Special Issue: The Basic Law at 60
The Basic Law at 60 – Human Dignity and the Culture of
Republicanism
By Matthias Mahlmann*
A. The Concept of Dignity and Constitutional Theory
The German Basic Law is a resilient constitution. It has proved able to cope with both the
new beginning of the constitutional tradition in Germany after the cataclysm of 1945 and
German reunification after the fall of the Berlin Wall in 1989. To be sure, there is reason
for some critical reflection concerning concrete questions and even fundamental issues—
not the least of which is the question whether German reunification should have been
marked by a process of constitutional self‐reflection and renewal beyond what has been
done. All in all, however, the Basic Law is, in historical perspective, a remarkable success.
Therefore, it is not surprising that it has gained much international attention. Some
aspects of the Basic Law have even become a kind of attractive export article not
accounted for in Germany’s foreign trade balance, but nevertheless of considerable
importance.
The Basic Law has various features that distinguish it from other examples of modern
constitutionalism. It creates a particular and recently reformed structure of federalism, a
peculiar parliamentary democracy with two legislative bodies and a federal presidency
with mainly representative functions. It contains not only classical elements of
constitutionalism, like the rule of law and democracy, but also makes the social state a
constitutional concept. Its rule on wehrhafte Demokratie (militant democracy) is the
object of many debates. The Basic Law conceptualizes the religious neutrality of the state
in an original, open way. Its relation to international law, including European law, is
intricate but marked by a general openness to this legal sphere. A further example is the
institutional structure of the German Federal Constitutional Court it creates, which has
attracted international interest for its institutional features and its practice.
The normative heart of the Basic law—its catalogue of fundamental rights—possesses
particular features as well, for example, the protection of a (subsidiary) general freedom of
action or a differentiated system of limitations of fundamental rights. The bill of rights has
* Professor, Chair of Legal Theory, Legal Sociology, and Public International Law, Faculty of Law, University of
Zurich.
[Vol. 11 No. 01 10 German L aw J ou rna l
been expanded through innovative jurisdiction, for example, as to a general personality
right or data protection.
The norm, however, that most characterizes the Basic Law in the public perception and in
scholarly reflection is the guarantee of human dignity.1 This particular role is, to a large
degree, a consequence of the German past. Nazism still legitimizes the guarantee of
human dignity today by the abominable, vivid barbarism of its negation. The guarantee of
human dignity formulates, however, not only the desire to refrain from fathoming yet
another time a moral abyss, but a promise as well: the perspective to create a legal order
that embodies principles of human dignity not only through the absence of misdeeds, but
also through legally institutionalized structures of a republican culture of respect.
The Basic Law’s guarantee of human dignity has had an impact beyond the German
borders as well. This is true for national states and for the transnational arena. An
example of the former is the guarantee of human dignity in the new Swiss Federal
Constitution,2 the formulation of which has been influenced by the example of the Basic
Law.3 On the international level, Article 1 of the Charter of Fundamental Rights of the
European Union is a good example of the influence of the Basic Law’s protection of human
dignity: it reproduces verbatim the core formulation of the Basic Law.4
However, one should not overlook that human dignity has become quite generally a
leading principle of the international human rights culture. For many, human dignity
epitomizes the core of the normative project of human rights and civilized
constitutionalism that was the imperative of the new beginning after 1945. The Charter of
the UN and the Universal Declaration of Human Rights of 1948 have set the example in this
respect. This is true for the formulation of the fundamental rights of the Basic Law as well,
which have been heavily influenced by the new conception of universal fundamental
rights. The Basic Law is, therefore, not the origin and kernel but just a part of this general
development towards constitutional states and an international legal order consciously
based on the rather ambitious aspiration of realizing in social life basic principles of human
worth. One should not underestimate the surprising nature of this development. It is
certainly not what many expected after the experience with human baseness before 1945.
1 See GRUNDGESETZ [GG] [Basic Law] art. 1.1 (F.R.G.) (“Human dignity is inviolable. To respect and protect it shall
be the duty of all state authority.”).
2 See BUNDESVERFASSUNG DER SCHWEIZERISCHEN EIDGENOSSENSHCAFT [BV], CONSTITUTION FÉEDÉRALE DE LA CONFÉDÉRATION
SUISSE [Cst] [Constiution] art. 7 (Switz.).
3 GIOVANNI BIAGGINI, BV: BUNDESVERFASSUNG DER SCHWEIZERISCHEN EIDGENOSSENSCHAFT art. 7, para. 2( 2007).
4 Charter of Fundamental Rights of the European Union, art. 1, 2000 O.J. (C 364) 1, 9 (“Human dignity is inviolable.
It must be respected and protected.”). This was made mandatory through Art. 6 TEU, as amended by the Treaty
of Lisbon. See Treaty of Lisbon, 2007 O.J. (C 306) 1, 13.
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For example, when Hannah Arendt reflected on the aporetic structure of human rights, she
concluded that the bitter truth was that when all depends on the respect for the naked
humanity of human beings, the world shows no respect for this naked humanity at all.5
This leads to fundamental questions about the foundation of this development. Are there
actually any sound theoretical reasons for this appreciation of human dignity as a legal
concept? And if so—what are these foundations? These may sound like surprising
questions, as human dignity seems to be an indubitable minimal standard of any mildly
attractive legal civilization. However, these questions quickly lose their exotic appearance
if one pays attention to the international contemporary debate about the concept of
dignity. For many commentators it is far from clear what is really meant by this concept
and how to legitimize it. Nor is it clear what concrete legal use it has in a given
constitutional order or in any other legal regime. This skepticism is not a completely new
phenomenon. It often has been asked, and with some emphasis, whether human dignity
offers more than an empty but seductive pathos. Guarantees of human dignity appear to
be intrinsically vague and, thus, normatively dangerous.6 Under the cover of lofty
“dignity,” all kinds of subjective, relative, and heterogeneous ideas could infiltrate human
rights regimes. Human dignity has the potential to become, as one early skeptic put it, the
“Trojan horse” of constitutional law corrupting the positive law.7
One possible consequence of this skeptical perception is the doctrinal downgrading of
human dignity clauses. These guarantees are then not understood as full, subjective
fundamental rights, but objective law that is not judicially enforceable by individual
citizens,8 or as a hermeneutical principle, that is, as a general maxim of interpretation.9
Another option is to relativize the content of a dignity clause, for example, by
differentiating between a core of dignity and its periphery, the latter being open to greater
limitations with the concrete consequence of making the admissibility of torture
possible.10
5 HANNAH ARENDT, 1 ELEMENT UND URSPRÜNGE TOTALER HERRSCHAFT 601 (1986).
6 For an overview about such comments see MATTHIAS MAHLMANN, ELEMENTE EINER ETHISCHEN GRUNDRECHTSTHEORIE
100 (2008).
7 Peter Schneider, Die Menschenrechte in staatlicher Ordnung, in PHILOSOPHIE DER MENSCHENRECHTE UND DER
GRUNDRECHTE DES STAATSBÜRGERS, 77, 83 (1964); HORST DREIER, 1 GRUNDGESETZ: KOMMENTAR, art. 1 para. 49 (2d ed.
2004).
8 See Günter Dürig, Der Grundrechtssatz von der Menschenwürde, 81 ARCHIV DES ÖFFENTLICHEN RECHTS 117, 119
(1956); Günter Dürig, in GRUNDGESETZ: KOMMENTAR GG art. 1, Rn. 15, 16 (Theodor Maunz & Günter Dürig eds.)
[hereinafter Maunz/ Dürig], original commentary; see also WINFRIED BRUGGER, MENSCHENWÜRDE, MENSCHENRECHTE,
GRUNDRECHTE 12 (1997).
9 See CHRISTOPH ENDERS, DIE MENSCHENWÜRDE IN DER VERFASSUNGSORDNUNG 399 n. 130 (1997).
10 Matthias Herdegen, in Maunz/Dürig, supra note 8, art. 1, para 44, 45 (where the former held position on the
admissibility of torture is abandoned after considerable critique).
[Vol. 11 No. 01 12 German L aw J ou rna l
These debates are not limited to the Basic Law, even though its dignity clause is the object
of decades of adjudication and offers particularly rich material for debate. On the
international level there are equally skeptical voices, certainly not interested in diminishing
the impact of human rights, who nonetheless regard dignity as a legal concept opening the
possibility of “significant judicial manipulation.”11 Consequently, dignity clauses should be
applied prudently. Those legal systems that do not have such a clause are advised to
carefully consider the consequences of the incorporation of this concept. This skepticism
about human dignity has deep roots in the human history of ideas. Thomas Hobbes
thought that the value of a person is, naturally, its price in society.12 Arthur Schopenhauer,
in his critique of Kant’s moral philosophy, declared the idea of human dignity to be the
Shibboleth of all thoughtless moralists who want to hide their own lack of ideas and moral
orientation behind this impressive concept.13 This remark has become, oddly enough,
something like a leitmotiv of the critique of dignity as a legal concept, mostly without
11 Christopher McCrudden, Human Dignity and Judicial Interpretation of Human Rights, 19 EUR. J. INT’L L. 655
(2008). For some thoughts from the international discussion, see Jochen Abr Frowein, Human Dignity in
International Law, in THE CONCEPT OF HUMAN DIGNITY IN HUMAN RIGHTS DISCOURSE 121 (David Kretzmer & Eckart Klein
eds., 2002); Jens Meyer‐Ladewig, Menschenwürde und Europäische Menschenrechtskonvention [Human Dignity
and the European Convention on Human Rights], 57 NEUE JURISTICHE WOCHENSHCRIFT 981 (2004); Christian Walter,
Menschenwürde im nationalen Recht, Europarecht und Völkerrecht [Human Dignity in National Law, European
Law and International Law], in MENSCHENWÜRDE IN DER SÄKULAREN VERFASSUNGSORDNUNG [Human Dignity in a Secular
Constitutional System] 127 (Petra Bahr & Hans Michael Heinig eds., 2006); David Feldman, Human Dignity as a
Legal Value—Part I, 1999 PUB. L. 682 (1999); David Feldman, Human Dignity as a Legal Value—Part II, 2000 PUB. L.
61 (2000); Jordan J. Paust, Human Dignity as a Constitutional Right, 27 HOW. L. J. 145 (1984); William A. Parent,
Constitutional Values and Human Dignity, in THE CONSTITUTION OF RIGHTS: HUMAN DIGNITY AND AMERICAN VALUES 47
(Michael J. Meyer & William A. Parent eds., 1992); Frederick Schauer, Speaking of Dignity, in CONSTITUTION OF
RIGHTS, supra, at 178; Louis Henkin, Human Dignity and Constitutional Rights, in CONSTITUTION OF RIGHTS, supra, at
210; Maxine D. Goodman, Human Dignity in Supreme Court Constitutional Jurisprudence, 84 NEB. L. REV. 740
(2006). For an attempt to connect dignity, liberty and equality see Susanne Baer, Dignity, Liberty and Equality: A
Fundamental Rights Triangle of Constitutionalism, 59 U. TORONTO L. J. 417 (2009).
12 THOMAS HOBBES, LEVIATHAN Chap. 10 (C. B. MacPherson, ed., Penguin 1985) (1651).
13 ARTHUR SCHOPENHAUER, PREISSCHRIFT ÜBER DAS FUNDAMENT DER MORAL 64 (1841). Schopenhauer adds (anticipating
much contemporary critique about the vagueness of the concept):
Aber dieser von allen Kantianern so unermüdlich nachgesprochene
Satz, ‘man dürfe den Menschen immer nur als Zweck, nie als Mittel
behandeln,’ ist zwar ein bedeutend klingender und daher für alle die,
welche gern eine Formel haben mögen, die sie alles fernern Denkens
überhebt, überaus geeigneter Satz; aber beim Lichte betrachtet, ist
es ein höchst vager, unbestimmter, seine Absicht ganz indirekt
erreichender Ausspruch, der für jeden Fall seiner Anwendung erst
besonderer Erklärung, Bestimmung und Modifikation bedarf, so
allgemein genommen aber ungenügend, wenig sagend und noch
dazu problematisch ist.
ARTHUR SCHOPENHAUER, DIE WELT ALS WILLE UND VORSTELLUNG 477 (1819/1844).
2010] 13Dignity and Republicanism
further considerations for the background of Schopenhauer’s critique: in the last instance
a metaphysically grounded morality of pity based on the final unity of Self and Non‐Self
that is presumably not, for many today, a conception full of theoretical future. Another
example is Nietzsche, who thought that the dignity of the many can only be derived from
their service for the few—again not a position that makes criticism based on these kinds of
assumptions very plausible.14
Consequently, it is useful to sketch the possible foundations of human dignity. To this end,
some historical aspects of the debate about human dignity will first be recalled that are
useful to remember if one wants to address problems of the present without naïveté.15
Second, some features of the contemporary debate will be considered. Third, some
elements of a possible answer to the question of the possible foundations of human
dignity will be outlined. Fourth, some concrete problems will be assessed until, finally,
some wider perspectives are discussed that lead beyond the Basic Law and its problems
into the core of the contemporary legal epoch.
B. Some Historical Remarks
I. Antiquity
Human dignity is not a natural attribute of human beings, but a value predicate. The
language used is not uniform but, in normative respects, human dignity means the specific
value of human beings that is based on nothing but their humanity as such.
This intrinsic value of human beings was reflected upon already in antiquity, even though
the concept of “dignity” was not necessarily invoked. Plato, for example, formulated the
idea that human beings are not only god‐like through their considered and virtuous
comportment, they could also recognize themselves as beings that, through their reason,
take part in a god‐like essence.16 In Hellenistic philosophy, the specific value of human
beings was considered in Stoic thought.17 The special value of human beings is derived
from taking part in the Logos of the world. Other properties matter as well, like conceptual
thinking, ideas of time, moral orientation or the ability to form cultures. A central feature
of this reflection is the developed ethical cosmopolitanism. The value of human beings is
14 Friedrich Nietzsche, Fünf Vorreden zu fünf ungeschriebenen Büchern, in KRITISCHE STUDIENAUSGABE 776 (Critical
Study Edition vol. 1, 1999) (1872) (five prefaces to five unwritten books 1872).
15 For a fuller statement see MAHLMANN, supra note 6, at 97.
16 See PLATO, NOMOI [Laws] IV 716d (2005); PLATO, THEAITETOS [Theaetetus]176b (2005); PLATO, POLITEIA [The
Republic] 611e–612a, 613 (2005); PLATO, ALKIBIADES [Alcebiades] 132e–133c (2005).
17 See the conclusions drawn from of the earlier stoic thought by CICERO, DE OFFICIIS [On Duties] 1, 105 (1999).
[Vol. 11 No. 01 14 German L aw J ou rna l
independent of belonging to a specific community. The world is one great polis ruled by
uniform ethical principles.18
These are a few examples of an explicit reflection on human value. It would, however, be a
fault to limit ones interests to such explicit reflections. Other forms of cultural expressions
are important as well. The idea of human dignity is not only present in philosophical
thought; its sources are, to the contrary, quite manifold and in no way limited to
conceptual thinking. Antique sculpture, for example, is a rich resource of magnificent and
shifting attempts to capture a certain vision of human existence and worth. Or consider
literature. The concept of human dignity is, for example, not mentioned in the Odyssey.
But is the longing for a return, the struggle to reach Ithaca, the confrontation with the
dead and the shadowy afterlife, the survival of the changing winds and the revengeful acts
of the Gods not relevant for the existential situation of human beings that is a foundation
for respect?
If one extends one’s view to these kinds of manifestations, one will quickly discover a
property of the debate that is of crucial importance. The serious contributions to the
debate about the intrinsic value of human beings are not sad examples of anthropocentric
narcissism. To the contrary, they are marked by a profound knowledge of the ambivalence
of human existence. A good example is Sophocles Antigone, where human beings appear
as τò δεινόν, something great that is at the same time uncanny and constantly close to an
abyss—if human beings lose their normative orientation, the step into the abyss is done.19
Consequently, one can only speak credibly about the value status of human beings if one is
not silent about the many self‐inflicted tragedies that mark human history and make it
something other than the triumphant manifestation, the secular theodicy of the sublime
nature of its subjects.
II. World Religions
World religions are important sources for the conception of human dignity. An important
example is the so called Judeo‐Christian tradition, even though one should be careful not
to assume a harmonious unity, which evidently did not exist in real history marked by
prosecution and discrimination against the Jewish minority and confessional strife. Central
to the idea of human dignity is the second of the two accounts about the creation of the
world in the Pentateuch, the Thora, which reports that human beings are not just
enlivened by God’s odem, as in the first account,20 but are actually created in the likeness
18 CHRYSIPP, STOICUM VETERUM FRAGMENTA III, 323.
19 SOPHOCLES, ANTIGONE verse 332 (1995).
20 Genesis, 2:7.
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