Jan Philipp Schaefer

Das Individuum als Grund und Grenze deutscher Staatlichkeit Plädoyer für eine radikalindividualistische Konzeption der Menschenwürdegarantie des Grundgesetzes

Jahrgang 135 () / Heft 3, S. 404-430 (27)

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Human dignity is, in the system of German Constitutional law, both a fundamental right (laid down in Art. 1 paragraph 1 of the German Grundgesetz) and the basic value of German statehood. However, the German Constitution abstains from a definition of »human dignity«. This may be seen as a decision of the Constitution's founding fathers to leave the competence to define the scope and meaning of »human dignity« to each human being. This concept of human dignity leads to a radically individualistic perspective on fundamental and human rights, transcending the traditional view of civil liberties as rights to be protected from the state and to defend oneself against the state. According to an individualistic concept of human dignity, fundamental and human rights moreover confer to the individuals the power to influence their legal relationship to the state by unilateral action, namely by interpreting fundamental and human rights from their own point of view. Only this individual discretion to interpret civil liberties under the Constitution allows each human being to act according to his or her will, that means: to live free. In terms of Constitutional law, the true nature of »freedom« (as legal interest common to all fundamental and human rights under the Constitution) shall be deemed to be dependant on the individuals' freedom of interpreting the Constitution in a way that has to be respected even by Courts and Parliament, being legally binding on this note. But freedom in that radical definition comes into conflict with stability and coherence, both forming essential preconditions of the very existence of the state (if the state is to be seen as surplus in relation to a mere community of individuals with always changing interests and loyalties). Thus, the fundamental question of Constitutional law is how to reconcile personal freedom with stability. Regarding »human dignity«, the answer lies in the distinction of its substantial meanings from its formal assumptions. There are several possible substantial definitions of »human dignity«, varying with the respective preconception of the person (e.g. religious or atheistic). But to ensure equal validity of human dignity for each human being, all individuals have to respect limitations of their interpretation competence rooted in the nature of human condition. Thus, a definition of »human dignity« is unconstitutional if it (1) denies the person-hood of certain human beings or if it (2) relates dignity to innate characteristics, a certain socialization, or a certain disability of a human being.

Jan Philipp Schaefer ist wissenschaftlicher Mitarbeiter am Lehrstuhl für Öffentliches Recht, Verfassungstheorie und Rechtsphilosophie der Universität Heidelberg.