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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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Professor Dyzenhaus is the author of Hard Cases in Wicked Legal Systems: South African Law in the Perspective of Legal Philosophy (now in its second edition), Legality and Legitimacy: Carl Schmitt, Hans Kelsen, and Hermann Heller in Weimar, and Judging the Judges, Judging Ourselves: Truth, Reconciliation and the Apartheid Legal Order. He has edited and coedited several collections of essays. In 2004 he gave the JC Smuts Memorial Lectures to the Faculty of Law, Cambridge University. These were published by Cambridge University Press in 2006 as The Constitution of Law: Legality in a Time of Emergency.

Dignity in Administrative Law:

Judicial Deference in a Culture of Justification In this paper, the text of a lecture given to a general (ie not academic) audience, I argue that the right to dignity is more at home in administrative law than anywhere else.

This argument goes against the grain of much constitutional scholarship and jurisprudence where there is increasing interest in dignity as the foundational value of constitutional law, and to some extent against the grain of much recent work in political philosophy, where there is a tendency to invoke dignity as the right of rights: the right that grounds all others. Indeed, there is a genuine question about the utility of dignity talk in this and other contexts. Dignity is a Roman law concept and in Roman law one’s dignity varied according to one’s official rank in society. Dignity may thus seem an unlikely basis for human rights, the rights that we supposedly have just because we are human beings. It becomes more likely when we understand that one of the great transformative ideas in Western thought comes about when the law is no longer seen as a way of sorting people into different classes of human beings, each with the legal and moral entitlements 21 Recht im Kontext Conference Nov 2011 The Concept of Human Dignity in a Transatlantic Perspective that befits that class’s dignity. Rather, human beings are regarded as members of just one class, and so every individual must be treated as a moral equal by the law. I try to show that the special place of dignity in administrative law is well illustrated by attending to the example of a ‘wicked legal system’ (apartheid South Africa) in which the law is used to violate dignity. I then go on to examine problems that arise in regard to the right in a decent legal system, using as my example the Canadian common law legal order. I conclude with some thoughts about the appropriate relationship between the judiciary and the state in a ‘culture of justification’, a legal culture predicated on the right to dignity.

22 Recht im Kontext Conference Nov 2011 The Concept of Human Dignity in a Transatlantic Perspective edwArd J. eberle teaches at Roger Williams University courses on Administrative, Comparative, Constitutional, First Amendment and International Business Law. He has written books on Dignity and Liberty: Constitutional Visions in Germany and United States and has several books in progress: Church and State in Western Society: Established Church, Cooperation and Separation, a book on Roger Williams, and, as coauthor, a Comparative Constitutional Law Casebook. He has also written a number of articles, such as The Method and Role of Comparative Law, 8 Wash. U. Global Studies L. Rev. 451 (2009);

Religion in the Classroom in Germany and the United States, 81 Tulane L. Rev. 67 (2006); Free Exercise of Religion in Germany and the United States, 78 Tulane L. Rev.

1023; Cross Burning, Hate Speech and Free Speech, 36 Arizona State L.J. 953 (2004); and Human Dignity, Privacy and Personality in German and American Constitutional Law, 1997 Utah L Rev. 963 23 Recht im Kontext Conference Nov 2011 The Concept of Human Dignity in a Transatlantic Perspective Professor dr. dIeter feddersen Member of the Board, Dräger Foundation, Lübeck, Germany born Kiel, Germany, April 22, 1935; admitted to the Bar (1964) Education: Universities of Kiel and Berlin, Dr. iur. Kiel (1964). Thesis: The role of parliaments in the German Democratic Republic.

Partner of the international law firm White & Case LLP, Frankfurt/Main (1974– 2003); Of Counsel at Feddersen Heuer & Partner, Frankfurt/Main (since 2003).

Special areas of activity: Corporate Law, Tax Law, M&A and other transactions.

Has been member of various national and international arbitration panels.

Lecturer on Tax Law, Heidelberg (1986); Honorary Professor, University of Heidelberg (1991–2005).

Various supervisory/advisory board activities, inter alia: Chairman: Supervisory Board of Drägerwerk AG & Co.

KGaA (former Drägerwerk AG), Lübeck (08/1979 until 05/2008); Chairman: Asklepios Kliniken Verwaltungsgesellschaft mbH, Königstein (since 2005); Chairman: Asklepios Kliniken Hamburg GmbH (since 2005); Chairman:

Lindauer Dornier GmbH (since 1985).

Various board activities in non-profit organisations, inter alia: Member: Board, Dräger-Stiftung, Lübeck; Member: Board of Trustees, American Institute for Contemporary German Studies, Washington D.C.; Member: Board, Förderkreis Freunde der Komischen Oper Berlin e.V., Berlin.

24 Recht im Kontext Conference Nov 2011 The Concept of Human Dignity in a Transatlantic Perspective dr. morAg goodwIn is Associate Professor at Tilburg Law School, the Netherlands. Her fields of specialization include international law, notably law and development; international and European human rights law; non-discrimination law; and law and technology.





Notable recent publications include Law and the Technologies of the Twenty-First Century (co-authored with Roger Brownsword; forthcoming CUP); ‘Bucking the (Kuznets) Curve: Designing Effective Environmental Regulation for Developing Countries’ (co-authored with Michael Faure and Franziska Weber) (2010) 51 Virginia Journal of International Law 95-156; and ‘Multidimensional Exclusion: Viewing Romani Poverty through the nexus of Race and Poverty’, in D. Schiek (ed.), European Union Discrimination Law: Comparative Perspectives on multidimensional Equality Law (Routledge, 2008).

25 Recht im Kontext Conference Nov 2011 The Concept of Human Dignity in a Transatlantic Perspective chrIstoPh goos born in 1974, studied law at the University of Heidelberg. During his legal clerkship at the higher regional court in Bamberg, he worked as a junior research fellow at the Institute for Legal Philosophy and General Theory of the State of the University of Erlangen-Nuremberg. Since October 2002, he has been working as a senior research fellow and as an academic advisor at the Institute for Public Law of the University of Bonn.

In 2009 and 2010, he taught Constitutional Procedural Law, the Law of the European Convention on Human Rights and General Public Law at the School of German Law at the University of Warsaw. In April 2009, he received a Ph.D. degree in law (Dr. iur.) from Bonn University. His thesis »Innere Freiheit. Eine Rekonstruktion des grundgesetzlichen Würdebegriffs [Inner Freedom. A reconstruction of the German Basic Law’s legal concept of Human Dignity] « was awarded with the President of the Italian Republic’s award and the Price of Bonn’s University Society for the best doctoral thesis of the University of Bonn 2010. The published edition finally was shortlisted for the Volkswagen Foundation’s »Opus Primum«-Award for the best scientific publication of an emerging author 2011. His special fields of interest are: Constitutional Law, Constitutional Procedural Law, Protestant Ecclesiastical Law and Civil Service Law. Together with Christian Hillgruber, he wrote a popular textbook of German Constitutional Procedural Law.

Currently, he is working on his post-doctoral thesis on disciplinary law in church and state.

Selected Publications:

— Innere Freiheit. Eine Rekonstruktion des grundgesetzlichen Würdebegriffs [Inner Freedom. A reconstruction of the German Basic Law’s legal concept of Human Dignity], Vandenhoeck & Ruprecht, Göttingen, 2011 — Verfassungsprozessrecht [Constitutional Procedural Law], C.F. Müller, Heidelberg, first edition 2004, second edition 2006, third edition 2011 (together with Christian Hillgruber) — »Mit Ernst Christ sein wollen«—Martin Luther und die Gemeinschaftsbewegung [»Desirous of being Christian in earnest«—Martin Luther and the Community Movement], 122 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Kanonistische Abteilung, p. 685–737, 2005 26 Recht im Kontext Conference Nov 2011 The Concept of Human Dignity in a Transatlantic Perspective

Abstract

In the interpretation of Article 1 German Basic Law, historical considerations have so far played a rather subordinate role. In the 1950s, flowery language, shaped by faith or philosophy, or both, was common to qualify the meaning of the legal concept of human dignity positively. In the 1960s, Peter Badura proposed to replace these in many ways insufficient circumscriptions of human dignity by a »casuistry of clear violations«. His so-called »Negative Approach« was groundbreaking and soon became the prevailing opinion. However, since the 1970s, especially the debates on abortion, the status of the embryo in vitro and the legitimacy of the so-called rescue-torture proved that it became increasingly more difficult to reach a consensus about strictly forbidden violations of human dignity. Today, a kind of »tiredness with dignity« and a tendency to solve problematic cases by putting Article 1 German Basic Law aside cannot be overlooked. However, in Germany, as in other countries, more and more constitutionalists agree that the question what the legal concept of human dignity means must no longer remain unanswered. In this situation, it is highly recommended to take a closer look at the records of the proceedings of the Parliamentary Council. Since 1993, all the relevant records are published and easily available in a reliable source edition. In particular, the records of the proceedings of the committee dealing with basic issues contain a couple of surprises: They show, for example, that Theodor Heuss’ famous dictum on human dignity as an »uninterpreted thesis« was neither meant to be a carte blanche for any arbitrary interpretation nor an evidence for the impossibility of all kinds of interpretation.

Rather, the records are evidence that the mothers and fathers of the Basic Law invested plenty of time and energy to clarify their understanding of the notion of human dignity.

They agreed that human dignity was neither a vague value assignment nor just the sum of the following basic rights but a real capacity of human beings that had been proven highly vulnerable during the Nazi regime: the inner freedom of man. The records also show that the two-sentence-structure of Article 1 paragraph 1 German Basic Law was chosen very consciously: The first sentence prohibits anyone to do things that violate the dignity of fellow humans. The second sentence additionally obliges all state authority to respect and to protect human dignity actively. Based on these findings, it might be possible to distinguish more precisely between the scope of human dignity and the scope of the following basic rights and between cases of application where balancing is permitted and necessary—and those where balancing is categorically prohibited.

27 Recht im Kontext Conference Nov 2011 The Concept of Human Dignity in a Transatlantic Perspective dIeter grImm studied Law and Political Science at the universities of Frankfurt, Freiburg, Berlin, Paris and at Harvard. He holds a Law degree and a doctoral degree from the University of Frankfurt, an LL.M. degree from Harvard, and honorary degrees from the University of Toronto and the University of Göttingen. From 1967 to 1979 he was Research Fellow at the Max-Planck-Institute for European Legal History in Frankfurt. From 1979 to 1999 he was Professor of Law at the University of Bielefeld and served for several years as Director of its Center for Interdisciplinary Research. In 1987 he was elected Justice of the Federal Constitutional Court of Germany. After completion of the 12 year term he became Professor of Law at Humboldt University Berlin. In addition he served as Rector of the Wissenschaftskolleg zu Berlin (Institute for Advanced Study) from 2001 to 2007, where he continues to be a Permanent Fellow. He also teaches Constitutional Law at Yale Law School and in 2008 he was the Henry L. Stimson Visiting Professor at Harvard Law School. He is a member of the Academia Europaea, of the American Academy of Arts and Sciences and of the Berlin-Brandenburgische Akademie der Wissenschaften.

Selected Publications:

— Die Zukunft der Verfassung, Frankfurt 1991, 3rd ed. 2002 — Die Verfassung und die Politik. Einsprüche in Storfällen, München 2001 — Souveränität, Berlin 2009 — “The Achievement of Constitutionalism and its Prospects in a Changed World”, in: P. Dobner / M. Loughlin (Eds.), The Twilight of Constitutionalism?, Oxford 2010, 3–22 — “Constitutional Adjudication and Democracy”, in: Judicial Review in International Perspective, Liber amicorum in honor of Lord Slynn of Hadley, 2000, vol. 2, p. 103 — “Constitutions, Constitutional Courts and Constitutional Interpretation at the Interface of Law and Politics”, in: Bogdan Iancu (ed.), The Law/Politics Distinction in Contemporary Public Law Adjudication, 2009, p. 21 28 Recht im Kontext Conference Nov 2011 The Concept of Human Dignity in a Transatlantic Perspective susAnnAh heschel is the Eli Black Professor of Jewish Studies at Dartmouth College in the Department of Religion.

Her books include “Abraham Geiger and the Jewish Jesus”, which won a National Jewish Book Award, and “The Aryan Jesus: Christian Theologians and the Bible in Nazi Germany”. She is currently a Fellow at the Wissenschaftskolleg zu Berlin and is writing a book on the history of Jewish scholarship on Islam.

Human Dignity in Judaism



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