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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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Relying on the insights of literary critic Albert Levi, I will argue that literature is humanity. To the degree that this argument fails to persuade, it is barely less meaningful to assert, in the alternative, that literature is more closely connected to humanity than the state. In either case, the state (acting through its legislature or courts) should defer to literature when negotiating seeming conflicts between human dignity and literature because, to paraphrase from John’s Gospel: in the beginning was the Word … and the Word became flesh and made its dwelling among us … long before the Rechtsstaat. Central to this argument is Levi’s claim that literature, like human life, manifests three fundamental dimensions. It is communicative, continuous and critical. The Constitutional Court justified enjoining the publication of the novels in these cases by emphasizing the first two elements at the expense of the last. Significantly, the neglected dimension is precisely the facet of literature qua humanity that presents the greatest challenge to the state’s monopoly on power.

Is it possible that the state’s less-than-complete vision of humanity is motivated by its own self interest? This suggests still another argument. The Rechtsstaat may be complicit in perpetrating the degrading positions it claims to be eradicating with its human dignity jurisprudence. After all, the state is a decidedly liberal (and mostly secular) institution that necessarily excludes the full diverse potential of humanity. Literature, however, cannot be guilty of the same hegemonic tendency.

37 Recht im Kontext Conference Nov 2011 The Concept of Human Dignity in a Transatlantic Perspective chrIstoPh möllers Dr. jur. (Munich), LL.M (Chicago) is a Professor of Public Law and Jurisprudence, Faculty of Law, Humboldt-University, Berlin. He was a Fellow at NYU School of Law and the Wissenschaftskolleg zu Berlin, and is a member of the Berlin-Brandenburg Academy of Sciences. He is a judge at the Superior Administrative Court in Berlin.

His main interests include theory and comparison of separation of powers, democratic theory in public law, theory of norms, and administrative regulation.

Selected Publications:

— A liberal theory of separated powers (contract, forthcoming, 2011, Oxford UP).

— ‘We are (afraid of ) the people’. Constituent Power in German constitutionalism, in: M. Loughlin/N. Walker (eds.), Constituent Power in Comparative Perspective, Oxford 2007, Oxford University Press, 87–105.

— Democracy and human dignity—Limits of a moralized conception of rights in German Constitutional Law, in: Israel Law Review 42 (2009), 417–439.

38 Recht im Kontext Conference Nov 2011 The Concept of Human Dignity in a Transatlantic Perspective Jeffrey rosen is a professor of law at George Washington University, the legal affairs editor of The New Republic, and a nonresident Senior Fellow at the Brookings Institution, where he heads the Brookings Project on Technology and the Constitution. His is an editor of the recently published Constitution 3.0: Freedom and Technological Change. His books include The Supreme Court: The Personalities and Rivalries that Defined America, The Most Democratic Branch, The Naked Crowd, and The Unwanted Gaze, which The New York Times called “the definitive text in privacy perils in the digital age.” Rosen is a graduate of Harvard College, summa cum laude; Oxford University, where he was a Marshall Scholar; and Yale Law School. After law school, he clerked for Chief Judge Abner Mikva on the U.S. Court of Appeals for the D.C. Circuit. His essays and commentaries have appeared in the New York Times Magazine, The Atlantic Monthly, on National Public Radio, and in The New Yorker, where he has been a staff writer. The Chicago Tribune named him one of the ten best magazine journalists in America and the L.A. Times called him “the nation’s most widely read and influential legal commentator.” He writes frequently about the impact of technology on constitutional values. He lives in Washington, D.C. with his wife Christine Rosen and two sons.

39 Recht im Kontext Conference Nov 2011 The Concept of Human Dignity in a Transatlantic Perspective JulIKA rosenstocK studied comparative religious studies, sociology and anthropology in Berlin, Copenhagen and Aberdeen. She is currently a Ph.D. student at the Faculty of Law of Humboldt University Berlin. In her dissertation she analyses reasons of attractiveness of contemporary critique on the concept of human equality in political and legal discourse.

Abstract

Taking a step back from the intricacies of the national and transnational human rights discourse, I will look at concepts and conceptions of human dignity as expressions of theories of justice. Theories, which invariably deal with distribution issues, above all the ‘distribution’ of the individual between the realm of its inalienable freedoms and the realm of its collective disposability.

I will argue that from such a perspective a shift in the normative foundations of human dignity becomes visible: A new concept of human dignity emerges in the German debate about dignity’s absolute effect. A concept that differs radically from the prevailing one based on the unconditional equality of human beings.

According to this concept human dignity functions as a task of its possessor thereby destroying the sphere of unconditional human equality otherwise embodied in human dignity. Like honour such dignity is primarily constructed as a source of claims on the possessor of dignity. Human dignity, hence, becomes a conditional status.





It embodies, thus, a shift in the balance between the justifiable claims on others (and be it that of refraining from action) and the justifiable claims of others. May the latter be claims of individuals or the state, made in the name of the common good or the will of the majority.

Yet, this does not mean the return of a premodern concept of dignity. On the contrary, human dignity being violable by the comportment of its possessor strongly partakes in modern notions of self-responsibility and achievement-based status. As such it can be read as a remoralisation of personhood. And it appears to fit into a broader tendency of recent social change, which increasingly moves areas of free lifestyle choice such as smoking and body weight into the realm of collective disposability.

Such a concept of human dignity rooted in what could be called ‘conditional egalitarianism’ may pose a serious challenge to the further development of the human rights discourse. At least it confronts us with the existence of contrasting concepts of human dignity within a legal culture adhering to the same norms and constitutional articles but adhering to them in a different manner.

40 Recht im Kontext Conference Nov 2011 The Concept of Human Dignity in a Transatlantic Perspective stePhAn schAede studied theology and philosophy in Tuebingen, Rome and Goettingen. From 1991 to 1998, he was research assistant at Prof. Eberhard Juengel’s chair in Tuebingen.

From 1999 to 2004, he worked as vicar and pastor in Northern Germany. He gained his doctorate in 2002 with a dissertation on ‘Stellvertretung—Begriffsgeschichtliche Studien zur Soteriologie’ (Tuebingen 2004).

From 2004-2010, he was research fellow at the Protestant Institute for Interdisciplinary Research Heidelberg, leader of the research-area “law and culture” and was engaged in his post-doctoral thesis: ‘Der Mensch vor Gott am Anfang und am Ende seines Lebens’. Since 2010 he is director of the Protestant Academy Loccum.

His publications include:

— Stellvertretung—Begriffsgeschichtliche Studien zur Soteriologie, BHTh 126, Tübingen: Mohr-Siebeck, 2004.

— (Ed., with Petra Bahr), Das Leben I. Historisch-Systematische Studien zur Geschichte eines Begriffs, Bd. 1, Tübingen 2010.

— (Ed., with Gerald Hartung), Internationale Gerechtigkeit, Darmstadt 2009.

— Würde. Eine ideengeschichtliche Annäherung aus theologischer Perspektive, in: Menschenwürde in der säkularen Verfassungsordnung. Rechtswissenschaftliche und theologische Perspektiven, P. Bahr/M. Heinig (eds.), Tübingen, 2006, S. 3–65.

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Ban on anthropological images and human dignity. Some theological remarks

To be silent on dignity this would be worth mentioning. This was exactly for 19th century protestant theologians the way they saw it. It is remarkable. During the 19th century in anthropological chapters of relevant dogmatics the concept of dignity is nearly completely missed. Just Martin Luther dreads to think on dignity in a constructive manner. Normally he uses this concept negatively. Unfortunately modern protestant thinkers prefer to forget about this. So it would be worth writing a history of the invention of the ancient Christian concept of dignity in the course of the 20th century.

Chapter one of the paper gives an insight into resistance against dignity in 19th century theology attaching a short advice when dignity for the first time was discovered again in protestant anthropology.

41 Recht im Kontext Conference Nov 2011 The Concept of Human Dignity in a Transatlantic Perspective Chapter two gives a short draft of various Latin semantic “precedents” of dignity.

The term dignity has eight precedents when looking at its Latin history alone. Apart from dignitas, the terms auctoritas, honestas, honor, decus, gravitas, maiestas and nobilitas ought to be mentioned. It has to be quickly described the Roman origins of these terms and to be explained at the same time what changed in the transition from their profane to the specifically Christian usage. With this, the concept of dignity is gaining systematic poignancy.

The third chapter outlines how Protestant theology communicates on the design of current forms of life against the background of the concept of dignity. It is true that this rationale’s claim to truth can only be understood by those who believe in God. The validity of this dignity, however, does not expire at the borders of faith. The protection of human dignity holds universal validity.

Closing remarks propose: We have to impose a ban on anthropological definite images. That may express the fundamental anthropological unsharpness which has

influenced the 20th century discourse of dignity. In this context theology can affirm:

A human being is not the king in his own castle. But it also has not delegated its sovereignty, its gravitas and auctoritas to dark powers, to blind wishes and forces. Persons delegate their sovereignty to a widespread reality which can be addressed as an affectionate person. Because of God’s regarding we are revoked from us to our advantage. Nobody can divest a human person from this regarding. It is exactly this why dignity which is constituted by a ban on anthropological definite images becomes inviolable.

42 Recht im Kontext Conference Nov 2011 The Concept of Human Dignity in a Transatlantic Perspective frAnK schorKoPf Prof. Dr. iur., * 1970; studies at University of Hamburg and London School of Economics, 1997 First State Exam; 1997-1998 European Parliament, Brussels; 1998-2001 Research Assistant to Meinhard Hilf, Hamburg; 2001 Second State Exam; 2001-2002 Research Fellow Max-Planck-Institute for Comparative Public Law and International Law, Heideberg; 2002-2005 Law Clerk at the Federal Constitutional Court, Karlsruhe;

2005-2009 Research Assistant to Udo Di Fabio; 2007 Habilitation; since 2009 Chair for Public Law and European Law at the Georg-August-University Göttingen, Institute of International and European Law (http://www.uni-goettingen.de/de/108557.html).

Recent Publications: The European Union as An Association of Sovereign States: Karlsruhe’s Ruling on the Lisbon Treaty, German Law Journal 10 (2009) pp 1219-1240; Case Note Lisbon judgment, American Journal of International Law 104 (2010), pp 259-265; Der Europäische Weg, Mohr Siebeck, Tübingen 2010; Gestaltung mit Recht. Selbststand und Prägekraft des Recht in einer Rechtsgemeinschaft, Archiv des öffentlichen Rechts 136 (2011), pp 323-344.

43 Recht im Kontext Conference Nov 2011 The Concept of Human Dignity in a Transatlantic Perspective nIls teIfKe

–  –  –

Publication of the dissertation: Nils Teif ke, Das Prinzip Menschenwürde. Zur Abwägungsfähigkeit des Höchstrangigen (Tübingen: Mohr Siebeck, 2011)

–  –  –

Is human dignity an absolute principle or is it amenable to balancing and therefore a limitable right like other constitutional rights? In my doctoral thesis, I have examined this question by analyzing the structure of article 1(1) of the German Basic Law and come to the result that the absoluteness of the principle of human dignity is only an apparent absoluteness.

Following the distinction between rules and principles, the typical applicationform of rules in the law is subsumption, and the typical application-form of principles in the law is balancing. Since, however, a principle with absolute validity would enjoy priority in every case and under all circumstances, its absoluteness would seem to allow no room for balancing. Is then human dignity, as representing an absolute value, to be seen according to the theory of principles not as a principle but as a rule? In view of the great open-texture of the concept of human dignity, there are good reasons for characterizing human dignity as, at the very least, also as a principle.

44 Recht im Kontext Conference Nov 2011 The Concept of Human Dignity in a Transatlantic Perspective My thesis of an apparent absolutness of the principle of human dignity is, so to speak, imparted by the moral significance attributed to human dignity, reaching well beyond the significance attributed to other principles. The significance of human dignity is so great that one can speak of its enjoying an abstract precedence over all other principles. Since there is, however, no “abstract balancing” in the application of law, and since it is necessary to carry out concretizations, and since, furthermore, the intensity of the infringements in this field, human dignity, will always have to be determined in concreto, the abstract priority of human dignity will have to be relativized in actual applications.



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