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Does human dignity remain inviolable?

by Ernst-Wolfgang Böckenförde

In connection with the technological innovations in the area of ​​genetic and reproductive technologies, but also in the debate about torture and the status and treatment of prisoners of war, Article 1 of the Basic Law has been discussed in the Federal Republic in recent months. The “guarantee” of unconditional human dignity, which is not least based on the experience of the Nazi era, is being questioned by growing sections of the prevailing legal doctrine. An example of this is the new commentary on Art. 1 in the leading Constitutional Law Commentary on Maunz / Dürig by Matthias Herdegen.

At its core, the dispute revolves around the question: Can human dignity as the humanistic foundation of our constitution actually be subjected to a process of weighing up, or is the Basic Law obliged to protect human dignity that does not allow weighing up?

After the “Blätter” had already investigated this central question in the past few months, most recently with Heiner Bielefeldt's article on “Torture in the Rule of Law” (8/2004, pp. 947-956), we are focusing on the in this issue Discussion about human dignity in the context of genetic and reproductive technologies. With the sensational speech by Federal Justice Minister Brigitte Zypries at the Berlin Humboldt University in October 2003, this debate broke out again, as the conflicting views in the National Ethics Council show.

In the following, the former Federal Constitutional Court judge Ernst-Wolfgang Böckenförde takes a critical look at Matthias Herdegen's new comment on human dignity. He sees a “break in tradition” in the prevailing legal interpretation, a “shaking of the foundations” and an epochal change in the understanding of the guarantee of human dignity.

The judge of the constitutional court of Brandenburg, Rosemarie Will, co-editor of this magazine, examines the question of whether the human dignity of the Basic Law is actually based on the Christian dowry theory or on the Enlightenment tradition of Immanuel Kant. - D. Red.

The content of the Basic Law's guarantee of human dignity has been the subject of lively discussion in recent years. This was caused not least by the tremendous advances in biomedicine and biotechnology, especially in the past decade. Symptomatic of the process that takes place in jurisprudential discourse is the new comment on Article 1, Paragraph 1 of the Basic Law, published a good year ago in the large and long-lasting commentary by Maunz / Dürig by Matthias Herdegen.1 It is not a supplement and Update of Dürig's commentary with a view to new problems and challenges, but a complete new comment - the farewell to Günter Dürig.

This process is also symptomatic because Günter Dürig's first commentary, which appeared in 1958, remained untouched in the commentary for almost 45 years, although almost all other articles of the Basic Law had a second comment, sometimes even a third comment, during this time. There was a reason for this delay. Dürig's commentary on Articles 1 and 2 was, so to speak, the ideal and normative framework on which the commentary unfolded as a whole; it gave it its profile and was part of its identity. One did not want to leave this as long as possible, even if an addition or renewed processing would have been indicated for a long time in view of the development of case law and literature and new problems that have arisen.

How did Dürig's comment look like?

It grew out of the founding situation of the Federal Republic as a contribution to the development of the new order that the Basic Law wanted to establish after the experience of abuse of power and the thousandfold disregard for human dignity in the Third Reich. Dürig understood the guarantee of human dignity, covered by the deliberations of the Parliamentary Council, as the adoption of a fundamental "moral value" that emerged in European intellectual history, as he put it, 2 in positive constitutional law, which is consciously and deliberately a foundation of a pre-positive kind absorbed. He also advocated the universal validity of this guarantee, based on the entire legal system, not limited to the relationship between citizen and state, the traditional scope of fundamental rights. This corresponded to the qualification of Article 1, Paragraph 1 as an objective legal norm, namely a fundamental norm, "supreme constitutional principle of all law", which then gradually develops in the value and claim system of the fundamental rights part of the Basic Law, without, however - for Dürig - granting a subjective basic right 3 For such a basic right is necessarily subject to limitations and considerations in the context of the legal system if it wants to endure, while according to the intention and formulation of the text, the principle of respect and protection of human dignity should apply universally and "inviolably", even through constitutional changes (Article 79.3 of the Basic Law).

The practical positive legal significance of the guarantee of human dignity lies in the fact that it establishes a binding standard for all government action, on the one hand determining the purpose and tasks of the government and limiting it on the other. It obliges not only to respect and protect human dignity in the state-citizen relationship, but also to shape the general legal system in such a way that non-state forces, i.e. from society and the relationship between individuals, violate human dignity legally not allowed to take place.

Dürig determined the content of human dignity in a way that clearly expresses the pre-positive foundation that Art. 1 Para. 1 transformed into positive law - at that time communis opinio -: “Every human being is human by virtue of his spirit, who sets him apart from impersonal nature and enables him to make his own decision to become aware of himself, to determine himself and to shape himself and the environment. ”4 This freedom to shape oneself and the environment is intended to be the same for all people, it is peculiar to the human being; not the respective realization in the concrete person, but the "same abstract possibility", that means the potential ability for realization is decisive.

The unborn life, the nasciturus, is also entitled to human dignity, including the rights arising from it: “At the moment of conception, the new essence and personality arises, which no longer changes. In him everything essential and essential [...] of this person is resolved. He drives to the development of that which lies germinally in him and causes man, whether he grows or decays, always remains himself. ”5 The nasciturus is therefore by virtue of his human dignity the holder of the basic right to life within the meaning of Art 2 GG.

Dürig sought to determine the further content of the guarantee of human dignity as a fundamental, objective legal norm, based on the act of infringement, based on the guideline of the so-called object formula, which has made a long career out of constitutional case law. This object formula should be the guiding principle, not the formula for subsumption.

Herdegen's fundamentally different approach

Herdegen's new commentary does agree with Dürig’s comment in a number of details, but it follows, and that’s what matters here, a fundamentally different approach. The guarantee of human dignity becomes flexible and adaptable, and loses its character as a rock in the surf a good deal. What is decisive is the rejection of the character of the guarantee of human dignity as a conscious assumption of a pre-positive spiritual-ethical content in the positive law with which it remains linked. The rejection is clear: “The prevailing idea in the Parliamentary Council that the Basic Law, with the human dignity clause 'declaratory', takes on a right to positive law that precedes the state and the constitution, still has considerable suggestive power. […] For the constitutional consideration, however, only the (inviolable) anchoring in the constitutional text and the exegesis of human dignity as a concept of positive law are decisive. ”6 Human dignity as a legal concept is thus completely on its own, detached (and cut off) from the Link with the upstream spiritual and ethical content that was present to the Parliamentary Council and so important for Dürig. What is to be said about this migrates to the "intellectual historical background", which is well reported, but without normative relevance. The main axis loses the fundamental norm of the Basic Law.

The guideline for the interpretation is taking up and communicating the variety of interpretations, focusing on what turns out to be a consensus, and the cautious, skeptical search for evidence-based judgments. The option for the character of fundamental rights and the subjective-legal claim to the dignity of the guarantee of human dignity - unlike Dürig, more of a detailed problem than a fundamental structural alternative to understanding it as an objective legal fundamental norm - opens the door to weighing up, which is inevitable in the case of conflicting fundamental rights claims, and to flexible handling . The following formulation can be used as the key phrase for the comment: "Despite the categorical claim to dignity of all people, the type and degree of protection of dignity are quite open to differentiations that take into account the specific circumstances." 7

What is to be said about this sentence, is it not self-evident? Yes and no. On the one hand, it carries meaningful differentiations when it comes to the type of protection of dignity; on the other hand, it also bears the divergence between the claim to dignity and protection of dignity when it focuses on the degree of protection of dignity.

The latter becomes very clear when comparing the protection of the dignity of born people and prenatal protection of dignity. While for every born person the full bearer of human dignity by virtue of belonging to the human species is beyond question, regardless of social characteristics or the ability to live a meaningful life, there is a sliding scale of varying availability in prenatal protection of dignity. The commentary consciously abandons the traditional discourse and takes refuge in a “process-based consideration of the protection of dignity with a development-independent intensity of an existing claim to respect or protection.” 8 The aim is, on the one hand, to avoid artificial dividing lines in the “whether” of protection of dignity, i.e. human dignity on that To be able to stretch back the earliest stage of human life, but on the other hand to maintain a wide flexibility in the "how" of the protection of dignity with regard to its intensity.

That can hardly work. A protection of dignity seen in this way, with its own relativization, necessarily also leads to the relativization of the indispensability and inviolability of human dignity itself, although the impression is given that these continue to exist. It is justified by referring back to the key phrase already mentioned: "If the extent of the claim to dignity is allowed to be based on the concrete circumstances at all, this must apply in a special way to the stages of human life." Freedom for granting and dismantling protection of dignity according to the interpreter's ideas of appropriateness.10 This is updated not least with a view to the current problems of biomedicine and human genetics, as can be seen from a number of statements on the more detailed forms of the guarantee of human dignity, which do not recognize solid ground let, can be proven.

Precursor to the new comment

Matthias Herdegen's new comment on Article 1, Paragraph 1 of the Basic Law and the breach of tradition documented in it did not come out of the blue. It was not without a predecessor, and it is not alone now. I am picking out a few things.

As early as 1985, prompted by the emerging problems of human genetics, Peter Lerche advocated a more restrictive rather than an expansive understanding of human dignity.11 He did this not least to preserve the unreservedness and - in today's terms - the resistance to weighing up the guarantee of human dignity. In this respect, there is nothing wrong with it, because any expansion or further development of such a guarantee, even if there are good reasons for it in view of new problem situations, at the same time harbors the risk of relativization, in that on the one hand categorical prohibitions, on the other hand certain exceptions are postulated.

What is important, however, is the argumentation approach that Lerche chooses for this. As a commodity to be protected without reservation, human dignity, it is said, “can only defend its contours if it is fixed on that narrow area where the consent of legal counterparts is a kind of matter of course, an area of ​​protection that is 'self-evident' even then would have to apply without reservation if Article 1, Paragraph 1 did not expressly exist. ”12 And he adds:“ In important areas of human genetics, however, this matter of course is questionable ”. If you look closely, this means that the determination of the content of human dignity is based on the principle of consensus, the generally existing consensus, and not a one-off consensus at a certain time, but the consensus that comes in advance. It makes a very good sense, according to Lerche, to keep the area of ​​protection of human dignity in that narrow space that can be based on self-evident agreement.13 The decision to replace a substantive spiritual-ethical content with which the guarantee remains linked is resolved in this .

A comparable replacement can be found a little later at Hasso Hofmann. 14 He turns away from the dowry theory, which sees human dignity based on self-existence and the rational nature of man as qualities peculiar to him - it also determined the great majority of the members of the Parliamentary Council in one way or the other when creating the Basic Law Weise - and also from Niklas Luhmann's theory of achievement.15 He contrasts them with his theory of social recognition of human dignity. Human dignity is constituted - according to his thesis - in social recognition, through positive evaluation of social claims to respect; In the legal sense, it is not a concept of substance, quality or performance, but a relation or communication concept and cannot be thought of in isolation from a specific community of recognition.16 The constitutional guarantee of human dignity as a fundamental state norm is shown as a reciprocal promise of the participants in the constitutional power, to found this state for the sake of human dignity on mutual recognition as in principle equally free and worthy members of the community.17 The universal idea of ​​human dignity provides the motive for this, but is not itself the content or object of the guarantee.

Source: Blätter >>>>> read on

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Above -A fini documentaristici, l’Archivio Federale Tedesco ha spesso conservato le didascalie originali delle immagini, che possono essere quindi erronee, di parte, obsolete o politicamente estreme. December 18, 1989 Federal Constitutional Court Karlsruhe from left Prof. Dr. Dieter Grimm, Prof. Dr. Hermann Heussner, Prof. Dr. Dr. Ernst-Wolfgang Böckenförde ...

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