Special Issue: The Basic Law at 60
The Basic Law at 60 – Human Dignity and the Culture of
Republicanism
By Matthias Mahlmann*
A. The Concept of Dignity and Constitutional Theory
The German Basic Law is a resilient constitution. It has proved able to cope with both the new beginning of the constitutional tradition in Germany after the cataclysm of 1945 and
German reunification after the fall of the Berlin Wall in 1989. To be sure, there is reason
for some critical reflection concerning concrete questions and even fundamental issues—
not the least of which is the question whether German reunification should have beenmarked by a process of constitutional self‐reflection and renewal beyond what has been
done. All in all, however, the Basic Law is, in historical perspective, a remarkable success.
Therefore, it is not surprising that it has gained much international attention. Some
aspects of the Basic Law have even become a kind of attractive export article not
accounted for in Germany’s foreign trade balance, but nevertheless of considerable
importance.The Basic Law has various features that distinguish it from other examples of modern
constitutionalism. It creates a particular and recently reformed structure of federalism, a
peculiar parliamentary democracy with two legislative bodies and a federal presidency
with mainly representative functions. It contains not only classical elements of
constitutionalism, like the rule of law and democracy, but also makes the social state a
constitutional concept. Its rule on wehrhafte Demokratie (militant democracy) is the
object of many debates. The Basic Law conceptualizes the religious neutrality of the state
in an original, open way. Its relation to international law, including European law, is
intricate but marked by a general openness to this legal sphere. A further example is the
institutional structure of the German Federal Constitutional Court it creates, which has
attracted international interest for its institutional features and its practice.
The normative heart of the Basic law—its catalogue of fundamental rights—possesses
particular features as well, for example, the protection of a (subsidiary) general freedom of
action or a differentiated system of limitations of fundamental rights. The bill of rights has
*
Professor, Chair of Legal Theory, Legal Sociology, and Public International Law, Faculty of Law, University of
Zurich.
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10 German Law Journal
been expanded through innovative jurisdiction, for example, as to a general personality
right or data protection.
The norm, however, that most characterizes the Basic Law in the public perception and in
scholarly reflection is the guarantee of human dignity.1 This particular role is, to a large
degree, a consequence of the German past. Nazism still legitimizes the guarantee of
human dignity today by the abominable, vivid barbarism of its negation. The guarantee of
human dignity formulates, however, not only the desire to refrain from fathoming yet
another time a moral abyss, but a promise as well: the perspective to create a legal order
that embodies principles of human dignity not only through the absence of misdeeds, but
also through legally institutionalized structures of a republican culture of respect.
The Basic Law’s guarantee of human dignity has had an impact beyond the German
borders as well. This is true for national states and for the transnational arena. An
example of the former is the guarantee of human dignity in the new Swiss Federal
Constitution,2 the formulation of which has been influenced by the example of the Basic
Law.3 On the international level, Article 1 of the Charter of Fundamental Rights of the
European Union is a good example of the influence of the Basic Law’s protection of human
dignity: it reproduces verbatim the core formulation of the Basic Law.4
However, one should not overlook that human dignity has become quite generally a
leading principle of the international human rights culture. For many, human dignity
epitomizes the core of the normative project of human rights and civilized
constitutionalism that was the imperative of the new beginning after 1945. The Charter of
the UN and the Universal Declaration of Human Rights of 1948 have set the example in this
respect. This is true for the formulation of the fundamental rights of the Basic Law as well,
which have been heavily influenced by the new conception of universal fundamental
rights. The Basic Law is, therefore, not the origin and kernel but just a part of this general
development towards constitutional states and an international legal order consciously
based on the rather ambitious aspiration of realizing in social life basic principles of human
worth. One should not underestimate the surprising nature of this development. It is
certainly not what many expected after the experience with human baseness before 1945.
1
See GRUNDGESETZ [GG] [Basic Law] art. 1.1 (F.R.G.) (“Human dignity is inviolable. To respect and protect it shall
be the duty of all state authority.”).
2
See BUNDESVERFASSUNG DER SCHWEIZERISCHEN EIDGENOSSENSHCAFT [BV], CONSTITUTION FÉEDÉRALE DE LA CONFÉDÉRATION
SUISSE [Cst] [Constiution] art. 7 (Switz.).
3
GIOVANNI BIAGGINI, BV: BUNDESVERFASSUNG DER SCHWEIZERISCHEN EIDGENOSSENSCHAFT art. 7, para. 2( 2007).
4
Charter of Fundamental Rights of the European Union, art. 1, 2000 O.J. (C 364) 1, 9 (“Human dignity is inviolable.
It must be respected and protected.”). This was made mandatory through Art. 6 TEU, as amended by the Treaty
of Lisbon. See Treaty of Lisbon, 2007 O.J. (C 306) 1, 13.
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Dignity and Republicanism
For example, when Hannah Arendt reflected on the aporetic structure of human rights, she
concluded that the bitter truth was that when all depends on the respect for the naked
humanity of human beings, the world shows no respect for this naked humanity at all. 5
This leads to fundamental questions about the foundation of this development. Are there
actually any sound theoretical reasons for this appreciation of human dignity as a legal
concept? And if so—what are these foundations? These may sound like surprising
questions, as human dignity seems to be an indubitable minimal standard of any mildly
attractive legal civilization. However, these questions quickly lose their exotic appearance
if one pays attention to the international contemporary debate about the concept of
dignity. For many commentators it is far from clear what is really meant by this concept
and how to legitimize it. Nor is it clear what concrete legal use it has in a given
constitutional order or in any other legal regime. This skepticism is not a completely new
phenomenon. It often has been asked, and with some emphasis, whether human dignity
offers more than an empty but seductive pathos. Guarantees of human dignity appear to
be intrinsically vague and, thus, normatively dangerous. 6 Under the cover of lofty
“dignity,” all kinds of subjective, relative, and heterogeneous ideas could infiltrate human
rights regimes. Human dignity has the potential to become, as one early skeptic put it, the
“Trojan horse” of constitutional law corrupting the positive law. 7
One possible consequence of this skeptical perception is the doctrinal downgrading of
human dignity clauses. These guarantees are then not understood as full, subjective
fundamental rights, but objective law that is not judicially enforceable by individual
citizens, 8 or as a hermeneutical principle, that is, as a general maxim of interpretation. 9
Another option is to relativize the content of a dignity clause, for example, by
differentiating between a core of dignity and its periphery, the latter being open to greater
limitations with the concrete consequence of making the admissibility of torture
possible. 10
5
HANNAH ARENDT, 1 ELEMENT UND URSPRÜNGE TOTALER HERRSCHAFT 601 (1986).
6
For an overview about such comments see MATTHIAS MAHLMANN, ELEMENTE EINER ETHISCHEN GRUNDRECHTSTHEORIE
100 (2008).
7
Peter Schneider, Die Menschenrechte in staatlicher Ordnung, in PHILOSOPHIE DER MENSCHENRECHTE UND DER
GRUNDRECHTE DES STAATSBÜRGERS, 77, 83 (1964); HORST DREIER, 1 GRUNDGESETZ: KOMMENTAR, art. 1 para. 49 (2d ed.
2004).
8
See Günter Dürig, Der Grundrechtssatz von der Menschenwürde, 81 ARCHIV DES ÖFFENTLICHEN RECHTS 117, 119
(1956); Günter Dürig, in GRUNDGESETZ: KOMMENTAR GG art. 1, Rn. 15, 16 (Theodor Maunz & Günter Dürig eds.)
[hereinafter Maunz/ Dürig], original commentary; see also WINFRIED BRUGGER, MENSCHENWÜRDE, MENSCHENRECHTE,
GRUNDRECHTE 12 (1997).
9
See CHRISTOPH ENDERS, DIE MENSCHENWÜRDE IN DER VERFASSUNGSORDNUNG 399 n. 130 (1997).
10
Matthias Herdegen, in Maunz/Dürig, supra note 8, art. 1, para 44, 45 (where the former held position on the
admissibility of torture is abandoned after considerable critique).
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12 German Law Journal
These debates are not limited to the Basic Law, even though its dignity clause is the object
of decades of adjudication and offers particularly rich material for debate. On the
international level there are equally skeptical voices, certainly not interested in diminishing
the impact of human rights, who nonetheless regard dignity as a legal concept opening the
possibility of “significant judicial manipulation.”11 Consequently, dignity clauses should be
applied prudently. Those legal systems that do not have such a clause are advised to
carefully consider the consequences of the incorporation of this concept. This skepticism
about human dignity has deep roots in the human history of ideas. Thomas Hobbes
thought that the value of a person is, naturally, its price in society.12 Arthur Schopenhauer,
in his critique of Kant’s moral philosophy, declared the idea of human dignity to be the
Shibboleth of all thoughtless moralists who want to hide their own lack of ideas and moral
orientation behind this impressive concept.13 This remark has become, oddly enough,
something like a leitmotiv of the critique of dignity as a legal concept, mostly without
11
Christopher McCrudden, Human Dignity and Judicial Interpretation of Human Rights, 19 EUR. J. INT’L L. 655
(2008). For some thoughts from the international discussion, see Jochen Abr Frowein, Human Dignity in
International Law, in THE CONCEPT OF HUMAN DIGNITY IN HUMAN RIGHTS DISCOURSE 121 (David Kretzmer & Eckart Klein
eds., 2002); Jens Meyer‐Ladewig, Menschenwürde und Europäische Menschenrechtskonvention [Human Dignity
and the European Convention on Human Rights], 57 NEUE JURISTICHE WOCHENSHCRIFT 981 (2004); Christian Walter,
Menschenwürde im nationalen Recht, Europarecht und Völkerrecht [Human Dignity in National Law, European
Law and International Law], in MENSCHENWÜRDE IN DER SÄKULAREN VERFASSUNGSORDNUNG [Human Dignity in a Secular
Constitutional System] 127 (Petra Bahr & Hans Michael Heinig eds., 2006); David Feldman, Human Dignity as a
Legal Value—Part I, 1999 PUB. L. 682 (1999); David Feldman, Human Dignity as a Legal Value—Part II, 2000 PUB. L.
61 (2000); Jordan J. Paust, Human Dignity as a Constitutional Right, 27 HOW. L. J. 145 (1984); William A. Parent,
Constitutional Values and Human Dignity, in THE CONSTITUTION OF RIGHTS: HUMAN DIGNITY AND AMERICAN VALUES 47
(Michael J. Meyer & William A. Parent eds., 1992); Frederick Schauer, Speaking of Dignity, in CONSTITUTION OF
RIGHTS, supra, at 178; Louis Henkin, Human Dignity and Constitutional Rights, in CONSTITUTION OF RIGHTS, supra, at
210; Maxine D. Goodman, Human Dignity in Supreme Court Constitutional Jurisprudence, 84 NEB. L. REV. 740
(2006). For an attempt to connect dignity, liberty and equality see Susanne Baer, Dignity, Liberty and Equality: A
Fundamental Rights Triangle of Constitutionalism, 59 U. TORONTO L. J. 417 (2009).
12
THOMAS HOBBES, LEVIATHAN Chap. 10 (C. B. MacPherson, ed., Penguin 1985) (1651).
13
ARTHUR SCHOPENHAUER, PREISSCHRIFT ÜBER DAS FUNDAMENT DER MORAL 64 (1841). Schopenhauer adds (anticipating
much contemporary critique about the vagueness of the concept):
Aber dieser von allen Kantianern so unermüdlich nachgesprochene
Satz, ‘man dürfe den Menschen immer nur als Zweck, nie als Mittel
behandeln,’ ist zwar ein bedeutend klingender und daher für alle die,
welche gern eine Formel haben mögen, die sie alles fernern Denkens
überhebt, überaus geeigneter Satz; aber beim Lichte betrachtet, ist
es ein höchst vager, unbestimmter, seine Absicht ganz indirekt
erreichender Ausspruch, der für jeden Fall seiner Anwendung erst
besonderer Erklärung, Bestimmung und Modifikation bedarf, so
allgemein genommen aber ungenügend, wenig sagend und noch
dazu problematisch ist.
ARTHUR SCHOPENHAUER, DIE WELT ALS WILLE UND VORSTELLUNG 477 (1819/1844).
2010] 13
Dignity and Republicanism
further considerations for the background of Schopenhauer’s critique: in the last instance
a metaphysically grounded morality of pity based on the final unity of Self and Non‐Self
that is presumably not, for many today, a conception full of theoretical future. Another
example is Nietzsche, who thought that the dignity of the many can only be derived from
their service for the few—again not a position that makes criticism based on these kinds of
assumptions very plausible. 14
Consequently, it is useful to sketch the possible foundations of human dignity. To this end,
some historical aspects of the debate about human dignity will first be recalled that are
useful to remember if one wants to address problems of the present without naïveté. 15
Second, some features of the contemporary debate will be considered. Third, some
elements of a possible answer to the question of the possible foundations of human
dignity will be outlined. Fourth, some concrete problems will be assessed until, finally,
some wider perspectives are discussed that lead beyond the Basic Law and its problems
into the core of the contemporary legal epoch.
B. Some Historical Remarks
I. Antiquity
Human dignity is not a natural attribute of human beings, but a value predicate. The
language used is not uniform but, in normative respects, human dignity means the specific
value of human beings that is based on nothing but their humanity as such.
This intrinsic value of human beings was reflected upon already in antiquity, even though
the concept of “dignity” was not necessarily invoked. Plato, for example, formulated the
idea that human beings are not only god‐like through their considered and virtuous
comportment, they could also recognize themselves as beings that, through their reason,
take part in a god‐like essence. 16 In Hellenistic philosophy, the specific value of human
beings was considered in Stoic thought. 17 The special value of human beings is derived
from taking part in the Logos of the world. Other properties matter as well, like conceptual
thinking, ideas of time, moral orientation or the ability to form cultures. A central feature
of this reflection is the developed ethical cosmopolitanism. The value of human beings is
14
Friedrich Nietzsche, Fünf Vorreden zu fünf ungeschriebenen Büchern, in KRITISCHE STUDIENAUSGABE 776 (Critical
Study Edition vol. 1, 1999) (1872) (five prefaces to five unwritten books 1872).
15
For a fuller statement see MAHLMANN, supra note 6, at 97.
16
See PLATO, NOMOI [Laws] IV 716d (2005); PLATO, THEAITETOS [Theaetetus]176b (2005); PLATO, POLITEIA [The
Republic] 611e–612a, 613 (2005); PLATO, ALKIBIADES [Alcebiades] 132e–133c (2005).
17
See the conclusions drawn from of the earlier stoic thought by CICERO, DE OFFICIIS [On Duties] 1, 105 (1999).
[Vol. 11 No. 01
14 German Law Journal
independent of belonging to a specific community. The world is one great polis ruled by
uniform ethical principles.18
These are a few examples of an explicit reflection on human value. It would, however, be a
fault to limit ones interests to such explicit reflections. Other forms of cultural expressions
are important as well. The idea of human dignity is not only present in philosophical
thought; its sources are, to the contrary, quite manifold and in no way limited to
conceptual thinking. Antique sculpture, for example, is a rich resource of magnificent and
shifting attempts to capture a certain vision of human existence and worth. Or consider
literature. The concept of human dignity is, for example, not mentioned in the Odyssey.
But is the longing for a return, the struggle to reach Ithaca, the confrontation with the
dead and the shadowy afterlife, the survival of the changing winds and the revengeful acts
of the Gods not relevant for the existential situation of human beings that is a foundation
for respect?
If one extends one’s view to these kinds of manifestations, one will quickly discover a
property of the debate that is of crucial importance. The serious contributions to the
debate about the intrinsic value of human beings are not sad examples of anthropocentric
narcissism. To the contrary, they are marked by a profound knowledge of the ambivalence
of human existence. A good example is Sophocles Antigone, where human beings appear
as τò δεινόν, something great that is at the same time uncanny and constantly close to an
abyss—if human beings lose their normative orientation, the step into the abyss is done.19
Consequently, one can only speak credibly about the value status of human beings if one is
not silent about the many self‐inflicted tragedies that mark human history and make it
something other than the triumphant manifestation, the secular theodicy of the sublime
nature of its subjects.
II. World Religions
World religions are important sources for the conception of human dignity. An important
example is the so called Judeo‐Christian tradition, even though one should be careful not
to assume a harmonious unity, which evidently did not exist in real history marked by
prosecution and discrimination against the Jewish minority and confessional strife. Central
to the idea of human dignity is the second of the two accounts about the creation of the
world in the Pentateuch, the Thora, which reports that human beings are not just
enlivened by God’s odem, as in the first account,20 but are actually created in the likeness
18
CHRYSIPP, STOICUM VETERUM FRAGMENTA III, 323.
19
SOPHOCLES, ANTIGONE verse 332 (1995).
20
Genesis, 2:7.
2010] 15
Dignity and Republicanism
of God, an imago dei. 21 The textual reconstructions vary, but this textual layer is
commonly considered to originate from the 6th century B.C.
In Judaism, the rabbinic tradition derived the concept of dignity (kavod) from the idea of a
likeness of God with normative consequences—especially for the right to life. 22 The
prescription in the Bible that demands the death of the perpetrator for killing another
person 23 posed interesting problems and creates a tension as to the value of life. 24 These
problems were solved through interpretation and the relativizing of the biblical demand
for the death penalty. This is an interesting example to be kept in mind when considering
the role of religious thinking for the foundation of legal ethics and concepts. It shows that
scripture, though formulating rather clear commands, may have less determining power to
fix the content of religious ethics than is sometimes and perhaps too quickly assumed.
In Christianity, the likeness of God, the imago dei, played an important role. In patristic
thought this idea was linked to the concept of dignitas, which Cicero coined in taking up
the ideas of earlier stoics. 25 In Scholastic thought, Thomas Aquinas adds Aristotelian ideas
about human action: Humans are free, because they are the cause of their own actions
and exist for their own sake (propter seipsum existens). 26 The position of human beings is,
however, not independent from the teleological order of salvation. This has concrete
consequences, as Thomas argues that killing sinners is justified in order to protect the
whole order against corruption. Human dignity is not inalienable; the sinner looses the
claim of its respect. 27
A much discussed question within Christian thought is whether human nature is
thoroughly corrupted through the Fall or whether it still possesses some residual value. An
example for a rather strict disavowal of human nature is Luther, who thought that human
beings have become devil‐like through the Fall, an imago diaboli. 28 In consequence, the
21
Genesis, 1:26, 27.
22
Yair Lorberbaum, Blood and the Image of God: On the Sanctity of Life in Biblical and Early Rabbinic Law, Myth,
and Ritual, in CONSTITUTION OF RIGHTS, supra note 11, at 55.
23
Genesis, 9:6.
24
MISCHNA MAKKOTH I, X, 9 DER BABYLONISCHE TALMUD (Lazarus Goldschmidt trans., 1996).
25
Id. at note 17.
26
THOMAS AQUINAS, SUMMA THEOLOGICA, II‐II, 64, 2.
27
Id.
28
Martin Luther, Über das 1. Buch, Mose, Predigten 1527 [About the 1st Book of Moses, Sermons 1527], in 24
WERKE, KRITISCHE GESAMTAUSGABE [Works, Complete Critical Edition] 51 (1900); 14 Martin Luther, Predigten über
das erste Buch Mose, gehalten 1523/24 [Preachings on the First Book of Moses, held 1523–24], in 14 WERKE,
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16 German Law Journal
only way to redemption is faith. This perspective echoes in modern protestant
contributions, which explicitly reject the idea of a religious humanism basing the value of
human beings on human nature alone.29 It has to be emphasized that today the Christian
confessions, through somewhat different theological paths, strongly support the view that
human beings are invested with dignity.30
Reflections on human dignity regularly mention the contribution of Judaism and
Christianity for the concept of human dignity. Other world religions are less commonly
considered in western texts. This is a shortcoming because the soil out of which
conceptions of human value grow are not only fertile in some cultural territories.
Considering Hinduism,31 a religiously justified caste structure evidently flies in the face of
conceptions of equal and intrinsic human worth. Yet Mahatma Gandhi derived his
arguments against the caste structure and for the rights of the Untouchables explicitly
from Hinduism.32
There is some debate about Buddhism and human rights. A topic of discussion is the
contention that the Buddhist conception of the non‐substantiality of the self and the
spiritual need to transcend individuality are not reconcilable with the idea of an individual
person that is the basis of human rights.33 Ethically, however, Buddhism is committed to
KRITISCHE GESAMTAUSGABE 111 (1895); Martin Luther, Vorlesungen über 1. Mose von 1535‐45 [Lectures on the First
Book of Moses of 1535‐45], in 42 WERKE, KRITISCHE GESAMTAUSGABE 166 (1911).
29
For example, the Chairperson of the Council of the Evangelical Church in Germany till 2009. BISHOP WOLFGANG
HUBER, GERECHTIGKEIT UND RECHT 274, 296, 302 (1996).
30
See, e.g., Concilium Vaticanum II, Constitutio Pastoralis Gaudium et spes, 24, Acta Apostolicae Sedis 58, 1966,
1050; Catechismus Catholicae Ecclesiae, 357: “Humanum individuum, quia est imaginem Dei, dignitatem habet
personae: non est solum res aliqua, sed aliquis” (emphasis in the original); id. 1929. For the protestant tradition,
see, for example, HELMUT THIELICKE, 1 THEOLOGISCHE ETHIK 821, 823 (1951).
31
J.B. Carman, Duties and Rights in Hindu Society, in HUMAN RIGHTS AND THE WORLD’S RELIGIONS 113 (Leroy S. Rouner
ed., 1988); Kana Mitra, Human Rights in Hinduism, 19 J. ECUMENICAL STUD. 77 (1982); Vasudha Narayanan, Hindu
Ethics and Dharma, in ETHICS IN WORLD RELIGIONS 177, 181 (Joseph Runzo & Nancy M. Martin eds., 2001); HAROLD
COWARD, HUMAN RIGHTS AND THE WORLD’S MAYOR RELIGIONS: THE HINDU TRADITION 33 (2005).
32
Mahatma Ghandi, Young India, 19 January 1921, in WAS IST HINDUISMUS 126 (2006).
33
ROBERT E. FLORIDA, HUMAN RIGHTS AND THE WORLD’S MAJOR RELIGIONS: THE BUDDHIST TRADITION 9 (2005) Kenneth K.
Inada, The Buddhist Perspective on Human Rights, 19 J. ECUMENICAL STUD. 72 (1982); Kenneth K. Inada, A Buddhist
Response to the Nature of Human Rights, J. BUDDHIST ETHICS 55 (1995); Damien Keown, Are there “Human Rights”
in Buddhism?, J. BUDDHIST ETHICS 11, 13 (1995).
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Dignity and Republicanism
universal respect. 34 As a consequence it is not surprising that influential spiritual figures
emphasize the importance of human rights and dignity for Buddhism. 35
Confucianism is in some debates equally taken as intrinsically hostile to ideas of human
rights. But again, interesting things can be discovered. Roughly around the time of Stoic
thought an important Confucian thinker, Meng‐Trzu or Mencius, argued that human beings
possess a divine nobility because of their moral orientation. 36
Finally, there are various interesting passages in the Qu’ran that are of relevance for a
transcultural history of human dignity. A good illustration of this is that human beings are
described as the representative or successor of God on earth (depending on translation
and interpretation). 37 This image underlines the particular closeness of human beings to
God. The religious sources of Islam open, therefore, the door to a religious
conceptualization of human dignity as wide as Judaic or Christian scripture.
34
Suttanipata 143–152, 149, in DIE REDEN GOTAMO BUDDHOS. SAMMLUNGEN IN VERSEN: DIE SAMMLUNG DER BRUCHSTÜCKE.
DIE LIEDER DER MÖNCHE UND NONNEN. DER WAHRHEITSPFAD (Karl Eugen Neumann trans., 1957).
35
The XIV Dalai Lama, Speech at Non‐Governmental Organizations United Nations World Conference on Human
Rights, Vienna, Austria: Human Rights and Universal Responsibility(June 15, 1993) reprinted in DAMIEN KEOWN ET
AL., BUDDHISM AND HUMAN RIGHTS xvii–xviii (1998):
Recently some Asian governments have contended that the
standards of human rights laid down in the Universal Declaration of
Human Rights are those advocated by the West and cannot be
applied to Asia and other parts of the Third World because of
differences in culture and differences in social and economic
development. I do not share this view and I am convinced that the
majority of Asian people do not support this view either, for it is the
inherent nature of all human beings to yearn for freedom, equality
and dignity . . . . As a Buddhist monk, I try to develop compassion
within myself, not simply as a religious practice, but on a human level
as well. To encourage myself in this altruistic attitude, I sometimes
find it helpful to imagine myself standing as a single individual on one
side, facing a huge gathering of all other human beings on the other
side. Then I ask myself, “Whose interests are more important?” To
me it is quite clear that however important I may feel I am, I am just
one individual while others are infinite in number and importance.
Id.
36
KE MENG, MONG DSI 132 (Richard Wilhelm trans., 1921); KWONG‐LOI SHUN, MENCIUS AND EARLY CHINESE THOUGHT 136
(1997).
37
Qu’ran 2:30. On the debate on variations of translations, see Rotraud Wielandt, Menschenwürde und Freiheit in
der Reflexion zeitgenössischer muslimischer Denker, in FREIHEIT DER RELIGION 187 (Johannes Schwartländer ed.,
1993).
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18 German Law Journal
III. Religion, Ethics, and Secular Reflection
It is possible to expand on the religious understanding of the value of human beings. This
short overview, however, should be sufficient to illustrate some important conclusions.
The sketched impressions of antiquity and world religions reveal that there are different
theoretical, cultural and religious paths to a conception of the particular value of human
beings. This must be emphasized because one sometimes finds in contemporary
discussions the claim that human dignity is based on a certain religion, say Christianity and
its conception of the imago dei.38 It is certainly a long way from the outlined traces of
dignity in the history of ideas to a fully unfolded, legally applicable concept. But it is clear
that there is no prerogative of one culture or religion in this respect.
An important element of the religious conceptions of the value of human beings is that
human dignity is derived from a transcendent source. The last order axiological foundation
of dignity is of sacral nature. The idea and conceptualization of concrete sacral ethics has,
however, necessarily secular roots itself as it is the product of human reflection and
culture. Every religious ethics is a human ethics through the creation of the relevant
religious texts or other authoritative sources, the interpretation of these sources and the
differentiated discussion that unfolded over centuries with all the power that constitutes
the magnificence that religious morality can embody. Some examples of this already have
been mentioned. Religious ethics are consequently no more epistemologically secure than
other secular approaches, because both are cut from the same kind of cloth—the fragile
fabric of human thought. Religious ethics is developed by the reflection, the culture and
practices of the believers of an epoch, and is as convincing and justified as the reasons and
principles that support it explicitly or that are their tacit presuppositions.
With the dawn of modernity, three conscious consequences have been drawn from this
state of affairs. Human insight becomes epistemologically the final yardstick of normative
orientation. Axiologically, the justification of the intrinsic value of human beings rests on
nothing but the properties of human beings as such. Finally, the moral law forms itself and
solely the decisive motivation for moral action. This is the theoretical program of modern
normative humanism.
IV. Normative Humanism and Its Critique
Kant was, until today, the decisive example for this kind of normative humanism. He
formulated the emancipation of practical considerations from religious sources
programmatically: “So far as morality is based on the conception of the human being as
38
From the German debate see CHRISTOPH ENDERS, DIE MENSCHENWÜRDE IN DER VERFASSUNGSORDNUNG 177 (1997);
Josef Isensee, Menschenwürde: die säkulare Gesellschaft auf der Suche nach dem Absoluten, 131 ARCHIV DES
ÖFFENTLICHEN RECHTS 173, 206 (2006).
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Dignity and Republicanism
one who is free but who also, just because of that, binds himself through his reason to
unconditional laws, it is in need neither of the idea of another being above him in order
that he recognize his duty, nor, that he observe it, of an incentive other than the law
itself.” 39
Part of these laws of duty recognizable for human beings is the respect for human dignity.
The content of this concept for Kant consists in a value status beyond relations of
exchange. Humans have no price but are an end‐in‐themselves, a Selbstzweck. 40
Therefore the second, material version of the categorical imperative (which demands that
every human being is never only used as means but always treated as an end) is for Kant
the core of human dignity. 41 The idea (certainly not invented by Kant, but concisely
formulated by him) of humans being as ends‐in‐themselves is, up to now, a central topic in
discussions about the content of human dignity. It is the best instrument to criticize, by
the way, those remarks of Kant that are not drawing the appropriate consequences from
this principle, such as to the rights of women or servants. 42
Kant offers not only a concretization of the content of human dignity but also a theory of
its foundations as well. The central reason for the ascription of dignity for him is human
autonomy. Autonomy means, however, nothing but freedom under a moral law.
Consequently, morality is the central property of human beings that legitimizes their claim
to dignity. 43
Kant formulates four basic arguments for this claim: 44 The first argument points to the
necessity of a final instance of purpose‐setting. This instance can only be the moral law
because only morality binds unconditionally and only the unconditional is able to set last‐
order purposes. 45 The second argument takes recourse to the assumption of an ideal
39
IMMANUEL KANT, DIE RELIGION INNERHALB DER GRENZEN DER BLOßEN VERNUNFT 3 (Akademie Ausgabe Bd. VI, 1914)
(1793) ( “Die Moral, so fern sie auf dem Begriffe des Menschen al seines freien, eben darum aber auch sich selbst
durch seine Vernunft an unbedingte Gesetze bindenden Wesens gegründet ist, bedarf weder der Idee eines
anderen Wesens über ihm, um seine Pflicht zu erkennen, noch einer anderen Triebfeder als des Gesetzes selbst,
um sie zu beobachten.”); IMMANUEL KANT, RELIGION WITHIN THE BOUNDARIES OF MERE REASON 57 (George Di Giovanni
trans., 2001) (same).
40
IMMANUEL KANT, GRUNDLEGUNG ZUR METAPHYSIK DER SITTEN 434 (Akademie Ausgabe Bd. IV, 1911) (1785).
41
Id. at 429; IMMANUEL KANT, METAPHYSIK DER SITTEN (Akademie Ausgabe Bd. VI, 1914) at 462.
42
IMMANUEL KANT, METAPHYSIK DER SITTEN at 314.
43
IMMANUEL KANT, GRUNDLEGUNG ZUR METAPHYSIK DER SITTEN at 435.
44
For a detailed reconstruction see MAHLMANN, supra note 6, at 152.
45
KANT, supra note 40, at 428, 436; IMMANUEL KANT, KRITIK DER URTEILSKRAFT 435 (Akademie Ausgabe Bd. V, 1913)
(1790); CHRISTINE M. KORSGAARD, CREATING THE KINGDOM OF ENDS 122 (1996). “[R]egress on conditions,” based on
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20 German Law Journal
order. Morality is for Kant the entre‐billet to the realm of ends in which the purposes of
individuals are coordinated by an universal law. To be able to become part of the realm of
ends renders a specific value unto human beings.46 The third argument highlights the
particular role of morality in human life: the moral experience, the ability to overcome
even strong motivations and not to make non‐moral interests the last reason for action
“rouses a feeling of the sublimity of our own vocation than enraptures us more than any
beauty.”47 The fourth argument is derived from the riddle of liberty that is connected with
morality. Through human freedom a humanity beyond phenomenal experience becomes
evident.48 Human dignity is thus nourished by the hidden, but sensed majesty of the homo
noumenon.
These arguments are perhaps the most differentiated attempt in the history of ideas to
give a justification for the ascription of dignity. They are, however, of variable and
disputable merit.49 The first argument from the necessity of final ends presupposes that a
world without final ends is unthinkable. But this is far from true. From a relativist
perspective this is exactly the kind of world we are living in. The second argument is
circular. Human beings are taken to be ends‐in‐themselves because, due to their morality,
they are, able to enter a realm of ends. The particular property of the realm of ends that
dignifies its members is, however, that it is a moral realm of ends. The argument poses, as
a consequence, the question of the reason for the value of morality again on the level of
the realm of ends, but does not answer it. The third argument from the experience of
morality raises some questions as well. The praise of duty is sometimes the object of
critique, even derision. To some it appears as a poor, bandy‐legged apotheosis of order
and obedience. This critique, however, does not quite catch the core of Kant’s
appreciation of morality. It is not just the sticky exuberance of exaggerated moralism. On
the contrary, one can find in it a fine sense of the particularity of the moral world, that
enables human beings to transcend their own narrow interests and to commit themselves
to some care for others and principles of justice, sometimes, in the case of the few, even
for the price of their lives. The fourth argument depends on a metaphysic that is not
convincing. Nevertheless, there is perhaps something that can be rescued from it, namely,
a sense for the more enigmatic properties of human beings that may be relevant for the
theory of their worth.
human nature with a “value‐conferring status”: “The unconditioned condition of the goodness of anything is
rational nature, or the power of rational choice . . . .” Id.at 123.
46
See KANT, supra note 40, at 433, 435, 462.
47
IMMANUEL KANT, DIE RELIGION INNERHALB DER GRENZEN DER BLOßEN VERNUNFT 23 (Akademie Ausgabe Bd. VI, 1914)
(1793); Immanuel Kant, Religion Within the Boundaries of Mere Reason in, Religion and Rational Theology 72
(Allen W. Wood & George Di Giovanni eds., 2001) (same).
48
IMMANUEL KANT, KRITIK DER PRAKTISCHEN VERNUNFT 86 (Akademie Ausgabe Bd. V, 1913) (1788).
49
MAHLMANN, supra note 6, at 160.
2010] 21
Dignity and Republicanism
Kant’s arguments are consequently of ambivalent value. This has not diminished the force
of the idea that human beings are ends‐in‐themselves. It nourished, for example, social
movements that developed with the onset of the industrial revolution, notwithstanding
their great heterogeneity, and whose basic aim was to overcome economical relations in
which part of the society are nothing but means of production, not ends of the social
association and its institutions. One can find traces of this idea even in theories that
apparently pursue a quite different course. A good example of this is the classical critical
theory that until today sets some of the tone for the discussion about the enlightenment
and its moral concepts. In the Dialektik der Aufklärung (Dialectics of Enlightenment) Kant’s
ethics is the central example for the shortcomings of enlightened thought. It is described
as the usual attempt of bourgeois thinking to legitimize the consideration of others
without which civilization is impossible by other means than material interest or force—
sublime and paradox as no other attempt before but as ephemeral as all before. 50
This critique is famous but weak. The point of the formulated alternative to Kant’s ethics
in the framework of negative dialectics is namely exactly the prevention of the
instrumentalization of human beings, the critique of their reification. 51 The critique of the
practical reason of the enlightenment thus leads back to their core tenets.
Another example is post‐modern ethics. A common thread is the respect for the Other,
founded in the epiphany of the face, le visage. 52 This Other is the source of immediate
respect. The question is, however, whether one can really reconstruct such a respect of
the Other without recourse to a concept of the value status of this Other and, more
precisely, the idea that human beings are ends‐in‐themselves. It seems therefore that
post‐modern ethics tries to free itself from the narrative and final languages 53 of the
enlightenment but in fact, in its most convincing parts, speaks with the same tongue.
50
THEODOR W. ADORNO & MAX HORKHEIMER, DIE DIALEKTIK DER AUFKLÄRUNG 92 (1969) (“Es ist der übliche Versuch des
bürgerlichen Denkens, die Rücksicht, ohne welche Zivilisation nicht existieren kann, anders zu begründen als
durch materielles Interesse und Gewalt, sublime und paradox wie keiner zuvor, und ephemer wie alle.“).
51
Adorno illustrates this by formulas like: “There shall be no torture; there shall be no concentration camps,”
asserting that such sentences should not be rationalized. THEODOR W. ADORNO, NEGATIVE DIALEKTIK 281 (1997).
52
A central reference point appears in EMMANUEL LEVINAS, TOTALITÉ ET INIFINI 173 (1961).
53
RICHARD RORTY, CONTINGENCY, IRONY, AND SOLIDARITY (1989).
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22 German Law Journal
C. Some Aspects of the Current Debate
In the current debate some of the classical positions continue to be present, especially
religious ethics and Kantian philosophy. There are, however, new nuances as well. Some
shall be mentioned now. Habermas, for example, derives human dignity from reciprocal
relations of recognition through which the communicative life world constitutes itself.
Human dignity is not a value predicate based on a creatural property but is ascribed in
social, communicative interaction.54 A somewhat related social‐contractualist approach
takes human dignity as the result of a mutual promise of a community.55 A problem of
such social‐constructivist approaches is that human dignity concerns moral claims that are
located on a deeper level than the fact of a specifically structured life‐world or the
normative consequences of a mutual promise. Human dignity is not only not the result of
such life‐worlds or promises, it constitutes the right to the creation of certain, humanely
appropriate life worlds marked by the inclusion of the subjects into relations of
communication and to the promise of respect embodied among other in a constitution
based on social consent. The same is true for a right to reciprocal and universal
justification mobilized sometimes in this regard.56 Human beings are certainly entitled not
to be submitted to obligations that are not reciprocally and universally justified. The very
reason for this is, however, that they are ends‐in‐themselves. The right to justification is
the product of human dignity, not its central content.
The attempt formulated by Margalit to found dignity on the ability of human beings to
always start anew points back to the classical argument from liberty.57 Ronald Dworkin
has sketched an investment‐theory of human value: In human life we are respecting the
investments made that were necessary to create a human personality.58 This theory does
not sufficiently account for the idea underlying human dignity that human value is
independent of any kind of investment and derived from humanity as such.
As a final example, systems theory formulates a specific kind of skepticism about dignity.
Human dignity serves, from this perspective, the needs of social systems to generate
variation of communications as this variation is guaranteed by subjects. Human dignity, as
54
Jürgen Habermas writes about dignity: “Sie ist nicht eine Eigenschaft, die man von Natur aus ‘besitzen’ kann
wie Intelligenz oder blaue Augen; sie markiert vielmehr diejenige ‘Unantastbarkeit,’ die allein in den
interpersonalen Beziehungen reziproker Anerkennung, im egalitären Umgang von Personen miteinander eine
Bedeutung haben kann.” JÜRGEN HABERMAS, DIE ZUKUNFT DER MENSCHLICHEN NATUR 62 (2004).
55
Hasso Hofmann, Die versprochene Menschenwürde, 118 ARCHIV DES ÖFFENTLICHEN RECHTS 353 (1993).
56
RAINER FORST, TOLERANZ IM KONFLIKT 420 (2003); Rainer Forst, Die Würde des Menschen und das Recht auf
Rechtfertigung, 53 DEUTSCHE ZEITSCHRIFT FÜR PHILOSOPHIE 589 (2005).
57
AVISHAI MARGALIT, THE DECENT SOCIETY (1996).
58
RONALD DWORKIN, LIFE’S DOMINION (1994).
2010] 23
Dignity and Republicanism
other human rights, is thus protected to keep the future of the social system open. 59 It is
based on a functional rationale of the social system; it is not guaranteed to foster some
inherent rights of human persons. This position, too, misses the most basic point of
human dignity, which is to protect individuals against any kind of instrumentalization,
including the fostering of systemic functions.
D. A New Perspective
The discussed examples illustrate that a theory of human dignity poses many problems
that are not easy to solve. These findings, however, do not imply that the project of
providing some kind of basis for human dignity is completely without hope. One possibility
is a multilayered argumentation, the outline of which shall be sketched now. 60 The
starting point is the observation that, for human beings, there is no need to justify their
pursuit of happiness by reference to some higher purpose. Their well‐being is a self‐
evident aim. As this is true for any human being and as it is a basic principle of justice to
treat equal things equally, the status of a last‐order purpose has to be universalized. Every
human person is the justified last‐order purpose of action, because human beings are,
through their factual quest for happiness, a purpose for themselves. Universalization as a
command of justice demands the ascription of this purpose‐status to all.
As Pufendorf nicely formulated, human beings have a particularly fine sense of self‐
respect. 61 To protect this human need for respect is certainly justified purely because of a
concern for the feelings of human beings. The fact of self‐respect does not, however,
answer the question whether this attitude is justified because the self is in fact worthy of
respect, or whether the self‐estimation of human beings is just a (pleasant) subjective
illusion of what is really a worthless, conceited creature. This is an important and difficult
question.
Still, if one looks at the existential properties of human life, Selbstzweckhaftigkeit or being‐
an‐end‐in‐oneself seems to be based on some good reasons. The construction of a mental
explanatory image of the world (and the acceptance of its sometimes challenging results),
the aesthetical appropriation of human existence with its many—not always pleasant—
attributes in art, the emotionally textured, potentially blissful but possibly tragically lost
self‐creation of transient human subjects faced with their own rather quickly‐approaching
end carried out in the mode of consciousness and self‐determination, all confer particular
value on human life—at least, it seems, from the only available human point of view.
59
NIKLAS LUHMANN, GRUNDRECHTE ALS INSTITUTION 48 (1965); NIKLAS LUHMANN , DIE GESELLSCHAFT DER GESELLSCHAFT 1075
(1997).
60
MAHLMANN, supra note 6, at 262.
61
SAMUEL PUFENDORF, DE OFFICIO HOMINIS VII, § 1 (1673).
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24 German Law Journal
This view is perhaps buttressed by another consideration already mentioned in passing in
the short historical reconstruction: the argument that is based on the riddles that human
existence poses and that for some are of decisive importance. A commentary on the
Zauberberg, the Magic Mountain that Thomas Mann made in American exile about the
searcher of the Grail, the 20th century embodiment of the quester legend Hans Castorp,
illustrates this quite well: “The Grail is a mystery but humanity is that as well. Humankind
itself is a mystery and all humanity is based on the reverence for the mystery of
humankind.”62
E. The Content of Human Dignity as a Legal Concept
I. Legality and Legitimacy
This survey has yielded various results so far. It first answers what human dignity as a
normative concept means. It includes, as has been said, a prohibition of the
instrumentalization of human beings and—its positive mirror image—the imperative to
respect human beings as the decisive subject of their personal and social life. It demands
that human beings are not treated in a way that implies the negation of their belonging to
humankind. These contents can be spelled out in more concrete terms and there is an
ample body of judicial decisions on the matter.63
This concretization is far from being empty or nebulous. This is first of all true for
fundamental orientations of the contemporary legal civilization. One should not forget the
past in this respect. It is somewhat surprising that a normative principle is regarded as
vacuous that is a key to the overcoming of central tragedies of human history. This is not
just illustrated by an extreme case like Nazism. I will mention just three other obvious
examples. The being‐an‐end‐in‐themselves of humans is a central reason for the
illegitimacy of slavery. It also is the normative core of women’s struggle for equal rights
and their attempts to overcome the idea and its many variations that women are not full
62
Thomas Mann, Einführung in den Zauberberg, in 11 GESAMMELTE WERKE IN DREIZEHN BÄNDEN 617 (1990) (“Der Gral
ist ein Geheimnis, aber auch die Humanität ist das. Denn der Mensch selbst ist ein Geheimnis, und alle Humanität
beruht auf der Ehrfurcht vor dem Geheimnis des Menschen.”)
63
Problems abound. Among the most discussed are the indeterminacy of the scope of the right; its
conceptualization as a subjective right and not only objective law, hermeneutical yardstick and the like; its
horizontal effect; the protection of the species character through dignity clauses; the beginning and end of the
(prenatal or postmortem?) protection of human beings through dignity clauses; its relation to particularly
contentious legal questions like abortion, biomedical research (especially on embryos), new techniques of
reproduction, or torture; the question of possible limitations or—alternatively—the absolute character of dignity
clauses; the conditions for engagement in an interference; the relative or universalistic character of
concretizations of human dignity, and the relation of interpretations of human dignity to the idea of the neutrality
of the state. For a detailed doctrinal unfolding of human dignity as a legal concept considering these and other
questions see MAHLMANN, supra note 6, at 282.
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Dignity and Republicanism
subjects, but, as Hegel put it, merely plant‐like. 64 It is also at the heart of the project of the
democratic constitutional state based on human rights that aims at securing and
institutionalizing the positions of human beings as relevant subjects—to whatever ends
they may use this normative status.
One should not underestimate these findings. They are more than the fodder for edifying
but hollow Sunday speeches. They lead to central questions about the legitimacy of legal
orders. In constitutional theory one sometimes finds the view that questions of legitimacy
have ceased to be of legal relevance because of the positivity of fundamental rights.
Questions of legitimacy are discussed and answered in the mode of the legality of human
rights. The law has lost the burden of legitimacy through the incorporation of fundamental
value decisions.
There are two reasons to be doubtful about these ideas. First, the source of the
normativity of a legal regime is not a master rule like a Grundnorm, or a rule of recognition.
Nor is it the reproductive mechanisms of a social system or the factual ability to enforce
coercion. The last source of its binding force is the legitimacy of the constitutional order,
the consciousness of which is secured by a legal culture—the legal‐ethical orientations of
its citizens. This legal‐ethical conscience of citizens is a category that has no place in
constitutional theories of existential decisions, of transpersonal integration, or autopoietic
reproduction. For a republican constitutional theory it is, in contrast, a decisive element.
As a consequence, if one celebrates the success of a constitution—be it in Germany or
elsewhere—one necessarily celebrates a legal culture as well that is not just the product of
scholarly treatises of law. What is important about a legal culture is not a give‐away in the
toad‐bag of history but the result of continuous political struggles that have to win the day
against other visions of human life. Germany is an example, revealing that a country has to
travel sometimes a very long way to formulate the constitutional promise of a republican,
democratic, liberal and social order based on the rule of law. Furthermore, there is no
guarantee that a legal culture will not turn in other, less attractive directions. As the
impact of the “war against terror” on the legal system of the USA illustrates, this can
happen even in a state with a constitution that set the example for the modern
constitutionalist tradition. It may also occur, to take another recent example, in a
community with a rather proud liberal and democratic history, as the plebiscite on the
prohibition of minarets in Switzerland shows. The struggle for a republican legal culture—
and this means in a world of legal interpenetration and dependence—, the struggle for an
humane international legal culture, is therefore the sober demand of every day legal life
for which concepts of legitimacy are urgently needed.
64
GEORG WILHELM FRIEDRICH HEGEL, GRUNDLINIEN DER PHILOSOPHIE DES RECHTS § 166 (1820).
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26 German Law Journal
II. Concretization and Fundamental Rights Theory
In addition to these considerations of constitutional theory there is a second reason for the
importance of theoretical conceptions of human dignity derived from the analysis of
fundamental rights. Fundamental rights are abstract norms, notwithstanding some
examples of quite concrete regulations. It is a widely and rightly shared perception that
the interpretation of a given human rights catalogue is dependent on an encompassing
conception of particular fundamental rights and of the system of fundamental rights in
general. Such an encompassing conception is a theory of fundamental rights.65 A theory
of fundamental rights fills the hermeneutical space that is the necessary result of the
abstractness of human rights. Any doctrinal account of the content of human dignity
depends therefore on a fundamental reflection of the content of this human right because
this is the only way to rationally and transparently reconstruct the legal meaning of this
guarantee. The idea of humans as ends‐in‐themselves is a central element of such a theory
of human dignity as a constitutional norm. Germany, with its particularly differentiated
jurisdiction, is a good example in this respect. The outlined principle is the positive kernel
of the so‐called “Objektformel”66 stating that human beings shall never become a mere
object of state power.67 This implies, and is explicitly stated by the German Federal
Constitutional Court in later decisions, the protection of the status as a subject and end of
the constitutional order.68
The jurisprudence of courts is able, in Germany and elsewhere, to find practical solutions
to problems that arise. Sometimes the fear is formulated that there could be an
inflationary use made of dignity clauses—that they could become a card too quickly played
in human rights cases. However, if one considers court practice this has not been the case,
even though, as in the case of other human rights, some decisions of courts are less
convincing than others. One oft‐mentioned example from the German context is the claim
that the wrong spelling of the name of a person in a telephone bill infringes human
dignity.69 That plaintiffs and their advocates develop arguments that display a sense of the
legally fantastic is not a new phenomenon and not limited to dignity clauses. A problem
would only arise if the courts followed these kinds of arguments. This, however, is not the
case, in the spelling example and elsewhere.
65
On this matter MAHLMANN, supra note 6.
66
This formulation is ascribed in the concrete German post‐war context to G. Dürig, though there are similar
formulations by others at that time. See Günter Dürig, Die Menschenauffassung des Grundgesetzes, 7 JURISTISCHE
RUNDSCHAU 259 (1952); Günter Dürig, Der Grundrechtssatz von der Menschenwürde, 81 ARCHIV DES ÖFFENTLICHEN
RECHTS 117, 127 (1956); Günter Dürig, in Maunz/Dürig, supra note 8, art. 1, para 28; JENS KERSTEN, DAS KLONEN VON
MENSCHEN 425( 2004) (some discussion about Dürig’s thought).
67
BVerfGE 27, 1 (6). This jurisprudence was slowly developed. See MAHLMANN, supra note 6, at 179.
68
BVerfGE 45, 187 (228).
69
BVerwGE 31, 236 (237.)
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Dignity and Republicanism
In the concrete case of Germany, the guarantee of human dignity has played, all in all, a
constructive and helpful role from fundamental questions to the fine tuning of procedural
rights. 70 To take some examples: The German Federal Constitutional Court has derived
from the guarantee the right to have a procedurally safeguarded chance to be freed ahead
of time in case of lifelong imprisonment. 71 The reason is that only in this case is the
convict regarded as subject that still can alter the course of his or her life—here through a
comportment that testifies to his or her ability to rejoin society. Another example that
illustrates an additional normative dimension is the decision that flooding a prison cell with
feces infringes human dignity. In this case, there is no instrumentalization of the convict
but a disrespect of his or her humanity—something that the German Federal
Constitutional Court, astonishingly enough, had to clarify. 72 Such illustrations for the
potentially positive role of dignity guarantees can be derived from contentious questions
as well. A good case in point is abortion—a problem that is sometimes regarded as proving
rather the opposite. There is internationally much debate about a convincing normative
conceptualization of this problem. In the German case, as elsewhere, human dignity plays
a differentiated role. In some opinions, the dignity of the embryo or fetus is the core of
the matter. Considering the development of the jurisprudence, however, another
dimension of equal importance is the growing consciousness that the dignity of the women
concerned is equally at stake, a fact that prohibits her instrumentalization. 73 This creates a
tragic constellation that law should at least try not to aggravate as has often been the case
in the past through undifferentiated criminal sanctions. The complex jurisprudence of the
German Federal Constitutional Court on abortion is certainly not beyond critique, although
the result is basically a livable solution. The guarantee of human dignity forms, however,
not the source of these shortcomings, but has been—through the mentioned emphasis on
the dignity of women—a core element for moving away from less convincing
conceptualizations of the past. 74
70
For a detailed reconstruction, MAHLMANN, supra note 6, at 179.
71
BVerfGE 45, 187.
72
BVerfG, Case No. 1 BvR 1359/05, Dec. 27, 2005,
http://www.bundesverfassungsgericht.de/entscheidungen/rk20051227 _1bvr135905.html.
73
See the dissenting opinion of justices Mahrenholz and Sommer in the second abortion decision of the German
Federal Constitutional Court. BVerfGE 88, 203 (347). These justices underlined explicitly the growing importance
of the dignity of women in the debate leading to the reform of abortion after the Court’s first abortion decision.
For the first case see BVerfGE 39, 1. This debate is mirrored in the majority opinion and the dissenting vote. See
BVerfGE 88, 203 (254, 340).
74
For a detailed discussion of the matter MAHLMANN, supra note 6, at 198, 312.
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28 German Law Journal
III. Some Challenges
1. Torture
The idea of human beings as ends‐in‐themselves offers some orientation for contemporary
challenges as well. A good example is torture. Repressive torture—torture in the
framework of the prosecution of criminal acts—is hardly discussed and evidently a
violation of human dignity. The interest of the state in criminal prosecution never justifies
such acts. Preventive torture has become a contentious topic in the framework of the
debates of the recalibration of the international legal culture because of the supposed
imperatives in the “war against terror”, drawing not the least from theoretical ticking
bomb scenarios.75 Germany offers the interesting illustration of a case in which a police
officer threatened a kidnapper with torture to disclose the location of the kidnapped child
who at that time was, in fact, already dead. This threat by the officers resulted in criminal
charges in which the violation of human dignity through torture was underlined by the
court.76
This points in the right direction: The guarantee of human dignity demands an absolute
prohibition of torture as envisioned by the Torture Convention and the European
Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).77
There are three important reasons for that. First, one precondition of these theoretical
scenarios does not regularly occur in real life: The knowledge that the tortured person is in
fact the right person. Torturing suspects is, however, certainly a violation of human
75
For the permissibility of torture in some constellations from the German debate: Winfried Brugger, Darf der
Staat ausnahmsweise foltern?, 35 DER STAAT 67 (1996); Winfried Brugger, Vom unbedingten Verbot der Folter zum
bedingten Recht auf Folter?, 55 JURISTEN ZEITUNG 165, 167 (2000); Fabian Wittreck, Menschenwürde und
Folterverbot, 56 DIE ÖFFENTLICHE VERWALTUNG 873 (2003). In international debate see ALAN DERSHOWITZ, WHY
TERRORISM WORKS: UNDERSTANDING THE THREAT, RESPONDING TO THE CHALLENGE 131 (2002). On the debate, see SANFORD
LEVINSON, TORTURE: A COLLECTION (rev. ed. 2006); Dietmar von Pfordten, Ist staatliche Folter als fernwirkende
Nothilfe ethisch erlaubt?, in IST FOLTER ERLAUBT? 149 (Wolfgang Lenzen ed., 2005); Ralf Poscher, Menschenwürde im
Staatsnotstand, in MENSCHENWÜRDE IN DER SÄKULAREN VERFASSUNGSORDNUNG, supra note 11, at 215, 222; Michael
Walzer, Political Action: The Problem of Dirty Hands, in TORTURE: A COLLECTION, supra, at 61 (emphasizing the
dilemmatic structure of the problem).
76
LG Frankfurt, NEUE JURISTICHE WOCHENSCHRIFT 692 (2005); ECrtHR, 30 June 2008, appl. No. 22978/05, Gäfgen v.
Germany confirmed that there has been a violation of Art. 3 ECHR which was remedied by the German state
through the legal reaction to the threat of torture.
77
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 2.2, Dec. 10,
1984, 1465 U.N.T.S. 85, 113. The ECrtHR underlines for the ECHR: “Art. 3 of the Convention enshrines one of the
most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading
treatment or punishment, irrespective of the circumstances and the victim’s behaviour,”
Nevmerzhitsky v. Ukraine, App. No. 54825/00, 43 Eur. H.R. Rep. 32, para. 79 (2005). On the absolute nature and
lacking possibility of derogation see Ireland v. United Kingdom, Case No. 5310/71, 25 Eur. Ct. H.R. (ser. A) at para.
163 (1978).
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Dignity and Republicanism
dignity. Second, torture does not lose anything of its dehumanizing effects because of its
purposes. This is not only true for the tortured persons, but for the torturer as well.
Torture may be imaginable as an individual act of desperation. As an object of a
necessarily abstract and general regulation in law, it is unthinkable, because it normalizes
the inhumane. 78 Third, one should not forget that torture is a very old plague the
abatement of which has become recently an even more pressing need. The only way to
make progress in this respect is its prohibition without exception.
2. Bioethics
Modern bioethics poses many questions. Some fundamental positions are, however, not
contentious. The breeding of humans to deliver organs for transplantation is not seriously
debated. There is a fundamental reason for this. Such ideas are a clear violation of the
principle of non‐instrumentalizaton of human beings. On the basis of such evident cases
one can try to solve more difficult problems, from pre‐implantation diagnostics to stem cell
research and quite generally about the beginning of a human life. Human dignity can play
in this respect an important role to prevent the intrumentalization of human life. 79
There is no reason in sight not to regard human dignity as a subjective right. 80 Beyond that
it has a further dimension, that is, in constitutional systems like Germany’s, it is
understood as the dimension of objective law, leading to questions of species ethics. As
we have seen, human dignity means that an individual has to be respected in its being as
such as a last order purpose of human action. Human dignity as an element of a species
ethics consequently must entail that humanity, in its defining properties, as created by
natural history, has to be equally respected in its being as such. Human dignity is the
normative self‐confidence of the singular person and the species alike. There is no reason
for narcissistic anthropocentrism, as indicated before. But if this self‐confidence
disappears, if humanity is regarded as a substitutable and improvable good, as it
sometimes actually is in debates about liberal eugenics, important elements of a humane
civilization and the value status of the individual slip out of sight.
3. The Global Crisis and the Prospects of Democracy
The global financial crisis provides a final case. The crisis has many dimensions, including
concrete or pragmatic solutions, on one hand, and more general concerns, on the other
78
Richard Posner, Torture, Terrorism, and Interrogation, in TORTURE: A COLLECTION, supra note 75, at 291 294
(“Torture is uncivilized, but civilized nations are able to employ uncivilized means, at least in situations of or
closely resembling war, without becoming uncivilized in the process. I suspect that this is particularly true when
the torture is being administered by military personnel in a foreign country. Inter armes silent leges.”).
79
For a more detailed discussion, see MAHLMANN, supra note 6, at 321.
80
MAHLMANN, supra note 6, at 288.
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hand, that pertain to the architecture of social orders that aim to prevent economic
disaster and maintain social equity. A further dimension concerns the concept of
democracy and the question how human beings can stay relevant citizens in political
developments that transcend the national legal sphere. The management of the crisis with
its far‐reaching consequences for individual citizens, not only through the accumulation of
massive state debts, was certainly not marked by democratic inclusion and illustrates how
human beings may become the mere objects of historical processes that have immediate
and major impact on their lives. Human dignity reminds us, in this context, that persons
have a fundamental right to remain the political subjects of their lives. Consequently, it
legitimizes the claim to create legal orders and institutions that protect human autonomy
in social associations and not only on the national but, as far as practically possible, on the
international level as well. Human dignity is the critical sting of republican democracy, too.
F. Human Dignity and Cosmopolitan Legal Science
To sum up: Human dignity means the specific value status of human beings derived from
their humanity as such. The reflection and justification of this value status is not the
prerogative of just one culture or religion. A useful concretization is the idea that human
beings form ends‐in‐themselves, their Selbstzweckhaftigkeit. This idea can be plausibly
reconstructed through philosophical anthropology and principles of justice. The idea of
human beings as ends‐in‐themselves forms the foundation for the unfolding of human
dignity as a workable legal concept. Germany, which possesses, in international
comparison, a particularly differentiated jurisprudence in this respect, exemplifies the fact
that the concept can be applied successfully in daily legal work. The idea to protect human
beings as subjects against objectivation and instrumentalization is helpful to master new
challenges, such as torture, bioethics, or the principles of international democratic
organization.
These reflections have illustrated that human dignity as a legal concept is rooted in a
theory of fundamental rights. In addition, it plays a decisive role in theories of legitimacy,
mirrored in republican legal cultures inclined to its protection.
These observations were mainly illustrated by the German example. This served as a
useful expository device, not more. Human dignity has been made a legal concept by the
international community and Germany is only one part in this wider development. Any
legal conception should pay conscious tribute to this cosmopolitan origin of human
dignity.81
A final remark: Human beings always have searched for a better life. Many conceptions
have fascinated them, some marked by utopian exuberance, some by more sober visions.
81
On cosmopolitanism in the theory of human rights, see MAHLMANN, supra note 6, at 487.
2010] 31
Dignity and Republicanism
The 20th century has certainly reformulated the lesson that human beings give as many
reasons for fear as for these different kinds of hope. But this curious human search has
certainly not come to an end. Law is sometimes regarded as not taking part in this
endeavor as it forms nothing but a dusty technical exercise of little deeper human interest.
This perception underestimates the law. Legal orders are the attempt to formulate an
outline of a right life for a community of human beings, today even to a certain degree on
the global level. This normative outline cannot and is not supposed to guarantee
something like individual human happiness. But it can create conditions that enable
human beings to pursue this aim, not the least through the protection of their dignity in a
republic of human rights.
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