 119 Alexy refrains from being that explicit and, thus, he says that “we should accept that there is a core area of human rights such that harm to it amounts to extreme injustice”. Robert Alexy (note 78), p. 34. 120 Gustav Radbruch (note 118), p. 233; Gustav Radbruch (note 102), p. 113. 121 Gustav Radbruch (note 71), pp. 14–15. 122 Gustav Radbruch (note 102), p. 97.

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with his famous injunction to treat every human being as an end in itself and not as a means for some other ends. Eventually, Radbruch recognizes three directions in which humanity as a legal concept has to be worked out. First, it is in the area of human rights, where it shall serve as the guarantee of one’s external freedom and, thus, human dignity. Second, it is to be found in the conceptualization of ‘crimes against humanity’, insofar as breaches of “humanity” (Menschlichkeit) should be understood as directed against “human kind” (Menschheit). Finally, this concept has to find its way into domestic criminal law, because the role of this area of law is not only to protect the society from criminals, but also to protect individuals “from arbitrary punishments”.123 Apparently, the subsequent developments polished the meaning of the standards adopted in Radbruch’s formula even more firmly, pointing into the direction of human dignity as the ultimate criterion of ‘statutory lawlessness’. Most of the post-war judgments of German courts, which in a certain way refer to the standards of this formula, acknowledge that the threshold of extreme injustice is crossed when statutes or decrees are directed toward the physical or material destruction of part of the population on racial basis, toward the extermination of political enemies, or toward a denial of the basic capacity of agency of human beings.124 The founding document of human rights law, the Universal Declaration of Human Rights, which was enacted less than a year after Radbruch’s death, both in its Preamble and Article 1125 reaffirms the idea that the ‘core’ principles of the post-war Zeitgeist, which are universally embraced, revolve around the concept of human dignity.126 International criminal law is also largely based on the idea that crimes that negate the very essence of human dignity are a menace for the whole of mankind and that they should be addressed as such.127 Finally, it is exactly the horrible experience of a totalitarian regime that led countries like Germany or South Africa128 to enshrine in 123 Gustav Radbruch (note 102), pp. 98–99. 124 Alexy argues that “judgments about extreme injustice are genuine judgments, capable of a rational justification and in so far possessing a cognitive and objective character”. Robert Alexy (note 78), p. 34. 125 The Preamble states: “Recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”. Article 1 is as follows: “All human beings are born free and equal in dignity and rights.” 126 As pointed out in the early 1980s, in the Editorial comment of the American Journal of International Law: “Political leaders, jurists and philosophers have increasingly alluded to the dignity of the human person as a basic ideal so generally recognized as to require no independent support. It has acquired a resonance that leads it to be invoked widely as a legal moral ground for protests against degrading and abusive treatment. No other ideal seems so clearly accepted as a universal social good.” Oscar Schachter: Human Dignity as a Normative Concept. In: The American Journal of International Law, Vol. 77 (4) (1983), pp. 848–849. 127 Radbruch saw the institutionalization of a system of international criminal law, as “a further step from international law to world law (Weltrecht)” Gustav Radbruch (note 102), p. 111. 128 In the beginning of the 1970s, a South African author wrote, having obviously in mind the experience of his own country, that “the abuse of the law for base and iniquitous ends which contradict the dignity of man has hardly decreased in the three and a half decades since Radbruch’s death… there are still situations in the world where circumstances prevail which to the individuals or groups concerned are no less harrowing and cruel than were the circumstances during the Third Reich.” Barend van Niekerk: The Warning Voice From Heidelberg – The Life and Thought of Gustav Radbruch. In: The South African Law Journal, Vol. 90 (1973), p. 261.

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their constitutional documents human dignity as the supreme constitutional principle and a fundamental right.129 The subsequent judicial practice of their tribunals was also directly influenced by this troubling totalitarian legacy.130 As a largely positivized value and right, both internationally and domestically, the concept of human dignity is in the hands of the judiciary today.131 This means that, even though it is cherished as a universal and fundamental legal value and human right, its content and borderlines will eventually be more closely determined within particular legal cultures, in light of distinctive historical circumstances and prevailing social conditions of individual societies. This need not necessarily bother us. Donnelly, for instance, suggests a useful methodological tool for conceptualizing universality. This is a three-tiered scheme, according to which human rights are “(relatively) universal at the level of the concept”, that is, at the level of broad formulations contained in the Universal Declaration. Then, rights concepts might have “multiple defensible conceptions” in human rights documents at the regional level. Finally, any such particular conception “in turn, will have many defensible implementations” at the level of particular societies.132 All this implies that if certain statutes 129 Article 1 of the German Basic Law is as follows: “The dignity of man is inviolable. To respect and protect it shall be the duty of all public authority.” Section 1(a) of the 1996 South African Constitution proclaims that the Republic of South Africa is founded, inter alia, on the values of “human dignity, the achievement of equality and the advancement of human rights and freedoms”, while section 7(1) states that the Bill of Rights “affirms the democratic values of human dignity, equality and freedom”. On the comparison between these two constitutional systems, see e. g. Henk Botha: Human Dignity: Constitutional Right, Absolute Ideal, or Contested Value? In: Human Rights Today – 60 Years of the Universal Declaration, Miodrag Jovanovic´ and Ivana Krsti (eds.), pp. 195–210, Utrecht 2010. The other post-totalitarian and post-authoritarian countries have also incorporated human dignity in their new constitutional documents. Japan (1946), Art. 24; Italy (1948), Arts 3, 27, 41; Greece (1975), Art. 7; Portugal (1976), Arts. 1, 26, 59; Spain (1978), Art. 10, as well as most of the former real-socialist countries of East Europe. 130 The South African Constitutional Court states in one of its decisions that “respect for the dignity of all human beings is particularly important in South Africa. For apartheid was a denial of a common humanity. Black people were refused respect and dignity and thereby the dignity of all South Africans was diminished. The new Constitution rejects this past and affirms the equal worth of all South Africans.” S. v. Makwanyane, 1995, para. 329. 131 It should be noted that the concept of human dignity is today faced with some new challenges, such as security threats, bio-ethics, cloning, privacy in the electronic age etc. For example, the German Federal Constitutional Court has recently based its decision, inter alia, on Article 1, establishing “the basic right of guarantee of confidentiality and integrity of the informationtechnical system. (Grundrecht auf Gewährleistung der Vertraulichkeit und Integrität informationstechnischer Systeme). BVerfGE, 1 BvR 370/07, 27.2.2008. 132 This scheme certainly does not imply that any interpretation at the regional or state level is compatible with the minimum core of meaning of the universal concept. Donelly discusses this problem as well. Donnelly: The Relative Universality of Human Rights. In: Human Rights Quarterly, Vol. 29 (2) (2007), pp. 299 ff. For a comprehensive overview of different international and constitutional practices with respect to the concept of human dignity, see e. g. Christopher McCrudden: Human Dignity and the Judicial Interpretation of Human Rights. In: The European Journal of International Law, Vol. 19 (4) (2008), pp. 655–724. For the relevant judicial practice in the United States, see e. g. Maxine D. Goodman: Human Dignity in Supreme Court Constitutional Jurisprudence. In: Nebraska Law Review, Vol. 84 (2005–2006): pp. 740–794. For a brief comparison between the Canadian and British judicial practice, see e. g. Justin Bates: Human Dignity – An Empty Phrase in Search of Meaning? In: Judicial Review, Vol. 10 (2005), pp. 165–168.

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nowadays violate human dignity conspicuously, as presumably does the newly enacted Italian Security Law 773B,133 they can be challenged through regular procedures of judicial review, before constitutional tribunals, or relevant international human rights bodies. The legacy of Radbruch’s formula, however, remains as an “eventuality” for all those societies that would be ready to experience a Nazi-like “madness”, which this legal philosopher hoped never to be repeated.134 6. CONCLUSION Bix thinks he has a test for all those supporting Radbruch’s formula. He asks us to imagine a country whose officials decided to treat “seriously-unjust laws” as valid and binding. What would one say in such a situation – that this was “an unwise”, most likely even “an immoral way to run a legal system”, or that the officials “thought that the laws were valid, but they were all wrong”?135 I would say that the point here is not to assert that the officials “were all simply mistaken” in holding that such laws were valid, because the very fact that they accepted and practiced them, together with the source-based character of laws, was decisive for determining their legal validity according to ‘The Social Fact Thesis’ of legal positivism. Instead, the real point in cases like this is to remind ourselves of the ultimate wisdom of legal positivism – that “any content whatsoever can be legal.”136 To my knowledge, it is only Kelsen of all legal positivists who dares to clearly and openly state that this is the final conclusion to be inferred from “The Separability Thesis”. Anglo-American positivists would rather hide behind the proverbial saying of their camp – “laws may be law but too evil to be obeyed.” And yet, even Kelsen was not ready to live under such ‘seriously-unjust laws’ and disobey them and, unlike Radbruch, he eventually immigrated to the United States. This brings me to the second indeed tricky issue of Bix’s imaginary case. It concerns the question what all those critically affected by “seriously-unjust laws” will say about their validity, once they finally get the chance to say something. This question basically amounts to the problem of the context in which the issue of validity of evil 133 According to some reports of human rights organizations, this statute violates the basic rights of migrant workers in Italy, by introducing some measures resembling those of the Nazi era, such as the duty of Italian citizens to report illegal migrants to the authorities, the right of citizens to self-organize in ‘patrols’, the forcible detention of illegal migrants up to six months before deportation to centers that Prime minister Berlusconi himself referred to as ‘lagers’, etc. See e. g. at www.everyonegroup.com. 134 Gustav Radbruch (note 73), p. 8. In this respect, the former president of the German Federal Constitutional Court, Ernst Benda, emphasizes that “every country has to avoid being too overconfident that ‘it could not happen here’ or ‘it could not happen in our time’. One of the reasons why it did happen in Germany is that many of the population’s educated groups and classes (including a number of those who became victims because of their optimism and their confidence that it ‘could not happen here’) believed that the existing high standard of civilization and culture would prevent a totalitarian regime.” Ernst Benda: The Protection of Human Dignity (Article 1 of the Basic Law). In: S. M. U. Law Review 53 (2000), p. 447. 135 Brian Bix (note 54), p. 149. 136 Hans Kelsen: Reine Rechtslehre – Mit einem Anhang: Das Problem der Gerechtigkeit, p. 201, 2nd ed., Wien 1960.

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laws arises. It is exactly the context of a post-totalitarian or post-dictatorship society that makes the problem of validity of iniquitous laws a genuine one. Hart switches the propositions, arguing that the problem of legal validity is always the same. What is genuine in this case is “a terrible experience” that made Radbruch’s post-war legal philosophy something of “a passionate appeal”, rather than “an intellectual argument.”137 However, theoretical concepts that concern human society do not arise out of nowhere, in the time and space vacuum of some ivory tower. Or, if they do, they are utterly useless for those very human societies. We are all aware of how certain concepts of economic theory have profoundly changed after the crisis of the 1930s and how some prevailing concepts of the contemporary theory are reassessed in the current global economic crisis. Similarly, we are witnessing a major reconsideration of some fundamental concepts of political theory in light of new security threats after 9/11. Finally, the horrors of two world wars have irreversibly changed the concept of international law, just as the legacy of those societies that went through a radical system change have prompted the birth of new theoretical concepts, such as a democratic transition and consolidation, or transitional justice.138 At first glance, it seems that, whatever the circumstances, only legal positivists are not ready to challenge their central thesis concerning the relation between legality and morality. On a closer look, however, one may be surprised to find out that, in certain respects, Hart’s approach is actually very close to that of Radbruch. I refer here to Hart’s teaching on “’natural’ necessity”,139 which is largely disregarded by his followers, despite the fact that it is an important part of both ‘Positivism and the Separation of Law and Morals’ and The Concept of Law. Hart argues that certain “social arrangements”, stemming from human nature and the world in which we live, “may illuminatingly be ranked as natural laws discoverable by reason”. These “universally recognized principles of conduct” constitute the minimum content of both law and morality.140 Thus, the free use of violence stems from human vulnerability; the restriction on the use of aggression stems from approximate equality; a system of mutual forbearance stems from limited altruism; a minimum form of property stems from limited resources; and finally, some forms of sanctions stem from limited understanding and strength of will.141 Furthermore, Hart argues that every system of general rules has to be administered in line with the standard of “natural procedural justice”, according to which alike cases should be treated alike. Without these rules, “there would be no point in having any other rules at all.” However, even this minimum content is uncontroversial only if we “cherish the humble aim” of a legal system, which consists in “survival in close proximity to our fellows.” These “necessary and natural” elements, thus, constitute the minimum morality that makes a legal system possible. However, Hart makes a final twist, arguing that 137 Herbert Hart (note 4), p. 72. 138 To be sure, most of these concepts are highly contestable and they are under serious scrutiny within respective disciplines. 139 It is interesting to note that certain new developments in moral philosophy might provide further support for some of Hart’s arguments regarding “’natural’ necessity”. See, in particular, David B. Wong: Natural Moralities – A Defense of Pluralistic Relativism, Oxford 2006. 140 Herbert Hart (note 36), pp. 192–193. 141 “It is in this form”, says Hart, “that we should reply to the positivist thesis that ‘law may have any content’.” Herbert Hart (note 36), p. 199.

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one such system of rules would not be devoid of its legal character if applying “hideously oppressive” laws or denying protection to a “vast rightless slave population”, which in reality it often does, but only if it failed to provide the aforementioned “essential benefits and protection for anyone – even for a slave-owning group”. Only then would “the system sink to the status of a set of meaningless taboos.”142 Radbruch’s formula protects the positivity of law, insofar as source-based laws, even if unjust, are considered valid, because they still serve the value of legal certainty. The validity of laws is challenged only in cases of extreme injustice.143 Accordingly, Radbruch’s formula provides for the concept of law which “is not filled out by morality but is limited by morality.”144 As demonstrated, Hart’s concept of ‘natural necessity’ is similarly structured, insofar as it is argued that a legal system would be meaningless without some necessary minimum overlapping with the content of morality. Furthermore, both approaches are teleological, implying that the ultimate aim of a legal system is to safeguard “the living-together” (Radbruch)/“survival in close proximity to our fellows” (Hart). Then, it seems that in the most important respects, the difference between them is one of degree, rather than one of substance. Whereas Radbruch argues that statutes cannot live up to the aforementioned aim if they brutally violate human dignity of individuals, lead to the extermination of parts of the population or their starving to death, and, consequently, have to be stripped of their legality, Hart believes that such a dramatic consequence can be attached only to the system of rules that does not provide basic protection even for the oppressors.

142 Herbert Hart (note 4), pp. 80–81. 143 Being fully aware of the potential dangers of his formula for the value of legal certainty, Radbruch argues that only higher judicial instances or legislature shall have the competence of determining the cases of ‘statutory lawlessness’. Gustav Radbruch (note 73), p. 8. 144 Robert Alexy (note 78), p. 17; (emphasis mine).

MILENA PETTERS MELO, NAPLES/BLUMENAU SAFEGUARDING CULTURAL

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NATURAL HERITAGE

– IN ORDER TO KEEP THE MEMORY OF HUMAN DIGNITY ALIVE. Abstract: Human dignity is an ethical standpoint, one of the best premises of modernity, a basic concept of human rights international law and an essential normative principle for Democratic Welfare States. In these times of financial and environmental crisis, ethical rationales become an essential requisite to create an indispensable innovative paradigm to govern global social-relations and the world’s economy. But the main focus of this paper will be on international law, especially the UNUNESCO legal documents. Human rights, as positive rights, are normative projections of the affirmation of human dignity and the protection of life in its multiple manifestations: civil, social, economic, cultural, and environmental. In examining some aspects of cultural and natural heritage protection, I will focus on its connections with human rights and socio-environmental sustainability, stressing their significance for ‘our common future’, which is to strive against the spirit of abstraction common in jurisprudence and economics and to restore human capabilities to their place at the center of knowledge and action. “Non ti ho fatto né celeste né terreno, né mortale né immortale, perché di te stesso quasi libero e sovrano artefice ti plasmassi e ti scolpissi nella forma che avresti prescelto”. Pico della Mirandola, Oratio de hominis dignitate

1. INTRODUCTION Fostering the protection and promotion of human rights means striving to implement the conditions needed to ensure human dignity in the daily routines of humankind, in all its plurality and historical diversity. In this sense, human dignity is understood as an undeniable starting-point and guiding principle for actions1, from an individual or social point of view. From the perspective of law and politics in a Democratic Welfare State, human dignity should be a guiding normative principle of public policies, both of internal and external relations, and, at the same time, the scope of them. But according to this viewpoint, a major part of our historical heritage should be refused, as it is unreasonable to take the human dignity standpoint seriously while at the same time accepting war, colonialism, discrimination against immigrants, women and homosexuals or unsustainable development, all examples of an irrational and impractical waste of human and natural resources. In fact, being part of mankind does not guarantee to every human being “that particular feeling of humanity”.2 Since the French Revolution, among the tripartite paradigm of the Enlightenment, the principle of brotherhood/solidarity has been most underestimated. Freedom/liberty and social justice have been the “land of promise”, in which traditional Western utopias have been rooted for the past three centuries. 1 2

C. Carbonari: Dignity and Human Rights, 2002, p. 35. E. Resta: Il diritto fraterno, 2003.

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More recently, international and constitutional law developed towards recognition of the importance of more solidarity between countries, people, communities and different sectors of society. The protection of cultural diversity and biodiversity has gained weight in this context, through the pressing activism of different groups from different places of the world, aiming to ensure a harmonious relationship of human beings to the planet and of people in their plurality to each other. Through the progressive expansion of human rights in international law, the rationale of cultural heritage protection – and its perceived significance for humanity through the advancement of the arts, sciences and knowledge – was recalibrated3 to emphasize its importance for the safeguarding of human dignity, the enjoyment of human rights, the promotion of cultural diversity and socio-environmental sustainability. Cultural heritage and its protection were no longer founded on exclusivity, but rather on the intrinsic importance it had for people and individuals, as well as for their identity, for the modalities of their own participation in the social system and for their quality of life. 2. HUMAN DIGNITY

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HUMAN RIGHTS

It is frequently argued that human rights are not a Western discovery and that nonWestern societies have emphasized the protection of human rights for a long time. As Jack Donnelly observes, however, such claims, “are based on a confusion of human rights and human dignity”.4 A concern for human dignity is central to non-Western cultural traditions, whereas human rights, in the sense in which Westerners understand that term – namely, rights (entitlements) held simply by virtue of being a human being – are quite foreign to, for instance, Islamic, African, Chinese, and Indian approaches to human dignity. Human rights are but one of the ways that have been found to realize and to protect human dignity.5 Since the idea of human rights was first articulated in the West in modern times, it appears to be an approach particularly suited to contemporary social, political, and economic conditions. Consequently, human rights become the privileged way to protect human dignity in the context of the globalization of trans-national processes, within different civilizations and cultures. In the meantime, the emphasis in most recent discussions on the relation between civilizations, whether they are seen as clashing, converging, or conversing, has been on differences, in particular differences between the western way of life and its pervasive impacts on various places of the world, in the course of globalization processes. Even so, regarding the protection of human dignity, the focus should be on the similarities: the most striking fact about human rights in the contemporary world is the far-reaching consensus on basic norms across civilizations. Certainly, controversy rages, both between and within cultures, with respect to a few particular internationally recognized human rights. In addition, there are many systematic and 3 4 5

A. F. Vrdoljak: Cultural Heritage in Human Rights and Humanitarian Law, 2009. J. Donnelly: Human Rights and Human Dignity.1982, pp. 303–316. Cf. Note 4.

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idiosyncratic variations in the interpretations and modes of implementing internationally recognized human rights. But “from a broad international, cross-cultural, or inter-civilizational perspective, the overlapping consensus on the Universal Declaration is a much more striking and important fact”.6 In this perspective, it is important to remember that the history of human rights has had a long gestation period, which began with the emergence of a sensibility – coming from ideas, traditions and epochs quite diverse – that illustrated the universality, over time and space, of human dignity and concerns with the protection of human life – culminating, later, in claims for human rights. These ideas converged into principles of civil life and justice, of which seeds can be found in the precepts of the Buddha, Confucius, the Jewish prophets, the Greeks and the Romans, the Christians, and several others.7 Only the Western modern society seems to claim, however, that “human rights” – as a normative recognition of modern humanism – take the form of rights held simply by virtue of being a human being, since their statement in the 1776 Declaration of Virginia and the 1789 French Declaration. 2.1. MODERNITY’S PROMISES But what is – or “was”, according to the post-modern authors – Modernity? What is the self-perception and relation to the world that characterizes the modern ideology? What marks its main changes? At the risk of generalizing, we can affirm, along with Alessandro Baratta, that what marked the beginning of Modernity was the emergence of a new subjectivity, within practical and cognitive spheres. All modern thoughts are centered on mankind, as a subject of knowledge and action.8 Modern science emerges as a resistance against the authority, which had dominated the horizon of knowledge throughout the medieval era. In addition, modern ethics are established as an ethics of autonomy, distancing itself from cosmological and theological conceptions, characteristic of the old and the medieval ages. In Giordano Bruno’s conception of the “world” as “an infinite universe of worlds”, a modern meaning of matter and value was already inherent. Giordano Bruno’s statements created two distinct consequences that will be essential to create the modern conceptual structure. First, the world loses its finite character and becomes infinite. Secondly, the place of value shifts from the macrocosms to the microcosms: each existing creature carries within itself the individual heartbeat of existence. From a modern perspective, reason and experience are the main, and then, later the only source of truth.9 In the process of overcoming ancient and medieval thoughts, the increasing complexity of modern society has created a modern configuration of science, ethics, politics, law and economics, as they were developing and specializing, creating their 6 7

8 9

J. Donnelly: Human Rights and the Dialogue among Civilizations. P. Costa: La cittadinanza: un tentativo di ricostruzione ‘archeologica, 1994. For a prolific analysis of the European philosophical roots of the historical affirmation of the human rights see F. M. De Sanctis: Tra Antico e Moderno, 2004. A. Baratta: Ética na pós-modernidade, 1995, pp. 113–131. Cf. Note 8.

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own internal operation, observation and reproduction structures (N. Luhmann). But, alongside the systems’ “rationality”, promises of emancipation and a better quality of civil and social life have stimulated and legitimated the evolution of those modern structures. Within this context, human rights are one of the best promises of modernity. The expansive conceptual advancement of human rights and fundamental rights throughout modern society, and of human dignity as an intrinsic concept of human rights, has encouraged the gradual positivisation (legal recognition and proclamation) of new contents of law. Rights concerning liberties, freedom, equality and solidarity can be understood as normative outcomes of the affirmation of human dignity and the protection of life in its multiple manifestations: civil, social, economic, cultural, and more recently, environmental. Therefore, human rights can be defined as “the normative projections of human material and cultural needs”10, “the affirmation of new liberties against old powers”11. In a historical and normative perspective, human rights refer to ongoing claims, increasing the complexity of the demand for human dignity and social equity. From the rise of “human rights” in international law to this day, it can be observed that in each declaration, there is a formal improvement and a step forward. The expansion of the objects of the rights and their legal subjectivity/ownership was explained by the specification of their different generations or dimensions12 – concerning, respectively, human rights in international law and fundamental rights in constitutional law. It is well-known that within the doctrine, the classification of the three generations/dimensions of rights requires approaching each one of them separately, different subjects and forms of tutelage by several warranties.13 According to this classification, the rights of the first generation/dimension are the rights to liberty of individuals as negative rights to resist and oppose the State. The rights of the second generation/dimension are rights to equality of collectives, which have a positive dimension, demanding responses and public policies from the State. The third generation/dimension regards the rights of solidarity. The rights of solidarity emerge from the recognition of trans-individual and transnational demands, extending and relating to themes like peace, the environment, development, the protection of the natural and cultural human heritage, new biotechnologies, communication and self-determination. These “new rights” represent great challenges for the modern rule of law, since they deal with the need for new capabilities and more interdependent solidarity among nations, States and different sectors of society. These are subjects which have crossed the boundaries of the pre10 11 12

A. Baratta: Bisogni e diritti umani, 2001. N. Bobbio: L’età dei diritti, 1990. To avoid the trap of conceiving the rights’ transformations as a linear evolution, several scholars prefer to use the term “dimensions” instead of “generations”. Regarding these argument, see: I. W. Sarlet: A eficácia dos direitos fundamentais.1996, p. 47. For a fruitful critical analysis of the rights’ “generations”, and for a comprehension of this theme’s complexity on the Brazilian Constitutional Law, see P. Brandão: Ações constitucionais, 2001. 13 There are differences on the theorizations of the rights’ generations, for the notorious N. Bobbio’s classification see N. Bobbio: L’età dei diritti (note 11); on the Brazilian Constitutional theory, see P. Bonavides, Curso de Direito Constitucional, 1993.

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established juridical institutes, requiring the redefinition of the institutional public space. Connected with a more cosmopolitan citizenship, promoted by the globalization of social movements, the demands for solidarity question democracy in its economic, social and cultural reference framework. Therefore, the demands for solidarity place modernity itself into question: its structures, its operational capacities, its ways of production and distribution, firing up debates about the risks to modern, or post-modern, society. 3. CULTURAL HERITAGE PROTECTION With the 1972 World Cultural Heritage Convention,14 the expression ‘cultural heritage’ came into being as “an umbrella term to encompass three different types of heritage; namely, sites, monuments and groups of buildings”.15 In more recent times, while the appreciation of “cultural heritage” has shifted from an aestheticsbased towards a more cultural relevance-based approach, ‘intangible heritage’ is gaining great importance in the field, and has been gradually taken into account by the World Heritage System, culminating in the Convention for the Safeguarding of the Intangible Cultural Heritage (UNESCO, 2003).16 Today widespread opinion holds it that monuments cannot be esteemed in isolation, but that they are complex and multidimensional manifestations of heritage, embodying both tangible and intangible elements. This more extended concept of heritage helps taking a holistic approach to both fields – and reinforces the propensity to reconcile values and traditions with the universal significance of a particular site or intangible good, which favors a more “pluralistic” and “diversity-oriented” approach.17

14 15 16

17

Convention concerning the Protection of the World Cultural and Natural Heritage – UNESCO, 1972. F. Francioni / F. Lenzerini: The 1972 World Heritage Convention, 2008. For a more complete comprehension of the evolutions of international law in protecting cultural rights and heritage, see: Universal Declaration on Human Rights (United Nations, 1948); International Covenant on Civil and Political Rights (United Nations, 1966). International Covenant on Economic, Social and Cultural Rights (United Nations, 1966); Declaration of the Principles of International Cultural Co-operation (UNESCO, 1966); Convention concerning the Protection of the World Cultural and Natural Heritage (UNESCO, 1972); Recommendation on the Participation of the People at Large in Cultural Life and their Contribution to It (UNESCO, 1976); Declaration on the Right to Development (UN, General Assembly resolution 41/128 of 4 December 1986); Recommendation on the Safeguarding of Traditional Culture and Folklore (UNESCO, 1989); Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (UN, General Assembly resolution 47/135 of 18 December 1992); Vienna Declaration and Program of Action (UN World Conference on Human Rights, Vienna, 1993); Draft United Nations Declaration on the Rights of Indigenous Peoples (UN, draft, 1994); International Congress on Cultural Rights and Human Development Universal Declaration on Cultural Diversity (UNESCO, 2001); Convention for the Safeguarding of the Intangible Cultural Heritage (UNESCO, 2003); Declaration concerning the Intentional Destruction of Cultural Heritage (UNESCO, 2003); Convention on the Protection and Promotion of the Diversity of Cultural Expressions (UNESCO, 2005). See L. Lixinski: World Heritage and the Heritage of the World, 2008, pp. 371–386.

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3.1. SAFEGUARDING INTANGIBLE CULTURAL HERITAGE The 2003 Convention for the Safeguarding of Intangible Cultural Heritage – also called “living heritage”, “immaterial heritage”, or “human living treasures” –, which is the first binding multilateral instrument for safeguarding intangible cultural heritage, enriches and supplements existing international agreements, recommendations and resolutions concerning cultural and natural heritage. According to the 2003 Convention, intangible cultural heritage is the mainspring of our cultural diversity and its maintenance a guarantee for continuing creativity. The 2003 Convention defines intangible cultural Heritage as the practices, representations, expressions, as well as the knowledge and skills that communities, groups and, in some cases, individuals recognize as part of their cultural heritage. The Convention also states that Intangible Cultural Heritage is to be safeguarded: it is transmitted from generation to generation; constantly recreated by communities and groups, in response to their environment, their interaction with nature, and their history; it provides communities and groups with a sense of identity and continuity; promotes respect for cultural diversity and human creativity; is compatible with international human rights instruments and complies with the requirements of mutual respect among communities and of sustainable development. According to the statements of the Convention, intangible cultural heritage is traditional and alive at the same time, since it is constantly recreated and mainly transmitted orally. The depository of this heritage is the human mind, the human body being the main instrument for its enactment, or – literally – embodiment. Knowledge and skills are often shared within a community, and manifestations of intangible heritage are often performed collectively. In this perspective, as it has been often highlighted, many elements of human intangible cultural heritage are imperilled as a result of globalization, its standardization policies and lack of means, appreciation and understanding which – taken together – may lead to the erosion of functions and values of those elements and to a lack of interest among younger generations. Another main feature of the 2003 Convention for the Safeguarding of Intangible Cultural Heritage is the introduction of the idea of “representativeness” by establishing the Representative List. In this sense, “representative” might mean, at the same time, representative for the creativity of humanity, for the cultural heritage of States, as well as for the cultural heritage of communities who are the bearers of the traditions in question. 3.2. THE INTERPLAY BETWEEN CULTURAL HERITAGE AND SOCIO-ENVIRONMENTAL SUSTAINABILITY The recognition of the link between nature and culture was one of the main innovations of the World Cultural Heritage Convention,18 which highlights how closely this Convention is interwoven with the beginning of the environmental movement 18

Convention concerning the Protection of the World Cultural and Natural Heritage (UNESCO, 1972). For a further information F. Francioni / F. Lenzerini (note 15); and the fruitful book review by L. Lixinski (note 17).

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and the Stockholm Declaration on the Human Environment of 1972. Another main innovation of the World Heritage Convention was the conception of ‘world heritage’ as a concern to the whole of mankind, associated with “intergenerational equity”.19 Both of these documents – landmarks for the protection of the cultural and natural heritage of mankind – have opened a new era for international law and transnational social movements, recognizing a new catalogue of collective and diffuse rights, and expanding their correlative legal ownership/subjectivity. Another innovative document, the Universal Declaration on Cultural Diversity (UNESCO, 2001) highlighted the interplay between cultural diversity, human rights and sustainable development by specifying that “cultural rights are an integral part of human rights, which are universal, indivisible and interdependent. In order to allow creative diversity to flourish, cultural rights need to be fully implemented (art. 5). Cultural diversity, as “the common heritage of humanity” (art. 1), is a vital requisite for sustainable development: “the key to sustainable human development” (art. 11) as “a source of exchange, innovation and creativity” (art. 1), “widens the range of options open to everyone. It is one of the roots of development, understood not simply in terms of economic growth, but also as a means to achieve a more satisfactory intellectual, emotional, moral and spiritual existence” (article 3). “In our increasingly diverse societies, it is essential to ensure harmonious interaction among people and groups with plural, varied and dynamic cultural identities as well as their willingness to live together. Policies for the inclusion and participation of all citizens are guarantees of social cohesion, the vitality of civil society and peace. Thus defined, cultural pluralism gives policy expression to the reality of cultural diversity. Indissociable from a democratic framework, cultural pluralism is conducive to cultural exchange and to the flourishing of creative capacities that sustain public life” (art. 2).

Cultural heritage, in its composite intangible and tangible aspects – or, in other words, social models, their transformations and their related material expressions – represents what past generations transfer to the future ones. The safeguarding of this heritage, in its plurality, thus increases the potential for a sustainable future. In a macro-prospective, the protection of cultural heritage and the promotion of cultural diversity helps to increase the chances – and improve the possible ways – to build democratic societies that are just, participatory, sustainable, and peaceful (The Earth Charter, Principle 3),20 at local and global levels. 19

20

Marking a new stage of development of this area of law, the traditional approach – of “cultural property”, contained in the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict – which was protecting individual interests, shift to protecting interests of society in the preservation of cultural goods. Also, the law had evolved to deem the value to be protected by norms to be “present and future generations”, or society as a whole, rather than the particular possessor of a certain object. The shift from ‘property’ to ‘heritage’, allows for other elements to be taken into consideration; in particular, cultural connections between objects and certain groups, and the internationalization of the issue, since the term ‘heritage’ suggests a much broader concern, as it addresses the whole of mankind. Cf. Lucas Lixinski (note 17), pp. 378 ff. The Earth Charter was created by the independent Earth Charter Commission, which was convened as a follow-up to the 1992 Earth Summit in order to produce a global consensus statement of values and principles for a sustainable future. The document was developed over nearly a decade through an extensive process of international consultation, to which over five thousand people contributed. The Charter has been formally endorsed by thousands of organi-

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4. PLACING HUMAN DIGNITY

AT THE

CORE

OF

KNOWLEDGE

AND

ACTION

However attractive these theoretical and legal evolutions may be, there very soon emerged a concern regarding an asymmetric development of international law in the fields of human rights, cultural heritage protection and sustainable development. The lack of a normative structure for international economic relations between developing and developed countries, the hegemony of a western conception of development, and particularly the absence of a human side to the international economic order, have often been criticized.21 Several times, the attention of the international community has been drawn to the positive and negative aspects of globalization, which led to the observation that, although many developing countries were part and parcel of the growing world economy, the number of people living in absolute poverty was increasing. In addition, dramatic events in different parts of the world – where new conflicts had erupted and old ones continued – seriously threaten the path to sustainable development in peace, and meanwhile re-emphasize the interdependence of peace and security, of economic and social matters, of respect for human rights and of environmental conservation. In this perspective, the Report submitted by the Committee on Legal Aspects of Sustainable Development to the London Conference – 69th ILA Conference, 2000 – raised (but did not answer) a question that is still reverberating: “is international law moving in the direction of more justice and equity in international relations and for more influence of people on public international decision making? Would that serve the cause of sustainable development?”22 While it has been actively promoted as a green and democratic redevelopment, it is important to pay attention to the fact that in its mainstream interpretation, “sustainable development has many times been conceived as a strategy for sustaining ‘development’, not for supporting the flourishing and enduring an infinitely diverse natural and social life”.23 At the same time, the “trade-off ” between human rights and economic development24 has been strongly criticized by several scholars, governments, social movements and people from everywhere: “the age of rights is the time of increasing rights violations”.25 If this becomes clearer with respect to social, cultural and economic rights, the situation of individual and civil rights in consolidated westerns democracies is no less worrying – especially regarding the problem of immigration.

21 22 23 24

25

zations, including UNESCO and the IUCN (World Conservation Union), available at www. EarthCharter.org. S. C. Vieira: Building a Human Rights Culture for Sustainable Development, 2008. ILA – Committee on Sustainable Development: Report to the 69th ILA Conference, pp. 656–657. G. Esteva: Development. In: The development dictionary, W. Sachs (org.), p. 16, 1993. Regarding the trade-off between human rights and economic development, see: J. Donelly: Universal Human Rights in theory and practice, pp. 180 ff., 1989; and B. Sousa Santos: La globalización del derecho, 1999, p. 224–227. On this matter there is a vast bibliography, to mention good instances: D. Zolo: Cosmópolis, 1997; C. Amirante: I diritti umani tra dimensione normativa e dimensione giurisdizionale?, 2003; B. Sousa Santos (note 24); D. Held: La democracia y el orden global, 1995; J. Herrera Flores: Elementos para uns teoria critica de los derechos humanos, 2000. For a prolific analyses of the human rights paradoxes on the Latin American context, see Carol Proner: Os direitos humanos e seus paradoxos, 2002.

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In the context of globalization, given its potential for excluding and marginalizing a large part of the members of the international community, as limiting people’s resources and concentrating economic and political power, human rights and sustainable development become the new frontiers of democracy, advocates of the maintenance of the planet and a testing bench for humankind in its humanity.26 As the UN High Commissioner for Human Rights, Mary Robinson, observed: “The 1993 World Conference on Human Rights and the 1995 World Summit for Social Development highlighted the importance of an integrated approach to social advancement. Lasting progress depends on respect for human rights and effective participation of citizens in public affairs. Nevertheless, it’s also well-known that democracy and human rights will prove elusive without social justice and sustainable development. Poverty deprives millions of their fundamental rights. Societies, in turn, are deprived of these people’s contributions. Achieving sustainable progress requires recognizing the interdependence between respect for human rights, sustainable development and democracy.27

From this point of view, we are all potential actors to engage in the sustainable development strategies and custodians of human rights and heritage. “These are the rights the violations of which menace the mankind, but that are at the same time rights that only can be violated and protected by the mankind itself ”.28 A significant aspect of the Universal Declaration of Human Rights is the responsibility of every individual and every organ of society to promote respect for human rights and “to secure their universal recognition and observance”, interacting “in a spirit of brotherhood”. The Universal Declaration proclaims that “everyone has duties to the community in which alone the free and full development of his personality is possible” (art. 29) These concerns were reinforced by the Universal Declaration on Cultural Diversity (UNESCO, 2001), and are of extreme importance in the context of sustainable human development and choices for the future: social capital and creativity are fundamental factors for development. In this perspective, while securing the implementation of the law is crucial to an integral approach to human rights and sustainable development, so is adopting measures that enable people to exercise their rights under the law, for instance enabling individuals and communities to undergo “inclusive development”,29 strengthening democratic institutions in order to promote people’s well-being through their active participation in the life of society and in the fair distribution of the benefits resulting from it.

26

The ambivalence of the term is more efficacious in Italian, “umanità”, or in Portughese “humanidade”, that means both “humankind” and “humanity”, concerning, meanwhile, a descriptive and performatory concept. 27 M. Robinson: Integrating human rights with sustainable human development, 1998. 28 E. Resta: Il diritto fraterno, 2003. 29 J. Friedmann: Empowerment, 1993. In the same direction of sense, A. Baratta in several academic works, for instance: A. Baratta: Direitos Humanos e políticas públicas, 1998; and A. Baratta: Criança, democracia e liberdade, 1996.

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4.1. AN OBSTINATE AND UNTIRING BATTLE AGAINST THE SPIRIT OF ABSTRACTION The recent worldwide financial crises highlighted the trap of giving to much trust and confidence to the principles and rules of the economic system. As it has been underlined by several experts and scholars, one of the main causes of the financial crisis can be traced back to the uncontrolled dominance of speculative financial assets by global capitalism, associated with a degenerative focus on the abstract and ultimately insubstantial signifier of wealth, gradually divested of any meaningful connection to concrete goods and services. While the main function of the financial markets should be to support and facilitate other economic activities, they in fact moved to the center of trans-national economics.30 In this process, the markets acquired the authority to establish norms and behaviors, as a kind of metaphysical power, while at the same time people have become abstract and anonymous. In a marked-oriented world of currency, as soon as people, cultures and civilization are transformed into abstract concepts, they can be treated as valueless and inferior, even as something harmful to be eradicated. People, in the wholeness of their humanity, do no longer exist.31 Another tendency intrinsic to current capitalism – and at the same time to globalization – is to consider human beings in one dimension only: as homo economicus – shareholders, managers and employees, customers and consumers. Recently, with global recession looming, warnings from different parts of the world emphasize the risk of such a spirit of abstraction. One of the positive insights of this conjuncture could be that the overrated problem of market-oriented efficiency loses its hegemonic pre-eminence in the political field, which has reanimated the concerns of welfare effectiveness and rights guarantees. Also, while modern jurisprudence and the rule of law were developed by transforming abstract concepts into cultural constructions, the risk is that the resulting abstractions might remain ultimately without substance. Thus, the idea of a “human nature” ingrained in international human rights law must be understood, in a certain sense, to be fictional, just like the idea of their universality. The truth is that we are women or men, Chinese, Brazilian or Italian, older or younger, coming from

30 31

See C. Amirante: Dalla forma Stato alla forma Mercato, 2008. D. Ikeda: Peace proposal, 2009. For a penetrating analysis see G. Marcel: Man Against Mass Society, 1952, this author uses the term “the spirit of abstraction” to define the essentially destructive process by which conceptions of things are alienated from concrete realities. He notes, for example, that it is only possible to participate in war if we first deny the individual character and humanity of the opponent, reducing him or her to an abstract concept such as fascist, communist, Zionist, Islamic fundamentalist, etc. Adjourning this analysis to the current European Union, on the increasing Italian racism, the prevailing denomination is “extra-comunitario”, the abstract and anonymous people that come from extra-community countries. As Marcel underlines, as soon as people “claim of me that I commit myself to a warlike action against other human beings whom I must, as a consequence of my commitment, be ready to destroy, it is very necessary from the point of view of those who are influencing me that I lose all awareness of the individual reality of the being whom I may be led to destroy. In order to transform him into a mere impersonal target, it is absolutely necessary to convert him into an abstraction. Without this kind of reductionism, it would be impossible to justify or find meaning in one’s participation in war”, pp. 117 ff.

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some particular place and shaped by specific cultural influences.32 The more carefully one observes people, the more one comes to recognize them as distinct and unique.33 This is the world of concrete reality: any discussion of “human beings”, “human dignity” or “humanity” that fails to take these differences fully into account will generate abstract concepts that take on a life of their own. As a subject of rights, knowledge and desires, every human being is an original source of humanity, authorized to interpret his own perception and potentially contribute to the improvement of the idea and the praxis of “dignity” – with the aim of taking human rights seriously,34 in “an obstinate and untiring battle against the spirit of abstraction”.35 5. FINAL REMARKS: IN ORDER

TO

KEEP

THE

MEMORY

OF

HUMAN DIGNITY ALIVE

The coveted overall conception of human dignity that can be applied to “real life”, in its different dimensions, has been one of the best promises of western modernity, and still is. The concept is still alive in the demands for an integral approach towards human rights and sustainable development, and in the recognition of the need to safeguard the common human, cultural and natural heritage. The importance of cultural heritage protection and the promotion of cultural diversity is vital in this context, since human cultural heritage is a cognitive tool that allows to read the past, communicate, understand the different perceptions of the present and design the future: as material and immaterial witnesses of human potential, cultural heritage goods need to be safeguarded as an unavoidable step to keep the memory of human dignity alive for “our common future”.

32

33 34 35

Regarding the cultural identity and the artificial processes of identification, see S. Hall: A identidade cultural na pós-modernidade, 2001; and A. Maalouf: L’identità: un grido contro tutte le guerre, 2002. D. Ikeda (note 31). R. M. Dworkin: Taking Rights Seriously, 1978. As G. Marcel (note 31) highlighted the spirit of abstraction is essentially of the order of the passions, and on the other hand, it is passion, not intelligence, which forges the most dangerous abstractions. It was for this reason that he considered the entirety of his work as a philosopher to be an obstinate and untiring battle against the spirit of abstraction.

JAN PHILIPP SCHAEFER, LUDWIG MAXIMILIANS UNIVERSITY MUNICH HUMAN DIGNITY:

A

REMEDY

FOR THE

CLASH

OF

CULTURES?

HUMAN DIGNITY AND THE MIND OF MENCIUS Abstract: While economic exchange between China and the “West”, comprising the culture area basically influenced by Christianity, perpetually gains importance, the exchange of philosophical ideas is underdeveloped. A necessary precondition for successful Sino-Western dialogue – p. ex. in the field of human rights – is to find equipollent concepts in both Western and Chinese traditions. A possible approach for such a “common denominator” is the concept of human dignity. The idea behind “dignity” (defined as “self-worth of the person”) is known to the rather “communitarian” Confucian thought as well as to the person-centered philosophy of post-enlightenment, permeated by liberalism. Notwithstanding the still great distance between China and the West, human dignity can serve as a synonym for compassion (a constant to Confucianism) and charity (the fundament of occidental ethics). Along these lines, Sino-Western accommodation could gain its strongly needed philosophical dimension.

1. INTRODUCTION While China gains importance as one of the big players in international politics and global economy, the “West”, which shall be defined as the cultural ensemble of Europe, Northern America, Australia, and New Zealand, becomes aware of the numerous differences dividing it from the Middle Kingdom: differences in morality, mentality and mind. Dialogue in various fields is often propagated, but seldom successful. International agreements acknowledge the relevance of human rights, but they formulate a retention regarding their universal validity, such as the Bangkok Declaration on Human Rights of 1993: The Ministers and representatives of Asian States … “recognize that while human rights are universal, they must be considered in the context of a dynamic and evolving process of international norm-setting bearing in mind the significance of national and regional particularities and various historical, cultural and religious backgrounds”.

But which normative conclusion should we draw from that? Rejecting the position of authoritarian regimes like the Chinese that historicity of values undermines the normative moral status of human rights,1 how should the demand for a “dynamic and evolving process of international norm-setting” be taken at its word, and how should the western world take flesh to the bones of the international human rights dialogue? This contribution is not about the reasons why the Sino-Western discourse often fails. “Failure” means that it rather seems to produce misunderstandings than solutions to overcome the differences in p. ex. business ethics or legal culture. Taking the clash of cultures as a reality in international relations, our purpose is to find 1

Chad Hansen caricatures this approach as the Bangkok attitude or Bangkok objection to human rights (Chad Hansen: Chinese Philosophy and Human Rights: An Application of Comparative Ethics. In: Ethics in Business and Society. Chinese and Western Perspectives, Gerhold K. Becker (ed.), pp. 99 ff (100), 1996.

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a connective link from which a promising effort to enter into talks can be made. Philosophy may help to find a common language. For our purpose, we presume that in principle, apart from the widespread academic discussion in how far something like “Chinese philosophy” in terms of “thinking about thinking” really exists, key concepts of Western and Chinese reasoning can be used analogous.2 As a consequence, we shall discuss in the following to what extend “human dignity” as a key concept in Western philosophy may serve as a basis for discussion about standards of interaction between China and the West. However, we have to keep in mind that the transfer of categories of Western philosophy to Chinese modes of thought can only create approximate values. As far as can be seen today, both ways of reasoning haven’t come to congruency. 2. MO DI’S

DAO: ALL-EMBRACING LOVE

We start our reflections with an antitype of Chinese philosophy: dao, the way. Dao is beginning and end, male and female, to be and not to be in one. In Western terms, we would describe dao as a kind of concept formation in order to reconcile (or maybe: “aggregate”) opposites, not to point them out and make them strong (we can find a German word perfectly illustrating this idea: “gegensatzaufhebende Begriffsbildung”). Further, dao is with its broad spectrum of meanings the guiding motive of heterogeneous intellectual traditions of ancient China. It is plainly regarded as the principle of creation. Following dao, insight comes at the end of a road, the course of which cannot be described or foreseen a priori. Each person has to take her own steps; no man goes the same way in life as his fellow man. From this point of view, all human beings are at the same time equal and entirely different. Daoism as an intellectual school developed in opposition to the various strains of Confucianism3, but the concept of dao is familiar to a wide range of traditions of Chinese reasoning. The first of those traditions we look at is the Mohist School, founded by and named after Mo Di (also known as Master Mo, about 468–376 B.C.). Mo Di was an opponent of Confucius. Mo Di’s existence deems historically authenticated, and he is supposed to have actually drawn up by himself most of the sayings ascribed to

2

3

This is a consequence of the fact that “one … cannot provide a responsible translation of Chinese philosophical texts without the possession of a rather sophisticated set of conceptual and interpretative skills resourced within the Western philosophical tradition” (David L. Hall: What Has Athens to Do with Alexandria? In: Early China / Ancient Greece. Thinking through Comparisons, Steven Shankman / Stephen W. Durant (eds.), pp. 15 ff (31), 2005. Axiology (the philosophical study of value) can be traced back both to Confucius and to Plato (Zhang Dainian: Axiology in pre-modern Chinese Philosophy. In: Chinese Philosophy in an Era of Globalization, Robin R. Wang (ed.), p. 13, 2004). Nevertheless, Zhang’s theory does not remain uncontested (see Kwong-loi Shun: On the Idea of Axiology in pre-modern Chinese Philosophy. In: Chinese Philosophy in an Era of Globalization, Robin R. Wang (ed.), pp. 37 ff., 2004). See also the analysis of Francois Jullien: Dialog über die Moral. Menzius und die Philosophie der Aufklärung, 2003. The most famous and possibly most influential representative of Daoism is Lao Tse, a legendary sage who is said to have lived during the 6th century BC.

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him. One basic thesis of Mo Di is that cosmic order is ruled by love, whereas a lack of love causes disorder. In the words of Mo Di: “When a minister and a son are not filial to their sovereign and their father, this is what is called disorder. A son loves himself and not his father; – he therefore wrongs his father, and seeks his own advantage: a younger brother loves himself, and does not love his elder brother; – he therefore wrongs his elder brother, and seeks his own advantage: a minister loves himself, and does not love his sovereign; – he therefore wrongs his sovereign, and seeks his own advantage: – all these are cases of what is called disorder. Though it be the father who is not kind to his son, or the elder brother who is not kind to his younger brother, or the sovereign who is not gracious to his minister: – the case comes equally under the general name of disorder.”4

Starting from this premise, Mo Di suggests mutual love as remedy for disorder: “If, indeed, mutual love prevailed throughout the kingdom; one State not attacking another, and one Family not throwing another into confusion; thieves and robbers nowhere existing; rulers and ministers, fathers and sons, all being filial and kind: – in such a condition the nation would be well governed.”5

All-embracing love, as Mo Di describes it, could be seen as an equivalent to Christian charity. However, mutual love is not only a value in itself like charity is, but it is connected with utilitarian considerations: “This universal love was the way of the sage kings; it is the principle to secure peace for kings, dukes and great men; it is the means to secure plenty of food and clothes for the myriads of people.”6

The concept of all-embracing love found a poetic formulation during the NeoConfucian period by Zhang Zai, a philosopher of the 11th century AD, in his Western Inscription: “Qian is my father; kun is my mother. We small things live in their midst. Therefore, what fills the gap between heaven and earth is my body; what directs heaven and earth is my human nature. All people are my siblings, all things and I are the same. The giant ruler is the head of my clan; his great ministers are my clan head’s stewards. Acknowledging the elderly, I respect their age. Acknowledging the young, I am benevolent due to their weakness. I treat as sages those with harmonious virtue. I treat as worthies those with talent.”7

In addition to mutual love, Mo Di, accusing the Confucianists of having preached fatalism, pleads for free will: “Finally, they (the Confucianists) suppose there is a fate and that poverty or wealth, old age or untimely death, order or chaos, security or danger, all are predetermined and cannot be altered. Applying this belief, those in authority of course will not attend to work. This is sufficient to ruin the world. … The unnatural adherence to this doctrine (fatalism) is responsible for pernicious ideas and is the way of the wicked.”8

Thus, “love” in Daoist terms (related to all mankind9 and comprising both utilitarian and individualistic approaches) might be seen as a promoter for implementing 4 5 6 7 8 9

Text quoted after James Legge (ed.): The Chinese Classics vol. 2. The Works of Mencius, p. 101, 3rd edition, 1960. Text quoted after James Legge (note 4), pp. 102 f. Text quoted after James Legge (note 4), p. 116. Text quoted after Jeffrey L. Richey (ed.): Teaching Confucianism, p. 127, 2008. Quoted after Lawrence C. Wu: Fundamentals of Chinese Philosophy, pp. 95 f., 1986. This distinguishes Daoism from Confucianism. Mo Ti defines love as all-embracing principle, while Confucius confines it to the family (love between children and parents) or to the clan

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Western ideas of equality and human rights within the Chinese spiritual scenery. Mo Di’s teachings exhibit the most important components of Western post-enlightened philosophy: (1) respect for the fellow man as an equal among equals, (2) utilitarian concern about the welfare of the community, (3) individualism. All of the named features are seen in a global perspective, transcending the narrow limits of national pales. Love for all mankind leads to charity towards the fellow human being, the core concept of civilizations under Christian influence.10 Our first hypothesis is, derived from a prima facie abstract of Mo Di’s core theses, that Daoism and Christian Religion can, as they seem to share common values, construct an ideological arena, a marketplace of ideas, where China and the West may achieve a basic consensus about common values. The procedural concept implied in the image of a marketplace particularly seems to match the idea of the way. Results are not predefined. They need to be fixed by mediating differing interests and by responding to each other. Of course, the exchange of ideas needs a common standard to evaluate its substance and success. To stay with the metaphor, they require a common currency. The currency Daoism and Christianity may use to define their range of ideas is dignity. In the light of a Sino-Western synthese, dignity applies as a variable comprising both the Chinese idea of a perfect “loving” society and the occidental concept of charity with an eschatological Kingdom of God. Founding a society on such a universal concept as dignity helps to break down moral requirements against individual rights on the one hand and obligations to my fellow man and to community on the other hand. But taking care of the afore mentioned difficulties to draw intercultural parallels, we are obliged to analyze carefully, if the affinities between Daoism and Western philosophy are strong enough to connect this construction. Answering this question requires a closer look at the concept of dignity. If we understand it as an attribute of distinction between man and his environment,11 there are several possibilities to give reason for the extraordinary impact of the dig-

10

11

(Stephan Schumacher / Gert Woerner (eds.): The Rider Encyclopedia of Eastern Philosophy and Religion, Article “Mo Ti”, pp. 230 f., 1989). All-embracing love was not only a theoretical concept, but deems to have had an impact on everyday life in Ancient China. Analyzing the behavior towards foreigners in three ancient civilizations: Egypt, Mesopotamia and China, Mu-chou Poo states: “The … relationships and attitudes towards foreigners reveal(s) that, in different ways, evidence of a sympathetic understanding of foreign culture can be found in all three ancient civilizations” Mu-chou Poo: Enemies of Civilization. Attitudes toward Foreigners in Ancient Mesopotamia, Egypt, and China, p. 99, 2005). In China, cultural self-conscience towards barbarians did not take the form of xenophobia, but appeared as awareness of cultural superiority which did not prevent the Chinese kings from communication or even marriage alliances with barbarian potentates (Mu-chou Poo, Enemies of Civilization. Attitudes toward Foreigners in Ancient Mesopotamia, Egypt, and China, p. 100, 2005). “Charity” is a multi-layered concept. We understand “charity” as both a concept of how to practice individualism in keeping with common welfare and as a moral standard to deal with persons with no regards to their inborn characteristics. This does not mean that animal life or nature as such would be less valuable in any way. But if dignity should have any importance to describe the nature of man, the respect non-human life can claim is not founded in dignity. Dignity is the opposite hand of responsibility. Someone who behaves irresponsible is said to act beneath himself. Responsibility is a mirror which reflects human dignity in all its aspects. If man disregards animals or destroys nature, his action is considered to be undignified.

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nity concept. We first consider Christian patterns of the argument. Secondly, we have a look at some lines of Western philosophy. 3. HUMAN

DIGNITY: A KEY CONCEPT IN WESTERN PHILOSOPHY

Within the Christian tradition, dignity traces back to different arguments for the freedom of personality. The first – religious – approach to human dignity operates at a personal level. Christian theology, influenced by Jewish and Greek traditions, perceives life as a mystery of distress and deliverance. The suffering man finds alleviation in the sacrifice of Jesus Christ. Therefore all human beings are equal in the face of God. Equality is an intrinsic part of human evolution. As a fundamental precondition of human life, equality insists on mutual respect. Respect figures as the source of inalienable dignity of man. Human dignity claims to consider even the weakest, as Christ puts it in Matthew 25, 40: “As you did it to one of the least of my brethren, you did it to me.”

Thus, human dignity is reciprocal responsibility, which, in unparalleled urgency, is uttered in the Sermon on the Mount (Matthew 5, 3–12): “Blessed are the poor in spirit, for theirs is the kingdom of heaven. Blessed are those who mourn, for they shall be comforted. Blessed are the meek, for they shall inherit the earth. Blessed are those who hunger and thirst for righteousness, for they shall be filled. Blessed are the merciful, for they shall obtain mercy. Blessed are the pure in heart, for they shall see God. Blessed are the peacemakers, for they shall be called sons of God. Blessed are those who are persecuted for righteousness’ sake, for theirs is the kingdom of heaven. Blessed are you when they revile and persecute you, and say all kinds of evil against you falsely for my sake. Rejoice and be exceedingly glad, for great is your reward in heaven, for so they persecuted the prophets who were before you.”

The words of the Sermon of the Mount lay the foundations of Christian civilization, paraphrasing a declared belief in civility and compassion. As a consequence, dignity is not only for the strong or for those who deserve credit for their efforts,12 but particularly for the meek, for those who mourn, for the poor in spirit. It is a pleading for humanity, clarifying that equality and dignity entail commitment for charity. Even the weakest are strong as they are in the likeness of God, and therefore human dignity melts together the communion of the faithful. A second argument appears in this aspect, another religious approach to human dignity referring to a supra-personal chain of reasoning. Human dignity unfolds itself through the communion of the faithful. It is an all-embracing, universal concept. By the duty to respect other’s dignity, man is bound to community. It is through this incline to community that dignity builds a bridge to non-religious ideas of man, the most powerful ones being Aristotle’s portrait of the human being as zoon politikon and Kant’s image of the person as an end in itself. The secular versions of human dignity share their strong interconnectedness to honor, seen as a moral claim against the other for respect. To put a Confucian spin on it, “dignity” as “personal honor” claims 12

Some recent theories of human dignity, on the contrary, state that dignity depends on personal merit (Niklas Luhmann: Grundrechte als Institution. Ein Beitrag zur politischen Soziologie, pp. 60 ff., 3rd edition 1986).

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consideration of the fellow man’s “face”. Therefore, “dignity” marks the red line of any community which promises to respect each human being as such. Such a “Gemeinschaft” refuses to segregate persons by characteristics implied in the nature of human beings like gender, race, origin, or health. What encourages us to translate “dignity” with “love” is that both concepts allude to a fusion of individual and supra-individual aspects of community: (1) self-love causes brotherly love and vice versa; (2) paying respect for the community and for community institutions means to appreciate the own environment and therefore to prize the own life. But under the surface of homology fundamental differences come to light. As indicated before, Mohist “love” is consociated with some utilitarian touch.13 Benevolence to one another needs a bonus for everyone, comparable to what economists call a win-win-situation. But “dignity” is in any way – whether we derive it from charity, from personal honor or from the “end-in-itself ” doctrine – strongly connected to altruism. Neither does it require active participation of the person nor does it directly provide a positive effect on society. As a consequence, dignity cannot be combined with utilitarian pretentions. As the unquestioning nature of dignity is the conditio sine qua non of the Western world’s ideological core concept: liberalism (the premises of liberalism, freedom and equality before the law, both have their roots in the dignity of man), an intellectual tradition which rejects the idea of unconditioned respect will not even understand the basic ideas of liberalism. It will thus ignore the most important narrative of Western culture. Moreover, “love” in the Mohist wording, is, unlike dignity, not an attribution to the person, but a moral demand. So we find on closer examination another fundamental contradiction within the Sino-Western body of ideas: dignity is something I have, while love is something I give. This attaches a completely other meaning to love than to dignity; it is the difference between attribute and attribution. The final reason why “love” and dignity” are not in a good match is that the liberal dimension of “human dignity” does not only protect the free will, what the Mohist School could readily admit, but has a clear political connotation, which is not that obvious in Mohist philosophy. Precisely this political dimension became the most important one in the Western dignity discourse during the 20th century. 4. DIGNITY

IN CLASSICAL

CHINESE

PHILOSOPHY:

MENCIUS

In order to find another common denominator, another means of communication between China and the West, we need to go back further in Chinese history. The beginning of Chinese philosophy can be traced back to the late 6th century BC.14 There are several good reasons to argue that Confucian and Neo-Confucian thought includes deeply religious dimensions.15 The Confucian philosophy developed within a framework vocabulary the most important terms of which are the follow-

13 14 15

Lawrence C. Wu (note 8), p. 89 classifies Mo Di’s thought as “religious utilitarianism”. W. Bauer: Geschichte der chinesischen Philosophie, p. 37, 2006. See I. Bloom / J. A. Fogel / Wing-tsit Chan / W. T. De Bary: Meeting of Minds: intellectual and religious interaction in East Asian traditions of thought, 1997.

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ing: humanity, righteousness, the rites, wisdom, and sagacity.16 Karl Jaspers named this early period in intellectual history the “axial age”, with the Pre-Socratics in ancient Greece, the prophets in Judaism, Buddha in old India and Confucius in China. In that period, we find basic approaches to an idea of man in Confucian philosophy which comes close to our contemporary understanding of “human dignity”. It is Mencius (372–289 BC)17 by whom we find traces of a general theory of the benevolent nature of man, arguing for the equality of human beings due to reciprocity of feelings. In the words of Mencius: “All men have something that they cannot endure; if carried on to that which they can endure, it is benevolence. All men have something that they do not do; extended to that which they do, it is righteousness. If men could carry out (completely) the feeling of not injuring others, there would be more benevolence than necessary. If men could (fully) carry out the feeling of not breaking through and not climbing over (walls) [prescribed bounds], there would be more righteousness than is necessary.”18

Mencius focuses on a philanthropic attitude of humanity by demanding righteousness and benevolence.19 The meaning of “righteousness” in Mencius’ philosophy comes near to the concept of dao, as Mencius puts it: “Human-heartedness represents the human heart, righteousness the human way. Righteousness is the road in which men ought to walk, is what is described as ‘what ought to be so and is so not for any utilitarian end.’”20

There are obvious parallels between Mencius’ definition of righteousness as free from any utilitarian ends and dignity as end in itself. Righteousness and humanity are, according to Mencius, the ties which bind all people together. Mencius developed a concept of mutual understanding and mutual respect which is not far from the western idea of human dignity formulating an individualistic utopia of peace. Mencius assumed the innate goodness of man, believing that a lack of educating social influence caused moral wickedness. He stated that every person has a need of self-esteem and prefers death to humiliation or debasement. Thus Mencius concludes that everyone is anxious for saving face, for maintaining moral autonomy. But this is only one aspect of his approach. The core of Mencius’ moral device is 16 17

18

19

20

Kenneth W. Holloway: Guodian. The Newly Discovered Seeds of Chinese Religious and Political Philosophy, p. 6, 2009. Most commentators believe that Mencius did not write the book of Mencius, which is ascribed to him, by himself. Moreover, the book was probably edited by his disciples under his close supervision (Lawrence C. Wu: Fundamentals of Chinese Philosophy, p. 32, 1986). This leads to the methodological problem that the book of Mencius may rather be seen as a compilation of ideas in the tradition of Mencius, but it cannot be ascertained which teachings follow from Mencius personally and which ideas have been varied or added by his disciples. Quoted after E. Faber: The Mind of Mencius. Political Economy founded upon Moral Philosophy, p. 99, 1882 (reprint 2000/2001). Faber (op. cit., p. 99) comments this passage as follows: “In these passages it is clearly laid down that benevolence is not accidential, but is worked out from man’s veritable nature, and that not in a developed form, but in the disposition which shows itself in all men”. Zhang Dainian (note 2) pp. 18 f. describes the philosophical approaches of Mo Di and Mencius as two differing kinds of axiology: Mo Di’s exaltation of public profit comes near to a utilitarian theory of value, while Mencius’ praise of “heavenly honors” and “pure nobility” may be described as a theory of the value of human life. Quoted after Fung Yu-Lan: The Spirit of Chinese Philosophy, p. 13, 1948.

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compassion. He teaches that there are two varieties of empathy differing to a large extent. On the one hand, we all have an abstract awareness of affliction which everyone feels for example when hearing about the victims of some war far away. But on the other hand there is the concrete encounter with a person one can tell that he suffers. In the latter case Mencius tells that no man really could endure the pain of another person or even of an animal if he is forced to look it over with his own eyes. A prominent example Mencius gives to underline his tenet is a child who fell into a deep fountain. Everyone who could see and hear the child’s affliction would have a moral need to help. This help, so Mencius says, is free of self-interest. Helping is something a person does for himself to salve his conscience. And Mencius does not misconceive that each person has his own moral drive, his own moral standards which may differ from those of other persons. But he states that all human beings have compassion, the need to remedy someone other’s apparent suffering. According to Mencius, this instance is typical for human nature and forms the dignity of human being. The following passage of the book of Mencius supports the comparison of the Western concept of dignity to Mencius’ thoughts: Mencius said: “All men have the mind which cannot bear (to see the suffering of) others. The ancient kings had this mind and therefore they had a government that could not bear to see the suffering of the people. When a government that cannot bear to see the suffering of the people is conducted from a mind that cannot see the suffering of others, the government of the empire will be as easy as making something go round in the palm. When I say that all men have the mind which cannot bear to see the suffering of others, my meaning will be illustrated thus: Now, when men suddenly see a child about to fall into a well, they all have a feeling of alarm and distress, not to gain friendship with the child’s parents, nor to seek the praise of their neighbors and friends, nor because they dislike the reputation (of lack of humanity if they did not rescue the child). From such a case, we see that a man without the feeling of commiseration is not a man; a man without the feeling of shame and dislike is not a man; a man without the feeling of deference and compliance is not a man; and a man without the feeling of right and wrong is not a man. The feeling of commiseration is the beginning of humanity; the feeling of shame and dislike is the beginning of righteousness; the feeling of deference and compliance is the beginning of propriety; and the feeling of right and wrong is the beginning of wisdom. Men have these four beginnings just as they have four limbs.”21

In Western philosophy, the debate about the nature of man influenced not only the concept of individualism, but also led to the tradition of natural law, stating inalienable rights on the grounds of freedom and liberty. Likewise, Mencius’ “four beginnings” have a strong political impact. They might be seen as well as four roots of natural law. Mencius spans the range from benevolence in interpersonal relations to benevolence of the king, the lack of which legitimizes revolution. In Mencius’ illustration: “King Hsüan of Ch’i asked, ‘Was it a fact that T’ang banished King Chieh and that King Wen punished King Chou?’ Mecius replied: ‘Yes, according to records.’ The King said, ‘Is it all right for a minister to murder his king?’ Mencius said: ‘He who injures humanity is a bandit. He who injures righteousness is a destructive person. Such a person is a mere fellow. I have heard of killing a mere fellow Chou, but I have not heard of murdering (him as) the ruler.’”22

21 22

Quoted after Wing-Tsit Chan (ed.): A Source Book in Chinese Philosophy, p. 65, 1963. Quoted after Wing-Tsit Chan (note 21), p. 62. The quoted passage means, according to Wing-Tsit

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Mencius’ concept of human dignity is reflected in the Chinese term “tianjue”. Different from human dignity, tianjue has no metaphysical or idealistic subtext. It characterizes a merely biological constant of human nature. Tianjue means that all people inhere in honesty and an inborn capability of recognizing moral standards and living according to them. Unlike human dignity, the idea of tianjue does not imply a religious meaning, such as the Christian belief that man was created in God’s image. Of course, Mencius’ concept of human dignity is not completely exempt from normative presuppositions. But despite all criticism about the details, Mencius shows that there are aspects of morality all people share independent of their education, religion or other cultural factors. Reducing this fact to a common denominator leads us to the core of human dignity. “Dignity” can thus be defined as “inborn empathy” which figures as the source of respect. Subsequently, Mencius emphasizes the significance of the common citizen in relation to the State. While Confucius had pointed out that the only effective system of government could, generally spoken, consist of prescribed and irreversible relationships for each individual, which do not permit the ruler to change his role with the citizen and vice versa, Mencius argued that it is acceptable to overthrow a ruler who ignores the people’s needs and particularly their dignity. Mencius’ philosophy has a specific individual component: A ruler must justify his position by ruling in a benevolent way before he can expect his people to pay respect to him. Furthermore, according to Mencius all human beings are equal of status seen from a categorical perspective. Mencius stopped short of admitting the individual a position comparable to Western thought. But it should be worth discussing the possibility of advancing Neo-Confucian philosophy in a way that allows converging Eastern and Western ideas of human nature. This discussion needs to be focused by a broadly accepted topos. Human dignity may serve in this way. 5. CONCLUSION: DIGNITY, LAW AND THE CULTURAL PRECONDITIONS OF A GLOBAL HUMANITARIAN ORDER In the western tradition, natural rights of man became limitations of governmental power, which led to a specific concept of law. Human dignity figures as the key to a theory of legitimacy of government justified by the respect for the individual. Legal texts which bear on “human dignity” may be seen as a rejection of strict positivism. Alluding to two thousand years of philosophy, such texts incorporate a multitude of moral standards in the legal system. Outlining the link between law, morals and culture, human dignity is even more than a legal term. It is a synonym for the idea of humanity in general. But we have to be aware of the fact that there is no single way of looking at the “idea of humanity”. It features rather a variety of inherent understandings depending on cultural imprint. Our assumptive premise is that the element of reciprocity included in the concept of “human dignity” – self-respect and respect towards other people – is a solid basis for an intercultural dialogue about the fundamentals of law and state. As a legal concept, human dignity is quite Chan’s comment (note 21, p. 62), that a wicked ruler loses the mandate of Heaven. This brings his position as a “mere fellow” about.

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a new phenomenon. In an international context, it was the UN charter of 1945 referring to the dignity of the human person for the first time. Regarding the East Asian culture group, human dignity mentioned in recital 23 of the Bangkok Declaration on Human Rights of 1993 in the following wording: “(The Ministers and representatives of Asian States …) recognize the rights of the child to enjoy special protection and to be afforded the opportunities and facilities to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity.”

Although dignity is related to a specific context (protection of childrens’ rights), the text proves that dignity as a concept of international law has been approved by Asian States. Finally, in 1949, the German Grundgesetz holds “human dignity” dear as the basic norm of the German legal system. In German Constitutional Law several schools agree that human dignity points out the intrinsic value of the individual and acts as borderline for limited statehood. Meanwhile, human dignity has even been adopted by European legislation where it should have the same function as in the German legal system. It now takes part in the amended version of Art. 2 TEU, figuring as a “value common to the member states”. However, human dignity is a dazzling and mistakable term. This fact makes it difficult to agree on a binding definition of the status of human being under law. Without a consensus about the roots of moral and legal standards, the actors of international human rights dialogue talk at cross-purposes. This characterizes the situation up to date. As a result, the international debate on human rights primarily focusses on specific fundamental rights, such as freedom of speech, religion or profession often seen solely from a “western” perspective. Particularly Chinese culture can hardly cope with a legal point of view which emphasizes the dominating role of the individual as the source of public legitimacy requiring protection within the legal system. This Western “rights individualism” might be criticized, from a Confucianist point of view as based on an unrealistically abstract conception of the individual, as Henry Rosemont puts it: “For the early Confucians there can be no me in isolation, to be considered abstractly: I am the totality of roles I live in relation to specific others. I do not play or perform these roles; I am these roles. When they have all been specified I have been defined uniquely, fully and altogether, with no remainder with which to piece together a free, autonomous self.”23

The Confucian concept of individualism is in contrast with the modern Western idea, worded by John Rawls: “… each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others.”24

States gain legitimacy only in reference to the individual. A discourse on human rights cannot be founded on individual rights without making sure that the source of these rights, that is human dignity, is understood and respected by all actors on international stage. But can this ever be possible? Considering that the moral impetus in the nature of human rights debate rings hollow even for Western ears in the 23 24

Henry Rosemont Jr.: Why Take Rights Seriously? A Confucian Critique. In: Human Rights and the World, Leroy S. Rouner (ed.), p. 167 (177). John Rawls: A Theory of Justice, p. 60, 1971.

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light of reduction of civil liberty in the United States and in Europe during the last decade, human rights as individual rights will only be accepted by non-western cultures if we find a human rights concept all cultural traditions can subscribe to. For western philosophy, a detour about classic Chinese ethics is probably the best way to find new arguments to convince other cultures of the merits of democracy and rule of law. Furthermore, to get in touch with Chinese modes of thought can help the West to self-ascertain about wherefore to make an argument: Should nonwestern cultures be convinced to take a foreign model of individualism daring that the experiment fails as seen for example in Russia? Or should the West rather plead for the freedom of living according to someone’s own moral standards, should we plead for paying respect to the moral autonomy as a concept of individualism which may lead to different forms of democracy and rule of law? And what about the Eastern perspective? Asian thinking could join the western point of view easier by rediscovering its traditional wisdom in a western light. The international human rights discourse tends to exclude the more fundamental question why the consideration of inalienable legal positions of the person should be worthwhile even for societies traditionally rejecting the value of individualism and emphasizing subjection to the collective will. As mentioned before, reciprocity is due to human dignity. Shaped more precisely, the idea of dignity can be translated into a moral imperative of esteeming the other as a fellow man with no regard on religious beliefs, social origin or regional provenance. Transcribed in terms of law, human dignity constitutes an obligation of empathy. Several legal cultures can subscribe to this point of view.

PAUL TIEDEMANN, FRANKFURT AM MAIN* THE RELATION

BETWEEN

HUMAN DIGNITY

AND

HUMAN RIGHTS:

WHAT IS MEANT BY DERIVING HUMAN RIGHTS FROM HUMAN DIGNITY? Abstract: This paper deals with the question of the meaning of the statement that human rights can be derived from human dignity in the International Covenants on Human Rights of 1966. From the standpoint of natural law, that link is easy to explain. However, if we mean by human dignity not a metaphysical concept, but simply a subjective evaluation of human beings – it is much more difficult to establish the connection. It is possible, however. The relationship reveals itself when we take into account: (1) that human dignity can be understood as a second-order volition and (2) that secondorder volitions can be understood as obligations. Human rights prove to be a reasonable and necessary means to remind us to respect our human obligations.

1. INTRODUCTION According to the preamble of the International Covenant on Civil and Political Rights1 and the International Covenant on Economic, Social, and Cultural Rights2 from 1966 the “equal and inalienable rights of all members of the human family […] derive from the inherent dignity of the human person”. The inherent dignity and the inalienable human rights in these preambles are not understood as a result of human legislation, but as something we have to recognize. This is due to the recognition of dignity and rights as “the foundation of freedom, justice and peace in the world” – and, therefore, the foundation of all legitimate legislation. Human dignity and human rights are understood as something that the law has to notice and not to create. These rights have a supra-positive status, but on the current stage we have to remain open, which one. The recognition of human dignity and human rights seems not to be considered as independent from each other but the preambles suggest that human rights can be derived from human dignity. Human dignity logically comes first, while human rights follow from human dignity as the next step. In what follows, I will submit that relation of derivation to a detailed philosophical analysis. 2. THE POSITION

OF

NATURAL LAW

In view of the supra-positive status of human dignity and human rights it suggests, that we should clarify the connection between them by falling back on natural law doctrine. The quoted formulations indeed are easily understood, if we start from a natural law position. According to natural law the value of the human being, expressed in the concept of human dignity or personal dignity, is something with which *

1 2

The author thanks Prof. Dr. James Simeon (York University, Toronto) for the review of the text in terms of grammatical, stylistic and orthographic mistakes. All remaining errors are my sole responsibility. UN GA, Res. 2200A (XXI) of 16 Dec 1966 – http://www2.ohchr.org/english/law/ccpr.htm. UN GA, Res. 2200 A (XXI) of 16 Dec 1966 – http://www2.ohchr.org/english/law/cescr.htm.

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the human being is endowed by God or by nature or by any other supreme authority. This act of endowment includes the pronouncement for everyone to respect everyone else, because all are endowed with human dignity. The act of endowment is an act of conferring a status that is a bundle of rights (and perhaps duties). This bundle has the content to be respected by everyone. The precondition of this construction is that the assumed supreme authority has the supreme legitimacy to rule over everybody, so that supreme authority’s orders are binding in a moral sense. According to that understanding every human being or at least every human person is endowed with dignity and from that a certain status follows that every human being or person has particular human rights (and perhaps duties). So the derivation of rights from human dignity is nothing other than the derivation of particular rights from a certain bundle of rights. This is evident from simple logic. 3. THE NON-NATURAL LAW POSITION If we don’t share the natural law approach it is much harder to understand what is meant by the derivation of human rights from human dignity. In this case we cannot understand human dignity as a quasi-legal status with which human beings are endowed by a supreme authority. But how can we understand the concept of human dignity if we want to renounce on the natural law doctrine or any other metaphysical idea? At first we have to understand that there is a logical difference between talking about human dignity and talking about a certain attribute. Dignity is not a human attribute or property like blonde hair, blue eyes, intelligence, or sex. Dignity is not an expression that we can use if we want to describe a particular reality in the world. “Human rationality” for instance is an attribute that we can ascribe to human beings. In spite of that it makes no sense to ascribe “human dignity” to human beings in the same way. Dignity is rather an expression that we can use if we want to evaluate something that exists in the world. Saying that human beings have dignity is similar to saying that human beings are good in a particular meaning. The word good (bonum, agathon) as a philosophical term is connected with a certain conception that is based on a metaphysical understanding.3 If we want to waive on a metaphysical understanding of dignity we have also to avoid a metaphysical understanding of the good. In contemporary philosophy it is common to use the words value or worth if we want to talk about the good in a non-metaphysical meaning.4 While the good in a metaphysical meaning signifies a certain entity or a property of an entity, the value of something is a certain kind of statement that persons deliver toward a particular entity. That statement shows how the involved person evaluates that entity. The claim that X is good tells us nothing about X but a lot about the person who delivers that value judgment, about his preferences, desires, hopes, or his taste. But we don’t 3 4

Aristoteles Eth.Nic. 1094 a 21; G. E.Moore: Principia Ethica, Cambridge 1965. W. Galewicz: Wert und Gut. Zum phänomenologischen Wertpluralismus, Archiv für Begriffsgeschichte 33 (1990), pp. 270; R. M. Hare: The Language of Morals, Oxford 1952; J. L. Mackie: Ethica. Inventing Right and Wrong, London 1977.

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know exactly the relevant aspect under which the person evaluates a certain object as good. We don’t know the standard of measurement – the value-standard – on which the value judgment is based. A value judgment that operates with the word good therefore is very unclear. To make value judgments more understandable it is better to use other value-concepts. Fortunately, we have a number of value-concepts, through which we can express our value judgments more clearly. Among them are the very important concepts of price and dignity. Since at least the ancient Greek Stoa the philosophical tradition distinguishes between three different kinds of value.5 Something can have a value in the meaning of an external worth6 or – in the words of Immanuel Kant – in the meaning of a market price.7 Furthermore something can have a value in the meaning of an intrinsic worth – in Kant’s words: a fancy price.7 Finally, something can have a value in the meaning of an absolute worth – or dignity.8 A speaker who thinks that human beings have dignity, shows that he is not only interested in human beings as friends (intrinsic worth) or for example as workers (extrinsic worth), but that he values human beings as such as an absolute worth. I have shown elsewhere that there is, indeed, an aspect under which human beings can be considered as having an absolute worth. This is their personhood.9 There is indeed an absolute interest of every rational person in his/her own personhood as well as in the personhood of everybody else because the capacity to be aware and to appreciate myself as someone and not only as something is primordial with the capacity to be aware and appreciate every other person as someone and not only as something. Dignity means the absolute appreciation of every person’s personhood.10 In that regard, my argument avoids any dependency on ideas of natural law. It is only based on linguistic and empirical (anthropological) arguments and on a subjective theory of value.11 I call it the Identity Theory of Human Dignity.12 5

6 7 8 9

10

11 12

Maximilian Forschner: Marktpreis und Würde oder vom Adel der menschlichen Natur. In: Henning Kössler (ed.): Die Würde des Menschen, Erlangen 1997, pp. 33; the same: Stoa; Stoizismus. In: Joachim Ritter / Karlfried Gründer (eds.): Historisches Wörterbuch der Philosophie, Vol. 10, Darmstadt 1998, Collums 175 f. For the difference between extrinsic and intrinsic values see Georg Henrik v. Wright: Normen, Werte und Handlungen, Frankfurt/M 1994. Immanuel Kant: Grundlegung zur Metaphysik der Sitten, Riga 21786, p. 78. Kant used dignity and absolute value as synonyms: Cf. Kant Ibid and Immanuel Kant: Metaphysik der Sitten (Tugendlehre), Königsberg 1797, p. 94. We have to distinguish between personhood and personality: Personhood means the capacity to reflect on oneself and to lead one’s own life according to a self-determined life plan. Personality is the result of a life according to a certain life plan (as well as the result of certain heteronomous conditions). Personhood is an ability; personality is (partly) the result of the use of our ability. Cf for the concept of personhood: Robert Spaemann: Personen. Versuche über den Unterschied zwischen »etwas« und »jemand«, Stuttgart 1996; cf for the concept of personality: »Personality« in Encyclopaedia Britannica 15ed. 1991 vol. 9; see also Paul Tiedemann: Würde der Person oder Würde der Persönlichkeit, in: Kritische Justiz 40 (2007), pp. 83 f. Paul Tiedemann: Menschenwürde als Rechtsbegriff, Berlin 32012; the same: Human Dignity as an Absolute Value. In: Winfried Brugger / Stephan Kirste (ed.): Human Dignity as a Foundation of Law, in this volume, pp. 67 ff. John Dewey: Theory of Valuation. In: the same: The Later Works Vol. 13, edited by Jo Ann Boydston, Carbondale/Edwardsville 2008, pp. 189. Tiedemann, Menschenwürde op. cit., p. 282.

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If we start from this point of view we have to face the serious problem, how this concept of human dignity can be compatible with the idea of the international human rights law that the human rights can be derived from human dignity. At first glance, it seems to be very hard to think of such a relation because from this point of view there is a very deep categorical difference between human dignity and human rights. Whereas, according to the natural law concept, the human dignity has as well as the human rights the same categorical quality. Both are prescriptive concepts. We have to recognize that, according to the Identity Theory of Dignity, human dignity and human rights belong to different categories: Dignity is a value concept. It indicates an evaluation. Right is a normative concept. It indicates a request, a demand, an order, a provision, or a rule. If we are interested in something or if something has a value for us, we naturally consider it as an advantage to have a right to that thing. If we are interested in the respect of everybody’s personhood we are also interested to have a right of respect to everybody’s personhood. From our desires and interests it is only obvious, that it does not follow any rights. Why not? – Because my rights are connected necessarily with the obligations of others, according to which they have to obey my rights. If it would be possible to derive my rights from my evaluations, we could derive also the obligations of others from my evaluations. However, my wishes, desires, interests don’t give me the legitimacy to impose an obligation on others. Because of a lack of natural law there is also not any supreme authority that could impose such obligations on others. At first glance we can not derive human rights from human dignity in this way. 4. HUMAN DIGNITY

AND

HUMAN OBLIGATIONS

In the following section, I will show how we can think of the relation between human dignity and human rights on the basis of a non-natural law conception. Caused by the categorical difference between dignity and rights, it is indeed not possible to demonstrate a logical relation between these two concepts. Fortunately, international law itself does not understand the concept of derivation in a logical sense. Whereas the International Covenants from 1966 have no answer for this question, we find one in the fifth paragraph of the preamble of the UN General Assembly’s resolution 37/200 of 18 Dec 1982. According to that text, the derivation is not meant as a logic relation but as a kind of justification.13 So we have to ask how human rights can be justified by human dignity. In other words: how is it possible to justify norms through values, if values are simply nothing else then subjective wishes? I don’t know a direct way to show that. If I regard human beings as having dignity then I wish that every person’s personhood should be respected. Regarding human beings as having dignity is exactly the same as wishing that their personhood should be respected. This wish does not justify a right. Having a wish does not 13

A/RES/37/200 (http://www.un.org/documents/ga/res/37/a37r200.htm): “Aware … that social development must be based on respect for the dignity of man from which all human rights derive their justification”.

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include or justify having a right. My wish does not only generate no right of mine. It also does not generate a right of anybody else. The problem is that my wishes have an impact only to me and not to others. How should it be possible to connect my wishes with the rights or obligations of others? I suggest a little detour and – instead of the relation between dignity and rights – consider the relation between dignity and obligations first. The obligations come in focus if we consider that there are no rights without obligations: If someone has a right there must be someone else who has the obligation to fulfill that right. Or alternatively: if there is nobody who is obliged to fulfill a right, there is no right. Therefore, if we talk about human rights we have to answer the question who is obliged by human rights. 5. THE SUBJECT

OF

HUMAN OBLIGATIONS

According to widespread understanding, human rights are directed against the state.14 They are dealing with how people should be treated by their governments and public institutions. They are not considered as ordinary moral norms that mutually oblige everybody. Pursuant to this opinion, the subject of obligation is the government. But from a supra-positive point of view this understanding is not very convincing. It necessarily leads to absurd conclusions. If human rights are only directed against the government then people, who are living in a region without government or state power, could never be considered as bearer of human rights. Whatever occurred to them could not be a violation of their human rights because a violation of rights assumes that rights exist. According to this logic the best way to fight against human rights violations would be to abolish as many state powers as possible and to introduce as much chaos as possible, because the absence of a powerful government would lead to the absence of human rights and the absence of human rights would lead to an absence of human rights violations. It makes no sense at all to maintain that in regions like Somalia human rights violations do not occur because there is no public authority. Human rights are conceptualized as supra-positive ideas. Their moral validity is not dependent on the factual existence of states. They provide liberties, immunities, or claims not only toward governments but toward everyone who has the power to violate them. Everybody can have the power to violate the human rights of everybody else in particular situations. This is why everybody has human rights toward everybody else. From the fact that everybody is not only the creditor of human rights but at the same time the debtor of everybody else’s rights follows, that everybody has human obligations toward everybody else. From a supra-positive point of view the counterpart of everyone’s human rights are everyone’s human obligations. Everyone has rights toward everyone and therefore everyone has obligations toward 14

Paradigmatic for that “liberal” position in Germany: Sabine Leuthheuser-Schnarrenberger: Neue Dimensionen des Politischen. Zur schleichenden Umdeutung der Grundrechte, ZRP 32 (1999), 313; voices from the USA: James Nickel: Human Rights, Stanford Encyclopedia of Philosophy – http://plato.stanford.edu/entries/rights-human; Ronald Dworkin: Taking Rights Seriously, Cambridge (Mass.) 1978, pp. 184 ff.; Thomas Pogge: The International Significance of Human rights, Journal of Ethics 4 (2000), p. 45.

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everyone.15 And the content of these obligations refers exactly to the content of the corresponding rights.16 Even so there is a difference between general moral obligations and moral rights in general and human rights in particular of course. The difference is that the idea of human rights does not only include the idea, that everybody has certain moral rights and duties towards another but also, that the state should safeguard human rights by establishing a legal human rights regime. So far as human rights include moral duties and rights they are ordinary moral rules. As much as they demand to establish a legal human rights regime they are directed against the state and contain a very specific moral demand. This particular aspect of human rights does not help to understand the relation of derivation between a certain evaluation of human beings (according to which they are evaluated as having dignity) and our human rights. Primarily, values must be values of human individuals. Abstract organizations can never have values if the individuals who are organized by them do not share these values. If we suspect a relation of derivation between certain evaluations of human beings, and if our rights correlate exactly to corresponding obligations, there must be correlations between our individual evaluations and our individual obligations. This idea could help to find a solution to our problem. In any case by considering the relation between (own) evaluations and (own) obligations we can avoid the difficulty that there is no impact between the one’s own evaluative state and the normative state of others. We must not regard other persons but can reflect only the relation between our own evaluations and our own obligations. Nevertheless, one big problem remains. Evaluations and obligations belong to different conceptual categories. Evaluations have something to do with our interests, our desires, or our wishes. In the contrary, obligations are related to actions and aims in which we are not interested and which are contrary to our desires and wishes. Evaluations refer to what we want to do, obligations to what we ought to do. Furthermore, according to a widespread opinion, obligations refer to a foreign will while evaluations refer to one’s own will.17 It seems to be impossible to justify one’s own obligations by one’s own evaluations. Is there really no way to find a relation of derivation between dignity and rights if we avoid the natural law position? This would be a consequence of this argumentation. As far as I can see, this question has not yet been discussed in the legal and moral philosophical literature. I will try to present a solution.

15

16 17

This is also the idea behind the European Council Directive 2004/83/EC of 29 April 2004 (OJ L 304 30.09.2004, p. 12) according to which the EU Member States grant asylum to those who have to face “severe violation of basic human rights” (Art. 9) by the State or by non-State-actors (Art. 6). We are talking about human rights and not about civil rights! Malte Hossenfelder: Der Wille zum Recht und das Streben nach Glück. Grundlegung einer Ethik des Wollens. München 2000, p. 38; Achim Lohmar: Gibt es Pflichten gegen sich selbst?, AZP 30 (2005), pp. 47 f.; see also my replication: Paul Tiedemann: Gibt es Pflichten gegen sich selbst? – Ja!, AZP 32 (2007), pp. 179 ff.

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6. OBLIGATIONS

AS

SECOND-ORDER VOLITIONS

First we have to clear up the question, what we exactly have to understand by an obligation. We do not ask that question in relation to the concept of obligation in a positive legal sense. Rather, we ask for the meaning of the concept in its suprapositive or moral sense. And, since we want to avoid any argumentation that is based on an idea of natural law we have to assume that there is no authority in the moral world that could impose obligations. According to the famous definition of the concept of obligation by Immanuel Kant an obligation is something that coerces our will.18 Kant distinguished between an external and an internal coercion. He taught that an obligation based on an external coercion was an obligation toward someone else; while an obligation that is based on an internal coercion was an obligation toward oneself. This distinction seems not to be convincing. If we talk about the coercion of the will, the idea of external coercions makes no sense. If the obligation to drive on the right side is linked with the threat of a fine, this threat functions as a good argument to act in a certain way, namely to avoid driving on the left side. Arguments do not coerce the will. On the contrary, a will that is influenced by nothing than (more or less) good arguments is considered as a free will and not as a coerced will. Good arguments do not force the will; they only shape it. The person concerned is free to prefer taking the left lane and to accept the fine or to prefer taking the right lane and to avoid the fine. In some case by doing so, the person acts in accordance with his own free will. Only torture could, at first glance, be considered as an external coercion of the will. But it makes no sense to talk about torture as an external coercion of the will that can establish an obligation. Torture can never constitute an obligation because obligations are something that has an impact to one’s own will. Torture does not influence the will, it rather destroys it. Humans whose will is destroyed are no longer able to obey obligations; they are only able to operate like a machine. This consideration shows that a coercion of the will that can establish an obligation must be thought differently. Coercion of the will can neither mean the destruction of the will nor the mere influence of the will by arguments. To speak about a coercion of the will makes only sense in situations in which we do not longer agree with our own current will. This is the case in the following situation. We currently have the desire to act in a particular way but at the same time we do not want to act according to that desire. In such a paradoxical situation we are aware of two different volitions. We have the desire to act in a certain way and we have the desire not to act in that way. We do not want what we want. We feel a contradiction inside our own will. The paradox of this situation can be resolved by distinguishing two different orders of our volitions, as Harry G. Frankfurt has proposed.19 Volitions of the first order are our ordinary wants. They emerge spontaneously and they disappear if they are satisfied or if another (incompatible) volition emerges that ousts the former. I go to a bakery in order to buy a cheese sandwich but if I see the tasty ham sandwiches there, 18 19

Immanuel Kant: Metaphysik der Sitten op.cit. p. 2. Harry G. Frankfurt: Freedom of the Will and the Concept of a Person, Journal of Philosophy LXVIII (1971), p. 5.

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the volition to get a cheese sandwich disappears and is replaced by the volition to eat a ham sandwich. There is no conflict between these volitions. The situation becomes more problematic, if our first-order volition is confronted with second-order volitions. Second-order volitions contain the wish that particular first-order volitions should become either effective or not effective. For instance: when I stood on the scales this morning I decided today to abandon the sandwich at lunch break. During lunch break, I pass the bakery and feel the volition to go in and buy a sandwich. Instantly, I feel my second-order volition from this morning according to which my current first-order volition should not become effective. But that second-order volition does not make the first-order volition disappearing. Both volitions confront each other. If I satisfy one of them, I have to frustrate the other one. In the end I decide, that I have to face certain bad feelings. If I frustrate the first-order volition I feel a certain kind of sorrow. If I decide to satisfy the first-order volition and to frustrate the second-order volition I nevertheless have to expect a certain feeling that is much worse and uncomfortable then sorrow. To follow first-order volitions that are contrary to second-order-volitions shows us that we are not free but steered by our desires and drives. This dependency from our wants is not compatible with the image of ourselves. Our self-esteem is based on our capacity to self-control. A self-indebted loss of self-control leads to a loss of self-esteem. We are aware that a loss of self-esteem as self-humiliation. This feeling is called shame and shame is much more tormenting than sorrow because sorrow does not attack our self-esteem. If we frustrate our second-order volitions we have to expect the feeling of shame. Already the fear of future shame has the effect of a coercion of our will. In a particular sense we feel our will coerced by our second-order-volition, because we are forced to avoid shame. If, according to Kant, obligations are coercions of our will and if our will can be coerced by our second-order volitions we can deduce that our second-order volitions become obligations as soon as they are challenged by conflicting first-order volitions. They are obligations toward ourselves because we are the ones who impose these obligations and we are the ones who are obliged by those obligations. Regarding the first-order volition we are coerced, but on the second-order-volition we are free. This way we can explain the possibility to derive obligations from evaluations (values). If our evaluations lead to second-order volitions, they have the capacity to become obligations as soon as they are confronted with first-order volitions. If our respect for the dignity of a person is confronted with the desire to pursue any other current interest or desire, this value becomes an obligation, because it is a secondorder volition that is confronted with conflicting first-order volitions. Obligations can be conditional or absolute (non-conditional). An obligation is conditional, if we are able to give up our second-order volition in question. We give up particular second-order volitions if we want to change our personality. Changing the personality means to give up all those second-order volitions by which the personality is defined. If I want to be a pianist I necessarily have the second-order volition to practice the piano. Sometimes first-order volitions will appear that are contrary to my wish to play piano. Since wishing to be a pianist always means wishing to be a good pianist and since to be a good pianist demands practice playing piano, the second-order-volition to practice piano playing becomes an obligation, because

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I feel shame if I don’t practice and remain a bad pianist. But I can also change my personality and give up the plan to be a pianist. In this case I will also give up the second-order volition to practice piano playing. If I change my life in that way the obligation to exercise piano playing disappears. There are also obligations that are not conditional but absolute. These are those obligations which define not only a personality that we can change but our identity as human persons. As the famous zoologist Adolf Portmann has showed, humans, unlike animals, have no instinct-based certainty of behavior.20 As a “deficient being”, human beings must create an image of themselves in order to gain orientation in the world. The image we have of ourselves establishes our identity. It gives us the meaning of life. It shows us who we are and who we want to be. If the image of ourselves shows us as someone who is not acceptable for ourselves, we feel boundless shame. Moral obligations and the capacity to live in accordance with these obligations are fundamental parts of our self-image. Moral failure leads not only to the situation that we are ashamed because of a role that we play badly. We are rather ashamed because we perform badly as a human being as such. To give a bad performance as a human being is much more disastrous than to give a bad performance as a pianist or as a bearer of any other role. I can avoid feeling ashamed because I did not obey the obligation to practice piano by giving up the plan to be a pianist. But, if I feel ashamed, because I didn’t obey the moral obligations and if I am, therefore, a bad human being I cannot avoid the shame by giving up to be a human being – except by suicide.21 The core of all the moral obligations is the obligation to respect the personhood of every human being, in other words, to respect human dignity. If we don’t want to give up existing as human beings we are absolutely obliged to obey the moral obligations toward each other because otherwise we are threatened by a unavoidable shame. Moral obligations are like every other obligation, second-order volitions that we cannot be disregarded without feeling shame. Therefore, the human obligations that we can derive from human dignity are absolute obligations. This conclusion is very important in order to understand how we can derive human rights from human obligations. EXCURSUS: OBLIGATIONS

IMPOSED BY OTHERS

Before I discuss the relation of derivation between human obligations and human rights, I want to defend my current argument against an obvious objection. One could object that my concept of obligation is too restricted and that it is not in accordance with ordinary language use. In our ordinary language we share the meaning that obligations are imposed by others and not by oneself. Even if we accept that there are (some) obligations that are imposed by the one who is obliged, it seems to be necessary to accept that not every obligation is self-imposed. My argument is based on the assumption that every obligation is self-imposed, and that

20 21

Adolf Portmann: Um das Menschenbild, in the same: Biologie und Geist 1956. Ernst Tugendhat: Vorlesungen über Ethik. Frankfurt/M 1997, pp. 57 ff.

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obligations which are imposed by others, do not exist. This is according to the objection I want to discuss contrary to our common language use. I think that I can improve the willingness to accept my argument, if I can show that the idea of obligations is based on self-imposition and the idea of obligations based on an imposition by others are compatible. We have to distinguish between the content of an obligation and the reason of the validity. In the case of a self-imposed obligation, it is one and the same person who determines the content of the obligation and constitutes the reason of validity. In the case of an obligation imposed by others there is a difference between the person who determines the content and the person who constitutes the reason of validity. For example, the parliament is the authority who determines the content of the legal obligations that are to obey by the citizens. But the parliament is never able to constitute the reason of validity. It might be possible to derive the legitimacy of the parliament to impose obligations from an authorizing norm. But then we have to face the problem how we can legitimate the authorizing norm. Maybe we can derive it from a higher authorizing norm, but this leads to an infinite regress. It makes no sense to cut that regress by inventing a Grundnorm, as Hans Kelsen proposed, because the Grundnorm is only a fiction and nothing in reality.22 We can understand that every obligation, legal or moral, can only be legitimated by the approval or at least by the acceptance of those who should be obliged. Legitimacy is always based on the bottom and not on the top. 7. HUMAN OBLIGATIONS

AND

HUMAN RIGHTS

After we have clarified the relationship between human dignity and human obligations, we must now turn to the relationship between human obligations and human rights. At first we have to clarify what should be meant by a right. According to the Will Theory of Rights,23 a right is a particular kind of power over the behavior of other people. The power of rights24 is based on the chance to find obedience of certain people regarding the compliance with certain demands.25 The chance to find obedience must not be based on violence, pressure and force but only on the recognition of the authority of the holder of the right.26 Someone has a right toward a certain person if that person feels obliged to fulfill the demands of the holder of the right and not if that person feels coerced or forced. Violence or the threat of violence can never establish a right. This is why we would never think that a robber has a right to our wallet if he threatens us with a knife or a pistol.27 The 22 23

24 25 26 27

Hans Kelsen: Reine Rechtslehre, Leipzig/Wien 1934, pp. 65 f. For the dispute between will theorists and interest theorists see Leif Wenar: Rights, Stanford Encyclopedia of Philosophy – http://plato.stanford.edu/entries/tights/. I don’t discuss the problem from an Interest Theory’s approach because it is much more interesting and challenging to show the relation of derivation between obligations and rights if we follow the Will Theory of Rights. Robert Alexy: Theorie der Grundrechte, Frankfurt/M 1994, p. 164. Max Weber: Wirtschaft und Gesellschaft. Grundriss der verstehenden Soziologie, Tübingen 1980, p. 28. Max Weber op. cit., p. 542. Cf. for the difference between the State and a gang of robbers already Augustine: Civitas Dei IV, 4.

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recognition of a right by the debtor of that right includes the acceptance of a kind of sanction or punishment in the case of disobedience toward the holder of the right. In the case of a moral right that sanction consists of shaming, blaming, or treating with contempt. In the case of a legal right, the sanction consists in the common legal kinds of punishment.28 From the fact that we are (morally) obliged to respect the dignity of every human being, it does not conclude that every human being has a right to demand our respect to their dignity. The beneficiary of an obligation is not necessarily the holder of a corresponding right.29 One can be obliged toward another person to do a third party a service or a benefit without the recipient of the benefit having a right on that benefit. Human obligations are obligations toward ourselves. We are not only the debtor but also the creditor. In a certain sense, we could say that we have not only obligations toward ourselves but that we also have rights toward ourselves. But this way of arguing makes no sense. It is only a play of words because we do not achieve a particular power over others by talking that way. It would appear that human obligations are in fact obligations without a corresponding right. This is exactly the opinion of Avishai Margalit. He holds the opinion that a decent society has to respect everyone’s dignity, but not that everyone should have rights toward each other or toward the society. He thinks that rights are not necessary. It would be enough if everybody has the awareness of his human obligations and give respect to everybody’s dignity. He believes that human rights would add nothing to one’s own obedience toward one’s own human obligations.30 This idea underlies all pre-modern ethical conceptions. In Confucianism31, Buddhism32, or in Christianity33 all that matters is the fact that everybody follows his human obligations. Human rights appear on the one hand superfluous, because we should trust in everybody’s obedience toward his obligations. On the other hand, human rights are inadequate because they are an expression of a shortage of modesty of those who demand their rights. However, it makes an important difference whether we recognize only (moral) obligations or whether we also recognize (moral) rights. If we consider only obligations and no rights there is nobody except ourselves who can criticize us if we fail 28 29 30 31

32 33

On the level of mere customs the sanction of the violation of rights are ridiculousness and embarrassment. Joel Feinberg: The Nature and Value of Rights. In: the same: Rights, Justice, and the Bounds of Liberty. Essays in Social Philosophy, Princeton NJ 1980, p. 144. Avishai Margalit: The Decent Society, Cambridge (Mass.) 1996, pp. 28 ff. Heiner Roetz: Chancen und Probleme einer Reformulierung und Neubegründung der Menschenrechte auf Basis der konfuzianischen Ethik. In: Walter Schweidler (ed.): Menschenrechte und Gemeinsinn. St. Augustin 1998. Sungtaek Cho: Selbstlosigkeit. Zu einer buddhistischen Sicht von sozialer Gerechtigkeit. In Polylog 6 (2000), pp. 30. Peter Saladin: Menschenrechte und Menschenpflichten. In: Ernst Wolfgang Böckenförde / Robert Spaemann (eds.): Menschenrechte und Menschenwürde. Historische Voraussetzungen – säkulare Gestalt – christliches Verständnis, Stuttgart 1987 pp. 267 f.; Trutz Rendtorff: Menschenrechte als Bürgerrechte. Protestantische Aspekte ihrer Begründung. Ibid, pp. 93 ff.; Josef Isensee: Die katholische Kritik an den Menschenrechten. Der liberale Freiheitsentwurf in der Sicht der Päpste des 19. Jahrhunderts, Ibid. pp 138 f.; Maximilian Pfau: Zum Wohle des Vaterlandes – Zur “Erklärung zu Menschenrechten und Menschenwürde” des World Russian People’s Council vom 6. April 2006. In: MenschenRechtsMagazin 13 (2008), p. 238.

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to fulfill our obligations. Nobody else has the authority to shame and to blame us. It is only a matter of our own identity and of our conscience, if we feel shamed and blamed. Since it is very hard to bear shame we tend to replace it by other feelings that are easier to bear like anger and arrogance, or we try to suppress our memory completely. So there is a high risk that we fail to fulfill our absolute obligations if we do not have a mechanism of control and sanction that could help us to live in accordance with our own second-order volitions. On the other hand: if human beings, whose dignity we have to respect, would have the right to demand that very respect, there would be a mechanism of control that is independent from our own interest to forget or to suppress. Since our own moral obligations are very important for us in order to ensure our own personal identity we are supposed to be interested in human rights. They work like the mast of Ulysses ship when he was passing the island of the Sirens. In order to be protected against the temptations of the Sirens’ beautiful singing and in order to avoid being stranded he put wax in the ears of his companions and let himself be bound to the mast. He made sure that his orders to sail to the island could not be heard and realized. Human rights are like Ulysses’s mast an effective and appropriate tool to avoid becoming weak in front of temptations. Persons who are really interested in living in accordance with their moral second-order volitions are necessarily interested in human rights as a tool of control of their moral behavior by those who are potentially affected by their failing. But how can we introduce those rights? At least since John Locke, we know that rights only exist if they are conferred.34 To confer a right means to vest someone with the power to demand obedience from the promisor. By conferring a right the promisor imposes himself with a new obligation. The content of that obligation is exactly the same as the content of the former human obligation toward oneself. But it is enriched with the submission of the promisor to the will of the promissee. The obligation of obedience is like every other duty a self-imposed obligation of the promisor. But since by that obligation another person is empowered to control the fulfillment of that obligation we can call it an obligation toward the promissee. The conferment of human rights is a very efficient tool to make sure that we fulfill our absolute human obligations and that we live in accordance with our own moral second-order volitions. In this sense, we can derive human rights from human obligations and finally from human dignity. At the first glance this reconstruction leads to a serious objection: Human rights are considered by definition as innate, inherent, and inalienable. The possession of these rights is thought as independent from the goodwill of any other person. On the other hand, acts of conferment can be realized or not realized. If they are realized it is imaginable that they are revoked. The one who has the capacity to confer rights has also the capacity to refuse conferring those rights. He has normally also the capacity to revoke or to withdraw the conferred rights. In other words, the very concept of human rights rests just on the idea that they are not dependent from an

34

John Locke: The Second Treatise of Government, 1689, XVI; Georg Lohmann: Menschenrechte zwischen Moral und Recht. In: Stefan Gosepath / G. Lohmann (eds.): Philosophie der Menschenrechte, Frankfurt/M 1998, pp. 84 f.; Ernst Tugendhat: Die Kontroverse um die Menschenrechte. Ibid., pp. 48 ff.

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act of conferment. How is it possible to understand human rights as inherent and inalienable rights and at the same time as rights which can be thought as conferred? At this point, we have to remember to the connection between rights and obligations and between obligations and the value of human dignity. We confer rights because conferring rights is a very appropriate and sufficient tool to make sure that we will not become weak in a situation of temptation and that we follow our absolute second-order volition in order to avoid deep shame. Since our second-order volition is absolute, also the need to confer the corresponding rights is absolute. There is no rational ground to refuse human rights and there is also no rational ground to revoke the conferment of human rights. If we appreciate the human dignity absolutely, we are in fact coerced to confer human rights and not to revoke the conferment. We could refuse conferring human rights only if we would be sure always to obey our human obligations so that there would be no need for human rights. But we can never be sure always to obey our human obligations. Even if we should be sure that we would always observe our obligations, this would never be a good reason to refuse conferring human rights. If we always observe our obligations, human rights cannot disturb us. Why should we waive on conferring them? Since there is no rational possibility not to confer rights, it is not necessary to perform the act of conferment as a real language act. We can suppose that every person who appreciates the human dignity has already always conferred human rights to his fellow humans and that he cannot revoke those rights as long as he remains able to appreciate the human dignity. Among people who have a consciousness of human dignity, human rights are already always considered as conferred and inalienable. Considering human rights as already always conferred and inalienable is exactly the same as thinking human rights as innate and inherent. Philosophers who share a rather metaphysical and natural law based concept of human rights might prefer to talk about innate and inherent rights. Philosophers who prefer a position that is not based on natural law will prefer to talk about human rights as already always conferred and inalienable. Looking at the result from both ways of expression leads to the same conclusion: Human rights are supra-positive moral positions. They might be declared by law and contract but they are not created by law and contract. They are the final standard of measurement on which we can evaluate a given legal order as well as everybody’s behavior as human or as inhumane. Human rights are binding moral duties to everybody who has a consciousness of the absolute value (dignity) of every person’s personhood. Unfortunately, we have to reckon with people who do not have that consciousness. But such people are not receptive to the idea of human dignity and human rights. They will simply not understand what we are talking about. We have to live with them, but we cannot come to an understanding with them. It makes less sense to consider them as bearers of human rights. But this does not exempt us from the obligation to respect their human dignity.

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8. DEUTSCHE ZUSAMMENFASSUNG Der Aufsatz befasst sich mit der Bedeutung der Aussage in den Präambeln der internationalen Menschenrechtspakte von 1966, wonach die Menschenrechte aus der Menschenwürde abgeleitet werden können. Wenn wir unter Menschenwürde keinen metaphysischen Begriff verstehen, sondern einfach nur eine subjektive Bewertung des Menschen, ist es schwierig, den behaupteten Zusammenhang zu rekonstruieren. Die Beziehung wird aber klar, wenn wir in Betracht ziehen, dass (1.) Menschenwürde als Volition zweiter Stufe verstanden werden kann, und dass (2.) Volitionen zweiter Stufe als Verpflichtungen verstanden werden können. Menschenrechte erweisen sich dann als vernünftige und notwendige Mittel, um uns anzuhalten, unsere Menschenpflichten zu erfüllen.

OLIVER W. LEMBCKE, JENA HUMAN DIGNITY –

A

CONSTITUENT

AND

CONSTITUTIONAL PRINCIPLE:

SOME PERSPECTIVES OF A GERMAN DISCOURSE Abstract: In dealing with human dignity one consistently encounters attempts to attribute absoluteness and unconditionality to this “constituent principle.” Yet such an approach is not without its price: It has to deal with the fact that normative claims of absolute character may come into conflict when faced with problematic situations; namely such constellations as are currently being discussed under the heading of “dignity versus dignity” or “dignity versus life.” Yet, according to which criteria should an assessment of absolute or, at least, most-highly-valued claims for protection be undertaken? This question stands at the center of the following considerations; their focus lies in the German context, and they attempt, from the point of view of political science, to systematize the answers given by jurisprudence and jurisdiction.

1. INTRODUCTION A binding recognition of human dignity is no trifling matter. It claims to transform a “status subjectionis” (Georg Jellinek) into a symmetrical legal relationship between citizen and state. Consequently, the latter not only preserves the legal system, but also, as part of the legal system, is it itself subject to obligations toward “its” citizens – and in the case of human rights: toward all people. “To respect and protect” human dignity, as it is stated in the German Basic Law (art. 1, sec. 1 GG), radicalizes this idea of a legal relationship by expanding this obligation to the whole of state power. Thus public authority must always be measured against human dignity. The latter is the principle of the former. In fact, it is not only a principle constituted by the constitution – i. e. a constitutional principle –, but also a constituting principle of the constitution itself, that is – in the words of the Federal Constitutional Court (FCC) – a “constituent principle”.1 From this point of view, human dignity does not depend on the constitution or the constitutional law. What makes man unique is beyond legal provisions. Rather, a sound constitution recognizes human dignity as its major principle and is committed to its respect and protection. Yet this, in turn, provokes the question: to what do respect and protection refer? That the reason for human dignity remains open has certainly not hindered, but rather supported its claim to validity. Theodor Heuss famously described human dignity as a “non-interpretable thesis,”2 which exemplarily illustrates this relation by emphasizing the quasi-axiomatic aspect of human dignity while, at the same time, rejecting its predetermination by a certain ideology, worldview, or religion. Human dignity, in the words of Heuss, may be “understood theologically, philosophically, or ethically”.3 Yet, how does this openness relate to a legal determina1 2

3

See already FCC in Vol. 6, p. 32 (p. 36) (= BVerfGE 6, 32 [36]). See Heuss’s statement during the fourth session of the committee on fundamental questions of the German Basic Law on the 23rd September, 1948, published in: Der Parlamentarische Rat (1993), p. 72. Der Parlamentarische Rat (1993), p. 67.

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tion of human dignity as something which requires protecting? And as regards content, how is a determination possible without putting the wide consensus on human dignity’s claim to validity at risk? Is it sufficient to refer to a phrase like that of the “non-interpretable thesis” – and what kind of protection might an individual gain from this? Are violations of human dignity somehow “self-evident” – a counterpart to human dignity as a “self-evident truth?”4 Or do they presuppose a consensus (including within academia) which is perhaps being called into question, particularly as regards the existential questions of our age? And why does human dignity, if inviolable, need to be protected anyway? These questions raise a number of problems to which different approaches, if only for practical (read: dogmatic) reasons, must do justice. One consistently encounters attempts to attribute absoluteness and unconditionality to human dignity. Yet such an approach is not without its price: It has to deal with the fact that normative claims of absolute character may come into conflict when faced with problematic situations;5 namely such constellations as are currently being discussed under the heading of “dignity versus dignity” or “dignity versus life.”6 Yet, according to which criteria should an assessment of absolute or, at least, most-highly-valued claims for protection be undertaken? This question stands at the center of the following considerations; their focus lies in the German context, and they attempt, from the point of view of political science, to systematize the answers given by jurisprudence and jurisdiction. 2. DOGMATIC ELEMENTS The dogmatics of human dignity presents itself prima facie as confusing. To elucidate more clearly the structure of a sound interpretation of human dignity and its protection, it seems advisable to begin with systematizing the core elements of human dignity dogmatics. This includes the concept of human dignity, inviolability, different aspects of legal status as well as the holdership of human dignity.7

4 5

6 7

On this, see (inter alia) Thilo Rensmann: Die Menschenwürde als universaler Rechtsbegriff. In: Der Wert der Menschenwürde, Christian Thies (ed.), p. 77, Paderborn et al. 2009. Catarina Herbst / Oliver W. Lembcke: Tragische Konflikte und notwendige Entscheidungen. Bemerkungen zur Idee rechtsfreier Räume im Verfassungsstaat. In: Jahrbuch Recht und Ethik, Vol. 14 (2006), pp. 385–405. For a general map of conflicts see Horst Dreier: Grenzen des Tötungsverbotes. In: Juristenzeitung, Vol. 62 (6–7) (2007), pp. 261–270. The following considerations are based on Oliver W. Lembcke: Über die doppelte Normativität der Menschenwürde. In: Das Dogma der Unantastbarkeit. Eine Auseinandersetzung mit dem Absolutheitsanspruch der Würde, Rolf Gröschner / Oliver W. Lembcke (eds.), pp. 235–268, sub II-IV, Tübingen 2009 and on Rolf Gröschner / Oliver W. Lembcke: Dignitas absoluta. Ein kritischer Kommentar zum Absolutheitsanspruch der Würde. In: Das Dogma der Unantastbarkeit. Eine Auseinandersetzung mit dem Absolutheitsanspruch der Würde, Rolf Gröschner / Oliver W. Lembcke (eds.), pp. 1–24, sub V, Tübingen 2009.

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2.1. THE CONCEPT OF HUMAN DIGNITY There is a broad consensus that the project of defining human dignity should begin with a formal definition, namely with Dürig’s so-called “object-formula”: “Human dignity is violated if man, individually, is degraded to an object, to a mere means, to a fungible factor.”8 One reason for the acceptance of this formula is certainly that, until now, attempts at a positive determination have been far from capable of reaching a similar consensus. Occasionally, it has been claimed that a positive description of the object protected by art. 1, sec. 1 GG is impossible.9 Accordingly, the perspective on human dignity as a legal norm has to be unfolded from the “violating incident.”10 In contrast to this, a point of view is making strides according to which a sound definition of human dignity is simply necessary, because otherwise the protected object could not be qualified11 – at the risk of being incapable of adequately meeting new challenges to the protection of human rights.12 Roughly speaking, two comprehensive attempts to describe human dignity can be distinguished, each of which contains three subcategories: First, human dignity can be understood as an aspect of the sociality of man; some examples of this strand are the capability theory, communication theory and cultural theory of human dignity. A common feature of all three is that human dignity is produced or is to be produced in interactions. Thus, according to capability theory, human dignity is the outcome of successful self-expression and identity formation.13 Communication 8

Günter Dürig: Der Grundrechtssatz von der Menschenwürde. Entwurf eines praktikablen Wertsystems der Grundrechte aus Art. 1 Abs. 1 GG in Verbindung mit Art. 19 Abs. II des Grundgesetzes. In: Archiv des öffentlichen Rechts 42 [n.F.] (2) (1956), p. 127 (transl. by OWL). 9 Philip Kunig: Grundgesetz-Kommentar. Ed. by Ingo von Münch / Philip Kunig. Vol. 1, no. 22, Munich 2000. 10 Wolfgang Vitzthum: Die Menschenwürde als Verfassungsbegriff. In: Juristenzeitung, Vol. 40 (5) (1985), p. 202. 11 From the perspective of the FCC: Dieter Hömig: Der Menschenwürdeschutz in der Rechtsprechung des Bundesverfassungsgerichts. In: Das Dogma der Unantastbarkeit. Eine Auseinandersetzung mit dem Absolutheitsanspruch der Würde, Rolf Gröschner / Oliver W. Lembcke (eds.), pp. 38–40, Tübingen 2009. As regards the philosophical discourse see Antje Kapust: Das Unantastbare: Menschenwürde im Diskurs der Philosophie. In: Das Dogma der Unantastbarkeit. Eine Auseinandersetzung mit dem Absolutheitsanspruch der Würde, Rolf Gröschner / Oliver W. Lembcke (eds.), pp. 269–313, Tübingen 2009. One example of the variety within the discourse: For Karl-Heinz Ladeur / Ino Augsberg: Die Funktion der Menschenwürde im Verfassungsstaat. Humangenetik – Neurowissenschaften – Medien, p. 10, Tübingen 2008 (and passim) human dignity is to be considered as an “absolute value of rejection”, following Niklas Luhmann: Gibt es in unserer Gesellschaft noch unverzichtbare Normen?, p. 19, Heidelberg 1993 (“Reflexionsstopp”). For Forst, it is more some kind of an obligation to reflect; see Rainer Forst: Die Würde des Menschen und das Recht auf Rechtfertigung. In: Deutsche Zeitschrift für Philosophie, Vol. 53 (4) (2005), pp. 589–596 and Rainer Forst: The Justification of Human Rights and the Basic Right to Justification: A Reflexive Approach. In: Ethics, Vol. 120 (4) (2010), pp. 711–740. 12 For a fundamental critique of the object-formula see Matthias Nettesheim: Die Garantie der Menschenwürde zwischen metaphysischer Überhöhung und bloßem Abwägungstopos. In: Archiv des öffentlichen Rechts, Vol. 130 (1) (2005), pp. 79–84. 13 The main representative of the capability theory: Niklas Luhmann: Grundrechte als Institution, pp. 53 ff., Berlin 1965. As an insightful short introduction to Luhmann’s dignity theory see Gesa Lindemann: Systemtheorie: Niklas Luhmann. In: Wörterbuch der Würde, Rolf Gröschner, Antje Kapust and Oliver W. Lembcke (eds.), pp. 112–114, Paderborn 2013.

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theory, on the other hand, is based on the promise of mutual recognition and dignified reciprocal interaction.14 Cultural theory, in turn, identifies not the promise but living culture and its conveyance through generations as paving the way for human dignity.15 Second, dignity can be seen as an aspect of the human essence itself. The dower theory and those authors arguing from Kant’s notion of autonomy are representatives of this strand. These approaches refer to – essential – features of man, to his language, his reason, his autonomous way of life, and by this means determine the dignity of man in contrast to other living beings. Dürig’s dower theory was pathbreaking for the conception of a substantial definition of the notion of human dignity: “Every man is man by virtue of his reason, which separates him from impersonal nature and empowers him, on his own initiative, to become self-aware, to determine and to mold himself and his environment.”16 The differences between each of these approaches lie in the issue of whether human dignity is unconditional and, consequently, is simply to be recognized qua being human, or if the capacity for dignity has to be related to development and ability, which then, fundamentally, qualify not the humanity of man, but his capability of being a person. These different definitions of human dignity are in many ways linked to the following elements, and they increase the variety of dogmatic thought. This is perhaps most apparent in regard to the question of holdership and the postulate of the inviolability of human dignity. 2.2. INVIOLABILITY In contrast to the situation of different approaches to determining the content of human dignity, a prevailing view can be found regarding the interpretation of inviolability, according to which human dignity must be protected against violations precisely because it is violable. To that effect, the phrase “Human dignity shall be inviolable” is to be understood prescriptively.17 The FCC has explained this by articulating that human dignity can be taken away from no one. Yet the implicit entitlement to respect is indeed violable.18 Thus violability is violable to the extent that self-determination changes “from potentiality to actuality” and becomes real itself in the “manifestation of individuality.”19 At present, the only author prominently and unconditionally expressing a conflicting view is apparently Christoph Enders. In his opinion, human dignity cannot be acquired and accordingly cannot be lost – that is why it cannot be subject to a 14 15

16 17

18 19

See Hasso Hofmann: Die versprochene Menschenwürde. In: Archiv des öffentlichen Rechts, Vol. 118 (3) (1993), pp. 353–377. See Peter Häberle: Die Menschenwürde als Grundlage der staatlichen Gemeinschaft (§ 22). In: Handbuch des Staatsrechts der Bundesrepublik Deutschland, Bd. II: Verfassungsstaat, Josef Isensee / Paul Kirschhof (eds.), pp. 317–367, no. 38 and passim, 3rd ed., Heidelberg 2004. Günter Dürig (note 8), p. 125 (transl. by OWL). See, for example Christian Starck: Kommentar zum Grundgesetz. Ed. by Hermann von Mangoldt / Friedrich Klein / Christian Starck, Vol. 1, pp. 25–173, no. 33, 48–123, 6th ed., Munich 2010. BVerfGE 87, p. 209 (228). Winfried Brugger: Menschenwürde, Menschenrechte, Grundrechte, pp. 34 f., Baden-Baden 1997.

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guarantee by the state. It is literally inviolable,20 thus the statement of human dignity’s inviolability is to be read descriptively: “is” does indeed mean “is”. Human dignity, understood as a descriptive concept, is therefore also incapable of generating criteria for its interpretation which could contribute to solving the dispute in a legal case.21 2.3. DIFFERENT ASPECTS OF LEGAL STATUS As regards the normative quality of human dignity, three main questions can be distinguished: First, the question as to the normative status of human dignity; second and closely related to this, the question of whether human dignity is either effective absolutely or open to interpretation through other legal norms; third and finally, the question of what legal-theoretical conclusions can be drawn with respect to human dignity. At least among German jurists, there is a widespread consensus that human dignity is to be understood as a constituent principle of the constitution: It represents the “highest value or the first point of reference in the organisation of state power in relation to citizens,”22 and is “the Archimedean point” of the constitutional state,23 or, also, a “founding norm of the state.”24 The list could easily be extended. Yet contrasting this inventiveness in describing human dignity, there is an apparent hesitation to qualify the legal-theoretical character of human dignity in greater detail. Is it a principle, a norm, a rule or an axiom? Commentaries on this are rare. Robert Alexy has suggested a distinction between the regulatory nature of human dignity and its character as a principle.25 Indeed, the lacking reception of this distinction might be also related to the fact that, once it is accepted, a decision has to be made as to whether human dignity is to be understood as resistant or open to interpretation – and this has been subject to considerable dissent (sub III.). Much the same applies to the question of whether human dignity should be characterised as a basic right. There is widespread agreement that dignity may be seen as the “basis, limit and goal of subsequent human and basic rights.”26 However, legal dogmatics is divided into two camps on the question of whether human dignity constitutes any subjective-legal claim: To justify this fundamental character, it is argued that the German Basic Law has an immanent tendency of openness towards claims.27 In contrast, opponents of this fundamental character emphasise the 20 21 22

23 24 25 26 27

Christoph Enders: Embryonenschutz als Statusfrage? Gesetzgebung zwischen Verfassungsvollzug und Autokratie der Moral. In: Zeitschrift für Rechtsphilosophie, Vol. 1 (2) (2003), p. 133. See, for example, Christoph Enders: Würde und Lebensschutz im Konfliktfeld von Biotechnologie und Fortpflanzungsmedizin. In: Jura, Vol. 25 (10) (2003), p. 672. Winfried Brugger (note 19), p. 17 (transl. by OWL); for the anthropological dimensions see Winfried Brugger: Dignity, Rights, and Legal Philosophy within the Anthropological Cross of Decision-Making. In: German Law Journal, Vol. 9 (10) (2008), pp. 1243–1267. Wolfram Höfling: Art. 1 Abs. 1. In: Grundgesetz-Kommentar. Ed. by Michael Sachs, no. 51, 5th ed., Munich 2009. Hasso Hofmann (note 14), p. 369. Robert Alexy: A Theory of Constitutional Rights, pp. 63–65, Oxford 2002. Winfried Brugger (note 19), p. 37. Wolfram Höfling (note 23), no. 6.

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almost certain weakening of basic rights, because every violation could equally – if not more appropriately – be presented as a problem concerning a basic right. In addition, there are fears of an enfeeblement of human dignity’s normative character, because, put briefly, the absolute validity of human dignity is effectively unenforceable.28 2.4. HOLDERSHIP The key question of holdership is the following: Do all human beings have dignity, or is human dignity subject to certain conditions that eventually lead to a situation in which the number of bearers of human dignity is smaller than the human species? This question is closely related to the notion of human dignity and the different views on how this notion could be qualified more precisely. The same also applies to the question of whether only individuals, or also mankind as such, can have human dignity.29 The discussion about when the possession of human dignity begins is characterized not only by dissent, but also by uncertainty. This is unsurprising given the fact that relevant questions of bioethics are highly dependent on the beginning of holdership. Basically, there are three approaches to define the beginning of human dignity. A substantial portion of the literature emphasizes mere insemination; the embryo has dignity.30 In favor of this stance, it can be noted that, at the moment of two pronuclei melding together, a new human being is already equipped with all that is necessary. The impossibility of all destructive embryonic research would be the consequence – this is where the uncertainty results from. Thus, the possibility is also considered that the dignity of the embryo, which cannot in fact be weighed, has to step back in favor of a “graded protection of dignity.” To avoid such incoherence, another strand in the literature advocates a beginning of dignity at the moment of nidation. Only from this point on can the possibility of multiple embryos be eliminated; prior to this, one deals not with an individual, but, rather, with a dividual. Biologically speaking, this is correct; ethically, however, this would mean denying twins their human dignity on the basis of their identical genome. To justify his distinction between individual and dividual, Dreier makes a reference to different theories of human dignity.31 According to him, the capability theory, just as the communication theory, links human dignity to capabilities which the embryo does not have. As regards the communication theory, this result seems to be surprising given the fact that it grants dignity to all human beings on the basis

28 29

30

31

On which see further Winfried Brugger (note 19), pp. 21 ff. Christoph Enders (note 20), p. 131 rejects mankind in its entirety as an object of protection; see also Horst Dreier: Art. 1 Abs. 1. In: Grundgesetz-Kommentar. Ed. by Horst Dreier, Vol. 1, pp. 139–287, no. 169, 2nd ed., Tübingen 2004. For a discussion see (among others) Seelmann: Haben Embryonen Menschenwürde? Überlegungen aus juristischer Sicht. In: Biomedizin und Menschenwürde, Matthias Kettner (ed.), pp. 63– 80, Frankfurt/Main 2004. As is generally known, the FCC has said only something about the moment of nidation; BVerfGE 39, p. 1 (37). Horst Dreier (note 29), no. 84.

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of the “mutual human solidarity of a concrete recognizing community”32 irrespective of all actual capabilities. It is not quite clear why, between the anencephalic, the mentally ill who do not possess any of these capabilities, and the embryo which might actually develop them, there should be a distinction to the disadvantage of the latter. A third approach assumes that dignity begins at birth only. To compensate this weak protection, preliminary effects are constructed: “The embryo as such is not a potential subject which could claim social recognition, although it is a potential object of protection through a legal obligation. Seen in the light of art. 1 GG, this begs the question of what kind of protection we owe to the unborn life for the sake of our self-respect.”33 This very question remains unanswered – and with it the protection of unborn life. Likewise, there is no consensus as concerns the end of holdership. Again, this is due to the limits of medical science and what is technologically feasible. At issue here is the question of organ transplants. If human dignity ends with death, transplants definitely do not pose a problem of dignity.34 Yet a broad swath of literature advocates a post-mortal human dignity.35 There exists a post-mortal protection of dignity which is primarily related to the image of the deceased person in the eyes of the bereaved.36 The dead have dignity, “because honoring the memory of those who once were among us or have lived before us is part of the mutual recognition of our own identity and self-respect.”37 In contrast to the embryo, however, the deceased had the opportunity to freely decide his own fate while he was alive. Voluntary organ transplants are compatible with dignity; here the will of the deceased continues to have an effect. The difference between the dignity of a living person and a dead one is aptly expressed by Benda: “Certainly, the deceased has dignity; but he does not need to be protected by the state, because he faces another judge.”38 3. MODELS

OF JURISPRUDENCE

A profile of several elements of human dignity dogmatics shows that there is definitely no consistent view within jurisprudence. On the one hand, similarities in terms of content among the examples typically appearing in the literature reveal that, despite dogmatic differences, an agreement on certain results is possible. However, these similarities have the disadvantage of being irrelevant in the context of 32 33

34 35 36

37 38

Horst Dreier (note 29), no. 84. Hasso Hofmann (note 14), p. 376 (transl. by OWL); see also Hasso Hofmann: Methodische Probleme der juristischen Menschenwürdeinterpretation. In: Mensch, Staat, Umwelt. Rainer Wahl zum 65. Geburtstag, Ivo Apel (ed.), pp. 69 ff., Berlin 2008. Cf. Peter Häberle (note 15), no. 79, yet in affirming subsequent effects of human dignity protection. Horst Dreier (note 29), no. 72, 74 f. Mathias Herdegen: Art. 1 Abs. 1 [55th suppl.; 2004/43th suppl.]. In: Grundgesetz-Kommentar, founded by Theodor Maunz und Günter Dürig. Ed. by Roman Herzog et. al., no. 52, 62nd suppl., Munich 2011. Hasso Hofmann (note 14), p. 375 (transl. by OWL). Ernst Benda: Die Verfassung und das Leben. Gegen die These vom Wertungswiderspruch. In: Biopolitik. Die Positionen, Christian Geyer (ed.), p. 251, Frankfurt/Main 2001 (transl. by OWL).

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constitutional order. A state practicing slavery or serfdom, or degrading people to second-class citizens (just to mention a few examples) is simply not a constitutional state. The attempt to determine common features on the basis of a classification along the categories of freedom, equality and minimum subsistence level39 turns out to be of little relevance – particularly when the judicature, which is concerned with the protection of human dignity, has to deal with cases that escape easy categorization according to the classifications mentioned above.40 A more revealing insight into the dogmatics of human dignity protection is offered by a system containing four models. It follows from two ideal-typical answers to each of two questions: (1) What kind of normative character does human dignity have? Does it represent a principle or a basic right? (2) Is it violable (capable of being weighed) or inalienable (resistant to weighing)?41 For both approaches, which define human dignity as a fundamental principle while rejecting a position on the ground of basic law, the course is set primarily by human dignity’s violability. As regards the other two models, which treat human dignity in accordance with basic rights as a subjective-legal entitlement of individuals, the crucial question is whether and in what way they consider human dignity as a potential object that can be weighed against other conflicting basic rights. 3.1. VIOLABLE CONSTITUTIONAL PRINCIPLE For Dreier, human dignity as a constituent principle and core element of the German Basic Law constitutes a criterion for the exercise of state power which transcends basic rights: it is a “principle,” not a “basic right” (m. n. 128).42 Any classification of human dignity as a basic right would only weaken human dignity’s normative status as an objective principle, which Dreier defines in terms of the communication theory. According to this view, dignity is the result of recognizing socially existing mutual entitlements to respect (m. n. 57). For Dreier, just as for Hofmann,43 the basis of this reciprocity is not actual recognition but human solidarity, which must reasonably be assumed. This, however, raises the following question: Where does this morality, on which at this stage the objective principle of human dignity is based, come from? Is it situated – metaphorically speaking – within communication itself? In any case, mutual recognition cannot back up an objective principle of human dignity but might be sufficient, at best, for an inter-subjective understanding

39 40

41 42 43

On these categories see Horst Dreier (note 29), no. 58 ff. Just to mention some examples of the recent jurisdiction: BVerfGE 87, p. 209 (227 ff.); E 96, p. 375 (398 ff.); E 98, p. 169 (200); E 101, p. 275 (287); E 102, p. 347 (366); E 107, p. 275 (283 f.); E 109, p. 279 (311 ff.). On previous decisions see, for example, Michael Kloepfer: Grundrechtstatbestand und Grundrechtsschranken in der Rechtsprechung des Bundesverfassungsgerichts – dargestellt am Beispiel der Menschenwürde. In: Bundesverfassungsgericht und Grundgesetz. Festgabe aus Anlaß des 25jährigen Bestehens des Bundesverfassungsgerichts. Vol. 2, Christian Starck (ed.), pp. 405–420, Tübingen 1976. On these ideal types: Oliver W. Lembcke: Menschenwürde: Subjektivität als objektives Prinzip. In: Marburger Jahrbuch Theologie 17 (ed. by Wilfried Härle / Reiner Preul) (2005), pp. 59–67. References in this section are related to Horst Dreier (note 29). Hasso Hofmann (note 14), p. 376.

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– “my dignity, your dignity.” Yet this very plurality is explicitly excluded by Dreier, because in this case human dignity could hardly be distinguished from basic rights. It is for this reason that Dreier excludes the possibility of weighing (m. n. 132). That in the course of his approach a collision between dignity and dignity is nonetheless possible (m. n. 44, 133) – albeit by way of exception – is less noteworthy because of the exceptional circumstance in which the protection of human dignity rests on a state decision (act or omission) and consequently is apparently confronted with a situation of weighing after all. Relevant to the dogmatic architecture are the two claims to dignity which must be assumed in the collision (for once acknowledged), and which only collide if one accepts a subjective protection of dignity, in contrast to the character of the basic principle. The absolute status of human dignity, which impedes its being weighed against other concerns, becomes questionable regarding another point of this conception. In the realm of embryonic research and under the heading “finality of acting” (m. n. 90), Dreier argues that the motive of the state should be taken into account to the extent that it aims to cure severe diseases. In whatever way one might react to this argument, it is impossible to ignore the fact that it represents a criterion for weighing the embryonic protection of dignity. A similar problem occurs in the case of pre-implantation genetic diagnosis (PGD): Why should PGD for high-risk couples be compatible with the constitution (m. n. 98)? Certainly, this solution does not lack for supporters; but it also undoubtedly represents a weighing of a supposedly objective principle.44 3.2. INVIOLABLE CONSTITUTIONAL PRINCIPLE It is relatively easy to solve most of the problems of the latter models by stating that human dignity simply cannot be violated. This view is represented by Enders.45 He agrees with Dreier that dignity is not a basic right, but is to be understood as the highest constituent principle on the basis of which man is placed into legal conditions and becomes a legal subject. This “foundational function” (m. n. 52) of human dignity, for which Enders coined the succinct phrase “the right to rights,”46 does not allow for relativization of any kind. Ultimately, it must be recognized as an absolute and unconditional principle, as to think of a legal system is also to think of a liberal system, which finds both its beginning and endpoint in the subjectivity of the individual (m. n. 74). And this very recognition by the state takes place through the constitutional act, which puts every single man in the position of a legal subject 44

45

46

Basically, a comparison with abortion (Horst Dreier (note 29), no. 97) only intensifies the problem: firstly, because it emphasises the desire for balancing and secondly, because, from a constitutional point of view, the constitutionality of the ordinary legal regulations of §§ 218 ff. StGB – the disability of a human being as a reason indicating an abortion, including the extension of time limits – is to be called into question. The references in this part are related to Christoph Enders: Art. 1 [13th suppl., VII/05]. In: Berliner Kommentar zum Grundgesetz, Ed. by Karl Heinrich Friauf / Wolfram Höfling, 34th suppl., VIII/11, Berlin 2011. See, most prominently, Christoph Enders: Die Menschenwürde in der Verfassungsordnung: zur Dogmatik des Art. 1 GG, pp. 501–509, Tübingen 1997.

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and, consequently, gives him the right to fend off possible violations of his rights, that is, to assert his rights following procedures that have been put in place for that purpose (m. n. 52). This status as a legal subject is “indispensable and inalienable” (m. n. 52) and cannot come into conflict with another right, even a basic right, without dissolving the legal character of the state. This, for Enders, is the central reason for human dignity’s not representing a basic right; such a conception would provoke normative conflicts which would annihilate the system (m. n. 66), with the result that human dignity is more or less obviously placed under of the immanent proviso of being weighed (m. n. 66). Nevertheless, its “directive postulate” (m. n. 54) is not exhausted with the constitutional act; within the constitutional state, too, human dignity plays a significant role with respect to the basic rights that follow from it. For Enders, basic rights are not limited to the guarantee of individual liberties; they rather create the “order” of the constitutional culture as a whole (m. n. 57). Here, human dignity functions as a kind of signpost, pointing to the “pre-positive, ‘natural legal’ foundation of the subsequent positive basic rights” and encouraging the interpreter “to conform” the content of basic rights to “contemporary needs” (m. n. 56). Human dignity, on the other hand, is a hierarchical “criterion for the weighing” of hetearchically organised basic rights, the legal principles of which may conflict with each other and, thus, require coordination and integration (m. n. 58). The necessity of a prime criterion for weighing stems not only from the different material contents of basic rights, but also from the opposite focuses of their defensive and protective functions, which are mediated by the protection of human dignity to which the state has obligated itself according to art. 1 GG (m. n. 57). Therefore, the constituent character of human dignity shows itself in the fact that it controls both, the defensive program as a so-called limitation of limitations (m. n. 58, 65) against the state as well as the protective program of organizing the legal system via the state (m. n. 59). It is simultaneously principle, program and criterion of basic rights within the state under the rule of law. On such a large scale, human dignity encounters itself everywhere. Yet it has to retreat precisely where, due to conflicts, state action (or omission) becomes a particular challenge to the protection of human dignity. Enders himself cites the example of a pregnant woman, who, according to a decisive medical diagnosis, will give birth to an incurably ill child: “If dignity conflicts with dignity, it cannot be concluded from dignity which position has to step back or which has priority” (m. n. 72). This is due to the fact that the criteria which might be used to justify the decision are of a pragmatic nature per se (e. g. utility), and are consequently not of a similar normative status as those of human dignity. It follows for Enders that human dignity first cannot be a legal norm but has to be – as a constituent principle – a criterion for interpretation. It is therefore misleading to speak of dignity against dignity. Second, as a criterion for interpretation, dignity is divided, as it does not – irrespective of which side it supports – provide any guidance for a decision. This is consistent, but it compels a relativization of the legal obligation of state power according to art. 1, sec. 3 GG. This problem is very clearly illustrated by constellations such as the Daschner case, or those which are (to be) regulated by § 14, sec. 3 LuftSG (Air Space Security Law).47 As regards the 47

See Christoph Enders: Die Würde des Rechtsstaats liegt in der Würde des Menschen. Das absolute

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Daschner case, Enders sees, even and particularly from the perspective of a collision of obligations, no room for a weighing of concerns that could be justified (m. n. 103). But by this, the conflict has not been resolved; it has simply been decided upon by a non-acting state at the expense of the victim taken hostage. So this action (through non-action) needs itself a justification, which is ultimately – nota bene – given by Enders with recourse to human dignity. In contrast to the Air Space Security Law case, the state would force the kidnapper into a positive action.48 Yet for Enders, in fact, this difference should not matter, because in both cases the state decides by force on behalf of the respective legal subject; and in the case of a hijacked aircraft, the state decides in a way that leaves no choice whatsoever to the passengers, who are neither perpetrators nor accomplices. Presumably, this kind of asymmetry is the reason Enders adds that the hijacking of an aircraft has to represent an attack on the community as a whole for its shooting down to be justified: “The state is authorized to demand from each individual the solidarity that should be necessary to protect the legally constituted community against attacks aiming at their collapse” (m. n. 93, transl. by OWL). In fact, it was thought that Enders could be understood to be saying that only human dignity as a directive postulate turns the community into a legally constituted community. Apparently, even without human dignity, it has an order which deserves protection. In any case, the attack on the community must only be grave enough for an argument separate from human dignity to be legally applicable. 3.3. DIGNITY AS AN ABSOLUTE BASIC RIGHT Approaches which conceive of human dignity as a basic right face other problems. If dignity is understood as a subjective right, every single human being is granted “his” dignity as his own violable right. Thus, in contrast to the afore-mentioned conceptions, the question of human dignity’s violability has already been answered. Left unanswered, however, is the question of whether every intervention represents a violation per se, or whether nuances are possible. Höfling resolves the question of intervening into human dignity consistently: Human dignity has absolute validity; in a subjective-legal interpretation it is thus not open to being weighed or graded against other concerns, not even with recourse to other constitutional values by means of practical concordance (m. n. 11 f., 17)49. This has consequences when it comes to dealing with human dignity: If the constitutional legislator has classified any interference into human dignity as illegitimate without exception, then this necessarily means that only an “absolute core area of human existence” is protected by art. 1 sec. 1 GG (m. n. 17). Examples of such attacks against core areas of human existence are tortures, archaic punishments, and state murders (m. n. 20), or violations of fundamental equality (m. n. 33) by means of slavery, racial discrimination or similar unequal and humiliating treatments. However insightful these examples may be, the protection of human dignity within the constitutional state does not

48 49

Verbot staatlicher Folter. In: Rettungsfolter im modernen Rechtsstaat? Eine Verortung, Peter Nitschke (ed.), pp. 133–148, Bochum 2005. Christoph Enders (note 47), pp. 138 f. The references in the main text are related to the commentary of Wolfram Höfling (note 23).

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gain any practical relevance with respect to these forms of injustice by the state – as admitted by Höfling himself (m. n. 10).50 Thus the place of an effective protection of human dignity is, according to Höfling, primarily within the realm of bioethics. For Höfling, the embryo has dignity from fertilization onwards (m. n. 23, 60). Due to the absolute protection of dignity, destructive embryonic research can therefore never be an option.51 To the extent that the results of medical research interfere with such a protection of dignity, they shall not be considered, according to Höfling, even if they might deliver outstanding contributions to the curing of serious diseases. The consequence is quite obvious. In this area, science is confronted with problems to which it might contribute solutions, but it is not allowed to do so. While the absolute protection of human dignity, as understood by Höfling, seems initially to represent some kind of minimal consensus to which everybody could agree, it is clear that in the realm of bioethics it becomes a stage for exposed positions within current debates – and thus recalls that human dignity as well as human rights themselves can be thorns in the flesh of democracy.52 Under the pressure of social plurality, however, this kind of position very quickly attracts counterarguments which deny the premises of such an interpretation of dignity. The question of whether the embryo does actually have dignity from fertilization onwards and what consequences would follow regarding the protection of this dignity is therefore a fiercely debated issue (sub II.4). Precisely in such conflicts, the formulation of an absolute basic right to dignity represents a bastion to prevent the state from interfering with an untouchable remainder of human life. Here Höfling’s focus lies not only in the defensive-legal function of the guarantee of human dignity, but also in its protective dimension as a subjective-legal provision (m. n. 46). On the basis of such a relation, it is clear that not only is the area of potential claims extended to the protection of human dignity, but also that dignity itself may become the subject of conflicting protective and/or defensive claims, both absolute and resistant to being weighed against other concerns. What does absolute dignity achieve in cases of conflict? And what kind of rationality and normativity inform the criteria by which such collisions – unsolvable as they are – can be avoided?

50 51

52

See Wolfram Höfling: Die Unantastbarkeit der Menschenwürde – Annäherungen an einen schwierigen Verfassungsrechtssatz. In: Juristische Schulung, Vol. 35 (10) (1995), p. 859. In contrast, a preimplantation adoption is suggested, even against the will of the “donor”; see Wolfram Höfling: Wider die Verdinglichung. In: Biopolitik. Die Positionen, Christian Geyer (ed.), pp. 245 f., Frankfurt/Main 2001. With such kind of rigidity towards every – even lifesaving – research in mind, this view on PGD is suprising. If it violates human dignity too, is to be called into question; Wolfram Höfling (note 23), no. 23. In this case, the role of the “fundamental equality” (no. 27) remains unclear. Stéphanie Hennette-Vauchez: When Ambivalent Principles Prevail. Leads for Explaining Western Legal Orders’ Infatuation with the Human Dignity Principle (EUI Working Paper, Law 2007/37), p. 13, San Domenico di Fiesole 2007.

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3.4. DIGNITY AS A BASIC RIGHT In contrast to Höfling, Herdegen argues for openness to weighing (“Abwägungsoffenheit” – m. n. 46 ff.)53 with regard to the interpretation of art. 1, sec. 1 GG. His main reason is that the protection of human dignity should not be restricted to evident cases of state injustice.54 Herdegen’s starting point for making the protection of human dignity more effective lies in the distinction between a “core dignity” (m. n. 47) and a “scope of protection, characterized by weighing” (m. n. 49) dignity against other concerns.55 Measures that touch on the core area of human dignity because of their modality or finality – that is to say by virtue of their intention, intensity and technique – without exception represent a violation of dignity. The dogmatic identification of interference with violation in the case of human dignity’s scope of protection lives on in the core of dignity. Yet in the peripheral domain, relations of means and ends are to be taken into account. In Herdegen’s view this also explains the widely accepted conformity of dignity with the modally most grievous intrusions into the private sphere (sterilization of people who are unable to give consent, or investigations of the innermost areas of privacy) in the interest of protecting high-priority constitutional matters (m. n. 49). However, the protective program of human dignity would be undermined if one attempted to justify the act of infringement simply by referring to other constitutional values like the preservation of life. According to Herdegen, such an “inter-normative” collision between art. 1, sec. 1 GG and art. 2, sec. 2 GG must not lead to a relativization of human dignity. In fact, what it comes down to is a concretization of the claim to dignity within the legal norm (m. n. 50), an evaluative and balancing concretization (m. n. 47), which incidentally, according to Herdegen, is typical for the jurisdiction of the European Court of Human Rights with respect to the elements of art. 3 EMRK which violate dignity (m. n. 49). The claim to dignity has absolute validity (m. n. 73), and thus to a certain extent may count as a part of the core area, only when it is concretized in this way. Does such an approach distinguish itself not only in its name but also in its concept, i. e. with respect to the rationality of the interpretation of an “internormative” weighing – and if so, how? That this kind of concretization is different from a weighing of legal norms has to be demonstrated in its dealing with the legal norm (or norms); an answer must also be provided to the question of where the other normative moments of concretization stem from and how they have been transformed into the normative domain of art. 1, sec. 1 GG. Alternatively, the differentiation of core dignity and peripheral dignity leads to the distinction between human 53 54

55

The references in the main text are related to Matthias Herdegen (note 36). “The perspective, being resistant against balancing and modal, has to deal the fact that, only in few cases, it is able to keep up categorically the diagnosis of a human dignity violation”; Matthias Herdegen (note 36), no. 47. In an earlier version of his commentary of the Grundgesetz, Herdegen has stressed more intensely the distinction between a “core dignity” and “peripheral scope of protection, open to balancing” (43th suppl./2004, no. 44). In any case, the “openness” of his approach towards a balancing in the area of human dignity protection is not being reflected anymore in this kind of intensity as concerns the text: In this way, the “openness to a balancing weighting and assessment” (43th suppl./2004, no. 46) now becomes an “assessing and balancing concretisation” (55th suppl./2009, no. 47 – see also the main text).

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dignity on the one hand, and basic as well as human rights on the other, which distinction, in a manner of speaking, is copied onto human dignity. Likewise, a differentiation between core area and “marginal zones” of the guarantee of dignity (m. n. 49) appears to be problematic due to its ambiguity. Obviously, it is determined by consensus; this becomes clear in Herdegen’s statements regarding the prohibition of torture: “The protection against the infliction of pain in order to bend the other’s free will is part of the few modally defined abuses, which, on the basis of a traditional consensus and without any reservation, are interpreted as a violation of dignity” (m. n. 51, transl. by OWL). But if the categorical element of the core of dignity – in this case: the prohibition of torture – depends on consensus, boundaries become fluid. If the core area is really understood as a realm of consensus, then a consensus is frequently assumed, the character, object and limitation of which is often without any consensus.56 Especially as some textual nuances of Herdegen indicate a repositioning in regard to this issue – and thereby give rise to doubts about the stability of the boundaries between (consensual) core dignity and the (interpretable) peripheral zone: “The usual textbook cases of the infliction of physical pain or the elimination of deliberate control […] in order to save human lives […] are being abridged,” according to an earlier version of a commentary on the German Basic Law, “if every application of such interferences which bend or control free will is considered purely modally, and therefore is always – by way of absolute abstraction from the intended preservation of life – considered to be a violation of dignity” (43th suppl./2004, m. n. 45, transl. by OWL). Whatever may be thought of this emphasis on consensus – effectively as a counterweight within the scope of openness to weighing –, the intention of Herdegen remains unaffected: To him it is a matter of elucidating the capability of human dignity as a legal norm within constitutional law. Here, Herdegen stresses the status of human dignity as the highest value of the constitution (m. n. 4 f.). Yet, as regards the question of its cause, he contents himself with referencing the legal norm’s positive form: “From the constitutional point of view, only the (inviolable) fixation of human dignity within the constitutional text and its interpretation as a concept of positive law are relevant” (m. n. 20). Thus postulation takes the place of justification. But is there even a difference between human dignity and other basic rights of which an inviolable core element is also protected? Herdegen’s approach has difficulties answering the question of what could justify the unique status of human dignity at all. 4. CONSTITUENT PRINCIPLE

AND

CONSTITUTIONAL PRINCIPLE

Contrasting these individual positions illustrates the basic dogmatic problem of mediating human dignity’s absolute claim for validity with the state obligation toward its concrete protection.57 In dealing with this problem, judicature has not 56

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The Daschner case would not have been an issue attracting such a public attention over a couple of months, if there was a consensus on what kind of reaction could be expected in this situation from state actors. On which see further Catarina Herbst: Die lebensrettende Aussageerzwingung, Berlin 2011. For illuminating the various methodological problems see: Hasso Hofmann: Methodische Pro-

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only developed its own strategies, but also – as seen above – its own literature. Ultimately, all approaches have to cope with the difficulty that human dignity appears in two forms: as a constituent principle and as a constitutional principle. Following the conceptual pair of constituting and constituted forces introduced by Emmanuel Joseph Sieyès, the leading figure of the French Revolution, one could speak of a constituting dignity (dignité constituante) and a constituted dignity (dignité constituée).58 As a constituent principle, it postulates the moral view on man and, in this way, defines human dignity’s claim for recognition as conditioning the concrete state order. Within the domain of the constitution, the idea of human dignity becomes the protection program of human dignity and focuses as a regulative principle on the state’s function in preventing possible violations of this guaranteed recognition. These two moments of human dignity – one well substantiated, the other expedient – remain related to each other, but appear in different ways in the fields of ethics, politics and law. 4.1. ETHICAL PERSPECTIVES Biologically, man belongs to mankind, because he is a human being. From an ethical point of view, this connectedness can literally be reiterated, only with the difference that the reference point is not genealogy, but recognition. With this in mind one might say: Precisely because man is able to see man differently, namely ethically, he has dignity. The perspective makes the difference – to which Kant has explicitly referred in his Metaphysics of Morals.59 On the basis of this distinction between a naturalistic and an ethical view of man, the accusation of speciesism, made popular by Singer, has in effect been rejected.60 Man’s capacity for dignity is ultimately not based, as Singer maintains, on an unjustifiable value judgment, which is able to recognize an absolute value only in the intellectual (but not in the material). Furthermore, the naturalistic perspective is incapable of grasping the specific differences between ethical and other values. What makes man special only emerges if man’s morality is perceived, recognized and valued. But this presupposes an ethical perspective on man, with the consequence that one man’s dignity is connected with the dignity of another (fellow-) man through the mode of personal interaction – yet without being restricted to actual social contacts with one another. The reason for this is that human dignity always raises a claim for recognition on behalf of mankind as such.61 Otherwise, it would not be a distinction of man himself, but rather an accomplishment of the individual. From this general claim for recognition arises an ethical demand for the political order, which cannot be constituted by the law as such, but which itself establishes the constitution of the commonwealth.

58 59 60 61

bleme der juristischen Menschenwürdeinterpretation. In: Mensch, Staat, Umwelt. Rainer Wahl zum 65. Geburtstag, Ivo Apel (ed.), pp. 49 ff., Berlin 2008. Oliver W. Lembcke: Art. “Verfassungsprinzip”. In: Wörterbuch der Würde, Rolf Gröschner, Antje Kapust and Oliver W. Lembcke (eds.), pp. 344–345, Paderborn 2013. See § 11 of the “doctrines of the elements of ethics”: Immanuel Kant: The Metaphysics of Morals. Trans. and ed. by Mary J. Gregor, p. 186, Oxford 1996. Peter Singer: Animal Liberation, chp. 1, 6, New York 2002. Cf. Immanuel Kant (note 59), p. 186.

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4.2. POLITICAL DETERMINATION The individual has always been considered to be a subject of the commonwealth, not only as regards his particularity (singularity) and his own development (individuality), but also on the basis of his assumed personality. The respect of the state for human dignity is expressed from this perspective; the state adopts subjectivity as an objective principle of its order. Similarly, the claim for respect reacts not neutrally towards the political state, but for its part demands a liberal order in which the morality of the idea of human dignity can become political reality. This can only be achieved with an interconnected reference between the two constituting principles, human dignity and republican order, in which the subjectivity of all individuals is mediated through liberal institutions for the good of all. Institutionalization is literally the most critical innovation with regard to previous conceptions of dignity; it enables a transition from the idea of human dignity to the institution of human dignity’s protection; and this transition is momentous. First, the idea of human dignity is strengthened by an explicit act of political recognition.62 The political will confirms the ethical demand that the legal order should be a liberal order with man at its center. Second, the act of recognition is a performative act of positing, in the course of which the political “want-to” is transformed into a generally binding “ought-to” – and still has no other reference than itself regarding a binding demand for state institutions and their actions.63 From this relation between positing and institutionalizing arises, third, another – double – connection: Politics binds state force – which effectively means itself – to the idea of human dignity concretized in the individual basic rights (art. 1, sec. 3 GG). Yet human dignity, for its part, is bound to the actions of state institutions and the interpretations which underlie them. This bond is created by many actors, but first of all by the (bound editions of the) constitutional jurisdiction, where, by way of an “authoritative” interpretation of the constitution, human dignity in art. 1 GG also and especially is being enriched and defined in greater detail.64 As regards the drafters of the constitution, the self-reference of human dignity had absolute priority in the founding act, paradigmatically expressed in the phrase “non-interpretable thesis”. But this can no longer be called relevant. After sixty years and more than 125 volumes of constitutional decisions, this thesis has become the subject of intense interpretation. Today the authority of Heuss and his colleagues concerning constitutional questions turns out to be little more than respect expressed in quotations; the Parliamentary Council’s founding authority is already superseded by the Constitutional Court’s explanatory authority.65 Since then, the task of the FCC has also included the responsibility to ensure that its substantive 62 63

64 65

Christoph Enders (note 46), pp. 392, 430, 506. For details see Bonnie Honig: Declarations of Independence, Arendt and Derrida on the Problem of Founding a Republic. In: Rhetorical Republic. Governing Representation in American Politics, Frederick Dolan / Thomas Dunn (eds.), pp. 201–225, Amherst 1993. On the strategies of “self-authorisation”: Oliver W. Lembcke: Hüter der Verfassung. Eine Studie zur Autorität des Bundesverfassungsgerichts, chp. 3, Tübingen 2007. According to Hannah Arendt: On Revolution, p. 192, London 1963, this process has also taken place in the USA: “[…] the true seat of authority in the American Republic is the Supreme Court”.

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determinations do not weaken, but rather (ideally) increase human dignity’s regulative and guiding strength, which is (or was) a result of the openness in the act of founding (“non-interpretable thesis”).66 This importantly includes the understanding that being bound (and binding oneself) to a constituent principle of the constitution requires a dynamic interplay between law and politics; and this should not be misunderstood as a relation of deduction. In this dynamic sense, Hannah Arendt uses expressions quite similar to Enders’ “right to rights”.67 On the basis of her critique of the “Aporias of Human Rights,” she draws the conclusion that not only does political freedom require a legal form, but also that this legal form requires political freedom, mediated through institutions which contribute to the transformation of the public sphere into a diversity of spheres of free action. With regard to the constitution of a liberal order, it may be summarized: “The republican principle establishes the liberty of all, the principle of dignity the liberty of all individuals”.68 4.3. LEGAL ENFORCEMENT The recognition of human dignity as a constituent principle of the political order includes an interplay between the binding and self-binding of institutions, as well as between the openness and determinateness of all decisions made in regard to human dignity. With the hierarchical change from a constituent principle to a constitutional principle, the perspective on human dignity changes, from ethics via politics to law, as does the main issue of human dignity, from respect to non-respect. The state’s obligation to protect, understood as a legal function, can hardly find its orientation except in terms acts of violation. It is not that the claim to respect human dignity has to be enforced; rather, it needs to be protected against non-respect. Otherwise, the concretization of the guarantee of human dignity would easily tend to infringe upon liberty. This legal constriction of the idea of human dignity must not be confused with the postulate, put forward by Dürig and others, that the content of human dignity has to be defined solely on the basis of violating acts. Because what matters in this context is not the substantive definition of dignity, but rather the distinction between an ethical and a legal point of view and its consequences for the protection of human dignity. The legal obligation to protect human dignity is similar to the relation of human rights to human dignity: It is a historical manifestation of unconditional and absolute dignity. In addition, the state’s obligation to respect and protect human dignity is not to be understood as a demand on the basis of which a deduction is possible; it rather represents a task which is always confronted with new challenges. The performance of this task is already destined to fail, because the law is not sufficient to fully do justice to ethical criteria.

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According to the Roman understanding, true authority proves itself by being capable to augment (augere) the asset of the foundational act; see Oliver W. Lembcke (note 64), pp. 65–72. Hannah Arendt: “The Rights of Man”: What Are They? In: Modern Review 3 (1) (1949), p. 30; see also Hannah Arendt: The Origins of Totalitarianism, pp. 296 f., New York 1951. Rolf Gröschner / Oliver W. Lembcke: Ethik und Recht. Grundlegung einer republikanischen Verfassungsstaatslehre. In: Einführung in die Angewandte Ethik, Nikolaus Knoepffler et al. (eds.), p. 60, Freiburg i. B./Munich 2006.

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5. STRATEGIES

OF JURISDICTION

As a constitutional principle human dignity belongs to the dictates of optimization, which are not realized as such, but rather can only be made valid to the greatest extent actually possible; the circumstances of the individual case must always be taken into account. Yet, in the case of human dignity, one must consider the peculiarity “that in those cases in which this legal norm is applicable, the question is not whether or not it has priority over other norms, but only whether or not it is violated.”69 In conflicting situations, nevertheless, human dignity as a constitutional principle remains a potential subject to be weighed against other principles. While this weighing does not take place on the level of the quality of the interference, it still finds its way into constitutional law through the back door of narrower definitions of human dignity.70 Following are some observations concerning the strategies of constitutional jurisdiction. 5.1. OBJECTIVE WILL It is well known that Dürig’s “object-formula” often serves as jurisprudence’s entry point into the examination of individual cases. It recalls Kant’s categorical imperative to treat man “never merely as a means to an end, but always at the same time as an end”71 – to which Schopenhauer objected that Kant’s formula is “an exceedingly vague, indefinite assertion, which reaches its aims quite indirectly, requires to be explained, defined, and modified in every case of its application”.72 The German Constitutional Court’s decision on wiretapping (Abhörurteil) picks up on this critique. It states that everything depends on determining under which circumstances human dignity might be violated. For general formulas, like the one that man must not be degraded to a mere object of state power, can only “indicate” a direction where cases of a violation of human dignity may be found.73 Consequently, everything depends on the “circumstances,” on the “consideration of the actual case.” Without this perspective, the “general” formula would remain blind and what has been said “generally” would continue to be without content.74 This opinion has provoked internal criticism. In their dissenting opinion, three judges wrote that, through its characteristic “contemptuous treatment,” the majority had reduced human dignity to a prohibition to reintroduce e. g. torture, pillory and Third Reich methods.75 The minority opinion gives at least reason to enquire whether this char69 70

71 72 73 74 75

Robert Alexy (note 25), p. 63. Klaus Lüderssen: Die Folter bleibt tabu – Kein Paradigmenwechsel ist geboten. In: Festschrift für Hans-Joachim Rudolphi zum 70. Geburtstag, Klaus Rogall et al. (eds.), p. 702, Neuwied 2004. In a similar way, see already Michael Kloepfer (note 40), p. 412. Immanuel Kant: Grounding for the Metaphysics of Morals. Transl. by James W. Ellington, p. 30, 3rd ed., Indianapolis 1993. Arthur Schopenhauer: The World as Will and Representation. Vol. 1. Transl. by Richard Burdon Haldane and J. Kemp, p. 450, 7th ed., London 1910. BVerfGE 30, pp. 1 (25); similarly E 109, pp. 279 (311 f.) and 115, pp. 118 (153). If applied incorrectly, the object-formula is an empty formula: Friedhelm Hufen: Erosion der menschenwürde. In: Juristenzeitung, Vol 59 (7) (2004), pp. 313–318. BVerfGE 30, p. 1 (39).

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acteristic “contemptuous treatment” is in accordance with the recognition of a “person’s intrinsic value” as an inherent part of dignity, and is therefore in conformity with “the conception and the spirit of the German Basic Law”.76 It is one of the fundamental insights of hermeneutics that every consideration of a case under the application of the law is based on a variety of prerequisites and suppositions. The case is viewed through the eyes of the interpreter, and every interpretation of the law leads to a different perspective on the case. Every lawyer knows that this basic hermeneutic phenomenon of a “spiral” of pre-judgment and judgment cannot be avoided by applying a strict method of interpretation. This is not altered by the fact that the constitutional court speaks of the “objectified” will of the legislator.77 It rather points towards a spiral movement between the identification of the “subjective” will of the legislator and the determination of the “objective” will of the law as an unachievable goal of interpretation. By means of “objectified” mediation between the too-little of the “subjective” and too-much of the “objective” interpretation, it is to be determined in a spiral of revised preconceptions just what the result of a grammatical, genetic, systematic and teleological interpretation of a law with regard to the actual problems of the case might be. If jurisprudence does not have a “strict” method, its system – namely its “dogmatics” – must definitely be characterized as “non-strict.” Likewise, the notion of the constitution’s “unity,”78 retained since the first volume, complements the picture. The method of constitutional interpretation is just as (non-)strict as the dogmatics of constitutional law. Thus the function of the FCC as the “most significant interpreter and guardian of the constitution” – such is the self-image in Karlsruhe79 – is to do justice as nonstrictly as necessary to individual cases and to (re)establish as strictly as possible the unity of the constitution. Regarding the double status of the institution it may be added that Karlsruhe, in its role as interpreter, is a court, yet in its function as guardian, it is a constitutional body. Institutional prudence advises keeping both in balance.80 5.2. MEANINGFUL RELATIONS According to the FCC, a single constitutional determination cannot be considered in isolation and solely interpreted from within itself. It is situated in a meaningful context together with other constitutional regulations which form an inner unity.81 Human dignity, as the “highest value” of the German Basic Law,82 or – effectively in terms of a reversed metaphor – as one of its “fundamental constituent principles”83 76 77 78 79 80 81 82 83

BVerfGE 30, p. 1 (39 f.). BVerfGE 1, p. 299 (312); reference in E 11, p. 126 (130 f.). BVerfGE 1, p. 14 (32); references in BVerfGE 49, p. 24 (56). BVerfGE 40, p. 88 (93). For more details see Oliver Lembcke (note 64), chp. 6–9. BVerfGE 1, p. 14 (32). Since BVerfGE 5, p. 85 (204); recently BVerfGE 115, p. 118 (15): “highest constitutional value”. BVerfGE 50, p. 166 (175); 72, p. 105 (115); 87, p. 209 (228). BVerfGE 45, p. 187 (227) abstains from using the – pleonastic – adjunct “fundamental”, while E 72, p. 155 (170) and E 79, p. 256 (268) use the phrase “highest constituent principle”.

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has to bear the main burden of a meaningful unity. The most frequently used topos of methodical-dogmatic system formation in the permanent ruling of the FCC is a widely used German abbreviation of three letters: “i.V.m.” (in Verbindung mit), translated “in connection with”. This topos appears in the connection of human dignity with constitutional principles, as well as in their connection with basic rights. As concerns decisions on the “imperative of social rehabilitation” in cases involving life sentences, the court even calls in a double perspective: “From the perpetrator’s point of view, this interest in social rehabilitation arises from his or her basic right of art. 2, sec. 1 in connection with art. 1 GG. From society’s point of view, the principle of the welfare state demands that the state provide for and support social groups which, for reasons of personal weakness or guilt, incapacity or social disadvantage, are hindered in their personal and social development; this includes people who are imprisoned or have been released from prison.”84 Clarifying this position, it is stated that the state’s obligation to grant the “subsistence minimum” which alone makes a dignified existence possible results from art. 1, sec. 1 GG, in connection with the principle of the welfare state.85 The FCC calls for this subsistence minimum not only in a materialist sense – e. g. through the granting of tax-free income to cover living costs86 or of social benefits87 –, but also ideally with regard to the prospect of prisoners “to ever again be able to share in liberty”.88 To put a beneficiary of welfare provisions at the mercy of the free decision of the state welfare agency would conflict with the welfare state principle of art. 20, sec. 1 GG in connection with art. 1, sec. 1 GG.89 As a result, this view deserves indeed to be supported; yet, how exactly the dogmatic “connection” from which a legal claim for social benefits results should be realised, is more to be divined than to be deduced. The abductive logic of jurisprudence is in fact more a non-strict, prudential art than a strict, scholastic science. 5.3. RHETORICAL MANOEUVRES Since Greek and Roman antiquity, the techne rhetorike and ars oratoria have been conceived as the art of not only persuading but convincing others by means of fine speech and well-chosen words. Good rhetoric convinces; bad rhetoric evokes resistance to the pressure of persuasion. That kind of pressure is caused not only by too many words, but also by the wrong words. If there is something wrong with diction and style, the listener and the reader simply do not follow along. The following can be read in the court decision on air space security: Given the validity of art. 1, sec. 1 GG, it is “utterly unimaginable” (schlechterdings unvorstellbar) that on the basis of a legal authorization innocent people may be deliberately killed who, like the crew and passengers in a hijacked aircraft, find themselves in a desperate situa84 85 86 87 88 89

BVerfGE 35, p. 202 (236). References in E 36, p. 174 (188); 45, p. 187 (239); 96, p. 100 (115) and 98, p. 169 (200). BVerfGE 45, p. 187 (228). BVerfGE 82, p. 60 (85); 87, p. 153 (169); 99, p. 216 (241). BVerfGE 40, p. 121 (133). BVerfGE 45, p. 187 (229). References in E 64, p. 261 (272) and 117, p. 71 (95). BVerfGE 113, p. 88 (108).

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tion.90 With the phrase “utterly” – synonymous with “absolutely” – dignity is declared to be a dignitas absoluta in a way which contradicts categorically the character of jurisprudence as a rhetorical discipline. In the Aristotelian tradition, jurisprudence has to do no with logical conclusions, but with “rhetorical deductions” (enthymema).91 Rapp has clarified in his retranslation of and commentary on the Rhetoric that, with enthymemes, Aristotle allows exactly those explanatory statements which do not include necessary conclusions, but, nevertheless, represent true and valid arguments.92 They are based on accepted opinions (endoxa);93 and this is the very reason why they require convincing argumentation, which has to rely on general, but always assailable views. The categorical flaw of the air space security decision lies in the fact that – in every possible respect and in consideration of all potential cases – art. 1, sec. 1 GG has been postulated as an accepted premise like a geometrical axiom. Yet such a definition exists neither in constitutional dogmatics nor in either of the two Senates of the FCC. As concerns dignity, there is not even a common view within the First Senate on dealing with concrete obligations to protect it: The German Basic Law establishes an “obligation to protect not only the individual, but also all citizens in their entirety.”94 Yet, looking at the decision on air space security, one must ask: Where has this obligation, as emphasized in the Schleyer decision, to protect “all citizens in their entirety” – since Thomas Hobbes the classical responsibility of the state – gone? To not ask exactly this question is the raison d’être of the obtrusive phrase “utterly unimaginable.” Such a prohibition against imagining a situation in which the state’s obligation to security allows the shooting down of a hijacked airplane that has launched an attack against e. g. a nuclear power plant, turns out, eventually, to be a ban on any argument that seeks to weigh multiple concerns. As such, it is inconsistent with the scientific character of jurisprudence. Assuming, with a linguistically enlightened methodology and theory of argumentation, that the legal text (“Human dignity shall be inviolable”) is not yet the legal norm, because the norm only results from the concretization of the individual case,95 the German Basic Law thus contains not a single legal norm which is based on premises that are axiomatically assumed and not open to debate. As a “constitutional axiom,”96 human dignity has to prove itself not more geometrico, but rather in accordance with the practical reason of jurisprudence. This explicitly includes a prudent guardian of the constitution. Thus, the fact that one cannot produce logical deductions from art. 1, sec. 1 GG, but rather that the statement on dignity must be seen as a premise for rhetorical deductions, is indeed compatible with the scientific-theoretical characterization of human dignity as an 90 91 92 93 94 95 96

BVerfGE 115, p. 118 (157). Christof Rapp: Einleitung. In: Aristoteles: Rhetorik. Übersetzt und erläutert von Christof Rapp, Halbbd. 1, pp. 169–384, p. 454, Berlin 2002. Christof Rapp (note 91), p. 361. Christof Rapp (note 91), p. 257. BVerfGE 46, p. 160 (165). Friedrich Müller / Ralph Christensen: Juristische Methodik. Vol. I, 9th ed., p. 167 ff., Berlin 2004. On the notion see Rolf Gröschner: Des Menschen Würde – humanistische Tradition eines Verfassungsprinzips. In: Des Menschen Würde – entdeckt und erfunden im Humanismus der italienischen Renaissance, Rolf Gröschner / Oliver W. Lembcke (eds.), pp. 217–234, p. 218 fn. 14, Tübingen 2008.

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axiom. But jurisprudence is not geometry; its axioms can have only a quasi-axiomatic character. Jurisprudence does not calculate, it weighs.97 Those who deny this will, in the case of a conflict between obligations to respect and obligations to protect, find themselves in a dilemma, which in its air space security decision the First Senate tried to cover up with poor rhetoric. 5.4. DOGMATIC CREATIVITY “Just as the faculty to find the particular in the general (of the rule) is called the power of judgment, the faculty of devising the general from the particular is called wit (ingenium).”98 Constitutional judges do not have to be “funny,” but, nevertheless, they should be “witty,” smart or imaginative. This means they should be able to – in the words of Kant – “devise the general”99 when considering a particular case. The FCC has acted inventively and creatively as concerns e. g. the “right to informational self-determination”100 and its further development into a “basic right to the guaranteed confidentiality and integrity of informational systems,”101 which was imaginatively developed from the well-known “connection” of art. 2, sec. 1 with art. 1, sec. 1 GG. Similarly, the First Senate was dogmatically creative in regard to its decision on the horror film The Evil Dead. Human dignity is, according to the Court’s opinion, not only the individual dignity of the respective person, but also the dignity of man as a representative of mankind it cannot “be lost” as a result of “undignified” behavior nor can it be taken away from anyone. Yet, the claim for respect which results from it is violable.102 The development of such a “double human dignity”103 made an impression on the Second Senate, too. In its decision on long-term preventive detention, it adopted this distinction between a generally inviolable dignity and an individually violable “claim for respect.”104 Consequently, this implies a necessary weighing against other concerns, which is typical for every test of proportionality. The claim for respect that results from dignity is not violated even by a long-term detainment, if the latter is made necessary by the continuous risk posed by the de97

98

99 100 101 102 103

104

On law’s dialogic and balancing character see Rolf Gröschner: Dialogik der Rechtsverhältnisse. In: Rechtsphilosophie im 21. Jahrhundert, Winfried Brugger / Ulfrid Neumann / Stephan Kirste (eds.), pp. 90–110, Frankfurt/Main 2008. Immanuel Kant: Anthropology from a pragmatic point of view. Transl. and ed. by Robert B. Louden, p. 95, Cambridge 2009. For a more elaborated analysis of the FCC’s creativity see Oliver W. Lembcke: Urteilskraft in der Praxis des Bundesverfassungsgerichts. Eine Erinnerung an Hannah Arendt, in: Rolf Gröschner & Gottfried Gabriel (eds.): Subsumtion. Schlüsselbegriff der Juristischen Methodenlehre, pp. 73–107, Tübingen 2012. See Lembcke 2007, pp. 128–131, 236 f. (creativity), pp. 260–276, 307 (power of judgement). BVerfGE 65, p. 1 (43). BVerfGE 120, p. 274 (313). BVerfGE 87, p. 209 (228). From a perspective of a history of ideas: Oliver W. Lembcke Die Würde des Menschen, frei zu sein: Zum Vermächtnis der “Oratio de hominis dignitate” Pico della Mirandolas. In: Des Menschen Würde – entdeckt und erfunden im Humanismus der italienischen Renaissance, Rolf Gröschner / Stephan Kirste / Oliver W. Lembcke (eds.), pp. 159–186, Tübingen 2008; systematically Oliver W. Lembcke (note 7). BVerfGE 109, p. 133 (150).

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tainee.105 In other words, the constitutional court feels compelled to establish a practical concordance in drawing a clear line between conflicting constitutional values.106 For the individual’s orientation towards and connection with society, inherent to the German Basic Law, is according to the court a justification to adopt indispensable measures in order to protect essential common goods from harm.107 The First Senate’s decision on major acoustic surveillance (Großer Lauschangriff) illustrates that there is room, even within the scope of art. 1, sec. 1 GG, for decisions which concretize and resolve conflicts by means of concordance: As the last refuge, the private apartment represents a means of ensuring human dignity; yet, the acoustic surveillance of apartments for the purpose of criminal prosecution only violates the individual’s claim to respect if the core area of one’s private way of life is not respected. The classification of the facts of the case according to the inviolable realm of one’s private life or – to the extent that this is not affected – according to the realm of social affairs, which is under certain conditions open to state intervention, must not take place according to whether or not any social meaning or relation is involved; the “critical” point “is rather, of what kind and how intensive this relation is in the individual case.”108 This is the jurisprudence of weighing, which is as far from the abstract dignitas absoluta as the actual case of an individually violated private sphere is from the general recognition of the dignity of “the” human being as representative of mankind. While the “dignity of mankind,” mentioned in the first sentence of the German Basic Law, has the quasi-axiomatic character of a meta-juridical (pre-) determination, the second sentence establishes a constitutional “obligation” of all state power to “respect and protect” the individual dignity of every individual. While it is indeed possible to philosophize more or less metaphysically about the former, the latter has to be decided legally. This means a weighed decision, which in cases of conflict reconciles the obligation to respect with the obligation to protect.109 6. OUTLOOK He who preaches water while drinking wine should not feel surprised to encounter harsh criticism. The representatives of legal dogmatics have been aware of the technique of the constitutional court for a long time. They have referred to the dogma of a human dignity resistant to being weighed against other concerns as a “mere verbalism” or even as the “big lie inherent to the constitutional court.”110 However, 105 BVerfGE 109, p. 133 (151). 106 Konrad Hesse: Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland, p. 28, 20th ed. Heidelberg 1995. 107 BVerfGE 109, p. 133 (151). 108 BVerfGE 109, p. 279 (314). 109 Against this background, the number of those is increasing who do not understand the dogma of inviolability as a dogma of non-balancing. As the first: Michael Kloepfer (note 40), pp. 411 ff. Along with Matthias Herdegen (note 36) (sub III. 4) see also recently among others Hans-Georg Dederer: Die Garantie der Menschenwürde. In: Jahrbuch des öffentlichen Rechts 57 (2009), pp. 89–12. 110 Rolf Dietrich Herzberg: Folter und Menschenwürde. In: Juristenzeitung 60 (7) (2005), pp. 321– 328, 324 (verbalism); Lüderssen (note 70), p. 702 (big inherent lie).

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the jurisdiction of the constitutional court will, for a number of reasons, hardly be affected in the near future. To begin with, the accusation is based on an assessment of the situation which is anything but undisputed. A multiplicity of opinions is the normal condition of jurisprudence, but obviously an essential part of its attractiveness results from this very fact. For it is recognized in spite of (and contrary to) its characteristic indeterminacy regarding content and holdership, not only on a national level, but also internationally. If the “essence of the essence” is unknown, then the consensus within the dogmatic discussion and the legal force of constitutional decisions will provide a remedy, as Luhmann already noted over forty years ago.111 The “essence” of human dignity still represents a perfect example of this kind of consensus building, especially as concerns the interplay between constitutional jurisprudence and jurisdiction. This is the reason why the court, as matters stand, is not going to change anything. Moreover, it has enough experience with the public sphere to know that dealing casuistically with art. 1 GG, coupled with recognition that the constituent principle of human dignity cannot be weighed against other concerns, paves the way for presenting and solving a case in a way which evokes the fewest problems regarding its acceptance. What lies behind this is not only the idea of dealing prudently with the public through the media, because in approaching an issue like the interpretation of human dignity, in which the preconditions are so uncertain, the constitutional court would be well advised to proceed with the utmost caution when it comes to substantive determinations. On the occasion of the discussion surrounding the “Dreier case,” Ernst-Gottfried Mahrenholz impressively described what kind of demands constitutional judges have to meet regarding the decision-making process in so-called “hard cases:” “The case has always promoted, improved, and deepened the knowledge of law. However, only one thing seems inevitable to me: the most ruthless sort of questioning and thinking, trembling, as it were.”112 In such a precarious process, which is supposed to result in both legal clarity and social peace, it is advisable to provide the necessary regulatory services with a clear orientation through determinations and decisions; because this – i. e. providing orientation – is also the function of an institution that considers itself the guardian of the constitution. As concerns human dignity, the requirement is as follows: Man is at the center of the German constitutional system. The constitutional court is absolutely clear on this point. However, Mahrenholz himself has reminded us that modern human dignity has arisen from a categorical breach of morality and, consequently, demands critical reason: “Therefore, under the conditions of the concrete case, every legal asset at stake must be subjected to the regulatory power of the inviolability of human dignity. If this does not happen, the result is a purely dogmatic understanding of human dignity, which is detached from the individual case if said case shakes the well-laid foundation of dogmatics. Such were the dead-end streets of theology. They should not be followed.”113

111 Niklas Luhmann (note 13), p. 59 f. 112 Ernst-Gottfried Mahrenholz: Gediegene Aus-Lese. Lesegut, von überall her. In: myops 2 (3) (2008), pp. 12–17, 16 (transl. by OWL). 113 Ernst-Gottfried Mahrenholz (note 112) p. 16 (transl. by OWL).

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It would not be too much to say that human dignity in Germany has developed to become – in the best sense of the word – a civil religion.114 Most of the negations currently used in connection with human dignity serve to strengthen this faith in dignity’s “im-penetrable” character, its “in-violability” and “un-conditionality,” its “un-deprivable” and “in-alienable” character. Henning Ottmann has appropriately termed this language game a “negative theology.”115 It is an expression of a futile search for the absolute in politics, against which Hannah Arendt warned so eloquently in her study on revolution.116 According to Arendt, the language of the preamble of the Declaration of Independence (“We hold these truths to be self-evident”) promises a mathematical rationality which cannot be fulfilled in the political sphere – and which only obscures what really matters: keeping alive the constitutive act of the revolution, from which the United States as a liberal political order emerged. After the Second World War, the Federal Republic of Germany experienced no such revolution upon which the entire republic could have been founded. But it definitely subsists on the establishment of a liberal political order after 1945, which was reinforced by the revolution of 1989/90. This living constitutionalism has to support itself; yet it errs in believing that politics could be practiced on the grounds of axiomatic certainty. Our understanding of this is deepened by a critical analysis of the dogmatic systematization of all those constituent principles which serve to ensure a liberal community.

114 Henning Ottmann: Die Würde des Menschen. Fragen zu einem fraglos anerkannten Begriff. In: Rationalität und Prärationalität. Festschrift für Alfred Schöpf. Jean Beaufort / Peter Prechtl (eds.), pp. 167–183 (167, 177), Würzburg 1998. 115 Henning Ottmann (note 114), p. 168. 116 Hannah Arendt (note 65), pp. 184–188.

INGO WOLFGANG SARLET, PORTO ALEGRE HUMAN DIGNITY

IN THE

BRAZILIAN CONSTITUTIONAL ORDER –

AN ANALYSIS IN THE PERSPECTIVE OF JURISPRUDENCE OF THE “SUPREMO TRIBUNAL FEDERAL” (BRAZILIAN SUPREME COURT)1 Abstract: This paper aims to offer an overview on how human dignity has been recognized in the Brazilian constitutional order, with special attention to the jurisprudence of the Brazilian Supreme Court. Considering its structure as a value, a principle and a fundamental right simultaneously, I will present some of the main functions of human dignity, underlining its relations with the fundamental rights.

1. INTRODUCTORY REMARKS Notwithstanding the fact that the protection of human dignity has only been included in the first Section of the constitutional text, among the fundamental principles of the Brazilian Democratic State (article 1º, III), in the Federal Constitution promulgated on October 05th 1988, the first occurrence of the idea of human dignity in a Brazilian constitutional text can be traced much further back. The constitutional text of 1934, in the Section intended to discipline the principles of the social and economic order, more specifically in article 115, provided that “the economic order shall be established according to the principles of justice and the needs of national livelihood, in order to create the conditions to guarantee an existence with dignity for all people. Within these limits economic freedom is granted”, a provision which reflected the commitment of the Constituent Power to recognizing human dignity as a basis for and as a limit to economic freedom, and the strong influence of the Weimar Constitution of 1919 upon the Brazilian Constitutional Process at the time. As we can see, the Brazilian Federal Constitution of 1934 has been one of the few constitutions of its time to grant the protection of human dignity, a feature only to be found in the Weimar Constitution of 1919, the Portuguese Constitution of 1933 and the Irish Constitution of 1937, all promulgated before the Second World War. The protection of human dignity took a profound turn after the Second World War, when normative international texts, such as the United Nations’ Declaration of Human Rights (1948) and many other national constitutional texts, especially the Basic Law for the Federal Republic of Germany (1949), in which human dignity was proclaimed and its protection granted, had established the protection of human dignity as a response to the unforgettable atrocities committed during the Second World War, especially by the totalitarian regimes. In addition to achieving notoriety and great importance in international and constitutional scenarios, and, hence, developing in a qualitative and a quantitative respect, an essential, virtually inseparable connection between Human Dignity and 1

The Brazilian Literature and Jurisprudence (Supreme Court) was considered up to 2011, because this paper was delivered that year.

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the Fundamental Human Rights has also been recognized in jurisprudence, as well as in the philosophical literature in general. Authors stress the existence and protection of human dignity in both international and constitutional contexts. However, there is no record of such an inevitable connection between fundamental rights and human dignity from the point of view of the historical evolution of constitutionalism.2 This is precisely because the protection of human dignity in constitutional texts, as a constitutional value, is a relatively recent feature. As a result, an intimate and inevitable connection between human dignity, human and fundamental rights and democracy in the current development of the Constitutional State as its founding frameworks has also been recognized. This finally represents one of the most important pillars of Constitutional Law and the international Human Rights legislation.3 When the normative content of human dignity is sought, however, and even when the depth of its connections with fundamental human rights is discussed, there have been varying levels of concession in different constitutional orders. Yet, even within a single Constitutional State, these levels are often perceived as fragile. Indeed, the debates on the issues adressed here have been raging amongst scholars and in jurisprudence – even in Brazil – which has crystallized the need to grasp the exact ideas of the content and meaning of human dignity for and within a legal order as a whole and, in particular, the connections that exist between human dignity and fundamental rights. Thus, in accordance with the goals of this book, I am going to show the general framework in which the human dignity principle (and rule) is applied and understood in Brazil. I will also address the opposite debate on the connections between human dignity and fundamental rights. I shall begin by presenting the ways in which human dignity is recognized and protected in the Brazilian Constitutional text, identifying some developments resulting from them, demonstrating some conceptual aspects and presenting and discussing the main functions of human dignity in the Brazilian constitutional order, with special regard to the jurisprudence of the Brazilian Supreme Court (from now on referred to as SC or Brazilian SC). 2. THE POSITION OF 1988

OF

HUMAN DIGNITY

IN THE

BRAZILIAN FEDERAL CONSTITUTION

2.1. THE DIGNITY OF THE HUMAN PERSON AND IT’S POSITION IN POSITIVE CONSTITUTIONAL LAW: INITIAL APPROACHES Despite its mention in the Section about the social and economic order since 1934, the Federal Constitution of 1988 (thereinafter referred to as FC) has been the first Brazilian Constitution in which human dignity was listed as a cornerstone of the 2 3

According to all: Jorge Miranda: Manual de Direito Constitucional, Vol. IV, p. 194, 4th ed., Coimbra 2008. From the said perspective, see, among Brazilian scholars, Carlos Ayres Britto: Teoria da Constituição, p. 189, Rio de Janeiro 2003, specifically when the author emphasizes the existence of a functional connection between human dignity and Fundamental Rights, as well as between them and Democracy.

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Brazilian Democratic State (article 1st, III FC). This systematic position of human dignity in the same category as the other founding grounds and core elements of the Brazilian State,4 right after the Preamble, expresses its very importance in constitutional law. However, the dignity of the human person or human dignity5 – as mentioned in article 1st, III FC, has also been protected in other parts of the FC, namely in article 170, caput, organizing the Brazilian economic order and stating, as a central obligation, the protection of a livelihood with dignity. It is mentioned further in the social scenario, where family planning is based on the principles of the dignity of the human person and on responsible parenthood (article 226, paragraph 6º). The constitutional text also grants the right to dignity to children and adolescents (article 227, caput). Furthermore, the protection of human dignity can be found in article 230, where it is stated that “the family, the community and the State have the duty to help the elderly, granting the right to participate in community life, providing the defense of their dignity and well-being and granting their right to live”. It could certainly be stated that there is a certain “textual ubiquity” of human dignity in the Brazilian constitutional order, although in different contexts (fundamental principles, economic order and social order), which raises a set of important questions. Firstly, the content(s) and meaning(s) of human dignity in the Brazilian constitutional order require discussion. Can a common understanding (or core concepts) be identified, or are there colliding ideas of human dignity which have developed given the diverse ways in which human dignity has been protected in the constitutional text? Secondly, and consequently, it should be analyzed whether the human dignity protected in the constitutional text as a fundamental principle (art. 1st III) is actually “the same” dignity (taken in every sense) which is to be protected and promoted in the economic order. Should both kinds of dignity be confined in meaning and content to the “other” one, which serves as the foundation of free family planning, or of the dignity of children, adolescents and elderly people? Thirdly, we have to consider the theoretical and practical impact of the legal form, with regard to the dignity of the human person in the constitutional order. In brief, the question is: Does human dignity simply function as a value and/or an objective principle, or (in a subjective dimension) is human dignity a (fundamental) subjective right? Furthermore, this question is related to the functions fulfilled by human dignity (a value, a principle and/or a right) in the constitutional legal order, and its connections with legal norms defining fundamental rights and guarantees. On the other hand, the differences in the manner and context in which human dignity is protected constitutionally can call for different forms of enforcement and effectiveness, when human dignity is understood as a legal (constitutional) norm. As it is the case in other constitutional orders – among which the example of German Basic Law is by far the most impressive and influential – the FC, while in4 5

The basic elements listed in article 1 are: sovereignty, citizenship, the dignity of the human person, the social values of work and economic freedom and political pluralism. I will take both expressions as synonyms and in their broader sense. Although the difference that can be made between the concept of a human person’s dignity (or the dignity of the human person, connected to the concept of personhood and even personality) and the concept of human dignity (not necessarily connected to the concept of personhood, the notion of human dignity, as it happens in Brazilian legal tradition, will here be used in a broader sense.

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cluding human dignity among its fundamental principles, proclaims categorically that the State is there to serve the human person, not the opposite, when the constitutions had expressly granted the protection of human dignity as one of the founding pillars of the democratic (and social) state.6 According to this constitutional decision, the human being must be understood as the highest end of the State, and not as the means for its actions.7 In other words, as soon as human dignity has been defined as a cornerstone of the democratic rule of law, the state shall serve as an instrument to guarantee and promote the dignity of the people, either as individuals or in a collective (social) perspective.8 2.2. THE DIFFERENT DIMENSIONS OF HUMAN DIGNITY IN THE BRAZILIAN LITERATURE AND JURISPRUDENCE AND THE SEARCH FOR AN APPROPRIATE CONSTITUTIONAL CONCEPT Notwithstanding several difficulties, we have to recognize the unwavering work of jurisprudence and doctrine, which are gradually construing a founding framework for the concept of dignity, and in particular the legal meaning of dignity,9 even though a comprehensive, abstract and universally accepted concept of dignity has not yet been elaborated. Thus, the concept of human dignity should take changing circumstances into account, especially if the said concept cannot be attuned to the pluralistic outlook and diversity of values found in contemporary democratic societies,10 since the concept should remain in unfaltering construction and development.11 Hence, the notion of human dignity as a legal and normative concept is construed through its continuous enforcement and restraint-framing process in its constitutional implementation, as it happens with other concepts which are as open and vague as human dignity, a duty which regards all State actors.12 However, these institutions should open up a dialog with inputs coming from society. Moreover, Peter Häberle, who stresses the importance analyzing concrete examples of violations of dignity in order to improve its understanding, and the need for a bottom-up perspective in order to comprehensively construe the said concept, has stated the importance of the laws and regulations of the constitution as an important means to better outline the concept of the dignity of the human person.13 Consequently, 6 7 8 9

10 11 12 13

According, e. g., to Winfried Brugger: Menschenwürde, Menschenrechte, Grundrechte, p. 6, Baden-Baden 1997. See, e. g., Peter Badura: Staatsrecht, p. 87, Munich 1986. Jorge Reis Novais: Os princípios constitucionais estruturantes da República Portuguesa, p. 52, Coimbra 2004. The legal notion of dignity here presented has sought to simply clarify the way in which doctrine and jurisprudence in constitutional law are construing, applying and eventually realizing and advancing a conception (or many conceptions) of the content and meaning of the dignity of the person, therefore presented in order to illustrate the point. José Joaquim Gomes Canotilho: Direito Constitucional e Teoria da Constituição, pp. 225–26, 7th ed., Coimbra 2003. See, e. g., Cármen Lúcia Antunes Rocha: O princípio da dignidade da pessoa humana e a exclusão social. In: Revista Interesse Público, No. 4 (1999), p. 24. Reinhold Zippelius in: Bonner Kommentar zum Grundgesetz, p. 14, Heidelberg 1994. Peter Häberle: Die Menschenwürde als Grundlage der staatlichen Gemeinschaft. In: Handbuch

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it is imperative to take into consideration the notions of human dignity developed by judges and courts, especially in constitutional courts and in international human rights courts. I will do so in this paper while taking into consideration mainly the jurisprudence of the Brazilian SC. Although the notion of human dignity has figured as a result of framing concepts in the philosophical (and theological) tradition for long time, its importance to law has only been perceived in the 20th century and it has been acknowledged mainly after the disastrous experience for humanity of the Second World War.14 Despite the importance of such a philosophical and historical background, which has deeply influenced the legal domain, I shall not develop the “existential” path taken by the notion of human dignity through the ages,15 because I am only going to highlight some of the viable and most relevant dimensions and conceptions of human dignity, which can also be found in the Brazilian constitutional doctrine and jurisprudence. These dimensions are not always contradictory or incongruous with each other, but support the idea of multiple dimensions and functions of human dignity.16 This paper discusses the premise under which the human person is unique and entitled to certain fundamental rights, with respect to the distinction between the idea of human dignity as such and the dignity of the human person. The first transcends the idea of dignity concerning the individual. The latter concerns the dignity of each person as an individual, albeit this distinction is sometimes understood differently. Thus, as it had already been stated by the judge Carlos Britto of the Brazilian SC, “the legal principle of the dignity of the human person takes off from the idea according to which every human being is a microcosm. He is a universe in himself. He is utterly unique, since he is part of the whole, and also a whole in himself; that is, if each person takes part in something (the community), he will also be considered a human being in something”.17

14 15

16

17

des Staatsrechts der Bundesrepublik Deutschland, Joseph Isensee / Paul Kirchhof (eds.), Vol. I, p. 853, Heidelberg 1987 who has asserted that concrete examples should be inevitably used in order to better understand the concept of the dignity of the human person, emphasizing the relevance of reaching the said concept from a “bottom-up” standpoint, so that the legal order under the constitution will provide interesting and useful tools to get a framework of the concept. See also Niklas Luhmann’s opposite views, Niklas Luhmann: Grundrechte als Institution, p. 57, 2nd ed., Berlin 1974, emphasizing that the legal dogmatics has been currently defining the human dignity independently from the Sciences regarding the Human Being and the Society, which is intricately connected to an Aristotelian view. Although Lumman might have been partially right in this respect, it shall be noted that his work was published in the 1960’s, when the legal science was just beginning to develop a more systematic study of Dignity in Law. See, e. g., Stephan Kirste: Einführung in die Rechtsphilosophie, p. 126, Darmstadt 2010. See, e. g., Paul Tiedemann: Menschenwürde als Rechtsbegriff. Eine philosophische Klärung, p. 109–172, Berlin 2007 (human dignity in philosophical perspective) and pp. 9–108 (human dignity and it’s reception by the law). Attempting to offer a broad and differentiated overview and underlining (especially in the opening chapter) the multimensionality of human dignity, see, e. g., Ingo Wolfgang Sarlet (ed.): Dimensões da Dignidade. Ensaios de Filosofia do Direito e Direito Constitucional, 2nd ed., Porto Alegre 2009, which contains different perspectives of different authors: Peter Häberle, Christian Starck, Stephan Kirste, Ulfried Neumann, Michael Kloepfer, Béatrice Maure and Kurt Seelmann. Carlos Ayres Britto: O Humanismo Como Categoria Constitucional, p. 27, Belo Horizonte 2007,

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The so called ontological dimension of human dignity ought to be initially acknowledged, for the notion on which dignity is conceived as an inborn (natural) quality of the human being, that is, as an inherent quality to the condition of being human, still has a great impact on the current philosophical and legal debate in Brazil.18 This notion has to share the public arena with the idea that dignity represents a special and distinctive value granted to every individual human being who is seen as entitled to equal protection, promotion and due regard. In this perspective, dignity has been recognized as an attribute of every human person, since everyone is equal in dignity. All persons are recognized as part of the community of people, even if the person does not behave according to his dignity either in relation to his fellow citizens or to himself.19 Albeit not exclusively, the said notion of dignity has underlied an important recent decision of the Brazilian SC. It also has been explicitly referred to in the rulings of the Court, when it granted equal protection of the law to same-sex marriage, and furthermore when the Court declared their right to be regarded as a family entity, thus enshrining this relationship with the constitutional protection of the dignity of its members.20 On the other hand, in addition to the distinction between human dignity and the dignity of the human person, the distinction between person and dignity has also been addressed by Brazilian doctrine and jurisprudence, which has entailed the definition of a borderline between the dignity of the person and the dignity of human life, a distinction which has recently been stated and analyzed, for instance, by Jürgen Habermas21 or Stephan Kirste.22 Although the Brazilian understanding of the matter is still far from being a consolidated point of view, in a decision of the SC about research using stem cells obtained from surplus embryos, Carlos Britto tried to determine the time when it is possible to recognize the dignity of a certain person, that is, when the person is entitled to fundamental rights, stating that this recognition is only possible from the moment of the birth of a living child. Before birth, however, there is an objective projection of human dignity.23 The SC, though, neither addressed the issue in any more detail nor established a definite standpoint on the subject. In addition to the aspects already presented (and to some extent, in dialogue with them), it is important to assert the twofold dimension of human dignity which

18

19

20 21 22

23

(emphasis from the original). See, e. g. Ingo Wolfgang Sarlet: Dignidade da Pessoa Humana e Direitos Fundamentais na Constituição Federal de 1988, pp. 33–74, 9th ed., Porto Alegre 2011, although not sharing the ontologial approach in the sense of an inborn dignity. For the Brazilian literature, see, e. g., Ingo Wolfgang Sarlet (note 17), p. 65 and following. From the same author see also Ingo Wolfgang Sarlet: As dimensões da dignidade da pessoa humana: construindo uma compreensão jurídico-constitucional necessária e possível. In: Dimensões da Dignidade. Ensaios de FIlosofia do Direito e Direito Constitucional, pp. 20 ff., Porto Alegre 2009. See ADPF 132-RJ, Reporter Justice Carlos Ayres Britto, decided 05.05.2011. Jürgen Habermas: Die Zukunft der menschlichen Natur. Auf dem Weg zur einer liberalen Eugenik?, pp. 57 ff., Frankfurt am Main 2001. Stephan Kirste: A dignidade humana e o conceito de pessoa de direito. In: Dimensões da Dignidade. Ensaios de Filosofia do Direito e Direito Constitucional, Ingo Wolfgang Sarlet (ed.), pp. 175–198, 2nd ed., Porto Alegre 2009. ADI 3510-DF, Reporter: Carlos Ayres Britto, decided 29.05.2008.

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is revealed by its conception as an expression of the autonomy of the human person, that is, a conception of self-determination with respect to individual and personal life decisions, and, simultaneously, the need to protect the human person as a duty of the State and the community, particularly (but not exclusively) when the person is living under conditions of vulnerability or even (and especially) when the person lacks any capability to determine herself.24 This issue is compatible with Ronald Dworkin’s view, which is grounded on the idea that dignity has “both an active voice and a passive voice which are reciprocally connected”. Accordingly, it is the intrinsic value (in its “sanctity and inviolability”) of human life which provides the ground for protecting the dignity of whoever has already lost the conscience of his own dignity, because even this person deserves to have his dignity promoted and protected.25 According to this context, but not only because of it, human dignity has been understood as both a limit and a task for the powers of state and society in general (thus, all and everyone), a twofold condition which has also indicated a parallel and connected defensive and positive dimension of the human dignity (from the legal constitutional perspective), which is an even more remarkable feature when it comes to the relation between human dignity and fundamental rights, as we will see later on. Indeed, dignity as a limit asserts not only that human beings ought not to be reduced to a simple object of their own actions or those of others, but also that dignity is the ground of fundamental rights as defensive (negative) rights against actions which have been violating or threatening human dignity. As a state’s task (positive dimension), the human dignity principle means that the state has constitutional duties in order to protect everyone’s dignity, granting its respect and integrity through positive measures as well, notwithstanding the existence of fundamental duties of the human person towards the State and the other citizens.26 This positive dimension of human dignity also gains importance in the domain of social justice and economic development, which can be seen when taking into account that the Brazilian FC states – as already mentioned – that a dignified existence is the goal of the economic order (article 170). This is in addition to positive duties which have come up separately from the explicit provision of human dignity in article 1st, III, FC. There have been challenging efforts in defining a legal concept of human dignity, a concept which, simultaneously, has an aptitude to become universal (at least in its core elements and keeping the necessary openness) and is constitutionally suitable, taking into account its multidimensional trait which has also been present, 24 25

26

For the Brazilian literature see, e. g., Ingo Wolfgang Sarlet (note 17), pp. 61 ff. See Ronald Dworkin : El Dominio de la Vida. Una discusión acerca del aborto, la eutanasia y la liberdad individual, pp. 306–309, Barcelona 1998, a translation from the original version in English, Life’s Dominium. About the distinction (autonomy), but still an intricate connection between dignity and life (since dignity and life, as principles and fundamental rights, are both primarily connected to the human person, the person, hence, is their common link) and insofar as both are connected with values, see Michael Kloepfer: Leben und Würde des Menschen. In: Festschrift 50 Jahre Bundesverfassungsgericht, Peter Badura / Horst Dreier (eds.), Vol. 2, pp. 78 ff., Tübingen 2001, which has taken part in this collective work. Adressing the double function as a limit and a states task and duty see, in Brazilian literature, Ingo Wolfgang Sarlet (note 17), pp. 131 ff. and Ana Paula Costa Barbosa: Die Menschenwürde im deutschen Grundgesetz und in der brasilianischen Verfassung von 1988, pp. 139 ff., Berlin 2008.

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implicitly or expressly in the SC rulings. It is worth noting, at least as a starting point, Günter Dürig’s famous object formula based on Immanuel Kant’s human dignity conception. According to this argument, violations of the dignity of human persons occur when the individual is reduced to a mere object, means, or is used as a thing. In other words, his dignity is violated when there is either a disregard for the human person or when his quality as a human being is plundered and therefore his entitlement to rights is disrespected.27 Michael Sachs28 has correctly stressed that the said formula is connected to a definition of dignity according to its scope of protection, which reflects a preference for defining the said scope from the perspective of its violations in specific factual cases. This view of human dignity has been widely (but not exclusively) adopted and upheld in a great number of decisions of the Federal Constitutional Court of Germany,29 but a global solution for the issues concerning the human dignity has not been reached yet. This is particularly true, if we take the Brazilian scenario for its greater complexity and quantity of rights found in the Constitution into consideration. The reason is that the said decision has not determined beforehand what ought to be protected, albeit violations of human dignity have been more easily identified in the light of factual cases and their circumstances. This again yielded a framework to be considered by doctrine and jurisprudence. Legal discussions have led to a set of positions which help to identify ideas of the dignity of the human person and, therefore, ideas which have to be protected by the legal order.30 It has been correctly suggested, as I believe, that everyday social functions are generally bound in mutual dependence insofar as the dignity of the human person (which means in this sense the prohibition to use a person as a mere means) in prin27

28 29

30

Günther Dürig: Der Grundsatz der Menschenwürde. Entwurf eines praktikablen Wertsystems der Grundrechte aus Art. 1, Abs. I in Verbindung mit Art, 19 Abs. II des Grundgesetzes. In: Archiv des Öffentlichen Rechts (AöR), Vol. 81 (1956), p. 127. In Brazilian Law this formula, that is, stating that this formula is the denial of dignity in itself, can be expressly found, so it seems, in the Constitution, particularly in article 5th, III when it has been emphatically established that “no one shall be subjected to torture and to an inhuman or degrading treatment”. In this context, see Peter Häberle (note 12), p. 842, arguing that Dürig’s conception (the “object” formulae) can be turned into a “subject-formula”, since the Constitutional State fulfills the dignity of the person insofar as it recognizes and advances the individual taken as the subject of State’s Actions. Michael Sachs: Verfassungsrecht II – Grundrechte, p. 174, Berlin/Heidelberg/New York 2000. About the German Constitutional Courts reasoning, see, among others, the recent contribution of Nils Teifke: Das Prinzip Menschenwürde, pp. 9–32, Tübingen 2011. It shall be referred, however, despite many other possible dissentions, that the man-thing (object) formula has not overlooked the fact that in many circumstances, in private life or in the public sphere, people often berth themselves in the condition of thing to third party’s actions, although their condition as a person is not being questioned (See Hasso Hofmann’s observations, Hasso Hofmann: Die versprochene Menschenwürde. In: Archiv des Öffentlichen Rechts (AöR), Vol. 118 (1993), p. 360. Similarly, the objection stated by Niklas Luhmann (note 12), p. 60 shall not be forgotten, which has addressed similar assertions made by Schopenhauer about the Kantian conception, therefore considering the main idea under Kant’s perspective as barren, since it demands a decision about when and under which circumstances a person is being treated as a thing so that a violation of his dignity may be considered present. See, for the Brazilian case, Ingo Wolfgang Sarlet: Notas sobre a dignidade da pessoa humana na jurisprudência do Supremo Tribunal Federal. In: Direitos Fundamentais no Supremo Tribunal Federal: balanço e crítica, Daniel Sarmento / Ingo Wolfgang Sarlet (eds.), pp. 37–74, Rio de Janeiro 2011 and Ana Paula Costa Barbosa, (note 25), pp. 178 ff.

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ciple proscribes the complete and egoist use of the other person as an instrument. This is the case, if a person is used to achieve certain goals and to reify a person.31 Günter Dürig’s aforementioned observations have also been followed by Brazilian legal doctrine and jurisprudence, but not exclusively nor as a leading argument, although some direct references to his work and to decisions of the Federal Constitutional Court in Germany might be spotted. Particularly in jurisprudence, Günter Dürig’s assertion about human dignity is illustrated in a decision about the reasonable time for a judicial procedure clause ruled by the SC. In this clause it has been stated that submitting a human being to an endless legal procedure, thus, reducing him to a mere object of the State procedure represents a violation of the effective State protection clause and the principle of the dignity of the human person.32 Like in other legal orders, in Brazil as well, human dignity was interpreted in a broader scope, comprising even the non-human life which is confirmed according to two different views, albeit apparently non-conflicting ones. As supported under the anthropocentric approach (although in a restricted view), on the one hand, an ecologic dimension of the dignity of the human person has been acknowledged. This dimension encompasses a number of State duties and fundamental duties of individuals towards the non-human environment.33 On the other hand, the number of those acknowledging the dignity of non-human life has increased, therefore, placing an intrinsic, and not simply instrumental, value in non-human nature itself (or at least, in non-human life), notwithstanding the debate about whether or not the environment or animals, are entitled to rights, a subject which will not be discussed any further in this paper.34 Nevertheless, assuming a moderate view, it is possible to uphold the idea according to which dignity is acknowledged to nonhuman life (dignity as an attribute acknowledged to something or someone), which demands protection and promotion by the State, especially when constitutions and the law have been turning “greener”, and the democratic State has also become an environmental State.35 Finally, bearing in mind that the notions of human dignity mentioned before are far from a comprehensive analysis, this section shall be closed with a personal assertion on the (legal) concept of human dignity which has been formulated seek31 32 33

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Ulfried Neumann, Die Tyrannei der Würde, in: Archiv für Rechts-und Sozialphilosophie (ARSP), Vol. 84 (1998), p. 161. Habeas Corpus nº 88.548/SP, Reported by Justice Gilmar Mendes, decided 18.03.2008. See, among others, Ingo Wolfgang Sarlet / Tiago Fensterseifer: Direito Constitucional Ambiental. Estudos sobre a Constituição, os Direitos Fundamentais e a Proteção do Ambiente, p. 57–88, São Paulo 2011. See, in Brazilian legal literature, e. g., Carlos Alberto Molinaro / Fernanda Luiza Fontoura de Medeiros / Ingo Wolfgang Sarlet / Tiago Fensterseifer (eds.): A Dignidade da Vida e os Direitos Fundamentais Para Além dos Humanos. Uma Discussão Necessária, Belo Horizonte 2008, containing several contributions from Brazilian and foreign scholars. The Brazilian SC is also following this path, although not supporting the idea of animal rights, but applying the constitutional duty to protect animals against cruel treatment, decided to strike down state legislation allowing and regulating the cultural tradition of bull hunting (RE 153.531–8/SC, Reporter Justice Francisco Rezek, 03.06.1997) and the practice of cock fighting in Rio de Janeiro (ADI 1856–6/RJ, Reporter Justice Carlos Veloso, 22.09.2000) and Rio Grande do Norte (ADI 3.776/RN, Reporter Justice Cezar Peluso, 4.06.2007). See also Ingo Wolfgang Sarlet / Tiago Fensterseifer (note 32), pp. 89–128.

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ing to show the complexity and multiple dimensions of the concept of human dignity within the scope of the contemporary constitutional state. Thus, if we take into consideration most of the notions sketched in this paper, human dignity can be conceived as the intrinsic and distinctive quality recognized in each human being which entitles him to be treated with equal respect both by the State and the community and implies a set of fundamental rights and duties which grant protection to the person against any degrading or inhuman treatment and assure the minimum existential conditions to a healthy life, promoting and creating favorable conditions to an active and co-responsible partaking in social life and in making decisions about his own destiny and existence, insofar as ensuring the due consideration to other beings with whom life is shared.36 2.3. HUMAN DIGNITY AS A VALUE, A LEGAL PRINCIPLE, A RULE AND A FUNDAMENTAL RIGHT Considering its place in the Brazilian constitutional text among the Fundamental Principles in Section I, the 1988 Constituent Power has chosen not to include the dignity of the human person into the fundamental rights and guarantees listed in Section II (article 5 to 17), but, elevating it for the first time to the position of a fundamental legal principle (and value – article 1º, III CF), placed it amongst the grounds of the Democratic State. In fact, when the Constitution expressly stated the dignity of the human person as a fundamental legal principle, it had actually followed a central tradition of constitutional thought as it can be found, for instance, in Portugal37 and Spain,38 to mention only the most recent examples whose contributions to the Brazilian legal constitutional order are undeniable. The German paradigm could also be mentioned as contributing to this continuous dialogue. 36

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The concept was taken from our previous work Ingo Wolfgang Sarlet (note 17), p. 73. To compare with the Portuguese version: a dignidade da pessoa humana é a qualidade intrínseca e distintiva reconhecida em cada ser humano que o faz merecedor do mesmo respeito e consideração por parte do Estado e da comunidade, implicando, neste sentido, um complex de direitos e deveres fundamentais que assegurem a pessoa tanto contra todo e qualquer ato de cunho degradante e desumano, como venham a lhe garantir as condições existenciais mínimas para uma vida saudável, além de propiciar e promover sua participação ativa e co-responsável nos destinos da própria existência e da vida em comunhão com os demais seres humanos, mediante o devido respeito aos demais seres que integram a teia da vida. See Jorge Miranda (note 1), pp. 194 ff.; J. J. Gomes Canotilho / Vital Moreira: Constituição da República Portuguesa Anotada, Vol. I, pp. 195 ff., 4th ed., Coimbra. Last, but not least, see Jorge Reis Novais, (note 7), pp. 51 ff. In Spain, the developments in the matter can be found in Francisco Fernandez Segado: La dignidad de la persona como valor supremo del ordenamiento jurídico. In: Direito & Justiça, pp. 116 ff., who asserted that the Spanish Constitutional Court had ruled the “recurso de amparo” as void if grounded exclusively in the human person’s dignity because this is a fundamental principle and violations of dignity could only be contested insofar as it is connected to the context of a specific fundamental right based upon dignity. Similarly, see, e. g., Antonio Enrique Pérez Luño: Derechos Humanos, Estado de Derecho y Constitución, pp. 180 ff., Madrid 1995, to whom the dignity of the person is “a guiding-principle for the State and the Law” and “the framing value (Grundwert) upon which are human rights set”. Showing that the Constitutional Court in Spain still supports the condition of dignity as an objective principle, see Ignacio Gutiérrez-Gutiérrez: Dignidad de la Persona y Derechos Fundamentales, p. 22, Madrid, Barcelona 2005.

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Nonetheless, the current framework of human dignity has some relevant consequences, particularly on issues related to the relationship between human dignity and the fundamental rights, even though the qualification of the said principle as a fundamental principle or right should not be overrated. In any case, its role as a legal principle, which is widely recognized, originated by the constituent power and within the structure of the norm, has not been perceived as conflicting with the idea of a fundamental right norm, quite on the contrary. After all, fundamental rights norms are displaying a twofold dimension, that is, as principles and rules.39 Thus, subjective and objective fundamental standings ought to be acknowledged directly on the basis of the principle of dignity, though it is not expressly written in the constitution, despite the presence of fundamental rights in the constitution whose generally founding framework is dignity, a point of view which is generally accepted in Brazil, even though not always explicitly. Therefore, the dignity of the human person has been regarded as a fundamental norm for individual rights, although the existence of a fundamental right to dignity40 has not necessarily been recognized. This feature, in fact, has already been acknowledged by the German Federal Constitutional Court when it has asserted that no human being should be denied the dignity of the human person, although the legal standing assigned to it, which demands protection and upholding, may be subject to violations.41 The actual right to dignity encompasses recognition, respect, protection, promotion and advancement of the human person.42 With regard to doctrine and the jurisprudence of the Brazilian SC, human dignity has been acknowledged as a fundamental right,43 besides its function as a fundamental principle in the constitution. This condition demands further development, as does the relationship of dignity and fundamental rights. In addition, the acknowledgement mentioned earlier 39

On the twofold trait of every fundamental right norm, see Robert Alexy: Theorie der Grundrechte, pp. 71–157, Frankfurt am Main 2006. In Brazil, emphasizing a similar trait to the dignity of the human person, see, e. g., Ingo Wolfgang Sarlet (note 17), pp. 81–90, and, more recently, Virgílio Afonso da Silva: Direitos Fundamentais. Conteúdo Essencial, Restrições e Eficácia, pp. 183 ff., São Paulo 2009. 40 As demonstrated by Béatrice Maurer : Notes sur le respect de la dignité humaine…or Petite Fugue Inacheveé Autour d’um Théme Central. In: Le Droit, Le Medicine et L’être Humain, Alain Sérieux et al. (eds.), p. 207, Aix-En-Provence 1996. 41 See, e. g., BVerfGE 87, pp. 209 (228), stating that even in cases of torture or unjust persecution, the human being still retains his dignity, although it has been violated. About the jurisprudence evolution upon the human dignity at the Constitutional Court in Germany, see Engelbert Niebler: Die Rechtsprechung des Bundesverfassungsgericht zum obersten Rechtswert der Menschenwürde. In: Bayrische Verwaltungsblätter (BayVwBl) 1989, pp. 737 ff., and, more recently, Dieter Hömig: Menschenwürdeschutz in der Rechtsprechung des Bundesverfassungsgerichts. In: Das Dogma der Unantastbarkeit. Eine Auseinandersetzung mit dem Absolutheitsanspruch der Würde, R. Gröschner und O. Lembcke (eds.), pp. 25–52, Tübingen 2009. 42 In Brazilian legal literature this point of view has been advocated by Ingo Wolfgang Sarlet (note 17), pp. 52–53. 43 It is important to mention that this point of view (human dignity as a principle and a fundamental right) is not entirely uncontroversial, because there are important scholars, like Luís Roberto Barroso: Dignidade da Pessoa Humana no Direito Constitucional Contemporâneo, p. 14, upholding that human dignity is an objective principle and the criteria to justify a certain result in the balancing process among two fundamental rights (www.luisrobertobarroso.com.br/ wp-content/uploads/2010/12/dignidade_texto-base).

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has been rather controversial and yields many complexities, particularly in the face of many of the fundamental rights enshrined in the Brazilian constitutional text. It must be emphasized that human dignity as a fundamental principle (and, to a certain extent, also a fundamental right) contributes to the conviction that article 1º, III FC enshrines not only (but also and above all) an ethical and moral declaration, but has also encompassed a legal positive norm with a formal and material constitutional status and, as such, undoubtedly produces effects and is to be enforced.44 On the other hand, human dignity is being considered as a fundamental legal value of the community besides being a legal principle (and a legal norm yielding an objective right).45 From this perspective, human dignity is a guiding basis of value for all fundamental rights and, in addition, for the legal order as a whole given its position as the highest axiological legal principle in the constitution, as many scholars have claimed.46 The Brazilian SC also follows this path, continuously stressing the idea that dignity is, in the Court’s own words, “a real source-value by which the whole legal constitutional order is structured and inspired in our country, and it expressively represents one of the founding grounds upon which our republican and democratic order finds dwelling in the positive constitutional law”.47 Although the distinction between principles and rules will not be addressed in this paper, the classification of legal norms as principles or rules may be asserted despite many dissensions about the concepts and enforceability of each category. I like to emphasize, though, how difficult it has been to find an accurate definition for the legal-normative trait regarding human dignity in literature and jurisprudence, therefore, acknowledging its enforceability in the constitutional order, particularly according to dominant opinions delivered by the Brazilian SC. In response to many critical voices against the framing of the human dignity as a fundamental principle, suggesting to reduce the scope and openness of dignity, it ought to be emphasized that the role of human dignity as a fundamental constitutional principle (even as a rule) will not repeal its role as a general fundamental value of the whole legal order; quite on the contrary: it grants the fundamental value greater efficacy and enforceability.48 While human dignity as a legal and constitutional principle is generally accepted in Brazil, its function as a rule has been rather modestly considered and developed in Brazilian Constitutional Law. Despite many dissensions on the concepts, this dimension has unfolded in specialized literature and has even implicitly ap-

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See, among others, Ana Paula de Barcellos: A eficácia dos princípios constitucionais. O princípio da dignidade da pessoa humana, Rio de Janeiro 2002, and (although refusing the autonomous fundamental rights condition), Luís Roberto Barroso (note 42), pp. 12–14. See, e. g., Ernst Benda: Menschenwürde und Persönlichkeitsrecht. In: Handbuch des Verfassungsrechts der Bundesrepublik Deutschland, Benda/Maihofer/Vogel (eds.), Vol. I, p. 164, 2nd ed., Berlin, New York 1994. Among others, see Klaus Stern: Das Staatsrecht der Bundesrepublik Deutschland, III/1, p. 23, München 1988, however, it has not been sought in this essay to address the controversial matter concerning the connection between the dignity of the person and the human life’s worth, since there are many scholars supporting that the last prevails. As an example, see the Summary in the HC 87.676/ES, Justice who delivered the opinion Cezar Peluso, decided 06.05.2008. See Ingo Wolfgang Sarlet (note 17), p. 86.

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peared in decisions of the SC.49 The absolute prohibition of torture in the FC is a good example of human dignity being applied as a rule (article 5º, III, FC). Another one is the existential minimum, according to which the dignity of the human person is applied as a ground for definite positive rights and as a restraint against the obliteration of positive rights already fulfilled. Those examples will be considered later on. Nevertheless, both examples address issues regarding the connection of human dignity with fundamental rights and guarantees and represent the varied functions of dignity in the legal-normative scope (principle and/or rule, depending on the case) under the constitutional order of Brazil. 3. HUMAN DIGNITY AND ITS FUNCTIONS IN THE BRAZILIAN CONSTITUTIONAL ORDER – STRESSING THE IMPORTANT CONNECTION WITH FUNDAMENTAL RIGHTS AND GUARANTEES 3.1. A TEMPLATE FOR THE CONSISTENCE IN MEANING AND THE SUBSTANTIAL LEGITIMACY OF THE CONSTITUTIONAL AND LEGAL ORDER It has been widely recognized that the dignity of the human person has many functions in the current constitutional order. Amongst these, it is precisely its function as a template for consistence in meaning and the legitimacy of the whole public order which is being portrayed as most important.50 According to Justice Carlos Ayres Britto, the founding principles contained in Article 1 FC – among them human dignity – “represent the ground, or the logical a priori of the Brazilian State edification and limitation… In figurative language, the foundations of our republic are the chromosomes in which similar to the threadlike DNA in genes, the genetic inheritance of the Brazilian State can be found”. That signifies a duty to interpret all the legal order according to the said foundations.51 Further evidence of this function could be found in Brazilian Courts, especially in the rulings of the SC, according to which human dignity is frequently being applied as a hermeneutic touchstone. In this function, dignity works as grounds for pacifying controversies, interpreting legal norms. However, the increased number of decisions may not always correspond to a consistent reasoning. Indeed, many decisions which refer to an alleged violation of dignity, neither an argument to show what underlying thoughts about human dignity have been present in the opinion, is developed. Nor is a rationale being elaborated, by which a specific kind of behavior has been claimed to be violating human dignity. These decisions have been negatively contributing to the development of the legal principle, depreciating its concept rather than supporting its efficacy and enforceability despite the noble intentions of the judge. As many decisions referring to the dignity clause have regarded dignity as a fundamental right and guarantee, I shall further emphasize the 49 50 51

See, e. g., Virgílio Afonso da Silva: Direitos Fundamentais. Conteúdo Essencial, Restrições e Eficácia, pp. 183 ff., São Paulo 2009. Winfried Brugger (note 5), pp. 5 ff. Carlos Ayres Britto (note 2), p. 187. In the supreme Court jurisprudence, see, for instance, Habeas Corpus n. 94163, decided 02–12–2008, where the interpretation of Penal Execution Procedures Statute was being discussed in the light of the dignity of the human person principle.

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function of the human dignity principle in this context as an interpretation criterion, starting with the controversy around the fundamental rights content in dignity and its justification for fundamental rights. 4.2. HUMAN DIGNITY AS THE GROUND FOR AND AS THE CONTENT OF FUNDAMENTAL RIGHTS Even though not every fundamental right can be directly deduced from dignity52 and the dignity-content of fundamental rights is subject to variation,53 the function of human dignity as a fundamental and cornerstone principle has not been undermined and can still give consistency to the meaning of the constitutional system of fundamental rights, even if, at the same time, it leads to the possibility of an openness of the constitutional rights catalogue.54 Nevertheless, the idea according to which the human dignity clause conveys consistency of meaning to the fundamental rights system has not been fully accepted, for there are still some troubling issues, starting with the great variety of contents and dimensions attributable to the notion of the human person’s dignity itself, and its connection to fundamental rights.55 The conception according to which many fundamental rights are grounded on human dignity has been regarded as a “duality of uses”, whereas human dignity is understood as a (fundamental) right to the protection and promotion of dignity. The assertion was that dignity is applied as the ground for fundamental human rights and at the same time as their content.56 While acknowledging that not every fundamental right is grounded on human dignity, Ignácio Gutiérrez-Gutiérrez’s observes that the recognition of the enforceability and inviolability of the dignity of the human person hinges upon its capability to mingle with the dogmatic context of fundamental rights, particularly due to its capability of systemic openness. This openness reveals its full potential thanks to the possible permanent historical development and reconstruction of human dignity.57 Nevertheless, the number of fundamental rights found in the FC and their contents indicate that there is no way to support the idea that the content of all fundamental rights can be derived from human dignity and that every right is directly based on human dignity. Also, in Brazilian constitutional law, the identification between the rights associated with dignity and the so called “essential core” of fundamental rights (that always exist) cannot be supported with consistency. Some examples shall illustrate this. The right to a 13th salary and the one third gratification in the vacation period, both fundamental labor rights in the Brazilian Constitution, 52

53 54 55 56 57

Similarly, addressing additional reasons to justify the absence of an essential and direct link between dignity and every fundamental right, see José de Melo Alexandrino: A Estruturação do sistema de direitos, liberdades e garantias na Constituição Portuguesa, Vol. II, pp. 325 ff., Coimbra 2006. See, among others, José Carlos Vieira de Andrade: Os Direitos Fundamentais na Constituiçao Portuguesa de 1976, pp. 101–2, Coimbra 1987. Jorge Reis Novais (note 7), pp. 52–53. José de Melo Alexandrino (note 51), pp. 306 ff. Jeremy Waldrom: Dignity and Rank. In: European Journal of Sociology (2007), pp. 203–204. Ignacio Gutiérrez-Gutiérrez (note 37), p. 21.

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illustrate the issue at stake, for their written structure, in abstract, hardly indicates any content directly drawn from human dignity. Thus, asserting the human dignity as the ground and the content of every fundamental right would make sense only if a material concept of those rights was adopted. Then these rights would meet the requirements drawn from human dignity. However, this is a deficient concept under the Brazilian constitutional context and, as such, does not protect the fundamental rights efficiently. On the other hand, human dignity plays an important role for the identification of fundamental rights situated in other parts of the constitutional text, an issue that will now be examined. 4.3. THE HUMAN DIGNITY AND THE SO CALLED “SUBSTANTIAL OPENNESS” OF THE CONSTITUTIONAL SYSTEM OF FUNDAMENTAL RIGHTS AND GUARANTEES

The overarching relevance of the human dignity clause for the constitutional order has been shown in the connection it establishes with fundamental rights, particularly in its function as a criterion to substantiate a decidedly open concept of fundamental rights. Indeed, the openness of the fundamental rights catalogue in the FC has emerged from the constitutional evolution of the preceding texts (since the Proclamation of the Republic in 1891) and from the strong influence of the IX Amendment of the US-Constitution, a lesson which always ought to be remembered. In other words, besides the rights and guarantees expressly written in the constitutional catalogue there are more fundamental rights and guarantees in other parts of the constitutional text (this means, not in Title II) and, in addition, there are rights and guarantees found in international treaties of human rights which have been internalized in the Brazilian constitutional system. Moreover, according to the explicit reference to the said openness in article 5th, 2nd paragraph of the FC, the system accepts the existence of rights (albeit not expressly written in the constitutional text) regarding the regime and principles of the Constitution. Although disputed, the constitution shows a way to deduce implicit fundamental rights from those explicitly written in the constitution.58 Although observing that everything which is included in the constitutional text could be – directly or indirectly – connected with dignity as a value, particularly given the high level of indetermination and polysemy of the principle and notion of human dignity itself, I shall emphasize that whenever it is possible to identify a legal standing directly grounded in human dignity, it is drawn upon a fundamental right norm. However, other elements may play an important role in this identification, i. e. the legal standing, and also a case study could differentiate this result. This line of thinking has been followed by the Brazilian SC when it recognized fundamental rights prescribed in the constitution randomly, or even implicit fundamental legal standings which are presumably connected to human dignity. The same goes for the applicability of the human dignity clause in construing the contents and 58

Discussing the meaning and content of article 5th, paragraph 2nd of the Brazilian Constitution, and the classification of fundamental rights and guarantees from the perspective of that provision in the Constitution, see Ingo Wolfgang Sarlet: A Eficácia dos Direitos Fundamentais. Uma teoria Geral dos Direitos Fundamentais na Perspectiva Constitucional, pp. 78 ff., 10th ed., Porto Alegre 2009.

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scopes of fundamental rights in the constitution in accordance with international treaties of human rights. The views of the Brazilian SC could be illustrated with some examples. The first is a fundamental right to environmental protection which has been acknowledged, although this protection is prescribed in the FC under the heading “Social Order” and the existence of a subjective right has been deemed controversial, particularly in comparative law.59 Another example can be found among the so called implicitly prescribed rights (duly construed from the system and principles in the constitution), namely the personality rights. In this sense, a fundamental right to the name and to the parenthood status have been asserted and protected in a Judicial Decision which had stated that “the right to a name takes part in the contents of the human person’s dignity for it represents the identity of the person, the origins of his ancestry, the insertion in a family lineage, therefore, the filial relationship is an inalienable right”.60 The Brazilian SC has also asserted a right to resocialization of convicts, grounded in the conception that the right to be reintegrated into society, to live freely and responsibly must be guaranteed to prisoners.61 In the domain of social rights, the SC, in several decisions, recognized a right to an “existential minimum”, derived from the connection between the right to life and human dignity (a right to a life with dignity or to a decent life), also showing how the notion of human dignity obtained practical relevance in this context.62 Finally, in a very recent decision, the SC, while assuring constitutional protection to same-sex partnerships, also mentioned an implicit right for everyone to pursue a happy life, a right that – according to the court – can be derived from the human dignity principle.63 4.4. HUMAN DIGNITY AND THE NEGATIVE AND POSITIVE DIMENSION OF FUNDAMENTAL RIGHTS NORMS The dual function of human dignity, as anticipated, has been recognized throughout the legal and constitutional evolution in Brazil, thus, human dignity has been enforced as a limit for State and third party interventions (either as a protection against a self-harm behavior). It is also a legal duty for the State to actively protect dignity against interventions from the state or third parties. This includes the fulfill59

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ADIN 3.540–1/DF, Justice who delivered the opinion, Celso de Mello. See, in Brazilian doctrine, addressing the issue of the twofold dimension of environmental protection (as both a fundamental right and a fundamental duty), e. g., Fernanda Luiza Fontoura de Medeiros: Meio Ambiente. Direito e Dever Fundamental, pp. 32–3, Porto Alegre 2004; Anízio Pires Gavião Filho: Direito Fundamental ao Ambiente, Porto Alegre 2005; Orcy Paulino Bretanha Teixeira: O Direito ao Meio Ambiente Ecologicamente Equilibrado como Direito Fundamental, Porto Alegre 2006; Tiago Fensterseifer: Direitos Fundamentais e Proteção do Ambiente, Porto Alegre 2008. RE n° 248.869–1 (07.08.2003), Justice who delivered the opinion, Maurício Corrêa. The argument is perfectly illustrated in HC 94163, decided on 2 December 2008, The Justice who delivered the Opinion was Carlos Ayres Britto, who, in sum, has asserted that the escape from prison, albeit interrupting the period serving the sentence, cannot be used as grounds to bypass the number of days worked in prison by the detainee and its effects in reducing the time sentenced. See, for instance, ARE 639337 AgR/SP, Justice Celso de Mello, 23.08.11. RE 477554 AgR/MG, Justice Celso de Mello, 16.08.11.

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ment of conditions according to which the complete enjoyment and realization of dignity can be attained, especially in circumstances when persons enjoy help from the state and/or the community ensuring their access to and the protection of their basic existential needs. As Karl-Heinz Ladeur e Ino Augsberg have shown, human dignity – in its negative dimension – resembles a sort of “stop sign”, that is, an absolute barrier which ought to be observed even by state agents. In this dimension, it protects the individuality and the autonomy of the person against any kind of intervention from state or society and secures the human being’s entitlement to rights.64 Thus, human dignity is understood in the perspective of a defensive right whose content is both the proscription of any intervention in the sphere of personal freedom of each person and the safekeeping of the physical and psychological integrity over any State actions or private conducts. As the basis for positive rights human dignity contains both, an approximation of the idea of an “existential minimum” and, in a narrower scope, of social rights as social obligations of the State. Finally, in a broader sense, it provides positive rights which, as Robert Alexy asserted, also entail an obligation to act in a way not typically social.65 Moreover, the twofold dimension of the duty to protect (and promote) and the duty not to interfere gives rise to the duty to implement precautionary measures of procedural and organizational nature, so that a violation either of the fundamental rights or dignity itself would have been shunned, or reduced and stopped if violations could not be prevented.66 On the other hand, it is important to emphasize that all fundamental rights – and also human dignity – have been revealing the twofold dimension, as defensive and positive rights, with regard to their content in human dignity, even if human dignity has been taken as an autonomous right. From the perspective of a connection of dignity and fundamental negative and positive rights, the Brazilian SC has made several decisions. Some examples: A set of court decisions, in which the dignity of the human person is interpreted as a rule proscribing certain conducts, prohibit torture or any other kind of inhuman and degrading treatment of the human person found in the FC (article 5th, III). This corresponds to the underlying notion exposed in the key-features of human dignity, thus defining, to some extent, the core content the human dignity principle, understood as a defensive (negative) right. Many examples have been produced after the promulgation of the Brazilian Federal Constitution. However, it is worth noting that in a case dealing with torture committed by the police force against children and adolescents, the Brazilian SC stated an absolute prohibition of torture,67 hence asserting the notion of the dignity of the human person as an inviolable legal limit, although breakable in practice. The summary of the decision has upheld a view according to which torture is (as an illegitimate, immoral and 64 65 66

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Karl-Heinz Ladeur / Ino Augsberg: Die Funktion der Menschenwürde im Verfassungstaat, pp. 10– 12, Tübingen 2008. For the Brazilian constitutional law, see Ingo Wolfgang Sarlet (note 57), pp. 168 ff. See, e. g., Stephan Rixen: Die Würde und Integrität des Menschen. In: Handbuch der Europäischen Grundrechte, Sebastian Heselhaus / Carsten Nowak (eds.), p. 355, München, Wien, Bern 2006. HC n° 70.389-SP, Justice who delivered the opinion Celso de Mello, journal entry 23.06 1994.

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abusive practice) “an unacceptable violation of the dignity of the human person and, in addition, “it is an arbitrary disavowal of human rights, since it represents an action of the State towards stifling and suppressing the dignity, autonomy and freedom which the person is inalienably entitled to according to the written legal order”. It is on this line of argument that the SC does not find human dignity subject to restrictions or waiving. However disputable, this gives human dignity an absolute character.68 A similar argument rejects the use of human beings as mere objects of the state. This led to the controversial Súmula Vinculante n.º 11 – a kind of normative and generally binding judicial precedent – stating the need to justify the necessity of using handcuffs – a duty of police and judicial authorities. Although strongly debated and despite good arguments against the SC ruling, the prohibition has mainly sought to establish a check on humiliating acts against people regarding the police and criminal justice procedures. The SC acknowledged, however that the handcuffed person is already subjugated and exposed. With respect to social rights, particularly when the so called “existential minimum” is at stake (a set of conditions which guarantees to each person a life with dignity, that is, with a certain quality), the negative dimension of human dignity is also present in the sense of a duty not to act or interfere. This has been shown in decisions of the SC in which the confiscation (or state acts with confiscation effects) was held to be illegal69: An illegitimate seizure which deprives the person of her access to the quality basis of a healthy life, hence protecting the “existential minimum” against taxation, or decisions where the interruption or suppression of certain benefits of “existential trait” provided by the State are prohibited (or their reestablishment ordered). Considering now the positive dimension of human dignity and its connection with the (positive) right to an “existential minimum”, the SC recognizes a duty of the state to take social measures and benefits guaranteeing the “existential minimum”. Correspondingly, citizens are entitled to a justiciable right to claim the “existential minimum” and thereby be protected in their dignity. Regarding the right to health and the right to education there is a great number of decisions in the SC asserting a constitutional duty of the State to provide such rights independently of a legislative advancement in creating public policies or simple provisions of law. However, there have been no decisions granting the right to housing and proper shelter as an obligation of the State. Consider, for example, decisions according to 68

69

With respect to the argument addressing the possibility to create a restriction for the dignity of the human person as a principle and norm which grants fundamental rights, see, e. g., my arguments in Ingo Wolfgang Sarlet (note 17), pp. 149–169. In Germany the controversy about the absolute or relative character of human dignity (as a rights or/and a principle) has been intense. Just to mention two recent and important contributions, see Rolf Gröschner / Oliver Lembcke (eds.): Das Dogma der Unantastbarkeit, Tübingen 2009, containing articles from different scholars and points of view, and, more recently, Nils Teifke: Das Prinzip Menschenwürde, Tübingen 2011. See, as an illustration, RE 397744, the Justice who delivered the opinion was Joaquim Barbosa, who has asserted that the proscription of illegal confiscation in tributary Law is mostly grounded in the right to have a life with dignity through, for instance, a professional activity which is capable of providing the person’s vital needs as health, education and housing (decided 15.10.2009).

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which children who are younger than six years old are entitled to a right to free access to kindergarten supported by the government. Other important decisions regard the right to health, setting aside bureaucratic and financial70 limitations to prioritize the fulfillment of the right to life and dignity. Further aspects related to the issue concerning the justiciability of social rights will not be addressed in this paper.71 With regard to the positive dimension of human dignity, the aforementioned decisions have shown that it difficult to clearly determine the criterion justifying the connection between the “existential minimum” as a basis for rights fulfillment and the assertion of a link between the human dignity and social rights as positive rights. This holds although the SC has frequently recognized rights which comply with the “existential minimum” requirements, nor is the extent of “existential minimum” evident. Taking into consideration the diversity of state aid measures, it has been argued that the SC supports an extensive interpretation of the said rights. That is to say, the court acknowledges rights beyond a “simple maintenance of life” (what is called the “physiological existential minimum”), thus granting the “existential minimum” as a right to the development of personality, which encompasses what has been qualified as the “sociocultural existential minimum”.72 4.5. HUMAN DIGNITY AS A LIMIT, AS A LIMIT OF THE LIMITS TO FUNDAMENTAL RIGHTS AND AS AN INTERPRETATIVE STANDARD FOR FUNDAMENTAL RIGHTS NORMS. The dignity of the human person is enforced in the jurisdiction of the SC, particularly when it stands in connection with other fundamental rights as the grounds (material criterion) for justifying the constitutional legitimacy of limiting the enjoyment of fundamental rights. Similarly, many rulings of the SC acknowledge fundamental rights content in dignity and use it to justify a limitation of the limitation of these rights. Here, the content of dignity is applied in order to create a cutting edge for the limitations drawn by some measures aiming at the protection and promotion of other fundamental rights with a stronger or weaker connection to the dignity of the human person. Although a consistent doctrine of the SC on this issue cannot be ascertained, human dignity is related to both, the fundamental rights’ essential content and the applicability of the proportionality principle. The latter is generally 70

71

72

See, as an illustration, RE 573061, decided 28.08.2009, Justice who delivered the opinion Carlos Britto, a decision which has addressed the continuance of the Program HUCAN, regarding the clinical and psychological support for people who are seeking transgender surgery as a therapeutic procedure to assess its viability, a right which was acknowledged in inferior jurisdiction and confirmed by the SC. See, e. g., Ingo Wolfgang Sarlet / Luciano Benetti Timm (Org.): Direitos Fundamentais, Orçamento e “Reserva do Possível”, Porto Alegre 2008, and, similarly, Cláudio Pereira Souza Neto e Daniel Sarmento (Coord.): Direitos Sociais. Fundamentos, Judicialização e Direitos Sociais em Espécie, Rio de Janeiro 2008, works presenting diversified views and qualified doctrine about the subject. See Ingo Wolfgang Sarlet, (note 57), p. 320. In specialized literature, see, e. g., Ana Paula Barcellos: O Mínimo Existencial e Algumas Fundamentações: John Rawls, Michael Walzer e Robert Alexy. In: Legitimação dos Direitos Humanos, Ricardo Lobo Torres (ed.), Rio de Janeiro 2002. Ricardo Lobo Torres: O Direito ao Mínimo Existencial, Rio de Janeiro 2008 and Eurico Bittencourt Neto: O Direito ao Mínimo para uma Existência Digna, Porto Alegre 2010.

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placed in the broader context of limits and restrictions of fundamental rights, particularly regarding collisions between fundamental rights. The context of collision between fundamental rights is frequently illustrated by a case which has been decided by the SC as the Habeas Corpus nº 71.374–4. The Justice who delivered the opinion was Francisco Rezek73 whose arguments addressed issues concerning the possibility to serve with a writ of subpoena the alleged father, the defendant in a paternity action, in order to submit him to a blood test in a lab, so that the paternity of the plaintiff could be confirmed. A minority opinion in the Court, especially by the justice who delivered the opinion, asserted the nonabsolute trait of a right to the sanctity of the body and the relativity of the right to physical or corporal integrity. Accordingly, they held that the blood test would not be disproportionate if weighed against the right of the plaintiff to know his parental origins, his biological heritage and its financial consequence in alimony support. The majority, however, followed arguments drawn by Justice Marco Aurélio and asserted that “the party’s refusal might be redressed not by physical violence, which violates human dignity, but under the procedural rulings of the judge in the competent court – that is, the court where the paternity action proceedings were held – which would analyze and adjudge the case appraising each piece of evidence in it in contrast to the defendant’s refusal. This case is not comparable to others when the public interest superimposes individual interests, such as cases of mandatory vaccination in times of epidemic, or when the protection of human life is at stake in those well-known cases of religious beliefs which would enshroud rationality”. Ruling with the majority, Justice Moreira Alves asserted that the plaintiffs had a dispositive right, but the defendant had an inalienable exclusive right, and Justice Neri da Silveira proclaimed that the body and its intimacy are sacred and there would be no legal justification for a writ of subpoena to order that the defendant perform the blood test. Although I will not discuss pros and cons of the case, it is important to state that dignity has been strengthened in the context of rights collision and the limitation to limits applied to fundamental rights, which means that dignity prevails when it conflicts with the right to know one’s biological paternity as long as other means can be found to fulfill the plaintiff ’s rights. More and more cases discuss the identification of the content in dignity of other fundamental rights. A higher level of protection of rights is achieved if an interpretation “according to dignity” is adopted to outline legal institutes involving restrictions of rights, so that the scope of protection of some fundamental rights and guarantees may be established more extensively. This debate has been illustrated by decisions in which violations of dignity could be eventually demonstrated in particular circumstances, suggesting the withering of legal rules enforceability. Take, for example, the ruling in the Habeas Corpus n.º 83.358–6/São Paulo, where the possibility to satisfy a penalty of deprivation of liberty in a house arrest regime because the convict was an elderly person has been claimed, even though he was convicted for indecent assault, grounded on the fact that the elderly person’s health condition had been deteriorating. Although the SC has declined the argument that the exceptionality of circumstance has not been

73

Habeas Corpus n° 71.373–4/130 – RS, Reporter: Francisco Rezek, journal entry 22.11.1996.

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sufficiently proven, as in other judgments74, it acknowledges that merely “the conviction of crimes legally defined as heinous does not mean an absolute impossibility to grant a house-arrest measure. Dignity of the human person, and in particular the dignity of the elder, will always have a predominant place in the rationale of its condition as a fundamental principle of the Republic”. On the other hand, the aforementioned case has provided that granting the claim made (as an exception to the rule) would be justified only if the dignity concerned was really being violated, or suffering and attempted violation had not been present. Thus the Court summarizes, “there is a threat to dignity when the convicted is an old person and suffers from a severe health condition demanding special care, which is a completely exceptional circumstance, since the special care cannot be provided in jail or in an adequate healthcare facility”. 5. FINAL REMARKS The Brazilian constitutional jurisprudence presented in this paper has depicted some examples of a much greater group of decisions from the Supreme Court in which human dignity has been invoked as the main footing or as a secondary argument to address controversies presented to the Court. The numbers of these cases have increased since the promulgation of the FC, thus showing that in Brazil, also in cases of uncertainty of how to proceed or decide, the interpreter should apply the solution compatible with the demands of human dignity. He should do so even if he is “balancing interests/rights/values”,75 or making use of other argumentation. The precise content of those demands is still unclear, however, since precisely the complexity of the content of dignity and fundamental rights provides a similar obstacle in identifying a sustainable meaning of the principle of human dignity. Therefore, the more the dignity of the human person has been present in the arguments connected to its enforceability, particularly in legal procedures and actions mainly in cases related to the acknowledgement of fundamental rights, their limits and restrictions, the more caution ought to be adopted in the argument. As Gomes Canotilho has asserted, dignity and fundamental human rights have been understood as the source of background ideas of a constitutional community which is republican and inclusive and, in addition, inevitably guided by the World’s view of multiculturalism and its incompatibility with any petrified thinking76, but dignity 74 75

76

See, e. g., HC 86.875, Reporter Justice Cezar Peluso, decided 07.10.2005. See, in Brazilian literature, e. g., Daniel Sarmento: A Ponderação de Interesses na Constituição Federal, Rio de Janeiro 2000; Luís Roberto Barroso (ed.): A Nova Interpretação Constitucional. Ponderação, Direitos Fundamentais e Relações Privadas, Rio de Janeiro 2003, Ana Paula de Barcellos: Ponderação, Racionalidade e Atividade Jurisdicional, Rio de Janeiro 2005. From a critical rationale standpoint towards the balancing methodology and the applicability of the proportionality principle in this context see, amongst many other contributions, Lenio Luiz Streck: Verdade e Consenso. Constituição, Hermenêutica e Teorias Discursivas. Da possibilidade à necessidade de respostas corretas em direito, Rio de Janeiro 2007, as well as Álvaro Ricardo Souza Cruz: Hermenêutica Jurídica e (m) Debate, Belo Horizonte 2007. José Joaquim Gomes Canotilho: Direito Constitucional e Teoria da Constituição, p. 225–26, 2004, addressing the conception of the dignity of the human person as the essential core of the Republic.

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and fundamental rights may also be applied in a threatening rhetoric or even as fundamentalist manipulation, when they become instruments for fulfilling personal and inflexible interests which would result in the so-called “tyranny of dignity”.77 This is precisely what must be avoided in order not to allow that the human dignity principle can be used as a weapon against itself and against humanity.

77

See, e. g., Ulfrid Neumann (note 30), pp. 153 ff.

EDWARD J. EBERLE, BRISTOL, RI* HUMAN DIGNITY

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AMERICAN CONSTITUTIONAL LAW

1. INTRODUCTION The quest for human dignity in modern society is a noble but elusive goal. Difficult to define,1 difficult to realize, personally or socially, dignity nevertheless remains a defining trait of human character, and a preeminent ideal of western society. From the perspective of an individual, dignity might be thought of as the ability to pursue one’s rights, claims or interests in daily life so that one can attain full realization of one’s talents, ambitions or abilities, as one would like. That is one path to satisfaction, social recognition and stature, certainly attributes of dignity. This might be thought of as self-realization, although that is not the only conception of dignity. What matters here is that each person should be free to develop his own personality to the fullest subject only to restrictions arising from others’ pursuit of the same.2 Of course, there must be some limit to individual freedom if society is to function in a reasonably orderly manner. Thus, from the standpoint of society, individual aspiration must be measured against the demand for order, peace and social harmony. This balance between the aspiration of individual freedom and the demands of organized society has been a central quest of modern constitutional law. This article takes up these themes by exploring the concept of human dignity, as reflected in the legal order of America. America is a highly developed, advanced industrial society, coping with change and technological revolution; and striving to meet the aspiration of individual freedom within a stable social construct. *

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2

This article is a condensed version of Human Dignity, Privacy and Personality in German and American Law, 1997 Utah Law Review 963, Copyright 1998, Edward J. Eberle, All rights reserved. All translations are mine unless otherwise noted. In western thought, the most definitive elaboration of the concept of human dignity is in the work of Immanuel Kant, especially his seminal Immanuel Kant: Foundations of the Metaphysics of Morals, p. 39, L. W. Beck trans., 2nd ed., New York 1959 (“Act so that you treat humanity, whether in your own person or in that of another, always as an end and never as a means only”). Recently, there has been a renaissance in the influence of Kantian thought, as a counterweight to utilitarianism. This is most pronounced in the work of John Rawls: A Theory of Justice, Cambridge, MA 1971 and John Rawls: Political Liberalism, New York 1993. There are other conceptions of dignity too. Consider, for example, the work of Ronald Dworkin: Taking Rights Seriously, Cambridge, MA 1977 (developing theory of human rights as part of dignity) and Ronald Dworkin: Law’s Empire, Cambridge, MA 1986; or Robert Nozick: Anarchy, State and Utopia, New York 1974 (arguing from natural law tradition of John Locke). This is fundamentally a Kantian thought that each moral agent should develop their talents to the maximum extent compatible with the freedom of others. Note, for example, its use in John Rawls (note 1), p. 60: “Each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others”. Anthony Sampson similarly voiced these thoughts, in Anthony Sampson: The Changing Anatomy of Britain, p. 160, New York 1982: “What matters… is that each man should be free to develop his own personality to the full; and the only duties which should restrict this freedom are those which are necessary to enable everyone else to do the same”. For Kant, the concepts of freedom, development of moral personality, reverence of the moral law and treating people as the final end are interlinked.

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Human dignity is, of course, an elusive concept to define. We will explore how persons are free to develop their own personalities. A person might choose, for example, to be let alone as master of his realm. Or, one might engage vigorously in the affairs of the day. In America the topic is privacy rights, including the zone of personal autonomy that emanates therefrom. In America, the Supreme Court has long secured the role of declaring out of the fabric of the Constitution certain fundamental values for the social order. By exploring this concept of human dignity in a constitutional order, insight can be derived as to the quality of the human condition, the reach of individual freedom, and the make up of the social order. The particular traits, activities or essences sought to be realized by each country reveals something important about human personality as it relates to society. Likewise, the limitations on freedom articulated are instructive of the social structure sought to be created. In short, the balance struck between individual freedom and the social order illuminates the legal culture. Part 1 provides an overview of human dignity in the American constitution, mainly personality rights. Part 2 explores constitutional issues central to identity, self-determination and autonomy in American law. In American law, self-determination has encompassed control over procreation, conception, marriage and child rearing to name a few. 2. HUMAN DIGNITY

AND

PERSONALITY

IN

AMERICA

The American Constitution simply provides the outline for government, concentrating on limiting official power. The American conception of rights lacks any claim to governmental action. Under American law, text, structure, history and Framers’ intent are thought to lend predictability and stability to the law. Moreover, in the area of unenumerated rights,3 the Supreme Court has sought to anchor its decisions in timeless concepts, like justice or natural law, to avoid the appearance of judicial bias or result-orientation.4 American law has never really sought to define human dignity, nor human personhood or personality. Certainly there have been sketches of these concepts in American law, particularly in procedural due process,5 substantive due process6

3

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5 6

By unenumerated rights, I mean the range of fundamental rights beyond the explicit ones set forth in the first eight amendments to the Constitution. In this article, I use the term unenumerated rights synonymously with modern substantive due process or its subset, rights of privacy. See, e. g., Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (“We deal with a right of privacy older than the Bill of Rights.”); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (“We are dealing here with legislation which involves one of the basic civil rights of man” -- marriage and procreation). See, e. g., Goldberg v. Kelly, 397 U.S. 254, 264–65 (1970) (“From its founding the Nation’s basic commitment has been to foster the dignity and well-being of all persons within its borders.”). Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851 (1992) (“These matters [decisions relating to marriage, procreation, etc.], involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment”).

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and capital punishment7 cases. Moreover, in recent time, the Warren Court, and particularly Justices Brennan and Marshall, sought to give life to these concepts.8 More recently, human dignity turns up with some regularity in the Supreme Court’s discussions, particularly over autonomy rights, and might even be considered a background theme of American law.9 But American law does not exhibit the same systematic attempt to come to basic definitional certitude as German law.10 In comparison to the relatively specific framing of human dignity and its cognates in the Basic Law, it is striking how devoid of detail the American constitution is. The Privileges and Immunities Clause protects certain national rights, including the right to travel from state to state and obtain instate benefits, like welfare.11 There are only two other textual pieces of support for this endeavor: the due process clause and the ninth amendment. The ninth amendment was not invoked by the Court until 1965 in the famous Griswold v. Connecticut case, and then only to lend support to the Court’s enumeration of a right of privacy beyond the constitutional text.12 Not surprisingly, therefore, the Court has mainly relied on the Due Process Clause, which provides that no “State (shall)… deprive any person of life, liberty, or property, without due process of law,” to found basic rights.13 Through Due Process, 7 8

Furman v. Georgia, 408 U.S. 238 (1972). McClesky v. Kemp, 481 U.S. 279, 336 (1987) (Brennan, J., dissenting) (“Considering the race of a defendant or victim in deciding if the death penalty should be imposed is completely at odds with (the) concern that an individual be evaluated as a unique human being.”); Miranda v. Arizona, 384 U.S. 436 (1966); Rosenblatt v. Baer, 383 U.S. 75, 92 (1966) (Stewart, J., concurring) (“The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being -- a concept at the root of any decent system of ordered liberty”). 9 See Casey, (note 6); National Treasury Employees Union v. von Raab, 489 U.S. 656, 681 (1989) (Scalia, J., dissenting) (“In my view the Customs Service rules are a kind of immolation of privacy and human dignity in symbolic opposition to drug use”). 10 There are several explanations for this. First, dignity is textually mandated in article one of the Basic Law, whereas it is not mentioned in the American Constitution and, instead, must be implied from the promised of liberty in the Due Process Clause. Second, German law reflects the civil law orientation toward abstraction, systemization and classification, whereas American law reflects the common law orientation toward pragmatism and concreteness. 11 Saenz v. Roe, 526 U.S. 489 (1999). Saenz effectively resurrected the Privilege and Immunities Clause, which had long been rendered a dead letter with The Slaughter House Casse, 83 U.S. (16 Wall.) 36 (1873) (noting national rights like freedom to peaceably assemble, petition, writ of habeas corpus, and use of navigable waters). Modern cases have cautiously interpreted a certain range of freedom in the Article IV Privileges and Immunities clause. See, e. g., United Building & Construction Trades Council v. Camden, 465 U.S. 208 (1984) (protecting national citizenship against set aside work program imposed by municipality to protect residents); New Hampshire v. Piper, 470 U.S. 274 (1985) (rule limiting bar admission to state residents violates privileges and immunities); Hicklin v. Orbeck, 437 U.S. 518 (1978) (residential hiring preference violates privileges and immunities). 12 381 U.S. 479 (1965) (relying on ninth amendment, and other amendments, for penumbras emanating from such specific guarantees). See also id., 493 (Goldberg, J., concurring) (“the Ninth Amendment… lends strong support to the view that the liberty protected by the Fifth and Fourteenth Amendments… is not restricted to rights specifically mentioned in the first eight amendments.”). 13 See, e. g., Roe v. Wade, 410 U.S. 113 (1973) (“This right of privacy, whether it be founded in the Fourteenth Amendments concept of personal liberty, as we feel it is, or in the Ninth, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”). Other

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the Court has interpreted a range of privacy and autonomy rights which protect personal decision-making in areas relating to marriage,14 procreation,15 contraception,16 family relationships,17 child rearing and education.18 The movement of both Courts thus seems very much in the same general direction, notwithstanding different textual, historical, philosophical and cultural settings. American law lacks this focus on the inner self. The American concern is much more with rights of autonomy and self-determination in relation to the world, such as those that relate to marriage, procreation,19 abortion20 or child rearing.21 This may reflect the American preoccupation with public life, which itself may reflect the influence of the central role democracy (and its emphasis on public participation) plays in our society, historically and today. It may also reflect our constitution’s preoccupation with organizing and limiting government, leaving unspecified areas to individual choice, without elaboration, in contrast to the German enumeration of the parameters of that choice. In the United States, there is no comprehensive constitutional concept of a general freedom of action, entitling persons to do what they like within the constraints of the social order.22 This concept is more likely to be handled under general private law concepts, like tort, contract or property, or pursuant to the criminal law. As a whole, therefore, ordinary American law maps out the zone for general freedom of action. At the constitutional level, additionally, the American approach under modern substantive due process has been much more selective, focusing on identifying those personal freedoms thought to be “fundamental,” “implicit in the concept of ordered liberty”23 or “deeply rooted in the Nation’s history and tradition,”24 to name a few of the formulas. Under these constructs, the Court has deemed “fundamental” activities relating to control over one’s life, such as marriage,25 procreation,26

14 15 16 17 18

19 20 21 22 23 24 25 26

cognates of privacy could be found in the Third Amendment’s prohibition against “quartering troops in any house” and the Fourth Amendment’s “right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” Griswold v. Connecticut, 381 U.S. 479 (1965). Skinner v. Oklahoma, 316 U.S. 535 (1942). Carey v. Population Services International, 431 U.S. 678 (1977); Eisenstadt v. Baird, 405 U.S. 438 (1972); Griswold, 381 U.S. 479 (1965). Moore v. East Cleveland, 431 U.S. 494 (1977) (city cannot limit occupancy of dwelling to members of same nuclear family). Pierce v. Society of Sisters, 268 U.S. 510 (1925) (state cannot mandate public school attendance when parents desire to send children to private school); Meyer v. Nebraska, 262 U.S. 390 (1923) (state cannot mandate teaching of only english in schools). Griswold v. Connecticut, 381 U.S. 479 (1965) (protection of marriage and procreation). Roe v. Wade, 410 U.S. 113 (1973). Pierce v. Society of Sisters, 268 U.S. 510 (1925). The closest textual authority for such general freedom would be the Ninth Amendment, which, as noted, the Court has refused to so broadly construe. Palko v. Connecticut, 302 U.S. 390, 325 (1937). Moore v. East Cleveland, 431 U.S. 494, 503 (1977); Griswold v. Connecticut, 381 U.S. 506. Loving v. Virginia, 388 U.S. 1 (1967). Skinner v. Oklahoma, 316 U.S. 535 (1942).

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contraception,27 or child rearing;28 or control over one’s body, such as abortion29 or the ability to withhold medical treatment.30 As in the German freedom of action cases, the American cases are, in a certain way, outer-directed, focusing on issues of personal autonomy and self-determination in relationship to the world. On the other hand, this aspect of American law differs from German freedom of action in that American “fundamental” rights also partake of an element of personal identity. Marriage, procreation, and contraception, for example, are more personal topics, and more revealing of identity, than foreign travel31 or riding in the woods.32 In this way, the American law has a certain resonance with the personal sphere of German law. A second focus of American substantive due process law has been the delineation of a certain zone of privacy, particularly in shielding disclosure of personal matters. This explains the privacy accorded the bedroom33 and the home34 in certain contexts. However, as with American autonomy law, rather than any general or comprehensive right, this law too has evolved narrowly, in response to discrete intrusions into individual privacy, usually amidst criminal prosecutions. At bottom, then, American law is episodic -- a judicial response to “substantial arbitrary impositions,”35 whereas German law is more systematic. Undoubtedly, this reflects the American common law methodology, even in constitutional law, itself a continuing influence of English law. The closest American constitutional case, in a substantive way, to the German concept of informational self-determination is Whalen v. Roe,36 which involved a patient-identification requirement in a statute providing for a centralized computer file of all persons who obtained drugs, both legal and illegal, pursuant to a doctor’s prescription. Although the Supreme Court recognized, like the Constitutional Court, that there was a “threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files,”37 the Court nevertheless held that “neither the immediate nor the 27 28 29 30

Eisenstadt v. Baird, 405 U.S. 438 (1972). Meyer v. Nebraska, 262 U.S. 390 (1923). Roe v. Wade, 410 U.S. 113 (1973). Cruzan v. Director, Missouri Department of Health, 457 U.S. 261 (1990) (competent people have constitutionally protected liberty interest in refusing unwanted medical treatment, although such liberty interest may fall short of “fundamental” right and does not apply, in whole, to incompetent people, who must rely on substituted judgment of family members). 31 Elfes, BVerfGE 6. p. 32. 32 Rider in Woods, BVerfGE 80, p. 137 (1989). 33 Griswold v. Connecticut, 381 U.S. 479 (1965) (right to use contraceptives). 34 Stanley v. Georgia, 394 U.S. 557 (1969) (right to possess obscene material in privacy of home). 35 Poe v. Ullman, 367 U.S. 497, 542, 543 (1961) (Harlan, J., dissenting). The full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This “liberty” is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints. 36 429 U.S. 589, 591 (1977). 37 Id., 605. For example, the “collection of taxes, the distribution of welfare and social security benefits, the supervision of public health, the direction of our Armed Forces, and the enforce-

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threatened impact of the patient-identification requirements… is sufficient to constitute an invasion of any right or liberty protected by the Fourteenth Amendment.”38 The American Court hesitated to declare any substantive right, preferring to wait and see whether case law would present an actual intrusion into privacy rights. In this manner, American law, reflecting common law orientation, represents tentativeness not characteristic of German law.39 It is interesting to speculate why American law has not taken a turn similar to the Germans, even though, of course, the growth of data and data processing has paralleled and, indeed, eclipses that in Germany. Thus, the threats to human autonomy posed by the information age are at least equal, if not greater, than in Germany. Textually, the American Constitution seems about as illuminative of such a right as the German. The first amendment, for example, plausibly bestows certain rights to knowledge of how information, especially personal information, is to be gathered or used.40 The fourth amendment confers certain rights of privacy against discovery of personal information, especially that over which one has a “reasonable expectation” of privacy.41 The Due Process Clause protects against arbitrary intrusion into matters of personal security and liberty.42 Human dignity too has been a theme of the American Bill of Rights, including especially its cognates of self-deter-

ment of the criminal laws all require the orderly preservation of great quantities of information, much of which is personal in character and potentially embarrassing or harmful if disclosed.” Id. 38 Id., 603–04. Applying German concepts, “the Court should have applied the right of informational self-determination by first asking if the State had decided what it planned to do with the data. Although New York had recorded 100,000 prescriptions each month during the twenty months that the law had been in effect, it had used this information in investigations of exactly two persons… protection of human autonomy… require(s) judicial inquiry into the influence on the individual of having his personal information used in a specific system or indefinitely stored for future application.” Schwartz (note 85), 684. 39 The position of Justice Brennan most approximates the German one. He observes that an individual has a privacy “interest in avoiding disclosure of personal matters,” and that “Broad dissemination by state officials of such information… would clearly implicate constitutionally protected privacy rights.” Id., 606 (Brennan, J., concurring). Moreover, the “central storage and easy accessibility of computerized data vastly increases the potential for abuse of that information, and I am not prepared to say that future developments will not demonstrate the necessity of some curb on such technology.” Id., 607. However, Justice Stewart, responding to Justice Brennan, seems to articulate the sense of the Court in dampening any recognition of “a general interest in freedom from disclosure of private information.” Id., 609 (Stewart, J., concurring). 40 See, e. g., Roe v. Wade, 419 U.S. 113, 209 (1973) (Douglas, J., concurring) (“‘liberty’” as used in the Fourteenth Amendment (includes)… autonomous control over the development and expression of one’s intellect, interests, tastes, and personality.”); Shapiro v. Thompson, 394 U.S. 618 (1969) (Marshall, J., dissenting) (because education affects ability of child to exercise First Amendment rights, as receiver of information and ideas, there is intimate relationship between personal interest and exercise of rights justifying constitutional protection); Griswold v. Connecticut, 381 U.S. 479, 482 (1965) (“The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read and freedom of inquiry, freedom of thought, and freedom to teach….”). 41 Katz v. United States, 389 U.S. 347, 361–62 (1967); Murphy v. Waterfront Commissioner, 378 U.S. 52, 55 (1964) (“respect for the inviolability of the human personality”). 42 See, e. g., Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992) (“Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education”).

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mination and autonomy.43 Together, these rights would seem to convey a certain zone of privacy, which, it might be argued, cover informational privacy. In this way, a right to informational and self-determination plausibly could exist to safeguard human liberty and self-government in the information age. Yet, American law has not developed along these lines.44 Perhaps this is because the Supreme Court feels less compelled to address changing social and economic conditions. Perhaps this is because the Supreme Court feels more restrained in declaring rights to be fundamental in the absence of clear textual or historical support. Perhaps this is because Whalen, like all substantive due process cases, is anchored in privacy, not autonomy as Census Act, and privacy confers less power or control than autonomy. Perhaps it is because our Constitution is less endowed with an underlying philosophic base, as the influence of Kantian morality on the Basic Law, yielding correspondingly less substance. Perhaps the Supreme Court believes 43

44

See, e. g., Casey, 505 U.S. 851 (“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.”); National Treasury Employees Union v. Von Raab, 489 U.S. 656, 681 (1989) (Scalia, J., dissenting) (“In my view the Customs Service rules are a kind of immolation of privacy and human dignity in symbolic opposition to drug use.”); McClesky v. Kemp, 481 U.S. 279, 336 (1987) (Brennan, J., dissenting) (“Decisions influenced by race rest in part on a categorical assessment of the worth of human beings according to color, insensitive to whatever qualities the individuals in question may possess.”); Goldberg v. Kelly, 397 U.S. 254 (1970) (“From its founding the Nation’s basic commitment has been to foster the dignity and well-being of all persons within its borders.”); Rosenblatt v. Baer, 383 U.S. 75, 92 (1966) (Stewart, J., concurring) (individual’s right to the protection of his own good name “reflects (our) basic concept of the essential dignity and worth of every human being -- a concept at the root of any decent system of order (liberty)”). Under American law, the privacy on which informational self-determination most logically could be based would be either as a matter of constitutional law under the Due Process Clause or as a matter of tort law. Under Due Process, Whalen v. Roe, 429 U.S. 589, 591 (1977), is the main case. Under tort law, the concept would rest on privacy torts. Most states recognize an invasion of privacy action for public disclosure of private facts, through common law or by statute. State definitions of public disclosure torts, covering matters like AIDS, abortion or mental illness, parallel the Restatement (Second) of Torts section 652 D (1977). Jonathan Mintz: The Remains of Privacy’s Disclosure Tort: An Exploration of the Private Domain. In: 55 Maryland L. Rev. (1996), pp. 425, 432–36 (describing scope of state protections). Some scholars have picked up the charge. See, e. g., Edward J. Bloustein: Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser. In: 39 N.Y.U.L. (1964), Rev. 962, 1000–01 (privacy represents freedom from public scrutiny and includes “prohibiting the disclosure of confidential information obtained by government agencies.”); Charles Fried: Privacy. In: 77 Yale L. J. (1968), pp. 475, 483 (arguing that “privacy… is control over knowledge about oneself ”). But see Richard A. Posner: The Right of Privacy. In: 12 Ga. L. Rev. (1978), pp. 393, 408 (we “have no right, by controlling the information that is known about us, to manipulate the opinions that other people hold of us.”). Recently, an emerging tort of “breach of confidence” has been the focus of scholarly attention. Jonathan Mintz: The Remains of Privacy’s Disclosure Tort: An Exploration of the Private Domain. In: 55 Maryland L. Rev. (1996), p. 465. See, e. g., Randall P. Bezanson: The Right to Privacy Revisited: Privacy, News, and Social Change. In: 1890–1990, 80 Cal. L. Rev (1992). 1133, 1135 (defining breach of confidence as “a concept of privacy based on the individual’s control of information rather than on generalized social controls on information, and… an enforceable obligation of confidentiality for those possessing private information rather than… a duty visited on publishers”).

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that Congress or legislatures have sufficiently protected these rights, leaving little for the Court to do.45 Whatever the reason, as a matter of comparative law, the German Court is addressing this aspect of the computer age in a more rights-protective manner than the Supreme Court. 3. IDENTITY, SELF-DETERMINATION

AND

AUTONOMY

Under American law, ideas proceed from an assumption of privacy, not dignity or personality, and reach conclusions different than the German. Other American themes do not echo in German law. For example, decisions relating to marriage, procreation, and contraception resonate in American, but not German law. The closest American Supreme Court case to the two Right to Heritages is Michael H. v. Gerald D.,46 which also dealt with the right to determine legitimacy. The focus of the American case was the biological father’s rights, Michael H., who initiated the lawsuit, and not the child, Victoria D, who sought to maintain a relationship with her biological father. In comparison to the solicitude given children by the German Court, Victoria D. got short shrift: the law gave her no chance to establish her origin, and the Supreme Court was wholly unconcerned with this state of affairs.47 Rather than establishing children or natural parental rights, the Court valued more highly “the integrity of the marriage union,” and the concern that otherwise the state would have to “recognize multiple fatherhood (which) has no support in the history or traditions of this country.”48 Viewed from the perspective of the Germans, Michael H., in reaching an opposite outcome, seems to have sacrificed children’s welfare for the sale of judicial restraint.49 In this way, history and tradition operate to straitjacket personality, whereas in Germany personality is free to develop in view of modern conditions. Sex and sexuality are major topics in both German and American law. In German law, sex is viewed as integral to personal self-definition and identity, like other personality rights.50 In America, sex is conceived as part of privacy, not personali45

46 47

48 49 50

This seems to be a basis on which Whalen v. Roe, 429 U.S. 594 was decided, as the Court noted precautions taken, like a locked wire fence, alarm system, and that computer tapes were kept in locked cabinets. However, precautions are only as good as the people who implement them. See John Markoff: Patient Files Turn Up in Used Computer. In: N.Y. Times, April 4, 1997 (noting how sold computer yet contained confidential pharmacology files of patients, disclosing sensitive information, such as treatment for AIDS or depression). 491 U.S. 110 (1989) (plurality opinion.) Id., 130–31. Michael H. was trying to rebut the presumption of legitimacy that attaches to a child of an unmarried couple. Michael H. was the biological father, Victoria D. the product of an adulterous affair. Michael H. wished to establish his paternity of Victoria D. Victoria D. wished to maintain a relationship with her natural father. Id., 131. Id., 121–23 (Court explaining need for judicial restraint in interpreting reach of substantive due process). Sex Education, BVerfGE 47, pp. 46, 73 (1977) (“The Basic Law has placed the intimate and sexual domain of human activity under the constitutional protection of article 2(1) in conjunction with article 1(1). These provisions of the Basic Law guarantee to an individual the right to determine oneself one’s view of sexuality.”); Homosexuality, BVerfGE 6, pp. 389, 432 (1957) (“This right (of personality) comprises also the free sexual activity of persons.”).

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ty.51 Thus, acts like procreation, contraception and abortion are conceptualized as part of autonomy rights. There is no American case that deals with transexuality. The closest American case is Lawrence v. Texas52 which dealt with consensual homosexual activity in the privacy of the home. The role of morality and tradition as a constraint on personality rights thus reveals itself to be a defining trait in the two legal orders. American morality seems to be grounded more in convention and mores; German morality reflects deep roots in Kantian idealism: dignity, self-determination, equal worth and respect. The direction of American law over identity, self-determination and autonomy has been quite different than German law. In American law the root construct for these rights has been privacy, not dignity, as in German law. From the privacy construct, the Supreme Court has afforded constitutional protection to a range of personal decisions relating to marriage, procreation, contraception, abortion, and family relationships, among others. Yet, these decisions, being grounded in privacy, facilitate individual freedom from state interference. Thus, their concern is freedom as an individual right, not the particular quality of the choice resulting from that freedom nor the well-being of the right holder. Unlike German law, there is no real focus on the quality of human personality. Instead, the American focus is on “the right to be let alone.”53 These privacy rights thus map out how we can be free to be alone from official interference. As alone individuals, Americans are then free to choose the values with which to constitute themselves and govern. And these “values (become) central to personal dignity and autonomy.”54 However, the two legal orders differ fundamentally on the conception of dignity in this regard. For Americans dignity means the right to choose. Worth and stature follow from respect for choices. Germans certainly share this aspect of selfdetermination. Yet, the difference lies in how self-determination unfolds. In America, personal autonomy is simply the right to choose. Personal autonomy is thus the value itself, an integral part of one’s rights. In Germany, by contrast, personal autonomy is an aspect of human dignity. Dignity imposes obligations as well as endows freedom. Thus, personal autonomy is relevant to shaping one’s character and personality, but that shaping is to occur, not in isolation, but within a social and moral community. True autonomy, in the German view, is to unfold in a manner consistent with moral obligations, which themselves are reflected in the Basic Law as individual and social duties. The state, official actors, like the Constitutional Court, and society are all responsible partners working cooperatively with individuals to achieve this moral vision. One might say the difference between the two cultures is between American “rights-talk”55 and German Kantian philosopher-kings. Put another way, the difference is over the conception of autonomy, with (German) and without (American) the limiting construct of a workable definition of morality.

51 52 53 54 55

Carey v. Population Services, 431 U.S. 678, 685, 688–89 (1977) (describing reach of protection of sexuality under right of privacy). 539 U.S. 558 (2003). Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). Casey, 505 U.S. 851. Mary Ann Glendon: Rights Talk, New York et al. 1991.

THE AUTHORS Winfried Brugger † Professor of Public Law, Philosophy of Law and Theory of State at the Faculty of Law at the Heidelberg University; former long-time Fellow at the Max Weber Center for Cultural and Social Sciences at the Erfurt University and frequent Visiting Teaching Professor at the Georgetown University Law Center, Washington, D. C. Fields of interest: Theory of Law and State; Philosophy of Law; German, American and Brazilian Comparative Constitutional and Administrative Law and Theory; Human Rights and Dignity; Free and Hate Speech; Democracy, Liberty, Equality; Anthropology and Law; State and Religion; Freedom and Security; Liberalism, Pluralism, Communitarianism; Theories of Interpretation and of Good Decision-Making. Luis Pereira Coutinho Professor of Law, University of Lisbon, Faculty of Law (Alameda da Universidade, Faculdade de Direito, 1649–014 Lisboa, e-mail: [email protected]). Fields of interest: Theory of the State; Constitutional Law; Philosophy of Law; Political Philosophy; Political Science. Ed Eberle Professor of Law, Roger Williams University School of Law Miodrag Jovanovic´ Belgrade, Serbia. Miodrag A. Jovanovic´ is a Full Professor in the Introduction to Jurisprudence at the Faculty of Law, University of Belgrade (Bulevar Kralja Aleksandra 67, 11000, Belgrade, Serbia, e-mail: [email protected]) Fields of interest: legal theory, political philosophy, philosophy of international law. Bernhard Jakl is assistant professor (Akadem. Rat) at the Chair for Civil Law, Philosophy of Law and Medical Law, Faculty of Law, University of Muenster (Universitätsstr. 14–16, D-48143 Münster, [email protected]) and adjunct professor (Privatdozent) at the Faculty of Philosophy, Ludwig-Maximilians-University Munich. Fields of interest: History of Philosophy, Legal Philosophy, Basic Rights, Contract Law and Medical Law. Stephan Kirste Professor for the Philosophy of Legal and Social Philosophy at the Faculty of Law of the Paris Lodron University of Salzburg. Churfürststraße 1, 5020 Salzburg, [email protected]. Fields of interest: History of Legal Thought, Legal Philosophy (Human Rights, Legal Paternalism, Time and Law), European Law, Comparative Public Law.

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Oliver W. Lembcke Leipzig/Jena, Germany. Senior researcher of political science at Jena University and Visiting Professor of Political Theory at Leipzig University. FSU Jena, Political Science Department, Carl-Zeiss-Str. 307737 Jena, [email protected]. Fields of interest: Political Theory; History of Political Ideas; Comparative Politics in Europe; Constitutionalism and Constitutional Courts. Klaus Mathis Lucerne, Switzerland. Professor of Public Law and Law of the Sustainable Economy. Frohburgstrasse 3, Postfach 4466, CH-6002 Luzern, Tel. + 41 (0)41 229 53 80, Fax + 41 (0)41 229 53 97, [email protected]. Fields of interest: Public Law, Philosophy of Law, Economic Analysis of Law. Milena Petters Melo Professor for Constitutional Law at the Regional University of Blumenau – FURB, Brazil. Associate Professor of the Brazilian Academy of Constitutional Law – ABDConst. Coordinator for the Euro-American Didactic Center for Constitutional Policies, University of Salento, Italy. Researcher of the Research Center on European Institutions, University of Naples Suor Orsola Benincasa, Italy. Visiting Professor at the University Pablo de Olavide, Seville, Spain. Email: milenapetters@furb. br. Dietmar von der Pfordten Professor for the Philosophy of Law and Social Philosophy at the Georg-AugustUniversity Goettingen, Platz der Goettinger Sieben 6, D-37073 Goettingen, Germany, [email protected]. Fields of interest: philosophy of law, ethics, ethics of law, practical philosophy, political philosophy. Elena Pribytkova Research Fellow at the Faculty of Law of the University of Basel and J.S.D. Candidate at Columbia Law School. Peter Merian-Weg 8, Postfach 4002 Basel, [email protected]. Fields of interest: Legal and Political Philosophy (Theories of Justice, Human Rights, Human Dignity, Law and Morality); Human Rights Law, International Law; Theory of Law and State; Comparative History of Legal and Political Ideas. Julian Nida-Rümelin Professor for Philosophy at the Ludwig-Maximilians University of Munich. Lehrstuhl für Philosophie IV. Ludwig-Maximilians-Universität München GeschwisterScholl-Platz 1. 80539 München. Email: [email protected]. de. Former National Minister for Culture and Media, member of the European Academy of Sciences and Arts, the International Forum for Culture and Economy and the Berlin-Brandenburg Academy of Sciences and Humanities. Fields of interest: Theory of rationality, ethics, political philosophy, epistemology.

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Ingo Sarlet Professor for Constitutional Law at the Pontifical Catholic University in Porto Alegre, Brazil (Pontifícia Universidade Católica do Rio Grande do Sul – PUCRS) and Lecturer for Constitutional Law at the Judicial Academy in Porto Alegre (Escola Superior da Magistratura – AJURIS). Fields of interest: theory of fundamental rights, human dignity, social rights and fundamental rights and new technologies. E-mail: [email protected] Jan Philipp Schaefer Deputy Professor for Public Law and the Philosophy of State and Law at Ludwig Maximilians University Munich, Prof.-Huber-Platz 2, D-80539 Munich (Germany). Fields of interest: German and European Constitutional and Administrative Law, Philosophy of State and Law, Comparative Public Law. Tel.: + 49 89 2180 2746; Fax: + 49 2180 5063; E-Mail: [email protected] Paul Tiedemann Judge at the Verwaltungsgericht (Administrative Court of the 1st instance) in Frankfurt am Main, honorary Professor at Justus-Liebig-University Giessen and adjunct Professor at Özyeg˘in-University Istanbul. Rangenbergstraße 46, 60388 Frankfurt am Main, www.dr-tiedemann.de, [email protected]. Fields of interest: Human Rights, Refugee Law, Constitutional Law, Moral Philosophy.

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(Sweden), 12th–18th August 2003 Volume 4 2005. 195 S., kt. ISBN 978-3-515-08707-0 Carsten Bäcker / Stefan Baufeld (Hg.) Objektivität und Flexibilität im Recht Tagungen des Jungen Forums Rechtsphilosophie in der Internationalen Vereinigung für Rechts- und Sozialphilosophie im September 2004 in Kiel und im April 2005 in Hagen 2005. 213 S., kt. ISBN 978-3-515-08743-8 Robert Alexy (Hg.) Juristische Grundlagenforschung Tagung der Deutschen Sektion der Internationalen Vereinigung für Rechts- und Sozialphilosophie vom 23.–25. September 2004 in Kiel 2005. 251 S., kt. ISBN 978-3-515-08640-0 Philippe Mastronardi / Denis Taubert (Hg.) Staats- und Verfassungstheorie im Spannungsfeld der Disziplinen Tagung der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie vom 12.–13. November 2004 an der Universität St. Gallen 2006. 255 S., kt. ISBN 978-3-515-08851-0 José Juan Moreso (Hg.) Legal Theory / Teoría del derecho Legal Positivism and Conceptual Analysis / Positivismo juridico y análisis conceptual. Proceedings of the 22nd World Congress of the International Association for Philosophy of Law and Social Philosophy in Granada, 2005 Volume 1 2007. 263 S., kt. ISBN 978-3-515-08910-4 José Rubio Carrecedo (Hg.) Political Philosophy / Filosofía política New Proposals for New Questions / Nuevas propuestas para nuevas cuestiones. Proceedings of the 22nd World Congress of the International Association for Philosophy of Law and Social Philosophy in Granada, 2005 Volume 2 2007. 239 S., kt. ISBN 978-3-515-08911-1

108. Andrés Ollero (Hg.) Human Rights and Ethics / Derechos humanos y Ética Proceedings of the 22nd World Congress of the International Association for Philosophy of Law and Social Philosophy in Granada, 2005 Volume 3 2007. 323 S., kt. ISBN 978-3-515-08912-8 109. Nicolás López Calera (Hg.) Globalization, Law and Economy / Globalización, Derecho y Economía Proceedings of the 22nd World Congress of the International Association for Philosophy of Law and Social Philosophy in Granada, 2005 Volume 4 2007. 321 S., kt ISBN 978-3-515-08913-5 110. Josep Aguiló-Regla (Hg.) Logic, Argumentation and Interpretation / Lógica, Argumentación e Interpretación Proceedings of the 22nd World Congress of the International Association for Philosophy of Law and Social Philosophy in Granada, 2005 Volume 5 2007. 206 S., kt. ISBN 978-3-515-08914-2 111. Marcel Senn / Dániel Puskás (Hg.) Gehirnforschung und rechtliche Verantwortung Fachtagung der Scheizerischen Vereinigung für Rechts- und Sozialphilosophie vom 19.–20. Mai 2006 an der Universität Bern 2006. 171 S., kt. ISBN 978-3-515-08963-0 112. Annette Brockmöller (Hg.) Hundert Jahre Archiv für Rechtsund Sozialphilosophie (1907–2007) Auswahl 14 bedeutender Aufsätze von Kelsen, Radbruch, Luhmann u. a. 2007. 330 S., kt. ISBN 978-3-515-09100-8 113. Horst Dreier / Eric Hilgendorf (Hg.) Kulturelle Identität als Grund und Grenze des Rechts Akten der Tagung der Internationalen Vereinigung für Rechts- und Sozialphilosophie vom 28.–30. September 2006 in Würzburg 2008. 374 S., geb. ISBN 978-3-515-09101-5

114. Jochen Bung / Brian Valerius / Sascha Ziemann (Hg.) Normativität und Rechtskritik Tagungen des Jungen Forums Rechtsphilosophie in der Internationalen Vereinigung für Rechts- und Sozialphilosophie im September 2006 in Würzburg und im März 2007 in Frankfurt am Main 2007. 269 S., kt. ISBN 978-3-515-09130-5 115. Marcel Senn / Dániel Puskás (Hg.) Rechtswissenschaft als Kulturwissenschaft? Kongress der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie vom 15.–16. Juni 2007 an der Universität Zürich 2007. 220 S., kt. ISBN 978-3-515-09149-7 116. Annette Brockmöller / Eric Hilgendorf (Hg.) Rechtsphilosophie im 20. Jahrhundert 100 Jahre Archiv für Rechtsund Sozialphilosophie 2009. 207 S., kt. ISBN 978-3-515-09285-2 117. Marcel Senn / Barbara Fritschi (Hg.) Rechtswissenschaft und Hermeneutik Kongress der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie vom 16.–17. Mai 2008 an der Universität Zürich 2009. 258 S., kt. ISBN 978-3-515-09155-8 118. Bart C. Labuschagne / Ari M. Solon (Hg.) Religion and State From separation to cooperation? Proceedings of the Special Workshop “Legal-philosophical reflections for a de-secularized world” held at the 23rd World Congress of the International Association for Philosophy of Law and Social Philosophy in Kraków, 2007 2009. 209 S., kt. ISBN 978-3-515-09368-2 119. Martin Borowski (Hg.) On the Nature of Legal Principles Proceedings of the Special Workshop “The Principles Theory” held at the 23rd World Congress of the International Association for Philosophy of Law and Social Philosophy in Kraków, 2007 2010. 182 S., kt. ISBN 978-3-515-09608-9

120. Friedrich Toepel (Hg.) Free Will in Criminal Law and Procedure Proceedings of the 23rd and 24th World Congress of the International Association for Philosophy of Law and Social Philosophy in Kraków, 2007, and in Beijing, 2009 2010. 122 S., kt. ISBN 978-3-515-09320-0 121. Marcel Senn / Bénédict Winiger / Barbara Fritschi / Philippe Avramov (Hg.) Recht und Globalisierung / Droit et Mondialisation Kongress der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie, 15.–16. Mai 2009, Universität Genf / Congrès de l’Association Suisse de Philosophie du Droit et de Philosophie Sociale, 15–16 mai 2009, Université de Genève 2010. 196 S., kt. ISBN 978-3-515-09673-7 122. Imer B. Flores / Uygur Gülriz (Hg.) Alternative Methods in the Education of Philosophy of Law and the Importance of Legal Philosophy in the Legal Education Proceedings of the 23rd World Congress of the International Associaction for Philosophy of Law and Social Philosophy “Law and Legal Cultures in the 21st Century: Diversity and Unity” in Kraków, 2007 2010. 114 S., kt. ISBN 978-3-515-09695-9 123. Sascha Ziemann Archiv für Rechts- und Sozialphilosophie: Bibliographie und Dokumentation (1907–2009) 2010. 434 S., kt. ISBN 978-3-515-09719-2 124. Jan-Reinard Sieckmann (Hg.) Legal Reasoning: The Methods of Balancing Proceedings of the Special Workshop “Legal Reasoning: The Methods of Balancing” held at the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy (IVR), Beijing, 2009 2010. 205 S., kt. ISBN 978-3-515-09723-9 125. Edward Schramm / Wibke Frey / Lorenz Kähler / Sabine Müller-Mall / Friederike Wapler (Hg.) Konflikte im Recht –

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Recht der Konflikte Tagungen des Jungen Forums Rechtsphilosophie in der Internationalen Vereinigung für Rechts- und Sozialphilosophie in Tübingen und Göttingen 2010. 308 S., kt. ISBN 978-3-515-09729-1 Kristian Kühl (Hg.) Zur Kompetenz der Rechtsphilosophie in Rechtsfragen Tagung der Deutschen Sektion der Internationalen Vereinigung für Rechts- und Sozialphilosophie vom 24.–26. September 2008 in Tübingen 2011. 140 S., kt. ISBN 978-3-515-09816-8 Stephan Kirste / Anne van Aaken / Michael Anderheiden / Pasquale Policastro (Hg.) Interdisciplinary Research in Jurisprudence and Constitutionalism 2012. 267 S. mit 2 Abb. und 2 Tab., kt. ISBN 978-3-515-09941-7 Stephan Ast / Julia Hänni / Klaus Mathis / Benno Zabel (Hg.) Gleichheit und Universalität Tagungen des Jungen Forums Rechtsphilosophie (JFR) in der Internationalen Vereinigung für Rechts- und Sozialphilosophie (IVR) im September 2010 in Halle (Saale) und im Februar 2011 in Luzern 2012. 315 S., kt. ISBN 978-3-515-10067-0 Bénédict Winiger / Matthias Mahlmann / Philippe Avramov / Peter Gailhofer (Hg.) Recht und Verantwortung / Droit et responsabilité Kongress der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie, 11.–12. Juni 2010, Universität Zürich / Congrès de l’Association Suisse de Philosophie du Droit et de Philosophie Sociale, 11–12 juin 2010, Université de Zurich 2012. 206 S. mit 6 Abb., kt. ISBN 978-3-515-10066-3 Thomas Bustamante / Oche Onazi (Hg.) Global Harmony and the Rule of Law Proceedings of the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy, Beijing, 2009. Vol. 1 2012. 133 S., kt. ISBN 978-3-515-10081-6 Thomas Bustamante / Oche Onazi (Hg.) Human Rights, Language and Law

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Proceedings of the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy, Beijing, 2009. Vol. 2 2012. 192 S., kt. ISBN 978-3-515-10082-3 Yasutomo Morigiwa / Hirohide Takikawa (Hg.) Judicial Minimalism – For and Against Proceedings of the 9th Kobe Lectures. Tokyo, Nagoya, and Kyoto, June 2008 2012. 99 S., kt. ISBN 978-3-515-10136-3 Thomas Bustamante / Carlos Bernal Pulido (Hg.) On the Philosophy of Precedent Proceedings of the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy, Beijing, 2009 Volume 3 2012. 144 S., kt. ISBN 978-3-515-10150-9 Matthias Kaufmann / Joachim Renzikowski (Hg.) Zurechnung und Verantwortung Tagung der Deutschen Sektion der Internationalen Vereinigung für Rechts- und Sozialphilosophie vom 22.–24. September 2010 in Halle (Saale) 2012. 184 S., kt. ISBN 978-3-515-10180-6 Carsten Bäcker / Sascha Ziemann (Hg.) Junge Rechtsphilosophie 2012. 214 S., kt. ISBN 978-3-515-10268-1 Ulfrid Neumann / Klaus Günther / Lorenz Schulz (Hg.) Law, Science, Technology Plenary lectures presented at the 25th World Congress of the International Association for Philosophy of Law and Social Philosophy, Frankfurt am Main, 2011 2012. 173 S., kt. ISBN 978-3-515-10328-2 Winfried Brugger / Stephan Kirste (Hg.) Human Dignity as a Foundation of Law Proceedings of the Special Workshop held at the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy in Beijing, 2009 2013. 267 S., kt. ISBN 978-3-515-10440-1

Although human dignity is an old principle in philosophy, the history of its legal form is relatively short. Since its first adoption in the preamble of the Irish Constitution and the Universal Declaration of Human Rights it has more and more proven to be a fundamental principle of law. The philosophers, lawyers and political scientists joint in this

book discuss this assumption with respect to the legal form of dignity, its relation to values like freedom and autonomy, and analyze its implications for justice in difficult decisions. Because of the fundamental value of human dignity, comparative studies are intended to show its relevance in different legal orders and in international law.

www.steiner-verlag.de Franz Steiner Verlag

ISBN 978-3-515-10440-1

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