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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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Jewish maxims regarding human dignity are compliant with our politics and cultures: they can be invoked or ignored, held up as exemplary or condemned as oppressive. Their significance depends upon their influence, the role they have played in Jewish self-understanding, as expressed in philosophical, kabbalistic, or sermonic texts, as well as their influence in Jewish legal praxis (halakhic decisions). Some of these maxims invoke “kavod” (honor or dignity) or imago Dei; others are connected to prohibitions against causing shame, a concept of great importance in rabbinic thought. These teachings are malleable, representing Judaism in widely different ways depending on the interpreter. One example of their malleability is the question of whether human dignity applies equally to all, according to Jewish law: Jews and Gentiles, men and women.

Beyond the discussions in Jewish texts regarding dignity is the role played by Jewish historical experience in contemporary discussions dignity. Invocations of Nazism in discussions of medical ethics, and the relationship between the convention on genocide and the universal rights declaration finds Jewish experience as its spectral interlocutor.

Within contemporary Jewish discussions, issues of human dignity are debated most often in relation to policies of the State of Israel, and also to religious practice; for example: does the land have dignity that can be violated; is torture permissible; does religion constitute a state of exception that permits the violation of women’s dignity; can Jewish law be revised to eliminate the agunah, the ‘bound woman,’ and so forth.  29 Recht im Kontext Conference Nov 2011 The Concept of Human Dignity in a Transatlantic Perspective Prof. dr. dr. erIc hIlgendorf University of Würzburg, Germany Professor of Law Chairman of the Department of Criminal Law, Criminal Justice, Legal Theory, Information and Computer Science Law Post-doctoral treatise on Criminal Law, Law of Criminal Procedure and Philosophy of Law, 1996 Juris Doctor, 1992, dissertation on Manufacturer Criminal Liability (awarded the Reinhold and Maria Teufel Trust Prize for Excellence) Doctor of Philosophy, 1990, dissertation on Reasoning in Jurisprudence Master of Arts in Philosophy and Modern History, 1987, thesis entitled History of the Development of Parliamentary Freedom of Speech in Germany

Appointments:

University of Constance Professor of Law (Criminal Law), 1997 Vice-Dean and Dean of Studies, 1998 Dean of the Faculty of Law, 1999 University of Würzburg Professor of Law (Criminal Law, Criminal Justice, Legal Theory, Information and Computer Science Law), 2001 Dean of the Faculty, 2010 For full bibliography see www.rechtstheorie.de

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The concept of “Human Dignity” plays a very important role in German and European discussions on the regulation of new technologies. The wide-sweeping support of this idea could be due to the fact that discussions of human dignity in many societies often tolerate various viewpoints regarding its definition. These open-forum intellectual discussions provide an opportunity for the development of further viewpoints 30 Recht im Kontext Conference Nov 2011 The Concept of Human Dignity in a Transatlantic Perspective which inevitably seep into the law and lead to more legal protection of human dignity through individual rights.

Yet this wide-sweeping support seems to falter when specific questions are asked about e.g. stem-cell research or robotics. This highlights the fundamental weakness in the discernment of legal protections for human dignity: the more concrete the term is made, the more its openness (and consequently wide-sweeping support) suffers. On the other hand, a concept without any clear content is of no use when it comes to decide whether new technologies are to be accepted or not.

The following elements may constitute the core of a more precise conception of

human dignity:

(1) It would violate human dignity to withhold from an individual the necessities of life such as food, air, shelter, etc… (The right to material existence).

(2) It would violate human dignity to deprive an individual of his basic liberty (The right to autonomous self-development).

(3) It would violate human dignity to submit an individual to severe and ongoing pain of the physical or psychological types (The right to the freedom from cruel or unnecessary punishment).

(4) It would violate human dignity to disclose the highly personal matters of an individual to a third party (The right to respect for privacy).

(5) It would violate the human dignity to change a person’s conscience through the use of pharmaceutical drugs or “Brainwashing” (The right to intellectual integrity).

(6) It would violate human dignity to deny an individual of his status as a legal entity, including his right to defend himself in a court of law (The right to equality before the law).

(7) It would violate human dignity to humiliate an individual in one of the aforementioned ways to such an extent that he is deprived of his minimum self-respect (The right to a minimum level of respect).

On the basis of this concept, which could be called “ensemble theory of human dignity”, technological innovations can be tested.

31 Recht im Kontext Conference Nov 2011 The Concept of Human Dignity in a Transatlantic Perspective Professor dr. tAtJAnA hörnle Humboldt-University, Berlin Germany

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Main Areas of Research: Punishment Theories; Criminalization; Constitutional Boundaries for the Criminal Law; Human Dignity; Comparative Criminal Law; Sentencing; Sexual Offences; Pornography

Recent Books:

— Grob anstößiges Verhalten. Strafnormen zum Schutz von Moral, Gefühlen und Tabus, 2005 (Offensive Behavior. On Penal Norms Which Protect Morality, Emotions and Taboos), Klostermann Verlag, 2005 — Straftheorien (Punishment Theories), Mohr Siebeck Verlag, 2011

Articles Relating to Human Dignity:

32 Recht im Kontext Conference Nov 2011 The Concept of Human Dignity in a Transatlantic Perspective — Die Menschenwürde: Gefährdet durch eine „Dialektik der Säkularisierung“ oder „Religion der Moderne“?, in: Walter Schweidler (Hrsg.), Postsäkulare Gesellschaft. Perspektiven interdisziplinärer Forschung, Freiburg und München: Karl Alber Verlag, 2007, S. 170–189 — Töten, um viele Leben zu retten. Schwierige Notstandsfälle aus moralphilosophischer und strafrechtlicher Sicht, in: Holm Putzke u.a. (Hrsg.), Strafrecht zwischen System und Telos – Festschrift für Rolf Dietrich Herzberg zum 70.

Geburtstag, Tübingen: Mohr Siebeck Verlag, 2008, S. 555–574 — Menschenwürde als Freiheit von Demütigungen, Zeitschrift für Rechtsphilosophie 2008, S. 41–61 — Shooting Down a Hijacked Airplane – The German Discussion and Beyond, Criminal Law and Philosophy 3 (2009), S. 111–131 33 Recht im Kontext Conference Nov 2011 The Concept of Human Dignity in a Transatlantic Perspective AlexAndrA Kemmerer is Academic Coordinator of the Research Network Law in Context and its program “Rechtskulturen: Confrontations beyond Comparison” at the Wissenschaftskolleg zu Berlin. She is a member of the Frankfurt Bar and has been a Research Fellow at the Jean Monnet Chair for European Law (Professor Dieter H. Scheuing), University of Würzburg, Faculty of Law, a law clerk with the European Commission’s Delegation to the United Nations, New York, and a Senior Research Fellow and Head of the section “Law, Politics, Institutions” at the Simon Dubnow Institute for Jewish History and Culture at the University of Leipzig. She has been a Visiting Research Fellow at the European University Institute, Department of Law, and at the University of Michigan Law School. Her interests include European Public Law (Ius Publicum Europaeum), International Law, Constitutional Theory, Comparative Constitutional Law and Context(s) of Law, and the Media Theory and Communicative Praxis of Law. Currently, her research concentrates on transnational citizenship in Europe and on the history of European Law as a history of ideas, with a particular interest in interrelations between biography, doctrine and theory. She is a co-editor of the German Law Journal. As a writer and journalist, she is a regular contributor to the Frankfurter Allgemeine Zeitung’s Feuilleton pages.

Her reviews, essays and other writings on law, culture, religion, politics, arts and humanities have appeared in the FAZ, the Süddeutsche Zeitung and, inter alia, Internationale Politik. She is a book critic for Deutschlandfunk (German National Public Radio).

Recent publications include:

— The Turning Aside. On International Law and Its History, in: Rebecca — M. Bratspies/Russell A. Miller (eds.): Progress in International Law, Boston/ Leiden 2008, 71-93;

— Kelsen, Schmitt, Arendt, and the Possibilities of Constitutionalization in (International) Law: Introduction, Leiden Journal of International Law 23 (2010), 717 Legitimationssubjekte: Staatsbürger—Unionsbürger, in: Claudio Franzius/Franz C.

Mayer/Jürgen Neyer (eds.), Strukturfragen der Europäischen Union, BadenBaden 2010, 204–217.

34 Recht im Kontext Conference Nov 2011 The Concept of Human Dignity in a Transatlantic Perspective AvIshAI mArgAlIt Professor Emeritus of Philosophy at the Hebrew University of Jerusalem and 2006–2011 the George Kennan Professor at the Institute for Advanced Study in Princeton, is one of the foremost thinkers and commentators on the contemporary human condition, the moral issues of our time, and current problems facing Western societies.

In addition to his influence as a philosopher, he is highly regarded for his profound and cogent observations of the Israeli-Palestinian conflict and the broader struggle between Islam and the West. As the author of Idolatry (with Moshe Halbertal, 1992), The Decent Society (1996), Views in Review: Politics and Culture in the State of the Jews (1998), The Ethics of Memory (2002), Occidentalism: The West in the Eyes of Its Enemies (with Ian Buruma, 2004), and On Compromise and Rotten Compromises (2009), Margalit has transformed philosophical perspectives on a range of political and societal issues.

35 Recht im Kontext Conference Nov 2011 The Concept of Human Dignity in a Transatlantic Perspective russell A. mIller is an Associate Professor at Washington & Lee University’s School of Law where he teaches and conducts research in comparative law and constitutional law. He is the author/editor of a number of books and articles in these fields, including the forthcoming third edition of The Constitutional Jurisprudence of the Federal Republic of Germany (with Donald Kommers) (Duke University Press 2012) and the forthcoming law school textbook Global Legal Traditions: Comparative Law for the 21st Century (with An-Na’im, Bazyler and Yu) (Lexis-Nexis Publishing 2012). Russell has been a guest professor in Germany where he recently served as a Senior Fulbright Research Scholar at the Max Planck Institute for Comparative Public Law and Public International Law in Heidelberg. In 1999/2000, Russell enjoyed a Robert Bosch Foundation Fellowship that included work stages at the German Federal Constitutional Court and the European Court of Human Rights. He earned his degrees from Washington State University (B.A.), Duke University ( J.D. / M.A.) and Johann Wolfgang Goethe University, Frankfurt (LL.M.). With Professor Peer Zumbansen, Russell is the co-founder and Co-Editor-in-Chief of the German Law Journal.

The Dignity of Literature

Take the description of this panel seriously and it invites an interdisciplinary departure. At least from within the framework of the Rechtsstaat, to think of human dignity “beyond the state” is to think of human dignity “beyond the law.” The links between state and law are barely attenuated by the shift to supranational or international public authority, which consist of state constructed legal orders that serve to reaffirm state power as much as circumvent it. An interdisciplinary turn makes conceptual sense in any case. The state and its supranational or international progeny always were awkward patrons for human dignity. As institutions or systems, the state and the international order necessarily are distinct from humans and cannot perfectly identify with our conditions. Worse, the state and the international order are bound to possess their own autopoesis, which very often must conflict with humankind’s will-to-self. None of this is meant to denigrate the vast human gains made under the Rechtsstaat and the further improvements achieved by externalizing public authority through, for example, international human rights law. But there is a reason why we still regard the emergence of the 36 Recht im Kontext Conference Nov 2011 The Concept of Human Dignity in a Transatlantic Perspective state as a (perhaps Hobbesian) “bargain”: for all the dignity that we have gained, there is something human that we have surrendered.

If not the state-law complex, then to which disciplines might we turn for fuller insight into human dignity? Many recommend themselves, due to their persistence and the remarkable way they give force to distinct facets of the human spirit. I am no theologian, but that field might shed its own distinct light on the human condition while accenting the lacunae or conflicts that exist in the state’s promotion of human dignity. I am more at home with literature, an interdisciplinary move that is justified in any event because, from time to time, courts acting on behalf of their state masters feel obliged to ban books in order to promote human dignity. There is, then, more than a little tension between the state’s notion of human dignity and literature.

It is my thesis that literature, and not the state (via its law), is the more suitable champion for human dignity and that, for this reason, the German Constitutional Court’s decisions in the cases Mephisto (1971) and Esra (2007) were wrongly decided.



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