How would that be solved

Federal Constitutional Court

Rosemary Will

To person

Dr. iur. habil., born 1949; Judge of the Constitutional Court of Brandenburg a.D .; Professor of Public Law at the Humboldt University in Berlin, Faculty of Law, Unter den Linden 11, 10099 Berlin. [email protected]

The Federal Constitutional Court decides whether and when a person's dignity has been violated. But how can one resolve the legal dilemma that has arisen as a result of the normatively fuzzy interpretations of human dignity?

introduction

The rise of the Federal Constitutional Court to an internationally unique institution that shaped the political system of the Federal Republic is the result of its own jurisprudence. The fact that at the beginning of every fundamental social discussion in Germany there is the question of what the constitution commands or prohibits and at the end of a social conflict there is a "walk to Karlsruhe", whereby the constitutional court almost always has the last word in social disputes, belongs today to how to the political culture of Germany, of course. However one wants to evaluate this finding, it is first necessary to understand this culture as historically evolved and to look for its causes in the case law of the court.

The essay examines the question of how Article 1, Paragraph 1 of the Basic Law (GG) - "Human dignity is inviolable. It is the duty of all state authorities to respect and protect it" - is understood and applied by the Federal Constitutional Court. The history of jurisprudence on human dignity is special in that the text of this constitutional norm provides something special compared to other constitutional norms: human dignity should be inviolable. As a fundamental norm of the Basic Law, Article 1, Paragraph 1 of the Basic Law is not only legally irrevocable, but above all unrestricted. In contrast to other constitutional norms, which can and must be restricted on the basis of state and individual interests, human dignity must not be compromised.

However, the inviolability of human dignity does not necessarily indicate what the content of human dignity to be protected is or when, in a specific case, human dignity is violated. Our agreed certainties about what the inviolable should be are rather the result of deep historical experiences and arguments. So the sentence about the inviolability of human dignity was set in 1949 against the deprivation of rights and the annihilation of people by fascism. But as early as the 1960s and 1970s, people began to invoke the inviolability of human dignity for other reasons. [1]

For decades, the discussion about abortion was a dispute about human dignity - either that of the mother or that of the embryo. [2] This social war of faith is currently being continued mainly on the basis of research into human genetics. The most recent of these cases was the pre-implantation diagnostic (PGD) dispute. But the inviolability of human dignity was used as a weapon in other fields as well, such as the introduction of state surveillance measures, the assessment of prison situations, and the securing of the subsistence level. When we argue with reference to human dignity, it is about the concrete content of the concept of human dignity, which is believed to be or should be inviolable. Our ideas about the inviolable differ, and they change and expand. The constitutional court is called upon in this dispute to decide when human dignity has been violated. It must determine whether there has been a violation and, if this is the case, prohibit appropriate action. But from what are these prohibitions inferred? Like our changing compromises, are they changeable and reversible? Will Article 1 paragraph 1 GG even become a mere "instantaneous water heater" [3] if changing legal interpretations declare changing contents of the article to be inviolable and unchangeable? Or does the inviolability of human dignity and its irrevocability result in an immovable, indubitable certainty about what is forbidden or required to us? Can one actually constitutionally, by means of legal subsumption under Article 1 Paragraph 1 of the Basic Law, decide what is allowed or forbidden to us once and for all and remains, or is each of these decisions excessive demands of what constitutional case law can do? [4]

In order to get closer to the answers to these questions, it should be outlined which fundamental decisions the Federal Constitutional Court has taken in its case law on human dignity, and which consequences this had in detail.