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«Conference 16–18 Nov 2011 Wissenschaftskolleg zu Berlin The Concept of Human Dignity in a Transatlantic Perspective. Foundations and Variations A ...»

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16–18 Nov 2011

Wissenschaftskolleg zu Berlin

The Concept of Human

Dignity in a Transatlantic


Foundations and


A Berlin Dialogue on

Transatlantic Legal Culture(s)

Table of Contents

The Conference 5

Schedule 7

Bios and Abstracs 10

Ino Augsberg 10

Human Dignity Beyond Autonomy? On Kant’s Concept

of “Achtung” 10

Samantha Besson 12

Jochen von Bernstorff 13

Human dignity and the anti-utilitarian telos of human rights:

Assessing categorical styles of reasoning in international human rights adjudication 13 Heiner Bielefeldt 15 Roger Brownsword 16

Regulatory Content and Regulatory Complexion:

Two Sets of Questions for Dignitarians 17 Ingolf U. Dalferth 19 David Dyzenhaus 21 Dignity in Administrative Law: Judicial Deference in a Culture of Justification 21 Edward J. Eberle 23 Dieter Feddersen 24 Morag Goodwin 25 Christoph Goos 26


27 Dieter Grimm 28 Susannah Heschel 29 Human Dignity in Judaism 29 Eric Hilgendorf 30 Abstract 30 Tatjana Hörnle 32 Alexandra Kemmerer 34 Avishai Margalit 35 Russell A. Miller 36 The Dignity of Literature 36 Christoph Möllers 38 Jeffrey Rosen 39 Julika Rosenstock 40 Abstract 40 Stephan Schaede 41 Ban on anthropological images and human dignity.

Some theological remarks 41 Frank Schorkopf 43 Nils Teifke 44 Balancing Human Dignity 44 Tim Wihl 46 Progressive human dignity? 46 Lea Ypi 47 The Conference Human dignity is the key term that the Universal Declaration on Human Rights placed at the centre of legal discourse on a global level. The Universal Declaration inspired the subsequent use of dignity in domestic constitutional documents as well as in international and regional human rights texts. In 1949, Germany incorporated the concept of human dignity in its Basic law, placing it at the core of the constitutional document, and this reference has probably become the most influential national constitutional reference to human dignity. Article 1 para. 1 of the Basic Law provides that “[t]he dignity of man is inviolable. To respect and to protect it shall be the duty of all public authority.“ With the transition to democracy in central and eastern Europe after the fall of the Berlin Wall, the German Basic Law and its interpretation by the Federal Constitutional Court played an influential role in the drafting of new constitutions, injecting the concept of human dignity into new constitutional texts and spaces.

Beyond Europe, the German influence extended, inter alia, to South Africa and Israel.

However, from a comparative transatlantic perspective it becomes obvious that the central role of human dignity, an elusive concept in itself, is only one constitutional strategy to advance autonomy, happiness and freedom of the human person. “While Germany and the United States share many features in their constitutional structures, such as separation of power, federalism and an independent court committed to judicial review, each country ultimately has a different constitutional strategy to realize the objective of securing liberty and human happiness” (Edward J. Eberle). One is tempted to subscribe, as Edward Eberle does in his 2001 book on constitutional visions in Germany and the United States, to Donald Kommers’ observation of “a German constitution of dignity as compared to an American constitution of liberty”.

And yet, the increasingly important role that dignity has come to play in judicial discourse in many national, regional and international jurisdictions is also mirrored in recent US judicial decisions, one of the best examples probably being the US Supreme Court’s decision in the case of Roper v. Simmons. But is there any consensus to be found in transnational judicial discourse on human dignity? Or would the assumption of a broad common conception of human dignity just be another facet of “the stupidity of dignity” (Steven Pinker)?

“One of the attractions of dignity in the human rights context is the idea that different jurisdictions share a sense of what dignity requires, and this enables a dialogue to take place between judges on the interpretation of human rights norms, based on a 5 Recht im Kontext Conference Nov 2011 The Concept of Human Dignity in a Transatlantic Perspective supposedly shared assumption” (Christopher McCrudden). Christopher McCrudden has argued, in his analysis of the use of human dignity in the judicial interpretation of human rights, that “whilst there is a concept of human dignity with a minimum core, there are several different conceptions of human dignity, and these differ significantly because there appears to be no consensus politically or philosophically on how any of the three claims that make up the core of the concept are best understood.” While entering legal discourse only in the first half of the 20th century, the concept of human dignity features prominently in the history of ideas. Taking a closer look on historical developments, on claims, concepts and conceptions, consensus and confrontations in national, regional, transnational and international human rights discourse(s), the conference aims to foster a more nuanced debate about transatlantic differences and commonalities regarding the interpretation of central constitutional norms. Judicial approaches to dignity differ profoundly. Does dignity support or constrain rights? Is it the highest constitutional principle, inviolable or accorded higher status than other constitutionally protected principles or rights? How about the principle of proportionality? And about dignity’s absolute effect, once the noyau dur of Germany’s postwar constitutional tradition, but recently much contested?

Varieties of dignity shall be analyzed, differences in the conceptions of human dignity in judicial interpretation and academic discourse shall be examined. The conference aims also to revisit the normative foundations of conceptions of human dignity, from various philosophical and theological perspectives, and invites a close examination of the interrelations of those normative foundations with current legal discourse(s) on human dignity. With short papers and intensive discussions, the conference shall provide a framework and a discursive space to analyze and reassess the advantages and disadvantages of human dignity in judicial interpretation and academic reflection.

6 Recht im Kontext Conference Nov 2011 The Concept of Human Dignity in a Transatlantic Perspective Schedule

–  –  –

is Senior Research Fellow at the Faculty of Law at the Ludwig-MaximiliansUniversity in Munich. He studied philosophy, history of art, literature and law at the universities of Freiburg and Heidelberg. He received a Ph.D. in philosophy from Freiburg university (2001) and a Ph.D. in jurisprudence from Hamburg university (2008). From 2004–2008 he worked as research associate of Prof. Dr. K.-H. Ladeur at the university of Hamburg. From January till April 2007 he clerked for Prof. Dr. W.

Hoffmann-Riem, judge at the German Federal Constitutional Court in Karlsruhe.

Since 2008 he has been teaching constitutional and administrative law as well as legal theory at the university in Munich. He is currently working on his postdoctoral thesis (Habilitation) which focuses on the question of legal control of administrative processes of knowledge production. Publications in English include inter alia ‘The Relevance of Network Models within the Juridic Discourse. Empirical, Sociological, and Epistemological Perspectives,’ 10 German Law Journal (2009), 383; ‘Reading Law. On Law as a Textual Phenomenon,’ 22 Law and Literature (2010), 369; “The Letter Kills, But the Spirit Gives Life”? On the Relevance of Jewish Concepts of Law for Postmodern Legal Theory,’ 26 Journal of Law and Religion (2010-11), 427 (with Karl-Heinz Ladeur).

Human Dignity Beyond Autonomy? On Kant’s Concept of “Achtung”


Taking a look at popular compendiums commenting on the German Basic Law and its fundamental idea that “Human Dignity shall be inviolable”, we find that according to the prevalent view presented in these books the philosophical foundations of this concept are threefold: the idea is based on, first, the ancient Stoa, second, on renaissance humanism, and third and most importantly, on the philosophy of Enlightenment, namely on the thinking of Immanuel Kant. More precisely, Kant’s influence on the concept is regarded as most prominent for two connected issues: the idea of autonomy on the one side and the so-called “object formula”, i.e. the necessity to treat a human being not only as a means to achieve a certain aim, but always also as an end in herself or himself, on the other. While the second aspect is particularly important for the practical 10 Recht im Kontext Conference Nov 2011 The Concept of Human Dignity in a Transatlantic Perspective judicial implementation of the concept, the more fundamental issues are associated with the first aspect. This holds true not only from a philosophical perspective, but also (as Alain Ehrenberg has recently shown with regard to our contemporary society) from a sociological point of view. The idea of the autonomous person exercising his or her free will is the basic premise of the Kantian moral philosophy as well as of today’s society and its legal framework.


However, a closer look at the development of Kant’s ideas leads to a remarkable finding. For as Kant explains in the first part of the “Foundations of the Metaphysics of Morals”, we cannot get to know about the dignity of a person by means of reason alone. Rather, what enables this insight is a strange hybrid, a “moral sentiment” which is, according to Kant, nothing sensual, but a purely rational phenomenon, and which yet has “something analogous with both fear and inclination”. Kant calls this feeling “Achtung”, respect. Dignity of a person, in this account, is but the consequence of the dignity of the law, and the law becomes accessible only by way of “Achtung”. In my paper I want to elaborate on this often neglected moral sentiment, scrutinising in some detail its function within the framework of Kant’s moral philosophy. Kant states that this feeling is both necessary and inexplicable. Though he insists that “Achtung” has nothing to do with any “pathological” inclination, caused by an empirical object, it still has to be conceived of as something like an interest, for, as Kant asserts in his “Critique of Practical Reason”—therewith silently following Spinoza—, every feeling can only be overcome by another feeling. Thus by introducing the concept of “Achtung” in his philosophy, Kant implicitly states that there is something beyond autonomy in the sense of pure spontaneity of reason alone, that at the very heart of autonomy we find something like heteronomy, that the moral subject is not only actively creating its own commandments, but also—and maybe primarily—responding to them. Hence the concept of “Achtung” is, in my account, a phenomenon that marks a decisive split within the subject of moral philosophy, a split that not only separates the two world of the homo noumenon and the homo phainomenon, but constitutes the subject itself.


Therefore, when Robert Cover argues that the Western legal tradition is characterised by its founding myth of the social contract, or autonomy, and thus conceives of the law basically as “rights”, while the Jewish legal tradition is characterised by the founding myth of the revelation at Sinai, and thus conceives of the law basically as “obligation”, the concept of “Achtung” undermines this clear-cut dichotomy. By contrast, “Achtung”, so it seems, reveals the concept of human dignity as both a self-given law and thus an individual right and as a fundamental obligation.

11 Recht im Kontext Conference Nov 2011 The Concept of Human Dignity in a Transatlantic Perspective sAmAnthA besson is Professor of Public International Law and European Law at the University of Fribourg (Switzerland) and Co-Director of the European Law Institute of the Universities of Bern, Fribourg and Neuchâtel (Switzerland). She holds a degree in Swiss and European Law (University of Fribourg and Vienna), a Magister Juris in European and Comparative Law (University of Oxford), a PhD in Law (University of Fribourg) and a Habilitation in Legal Theory and Comparative, European and International Constitutional Law (University of Bern). Previous to her appointment in Fribourg in 2005, Samantha Besson held research and/or teaching positions at Columbia (1999-2000), Oxford (2000-2004), Geneva (2002-2005), Zurich (2008-2010), Duke (2009), Lausanne (2010) and Lisbon (2010-).

Her publications and research interests lie in European and international law and legal and political philosophy, and in particular in human rights law and theory.

She is the author of the monograph The Morality of Conflict: Reasonable Disagreement and Law (Hart Publishing: Oxford, 2005). She co-edited the collections of essays Deliberative Democracy and its Discontents (Ashgate: Aldershot, 2006) with José Luis Martí, Legal Republicanism: National and International Perspectives (Oxford University Press: Oxford

2009) with José Luis Martí and The Philosophy of International Law (Oxford University Press: Oxford, 2010) with John Tasioulas.

During the academic year 2011-2012, Samantha Besson is a Fellow of the Wissenschaftskolleg zu Berlin, working on a monograph on human rights theory.

12 Recht im Kontext Conference Nov 2011 The Concept of Human Dignity in a Transatlantic Perspective Jochen von bernstorff Chair for constitutional law, international law and human rights, University of Tübingen; member of the German delegation to the UN-Commission on Human Rights 2003-2005 and the Human Rights Council in 2006; Recent publications: “The Public International Law Theory of Hans Kelsen: Believing in Universal Law”, Cambridge University Press, 2010; “Kerngehaltsschutz durch den UN-Menschenrechtsausschuss und den EGMR: vom Wert kategorialer Argumentationsformen”, in: Der Staat 2011, pp. 165–190.

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