detail - Rule of Law Programme Middle East and North Africa
Fundamental Works of Constitutional Law
Such an examination is the present contribution by Peter Häberle1. The protection of human dignity is not a particularity of the Basic Law, but is found in numerous constitutions and in public international law. Often, a reference can be found in the preamble. For example, in the Charter of the United Nations of 26th June 1945, the Universal Declaration of Human Rights of 10th December 1948 or the International Covenant on Civil and Political Rights of 19th December 1966. In addition, the constitutions of many states contain human dignity clauses. In Germany, even the first democratic constitution – the Weimar Constitution of 1919 – had, somewhat hidden in Art. 151 Abs. 1 WRV, a reference to human dignity.
Since the idea of human dignity is not further defined in the Basic Law, it is, above all, the role of the Federal Constitutional Court of Germany to refine it. There have already been numerous decisions in which the court has had to deal with the dignity of human beings and its characteristics. The Court describes human dignity as the centre of a value system that is conveyed by the entire Basic Law. Human dignity is, therefore, the highest benchmark within the constitution and it directly effects the substance of numerous other fundamental rights.
The main approach of the Constitutional Court´s jurisdiction is the so-called object-formula (“Objektformel”), which is based on Immanuel Kant's moral theory that prohibits to treat people merely as means. The object-formula states that no human being shall be treated as an object of state action and thus be denied the quality of a human subjectivity. This concept of human dignity has major implications for the legal order, for example, on how people are treated in criminal proceedings and the penal system. To specify the substance of human dignity is, therefore, a matter of individual cases. Due to the federal structure of Germany, this specification is not only done by the Federal Constitutional Court, but also by the Constitutional Courts of the “Länder” (federal states), as human dignity is anchored in their constitutions as well.
Probably the most important legal implication of human dignity is the general right of personality, which is derived from Article 1 paragraph 1 and Article 2 paragraph 1 GG and provides a comprehensive protection of a person's autonomy. Furthermore, the protection of human dignity is closely linked to the Social state principle (“Sozialstaatsprinzip”). This principle ensures a decent existence (welfare) and the possibility of (democratic) participation in society. In this context, the dimension of fundamental rights as a state obligation to protect is at the centre of attention. It obliges the state to create certain framework conditions for the protection of human dignity.
Not only the constitutional courts, but also the specialised courts contribute to the legal shaping of human dignity. These courts have a nuanced jurisdiction, particularly with regard to the general right of personality. Approaches to defining the idea of human dignity are also designed in constitutional theory. However, the idea of human dignity is not an invention of the Basic Law or constitutionalism itself. Häberle concludes that the “Objektformel” is still the best approach to specify the idea of human dignity. He rightly notes that the concept of human dignity is at least partially open for expansions in the sense of cultural and social change. In an attempt to outline a legal framework of human dignity, Häberle defines four dimensions of its protection: (1) The unity of defence and protection / freedom and participation, (2) the protection of human dignity in material and procedural law, (3) the material and immaterial protection of human dignity and (4) the content and organisation of human dignity.
1Peter Häberle is an emeritus german professor of constitutional law. He taught in Marburg, Augsburg and Bayreuth as well as in guest professorships abroad. In particular, he has dealt with the dogmatics of fundamental rights and constitutional theory.