Dignity and the German Constitution
In his new book, “Dignity – Its History and Meaning” the political theorist, Michael Rosen, has examined the concept of dignity from a historical perspective and has given careful consideration to the case for giving dignity a central place in morality. He identifies four different ways of understanding what dignity means. First there is dignity as status in society. In contrast to this the German philosopher, Immanuel Kant, took dignity to be something that all human beings have, namely an inner core which is valuable and indestructible, namely morality, or to be more precise the ability to act morally. The third strand of meaning Rosen identifies is dignity as dignified behaviour or bearing, and the fourth is dignity in the sense of treating someone with dignity, i.e. treating someone in such a way as to show your respect for that person, or, negatively, not treating her in a way that exhibits disrespect. With these different meanings of dignity in mind, Rosen turns to the Grundgesetz, or Basic Law, of the Federal Republic of Germany. He does so because the Grundgesetz, along with the Universal Declaration of Human Rights, are the two most significant legal documents which place dignity at the centre of their legal frameworks and link it with the notion of inviolable human rights. He wants to show that because there was no clear agreement about which of the four senses of dignity is relevant to the way dignity is to be understood in the Grundgesetz, German courts have not interpreted the Grundgesetz consistently in subsequent judgments.
Moreover, there is no clear conceptual connection between dignity and the rather enigmatic notion of human rights, although the Grundgesetz suggests that there is such a connection. If dignity were to offer us an explanation of what human rights actually are, it would, Rosen thinks, have to do three things: show that all human beings have "inviolable" dignity and that they are "free and equal" in that dignity; show that it follows from this that they have "inviolable and inalienable human rights"; and specify what these individual rights are.
Before we explore some of these issues, just a few words about the Grundgesetz itself. It was framed by representatives of the main political parties, above all the SPD (Socialist Party of Germany) and the CDU (Christian Democratic Union), in 1948 and 1949. It was deliberately called the “Grundgesetz” rather than the “German Constitution” because it was regarded as a provisional arrangement which would have to be redrafted if Germany were to be reunited, although in fact, when Germany was reunified, it was not redrafted after all. The legislators wanted it to mark a clear break with the Nazi laws of the past and with the emerging East German state. For these purposes the central concept of dignity was seen to be one on which both religious and secular political representatives could agree. The religious influence in West Germany was particularly strong after the war because those few political figures on the right whose reputations had not been destroyed by their association with the Nazis were committed Catholics, such as Konrad Adenauer (2012, p91). Whereas Catholics in the nineteenth century, such as Pope Leo XIII, used the notion of dignity, in the sense of high social status within a divinely established natural order, to counteract the egalitarian principles of the French Revolution (2012, p92), the Catholic legislators were now willing, in the mid twentieth century, to associate dignity with human rights and democracy and give it a central position in the Grundgesetz, as a sort of ethical and political bulwark against the socialist regimes in the East. Interestingly, the Bavarian State Parliament, controlled by the Catholic CSU (Christian Social Union), voted against ratifying the Grundgesetz, but agreed to accept it if it found the approval of two thirds or more of the other West German states – which it did (2012, p91). The founders of the Federal Republic were of the opinion that it was possible to accept certain legal, moral or political notions, such as dignity, without agreeing on their philosophical foundations, and, in this case, without stating how the idea of dignity was to be understood (2012, 100–101). However, problems arise when concepts such as dignity are applied in practice, and this has lead to inconsistencies in court judgments. Here are the first two clauses of Article 1 of the Grundgesetz in the official translation (2012, 78):
- Human dignity is inviolable. To respect it and protect it is the duty of all state power. (Die Würde des Menschen ist unantastbar. Sie zu achten und zu schützen ist Verpflichtung aller staatlichen Gewalt.)
- The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world. (Das Deutsche Volk bekennt sich darum zu unverletzlichen und unveräußerlichen Menschenrechten als Grundlage jeder menschlichen Gemeinschaft, des Friedens und der Gerechtigkeit in der Welt.)
The first clause asserts that dignity is inviolable and something to be respected and protected by the state. This is clearly an appeal to the second of the meanings of dignity mentioned above, namely to dignity as something valuable which all human beings have in virtue of being human beings. But whereas Kant takes the bearers of dignity to be rational, autonomous beings who are capable of morality, the Catholic Church claims that fetuses also have dignity and are to be respected and protected in the same way. The German Constitutional Court (Bundesverfassungsgericht) has adopted the view of the Catholic Church with regard to who counts as the bearers of dignity. In a judgment in 1975 it blocked an attempt to legalize abortion and affirmed the duty of the state to protect and promote the developing life of the fetus. It reaffirmed its position in 1993 when the issue was debated once more. This was after the East German states, which had had a more permissive abortion law in the German Democratic Republic, had joined the Federal Republic.
This judgment is remarkable in that it almost certainly ran counter to public opinion in Germany. A poll in 2005 showed that 64% of the Germans who were questioned agreed with the statement that “if a woman does not want children, she should be able to have an abortion”. The court insisted in its judgment that abortion is illegal, but added that it is not punishable, provided that the abortion is carried out in the first twelve weeks of pregnancy and that the woman concerned takes part in an independent counselling session. Thus the court was at the same time reaffirming the fetus’s right to life but failing to protect this right during the first twelve weeks of the its life (2012, p102–103), a somewhat inconsistent judgment, to say the least.
Two other judgments illustrate a problem which affects so-called deontological moral theories, in other words theories according to which the right thing to do, in certain circumstances at least, is not simply to take the action which produces the greatest amount of good. In short, there are certain things we should never do, regardless of the consequences. Clearly a theory which emphasizes the supreme importance of respecting and protecting human dignity is deontological. The problem for such theories is that they give us no guidance as to what is the right thing to do when we are faced with two overriding, but conflicting moral duties. The first of two judgments which illustrate this dilemma concerns the Daschner case in 2005. Wolfgang Daschner, who was the deputy chief of police in Frankfurt at the time of the kidnapping of Jacob von Metzler, the 11-year-old son of a wealthy local family, threatened the main suspect, Magnus Gäfgen, with severe physical pain if he did not reveal the whereabouts of the kidnapped boy. Faced with this threat, Gäfgen quickly revealed where the boy was to be found, but he was already dead by this time. The district court in Frankfurt acknowledged Daschner’s good intentions and the extreme pressure he was under, but decided that he had acted in violation, not only of the penal code, but also of the dignity clause of the Grundgesetz in threatening to torture Gäfgen.
A similar issue arose in connection with the Air Safety Law (Luftsicherheitsgesetz), which permitted the state to command the air force to shoot down a plane hijacked by terrorists with its passengers and crew if the available evidence left no doubt that the terrorists would crash land the plane in an area where further civilians would be killed. The German Constitutional Court (Bundesverfassungsgericht) decided in 2005 that this law violated the dignity of the passengers and crew of the aircraft.
But these judgments simply insist or stipulate that the dignity of the kidnapper, Gäfgen, has priority over the dignity of the kidnapped child, and that the dignity of the innocent civilians on the ground who would be killed when the aircraft crash landed has priority over the dignity of the crew and passengers of the kidnapped aircraft. However, the judgments do not offer any explanation as to why the dignity of these particular individuals should be given priority over the dignity of the others involved.
In a different case it seems as if the dignity of the person concerned might not be the overriding consideration after all, contrary to what the Grundgesetz suggests. In 1987 the German Constitutional Court forbad a cartoonist from depicting the longstanding and controversial leader of the CSU, Franz-Josef Strauss, as a copulating pig. One is inclined to say that the whole point of political cartoons is to challenge the dignity of those in power, and that in a democracy this is healthy phenomenon which the powerful just have to put up with (2012, p76).
Rosen himself comes to the conclusion that dignity is not the fundamental value which automatically trumps all other values. Humiliating people is certainly a terrible thing to do, but killing them is surely worse than humiliating them.
Paul Crichton, London
15 January, 2013
Rosen, M. (2012) Dignity Its History and Meaning, Cambridge: Harvard University Press