Limited Balancing: The Principle of Human Dignity and Its Inviolability

Abstract

Human Dignity is inviolable. This sentence, at the very top of the German Constitution, has undergone an absolute and a relative reading. According to the absolute reading, human dignity cannot be infringed upon. Thus, human dignity as a principle is not open to balancing with conflicting constitutional principles, such as the protection of life, liberty, or even the dignity of another person. According to the relative reading, human dignity is, as a principle, open to balancing with conflicting constitutional principles. Somehow contradicting these two readings, the German Constitutional Court seems to understand human dignity to be open to balancing in some of its decisions, whereas it is clear in others that human dignity cannot be outweighed by any (constitutional) principle, no matter its weight. In this essay, I argue for a norm-theoretic reconstruction that embraces both the absolute and the relative dimension of human dignity. There is a principle of human dignity that is, as such, open to balancing, and there is an inviolability rule that forbids balancing human dignity. If the latter of these two norms has a smaller scope, human dignity is both absolute and relative—and the seemingly contradictory jurisdiction is not flawed, but sound.