Human Dignity and the Constitution

Abstract

Most contemporary national constitutions and international human rights declarations recognise the respect of human dignity as their inviolable fundamental principle. Nevertheless, besides some generally accepted cases of its flagrant violations, human dignity remains a highly controversial concept not only in its practical application but also in its theoretical explication. In order to resolve all these kinds of problems, we need a sound philosophical foundation of dignity that would allow a coherent moral reading of our constitutional documents. The crucial question is: what justifies dignity's place as the leading constitutional principle? There are three conceptions concerning dignity's nature and role: the conception of dignity as the highest constitutional value, namely the value of humanity and of human life; the conception of dignity as the chief personal right; and the conception of dignity as status. The conception of human dignity as the highest value is adopted by the prevailing constitutional doctrine in Germany in accordance with the established practice of the Federal Constitutional Court; from there it has acquired immense influence all over continental Europe. This conception is problematic, because value is a holistic concept: there are many concurring, if not conflicting, values, so that the degree of satisfaction of every one of them varies depending on its unstable coincidence with other values. The prevailing doctrine recognises this by introducing the principles of balancing and of proportionality. But this is unsatisfactory in view of the inviolability claim: a violation in some unusual cases, recommended by means of balancing and proportionality, should be permissible at every time. Similar problems are envisaged by the conception of dignity as the chief personal right, at least if we follow the leading rights doctrine that considers them, in a consequentialist manner, as interests or values; under the same presupposition, the idea of dignity as a second order right, ie, as the right to have rights, reveals itself to be redundant. So the only tenable conception is that of dignity as status. But this conception poses serious problems, too; they concern, above all, inviolability and the demand of individualised protection. They can be resolved only if we adopt a broadly Kantian conception of the person. The status in question is then a deontological, not comparative concept: it is the status of the autonomous and responsible moral subject, whose equal recognition and respect is the only thinkable fundament of our publicly enforceable mutual claims and duties.