The Right to have Rights: The concept of human dignity in German Basic Law

EnglishThe German constitution declares in its first Amendment that human dignity is inviolable and declares its protection as a duty of the state. The following text explores the concept of human dignity as “a right to have rights” that can be derived from this constitutional passage. References to different decisions of the German Federal Constitutional Court reveal the importance and complexity of this concept and its meaning for the understanding and interpretation of the German Constitution as such. Key words: human rights, human dignity, Germany. portuguesA Constituicao Alema declara em sua primeira Emenda que a dignidade humana e inviolavel e declara sua protecao, um dever do Estado. O seguinte texto explora o conceito de dignidade humana como “um direito a ter direito” que pode ser derivado dessa passagem constitucional. Referencias a diferentes decisoes da Corte Constitucional Federal Alema revelam a importância e a complexidade desse conceito e de seu significado para o entendimento e a interpretacao da Constituicao Alema como tal. Palavras-chave: direitos humanos, dignidade humana, Alemanha.


Preface Legal, moral and political meaning of the commitment to human dignity
Art. 1 of the Basic Law of the Federal Republic of Germany 2 : (i) Human dignity shall be inviolable. To respect and protect it shall be duty of all state authority. (ii) The German people, therefore, acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world. (iii) The following basic rights shall bind the legislature, the executive and the judiciary as directly applicable law.
Like a mighty tree deeply rooted in the tradition of humanity, the commitment to human dignity towers above the landscape of German constitutional law -a tree that protects against wind and weather, that provides pleasant shadow and most of all provides plenty of fruit upon which people live day by day. However, to reach to the inner core of the ramifi ed structure, one has to dispose lots of proliferation and ivy that may look pretty at fi rst sight but is not part of the tree and might even be harmful to it.
Hence, the interest in human dignity demands that the constitutional jurist -like a good gardener -proceeds with certain strictness, to extract as to how the constitutional clause of the inviolability of human dignity is understood correctly. Yet, this effort towards stringency is not only required by jurisprudential seriousness but also by political culture. Josef Isensee claimed in an essay from 2006 that behind this constitutional clause there hides the "article of faith of a civil religion" (Isensee, 2006a, p. 179). This describes very well the social and political reality, where the guarantee of human dignity is worshipped as such an article of faith. Certainly, opponents of this "civil religion" will not be banned completely from the community as J.J. Rousseau once suggested (Rousseau, 1977, p. 140 et seq., 4 th book, chapter 8). Though, whoever disregards human dignity -or what it is considered to be -and, thus, stands out as an opponent of the "civil religion" is morally unacceptable and excluded from the social and political discourse. In other words, the one who fi ghts for human dignity does not need additional arguments for his justifi cation. Human dignity marks the line between "good guys" and "bad guys". So we see, it is important to fi nd out the meaning and function of this constitutional clause as precisely as possible, not only because it is an important constitutional rule and jurists are, therefore, obliged to work especially careful but, also, because of its moral and political importance.

The meaning of Article 1 GG: Intentions of the framers of the constitution and the clause's position in the constitution
The meaning of human dignity cannot be disclosed by a strictly textual approach. The precise meaning of this clause in the context of the German Basic Law only emerges from the clause's origin and the constitutional text's system.
The Parliamentary Council (Parlamentarischer Rat) -the political institution that drafted the German Basic Law in 1949 -intended the entire regulation of Article 1 to serve as a "preamble" for the chapter of fundamental rights and to clarify their spirit and purpose. No less, no more. Hence, the statement on human dignity should not provide a new fundamental right. The intention of the Parliamentary Council was to make the "classical" fundamental rights directly applicable and binding. Positively standardized guarantees should exhaustively interpret the open and -without normative concretion -not executable "un-interpreted thesis" of human dignity (cp. Enders, 1997, p. 416;Isensee, 2006b, p. 48, 86 seq. with further references).
These intentions of the Parliamentary Council are clearly refl ected in the constitutional system: The commitment to human dignity opens the chapter of fundamental rights of the German Basic Law, i.e. the individual's rights primarily addressing and restricting the state. Article 1 of the German Basic Law states that human dignity is the reason why the German people commit themselves to human rights. The Basic Law furthermore constitutionally guarantees -as Article 1 Section 3 indicates -specifi c ("following") fundamental rights that give a precise legal meaning to the notion of human rights so they can be applied (c. Art. 1 sec. 3 of the German Basic Law).

Human Dignity as "right to rights" and its function in the constitution
Constitutional legal practice soon defi ed those limits of interpretation that were given to possible legal effects of the principle of human dignity. Requirements of the legal practice and of politics lead into a different direction and encouraged a more substantive understanding. Today, the German Federal Constitutional Court (Bundesverfassungsgericht) characterises human dignity as the supreme principle of the constitution 3 and every now and then also as a fundamental right. 4 However, if we stay with the unbiased interpretation of the constitutional text regardless of later result -or situation-oriented modifi cations and additions, we must state: The constitutional rule of human dignity does not contain a legal guarantee, because this quality of individuals is a constitutional a priori and cannot be subject to legal regulation. The individual as such -irrespective of governmental organisation -is subject of rights and duties, and precisely this constitutes his or her dignity. So, the constitutional principle of human dignity recognises the individual as a moral person and postulates his or her original right to have rights (Enders, 1997, p. 427-431, 433, 502). Hence, if the individual was not subject of specifi c rights that he or she owned without presuppositions, he or she would be a mere object of the arbitrariness of others (Dürig, 1956, p. 119, 122).
Consequently, we should emphasise: No overall and absolute "super-basic-right" can be derived from Article 1 of the German Basic Law. Normally, human dignity is suffi ciently protected by the special fundamental rights. Therefore, the commitment to human dignity is to be understood as a constitutional principle that reminds the "raison d'être" (reason of existence) of the constitutional state under the rule of law (Rechtsstaat) and that postulates human beings' original right to have rights. However, human dignity cannot be referred to as a "passepartout" as this would undermine the carefully worked out interdependency of the explicit provisions set up in the constitution and level their normative differences.

The Protection of human dignity by means of fundamental rights
The "normal" case concerning fundamental rights The German Federal Constitutional Court has occasionally considered human dignity as such as a fundamental right. 5 When giving it a closer look, one can see that this is merely held in obiter and always in cases where human dignity was not of decisive relevance. The reason is that a "fundamental right to human dignity" -because of its absoluteness that does not tolerate relativisation -is unmanageable as a fundamental right. Plus: there is no need for such a fundamental right, since human dignity is adequately protected by the fundamental rights that follow the "preamble" of Art. 1 German Basic Law (c. Art. 1 Section 3: "the following fundamental rights"). These fundamental rights derive, as acknowledged by the Federal Constitutional Court, from the general right of the individual to be treated as a person, i.e. to be treated lawfully. This right is recognised in Article 1 GG.

Special cases of constitutional protection of individual freedom and integrity
Moreover, the German Basic Law explicitly regulates particularly important cases concerning the protection of individual freedom and integrity -for instance by proscribing death penalty or the physical and mental abuse of detained persons. 6 This indicates that these guarantees -although they surely are essential for the self-fulfi lment and the maintenance of the individual -do not derive selfevidently from the commitment to human dignity.

Interpretation: The so called "allgemeines Persönlichkeitsrecht"
These explanations do not want to deny that a glance at human dignity can enlighten the purpose of par-ticular fundamental rights. The most important example for this role of the constitutional commitment to human dignity is the interpretation of Article 2 Section 1 of the German Basic Law. 7 It is generally accepted that this fundamental right primarily protects the so called general freedom of action (allgemeine Handlungsfreiheit), i.e. the freedom to do whatever one wants, which is only limited by the equal freedom of every other person. The German jurisdiction connected this fundamental principle of external freedom with human dignity and named this synopsis of Article 1 and Article 2 Section 1 GG "allgemeines Persönlichkeitsrecht" 8 (general right of the human personality) to make clear that the external freedom of the individual is based on internal preconditions 9 . The commitment to human dignity highlights the interrelation of the particular facets of the "allgemeine Persönlichkeitsrecht". Their common centre of reference is the individual's self-determination 10 . This aspect has recently been enhanced by the Federal Constitutional Court to the fundamental right to privacy and integrity of IT-systems. 11

Fundamental rights of unborn children?
However, one should not overestimate the possibilities of human dignity, for instance in cases concerning the legal status of the embryo. The question arises, whether the embryo can be considered as a human being that is entitled to human dignity and hence to the right to life in the sense of the Basic Law or not. Consequently, if we consider the embryo to have human dignity its status as a legal person and holder of fundamental rights is determined. Thus, that would mean that the extinction of unborn life without strong and legally recognised justifi cation is generally illegal.
The German Federal Constitutional Court solves this problem by applying the so called "thesis of continuity", stating that the development of the fertilised ovum to a born child forms a process that disallows any gradation of legal protection. 12 The German Basic Law, however, does not make a statement in regard to the particular date of the beginning of a person's legal status. In fact, legal systems have always independently interpreted and accentuated the natural-biological continuity.
At this point, one has to remember that the constitutional commitment to human dignity is a commitment to fundamental rights only within their traditional meaning. According to this meaning the legal status as a person begins with a person's birth. In Europe, this was the well-defi ned position of the modern civil legislation, infl uenced by the declarations of human rights. Under § 1 of the German Civil Code (BGB) a human being is capable of holding rights only with the completion of his or her birth. Consequently, the established parlance of the dignity and rights every human individual is born with is valid also for the Basic Law. Moreover, this interpretation that the legal status of a person only begins with his or her birth is in compliance with common European legal standards. The European Court of Human Rights has so far stated in two cases that the right to life (Article 2 ECHR) does not apply to the embryo since it is not a legal person. 13 Such a perspective does not prevent a society from protecting the unborn human life by the means of criminal law. And this indeed might be indicated by a general respect for human life. This was meant by the ECHR when it stated that unborn life required protection "in the name of human dignity". However, these measures are not linked to and therefore are not demanded by a personal right to life 14 .

Two sides of legal effectstructural dimensions
Solely from the commitment to human dignity a fundamental right of its own does not derive. 7 Article 2 of the German Basic Law: (i) Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law. (ii) Every person shall have the right to life and physical integrity. Freedom of the person shall be inviolable. These rights may be interfered with only pursuant to a law. 8 Cp. e.g. Federal Civil Court, May 25, 1954 (BGHZ 13, 334), April 2, 1957(BGHZ 24, 72), Federal Constitutional Court, June 3, 1980. 9 This fundamental right includes the protection of privacy (right to privacy). It protects not only a person's physical space or solitude but also the self-determination of the individual as such (including information privacy or the right to one's own picture etc.). 10 That is why corporate bodies cannot claim some of those legal guarantees. 11 Federal Constitutional Court, February 27, 2008 (BVerfGE 120, 274). 12 Federal Constitutional Court, February 25, 1975 (BVerfGE 39, 1) and May 28, 1993 (BVerfGE 88, 203). 13 Vo v. France, ECHR No. 53924/00, July 8, 2004; confi rmed in Evans vs. United Kingdom, ECHR No. 6339/05, March 7, 2006. 14 The decisions of the German Federal Constitutional Court, February 25, 1975 (BVerfGE 39, 1) and May 28, 1993 (BVerfGE 88, 203) concerning abortion have shown that it is only a short step from the principle of absolute protection of the embryonic existence to modifi cations that undermine the same principle and are not really convincing.
Individual protection of human dignity is ensured by the "following fundamental rights", Article 2 seqq. The relation to human dignity only sets the benchmark of constitutional interpretation that should not be used to level (particular) substantial and legal conditions. Thus, another function of this commitment is more important: it establishes a constitutional rule that marks the reason and foundation of all legal forms of freedom and therefore does not take into account the particularities and contingencies of a concrete case. Therefore, it is not open to any weighing approach, trying to balance opposing interests. That has two effects: On the one hand the commitment to respect and protect human dignity restricts the authorities, especially if they infringe fundamental rights. Human dignity delivers the absolutely insurmountable barrier to governmental measures infl icting fundamental rights ("Schranken-Schranke"), may they be justifi ed in other respects. By crossing this barrier the individualcontrary to his or her status as a legal person -would be treated as a mere object. This is strictly prohibited to the authorities.
On the other hand, reasons that justify restrictions of freedom also may result from the imperative to respect and protect human dignity. Any violation of human dignity is prohibited to anyone, even to private individuals. Legislation is called to statutorily implement this prohibit, as well as the courts are to enforce those rules.

The limitation of governmental interference with freedoms, especially in favour of privacy
In the major decisions of the Federal Constitutional Court human dignity operates as an absolute barrier to governmental interferences with individual fundamental rights. For the fi rst time this concept was applied in the decision concerning the constitutionality of an amendment allowing wiretapping 15 (c. Article 10 of the German Basic Law). Furthermore, it was applied in the decision concerning the constitutionality of life imprisonment. 16 Here the Court had to decide whether life imprisonment -because of its duration -violates human dignity and therefore constitutes an infringement of personal liberty (Article 2 Section 2 Sentence 2 of the German Basic Law). Most recently human dignity served as an absolute barrier for state measures infringing the right to life in the decision that dealt with the statutory allowance of the armed forces to shoot down aircrafts (Article 2 Section 2 Sentence 1 of the German Basic Law). 17 The Court had to decide whether the lives of uninvolved passengers and crew of a hijacked aircraft may be sacrifi ced in order to fi ght terrorism or if this would amount to an illegal balancing of human lives with other rights and legally protected interests.
Mainly, human dignity fulfi ls this function of restricting the legislator in cases concerning the protection of an absolutely inviolable sphere. A second glance on these questions might be useful not at least because they arise in regard to criminal investigation. The Federal Constitutional Court for instance had to decide whether it is allowed to use a personal diary as evidence against the accused in a criminal trial 18 , or, whether (secret) acoustical surveillance could be allowed by a constitutional amendment of the fundamental right guaranteeing the inviolability of the home (Article 13 of the German Basic Law). 19 Yet, the legal effect of the "dignity-argument" in these cases is of lesser relevance than its claim for absoluteness. The absolutely inviolable realm (of privacy) is defi ned (from case to case) in regard to the social relevance of the behaviour involved and, thus, depends on the security concerns of the general public. If a person -perhaps along with others -plans a criminal act it does not matter in which form or in which place these plans become apparent as long as they affect third parties or the community and touch upon the social sphere. Hence, the general public has a legitimate interest to fi nd out about these plans to prevent damages. For this purpose it is irrelevant, whether the suspected person is naked or dressed, showers or lies in a marriage bed or speaks to the family circle, while making such plans. Same principles apply to criminal investigation.
The authorities, therefore, are allowed to gain the information needed in case of reasonable suspicion even if this means to take notice of purely private circumstances. Otherwise the suspicion could never be substantiated or nullifi ed. It is the surveillance itself that shows whether an activity is purely private or relevant under legal aspects, especially concerning criminal law. Thus, there is no absolutely protected sphere of privacy. The Federal Constitutional Court therefore speaks of the "protection of the core area of privacy on two levels". 20 First level: As a general rule personal data is not to be collected unless it is relevant data in legal terms. However, to verify or falsify this relevance they must be collected in the fi rst place (in case of suspicion). Second level: If the collected personal data turns out to be irrelevant it must be deleted immediately and -most of all -may not be presented to a court for evidence. This proves that an absolutely protected area of privacy does not exist. Only absolutely uninteresting data enjoys absolute protection.

The justifi cation of liberties limitations through human dignity
Moreover, the principle of human dignity may be invoked to justify limitations of liberties. There is a number of prohibitions -partly concerning criminal law -that are or might be connected to the protection of human dignity (for instance, disturbance of the peace of the dead, § 168 of the German Criminal Code (StGB), or disparagement of the deceased's memory, § 189 of the German Criminal Code constitute criminal offences). In fact, to some extent they protect individual interests and also public interests, especially culturally-rooted customs of decency, comity and propriety (cultural identity), that usually are summarized under the term of "moral law" (c. Article 2 Section 1 of the German Basic Law).
In any way it is problematic when legislature and legal practice invoke human dignity to impose imperatives and prohibitions of certain behaviour as self-evident and maintain them even if the behaviour does not affect any other individual against his or her will.

Shooting down aircrafts: The relativity of the protection of life
Human life is only relatively protected. The state, under certain circumstances, can (legally) take away life. However, the limits of the admissible seem surely crossed if a plane hijacked by terrorists is shot down together with crew and passengers to avert danger from the community. In this situation, it is not only a decision on the right to life of the ones responsible for the attack, who would have to face defence (anyway), but, also, on the rights of the uninvolved innocent persons. They are sacrifi ced in the name of the community's integrity. Their right to exist, which every human being is entitled to by virtue of being human, seems to be balanced with other interests and subordinated as inferior. However, to scale the persons' value and to compare them to one another would be inadmissible.
Yet, this consideration ignores the point that human life is not protected as a pure natural-biological fact. The right to life, however, as a right is subject to the condition of the "state of law", without whom no enforceable law would exist. Thus, in extremely exceptional cases, for example in a state of war but also in other states of emergency, where the defence of the civil society against systematic attacks otherwise would not be possible, it is allowed to sacrifi ce the life of individuals. These individuals are the benefi ciaries of the legal state, and are sacrifi ced to preserve this legal state. Shooting down an aircraft under these conditions therefore does not infringe upon human dignity. The question whether this is proportional is, however, a different one.
In 2006, the German Federal Constitutional Court ruled differently: The authority to shoot down a hijacked plane (as given in the Aviation Security Act 20 ) was held to be unconstitutional. 21 The Court dealt with my argument as presented here and -not without internal antilogy -did not completely rule out the possibility that there might be situations where the sacrifi ce of human lives does not violate the constitution. Otherwise, one could hardly imagine how to justify the sortie of soldiers, especially of draftees (Enders, 2007(Enders, , p. 1043(Enders, -1044.

Absolute limitation: Denegation and evasion of law
It seems as if numerous questions that are debated in legal literature and praxis should not be discussed under aspects of human dignity but be solved from the perspective of individual fundamental rights and the principle of proportionality. Still, there are absolute bounds to authorities. However, these bounds do not result in detail from Article 1 Section 1 Sentence 1 of the German Basic Law but from the principle laid down in Article 1 Sections 1 to 3 of the German Basic Law. According to this principle authorities are legally bound because the individual does not only hold (legal) obligations but also rights. Any systematic denial or evasion of law, therefore, violates Article 1 of the German Basic Law. If the state disregards the necessity to use formally as well as substantially lawful means then the individual's legal status is denied and he or she is treated as a mere object. Such infringements undermine the rule of law as such and, hence, may not be justifi ed under any circumstances, not even in states of emergency.
From this a presumption of freedom in favour of the individuals follows. Governmental restrictions of the individual sphere of freedom are not legitimated merely by their good intention. They must be justifi ed, namely by contributing to constitute and to enforce obligations of (external) conduct. Only obligations of conduct in a certain way can constitute legal obligations. Any behaviour that might not be subjected to such a legal obligation (for instance one's internal attitudes that do not show) cannot be legally demanded. Another consequence of the state's obligation to justify their measures is a minimum standard of legal, i.e. jurisdictional, control.

Particular cases of denegation and evasion of law (a) Cases of denegation of law
Thus, the pursuit of certain purposes is denied to the authorities because of their obligation to act lawfully. A modern constitutional state has to avoid paternalism. Moral acting or a decent conduct of life must not be dictated, for the state is not a reformatory.
Most of all, the authorities are not allowed to systematically interfere through coercive measures with the internal process by which the individual sets his or her purposes. This would diametrically oppose the idea of self-determination (autonomy). When being (coercively) infl uenced by the state, the individual is driven into an irresolvable (internal) confl ict with his or her self-determination. The independent development of an identity, hence, would be rendered impossible and the autonomous individual would be made an object of heteronomous purposes. An other-directed power over the internal process of identity-building cannot be subjected to an effective external legal obligation. Attempts in that direction go beyond the legal scope and corresponding measures therefore are forbidden.
That is why torture is unconditionally prohibited and not even a constitutional amendment could make it legal. Also, the privilege against coercive self-incrimination (nemo tenetur se ipsum accusare) results from these considerations.

(b) Cases of evasion of law -the obligation to justify governmental measures
Not only is the state prohibited to deny the law, state authorities must also not evade it. Although privacy is not absolutely protected, any secret investigation is basically illegal. If they are carried out nonetheless in the better interest of all or any person, they must be disclosed to the person affected when they have fi nished. Otherwise, this person would have no possibility to obtain judicial control and the state's duty to give reasons and thereby justify its action would, hence, become useless.
A similar argument applies to governmental measures taken against unsuspected persons. As a result from the duty to justify their measures the public authorities (always) at least have to substantiate the suspicion that certain behaviour is dangerous or harmful. If there was a general competence to restrict individual rights without any given suspicion, the state would again systematically undermine its obligation to justify its action. That would be an absolutely unacceptable reversal of the general presumption of freedom and a disregard for the requirement for justifi cation that goes along with it. Evidence obtained by secret investigation or by investigation against unsuspected persons is inadmissible.
These considerations are clearly taken into account by the Federal Constitutional Court in its decision on public surveillance using malicious spy ware to get access to computers. 22 The Constitutional Court, however, based its decision on the principle of proportionality. In addition, this argument is not convincing: The principle of proportionality is intended to provide solutions in individual cases and therefore is -by any reckoning -a blunt instrument. The Revista de Estudos Constitucionais, Hermenêutica e Teoria do Direito (RECHTD), 2(1):1-8 broader the purpose of governmental measures is defi ned (like the preservation of the state's existence or the maximum safety for everybody) the more and more severe measures become admissible. Moreover, complete safety may only be achieved if the presumption of freedom is abandoned and replaced by a general suspicion against everybody. An absolute boundary is, thus, not drawn by the principle of proportionality but only by the requirement for justifi cation, which is subsequent to the rule of law. Also, situations where the Constitutional Court upheld exceptions allowing such measures in favour of intelligence operations (protection of the constitution) can only be explained and reasonably confi ned by defi ning concrete public tasks, on the one hand, and on the other hand, strictly limiting them according to this purpose. Only then, the normal situation can to some extent be distinguished from its exceptions.

Conclusion
The commitment to human dignity as expressed in Article 1 Section 1 GG indeed constitutes a constitutional concept: It stipulates that all law has to emanate from the individual's status as a legal subject; furthermore that all law is to be construed and interpreted from that status and has to converge in that status. Thus, the state is put under the rule of law. The relation between citizens and government is one of mutual rights and duties, basically just like social interrelations between citizens. That means: If one is sure about how such a state is constituted -which according to the German tradition is known as "Rechtsstaat" (constitutional state under the rule of law) -then there is no need to emphatically proclaim human dignity as the very purpose of statehood. A state that does not base its legal order on the commitment to human dignity may still be a constitutional state under the rule of law. However, the opposite is also true: If in a certain historical and social situation the requirements of the rule of law fall into oblivion, then even the incantation of human dignity and its inviolability is void. After considering these arguments human dignity is not more than a buzz phrase that does spare neither the assumption of political responsibility nor careful jurisprudential work.
Still, the commitment to human dignity reminds the legislator, the courts and other jurists to always keep clearly in mind that the human is a self-conscious intellectual and ethical being and therefore worthy of respect. It is another diffi culty and, yet, unsolved question whether this ideal -that has its roots in the ideas of Enlightenment, in the revolutionary declarations of human rights, but also in religious traditions -will be sustainable and really have universal validity in a globalised world. The answer to this question has to go beyond the national constitutional context and is not at all certain.