Human Dignity as a Normative Principle

2020 ◽  
pp. 339-353
Author(s):  
Ernst-Wolfgang Böckenförde ◽  
Mirjam Künkler ◽  
Tine Stein
Keyword(s):  
Human Dignity ◽  
Genetic Diagnosis ◽  
Constitutional Court ◽  
Therapeutic Cloning ◽  
Human Being ◽  
Basic Law ◽  
Legal Principle ◽  
Federal Constitutional ◽  
The Central Nervous System ◽  
Kantian View

Böckenförde was one of the most outspoken critics of attempts to legalize new biomedical techniques, such as human cloning, therapeutic cloning, and pre-implantation genetic diagnosis. In this article, he lays out why the legal principle of human dignity, enshrined in Article 1 of the German Basic Law, not only suggests but even requires the prohibition of such techniques. Drawing on the records of the 1949 Parlamentarischer Rat (the constitution-drafting body), he is able to show that with Article 1 the drafters sought to set a counterpoint to fascist Germany’s total negation of human dignity and that the preservation of human dignity was intended to be the highest and most pressing aim of the Federal Republic. Böckenförde notes further that the Federal Constitutional Court adopted the Kantian view that human dignity means every human being is an end in itself. But who is ‘every human being’? Does it include unborn life? Böckenförde answers in the affirmative and argues that the unborn therefore must be protected by the state from the very beginning of life, from the point of fertilization. Every other point in time in human development, such as the implantation of the embryo in the uterus, or the development of the central nervous system, would be arbitrary criteria for eligibility as a bearer of human dignity. Therefore, all biomedical techniques which treat the embryo not as an end in itself must be prohibited. He lays out the consequences of this argument in detail with regard to cloning and pre-implantation genetic diagnosis.

Unantastbare Menschenwürde

2019 ◽  
Author(s):  
Justus Quecke
Keyword(s):  
Human Dignity ◽  
Alternative Interpretation ◽  
Constitutional Court ◽  
Basic Law ◽  
Federal Constitutional ◽  
The Law ◽  
German Federal Constitutional Court ◽  
Difficult Cases ◽  
German Federal Constitutional

The German Federal Constitutional Court considers Article 1(1) of the country’s Basic Law to be an inalienable right. Accordingly, the impairment of human dignity cannot be justified by balancing it against other constitutional principles. Legal scholars, however, increasingly reject this understanding of the law as irrational or theoretically impossible. In this volume, Justus Quecke examines the content of these objections and the challenges associated with an absolute understanding of human dignity. He develops an alternative interpretation of human dignity, according to which the semantics of actions determine whether human dignity has been violated. In addition, he shows how ‘reasoning by example’ can operationalise an absolute understanding of Article 1(1) of the Basic Law in difficult cases.

scholarly journals Natural law, human dignity and tradition of Böckenförde’s catholic political theology, from a conservative viewpoint

2021 ◽  
Vol 9 (2) ◽  
pp. 86-103
Author(s):  
Ferenc Hörcher
Keyword(s):  
Human Dignity ◽  
Natural Law ◽  
Political Theology ◽  
Carl Schmitt ◽  
Constitutional Court ◽  
Social Democrats ◽  
Basic Law ◽  
The Social ◽  
Federal Constitutional ◽  
Legal Sense

This paper aims to show the connection between ideas on natural law, human dignity and tradition in the legal-political thought of Ernst-Wolfgang Böckenförde, an influential earlier judge of Germany’s Federal Constitutional Court. It starts out from the Catholic background of the legal theorist, and his close connection to Carl Schmitt, probably the most charismatic legal thinker of the age, who, however, burnt himself by his support of the Nazi regime. Böckenförde was politically closest to the Social Democrats, yet political theology remained crucial for his legal thought. His interpretation of the German Grundgesetz was founded on a very strong, universalist interpretation of the concept of human dignity, which he took as the most important, founding value in the value catalogue of the Basic Law. Although not a conservative, Böckenförde also claimed that in a specific legal sense, tradition also plays a major role in legal interpretation. He took over from the writings of his brother, the theologian Werner, the idea that tradition and reception can serve as checks on the way natural law is interpreted. All in all, as Böckenförde points out, the three concepts (natural law, human dignity and tradition) provide a strong foundation for legal and constitutional interpretation.

International Treaties and The German Constitution

2019 ◽  
pp. 171-190
Author(s):  
Stefan Kadelbach
Keyword(s):  
German Law ◽  
Foreign Affairs ◽  
European Convention ◽  
Constitutional Court ◽  
International Treaties ◽  
Basic Law ◽  
The Status ◽  
German Constitution ◽  
Federal Constitutional

This chapter deals with the making, status, and interpretation of international treaties under the German Constitution. It describes the interrelationship of the different institutions in treaty-making and shows how a comparatively old provision of the German Basic Law has been adapted slowly to new circumstances over the past decades. Thus, even though foreign affairs has remained a domain of the executive, several developments have contributed to an enhanced role of Parliament over time. These developments are partly due to the role of special sectors of law such as EU law and the law governing the use of force and partly due to changes in constitutional practice. As for the status of treaties in German law, the Federal Constitutional Court has developed a stance according to which treaties generally share the rank of the legal act that implements them into domestic law. A notable exception is the European Convention of Human Rights, which has assumed a quasi-constitutional rank by means of consistent interpretation. Some reference is made to other continental systems to assess how far different constitutions bring about certain features; various systems appear similar in many respects at first sight, whereas features in which they differ may be a source of inspiration for future constitutional practice.

Public Sector Purchase Programme (PSPP) Case

2021 ◽  
Vol 192 ◽  
pp. 451-511
Keyword(s):  
European Union ◽  
Constitutional Court ◽  
Eu Law ◽  
The European Union ◽  
European Central ◽  
Court Of Justice ◽  
Basic Law ◽  
Federal Constitutional ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

451Economics, trade and finance — European Monetary Union — Fiscal sovereignty — Public debt — Monetary policy — Economic policy — European Union — Asset purchase programme — Quantitative easing — Central banks — European Central Bank — European System of Central Banks — BundesbankTreaties — Treaty-making powers — Constitutional limitations on treaty-making powers — Transfers of powers by States to intergovernmental and other transnational authorities — Whether compatible with constitutional prerogatives of national parliament — Overall budgetary responsibility — Basic Law of GermanyInternational organizations — European Union — Powers — Member States as masters of the treaties — Principle of conferral — Whether Union having competence to determine or extend its own powers — Principle of subsidiarity — Court of Justice of the European UnionRelationship of international law and municipal law — European Union law — Interpretation — Application — Judgment of Court of Justice of the European Union — Weiss — Principle of proportionality — Whether application of EU law having absolute primacy — Whether German Federal Constitutional Court having absolute duty to follow judgment of Court of Justice of the European Union — Compatibility with Basic Law of Federal Republic of Germany — Openness of German Basic Law to European integration — Whether purchase programme ultra vires — Whether ultra vires acts applicable in Germany — Whether having binding effect in relation to German constitutional organsJurisdiction — European Union institutions — Whether jurisdiction of German Federal Constitutional Court extending to Court of Justice of the European Union and European Central Bank — Whether acts of EU institutions subject to national constitutional review — Ultra vires review — Review of core identity of national constitution — Whether application of EU law having absolute primacy — Whether absolute duty to follow judgment of Court of Justice of the European Union — The law of Germany

Celebrating the Milk Maid: What Federal Constitutional Court President Limbach Doesn't Tell Us About the Court Says It All

2001 ◽  
Vol 2 (9) ◽  
Author(s):  
Viktor Winkler
Keyword(s):  
German Law ◽  
The Other ◽  
Constitutional Court ◽  
Limited Size ◽  
Small Stature ◽  
Basic Law ◽  
Federal Constitutional ◽  
Law Student

It's a small book. Actually, it is a very small book. Only one hundred and twenty-eight pages, it's a format so thin it could fit into a pocket. As a matter of fact, it is smaller than a copy of the Grundgesetz (German Basic Law) that a German law student would carry along to class. The book's title, however, is considerably more intrepid than the book's small stature. At the same time breathtakingly pithy and slightly immodest, the book is simply called Das Bundesverfassungsgericht (The Federal Constitutional Court). And at the top of the cover, just to make sure, the word “WISSEN” (KNOWLEDGE) appears in big letters. While one wonders how a publication of such limited size could deign to comprehensively present the important “knowledge” of the Federal Constitutional Court, the other words on the cover provide some assurance. Those words are the name of the book's author who obviously could not be more adequate for the task. The author, Jutta Limbach, is the current President of the Federal Constitutional Court presiding in her seventh year.

scholarly journals The Mediation Committee of the Bundestag and Bundesrat: A Special Institution of German Constitutional Law

2016 ◽  
Vol 44 (1) ◽  
pp. 35-42
Author(s):  
Claus Koggel
Keyword(s):  
Constitutional Law ◽  
Political Power ◽  
Case Law ◽  
Legislative Process ◽  
Constitutional Court ◽  
Current Case ◽  
Basic Law ◽  
Federal Constitutional ◽  
Legislative Procedure ◽  
German Constitutional Law

AbstractThe Mediation Committee of the Bundestag and Bundesrat – is it “one of the most felicitous innovations in our constitutional activities”, “the most positive institution in the entire Basic Law” or, as some critics assert “a substitute and superordinate parliament” or indeed the “mysterious darkroom of the legislative process”? This article seeks to provide answers to these questions. It is however clear that the Mediation Committee has become an important instrument for attaining political compromises in Germany's legislative procedure. The Committee's purpose is to find a balance between the differing opinions of the Bundestag and Bundesrat concerning the content of legislation, and, through political mediation and mutual concessions, to find solutions that are acceptable to both sides. Thanks to this approach, the Mediation Committee has helped save countless important pieces of legislation from failure since it was established over 65 years ago, thus making a vital contribution to ensure the legislative process works efficiently. The lecture will address the Mediation Committee's status and role within the German legislative process. It will explain the composition of this body as well as its most important procedural principles also against the backdrop of current case law from the Federal Constitutional Court. Finally, the lecture will consider how particular constellations of political power impact on the Mediation Committee's work.

scholarly journals “OBJEKTFORMEL” – EVENTUAL ACTS OF DAMAGE TO HUMAN DIGNITY

2014 ◽  
Vol 8 (4) ◽  
pp. 19-26
Author(s):  
Izabela Bratiloveanu
Keyword(s):  
Human Rights ◽  
Human Dignity ◽  
Constitutional Law ◽  
Categorical Imperative ◽  
Constitutional Court ◽  
European Court ◽  
Federal Constitutional ◽  
German Constitutional Law ◽  
First Time

 The Object formula („Objecktformel”) has been designed and developed in the mid century XX by Günter Dürig, starting from the second formula of Kant's categorical imperative. The Federal Constitutional Court of Germany took the formula and applied it for the first time in the case of the telephone conversations of December 15, 1970. The Object formula („Objecktformel”) was taken from the German constitutional law and applied in the jurisprudence of the European Court of Human Rights.

The Implications of “Eternity Clauses”: The German Experience

2011 ◽  
Vol 44 (3) ◽  
pp. 429-448 ◽  
Author(s):  
Ulrich K. Preuss
Keyword(s):  
Adverse Effects ◽  
Hierarchical Model ◽  
Final Section ◽  
Constitutional Court ◽  
Constituent Power ◽  
Constitutional Amendments ◽  
Basic Law ◽  
Federal Constitutional ◽  
Alternative Understanding ◽  
Conceptual Possibility

This paper explores the conceptual possibility and implications of the concept of unconstitutional constitutional amendments. In the first section, the author argues that unconstitutional constitutional norms are conceptually impossible within the conventional hierarchical model of norms. In the second section, the author discusses the normative particularity of the amending power and concludes that an unlimited power may endanger the constitution. In sections III and IV, the author explains why so-called “eternity clauses,” in order to fend off such a danger, have been designed to place certain immutable elements of the constitution beyond the limits of the amending power. The paradigmatic case is the German Basic Law and a recent decision by the Federal Constitutional Court that discusses the implications of the “eternity clause” with reference to the distinction between constituent power and the constituted amending power. The author develops an alternative understanding of that distinction and its consequences for the amending power. The possible adverse effects of “eternity clauses” on the normality of the constitution are briefly considered in the final section.

Sozio-ökonomische Ungleichheit: Verfassungstheoretische Bedeutung, verfassungsrechtliche Reaktionen

Der Staat ◽  
2021 ◽  
Vol 60 (2) ◽  
pp. 177-210
Author(s):  
Konstantin Chatziathanasiou
Keyword(s):  
Constitutional Law ◽  
Economic Inequality ◽  
Wealth Inequality ◽  
Social Dimension ◽  
Economic Research ◽  
Constitutional Theory ◽  
Constitutional Court ◽  
Basic Law ◽  
Minimum Requirements ◽  
Federal Constitutional

Der Beitrag behandelt sozio-ökonomische Ungleichheit als verfassungsrelevante Herausforderung unter dem Grundgesetz. Theoretisch sind unterschiedliche Wirkzusammenhänge zwischen Verfassung und sozio-ökonomischer Ungleichheit möglich. Insbesondere kann sozio-ökonomische Gleichheit als faktische Legitimitätsressource und als demokratische Funktionsbedingung wirken. Empirisch deutet die ökonomische Ungleichheitsforschung auf eine wachsende Vermögensungleichheit in Deutschland hin. Verfassungstheorie und empirische Zustandsbeschreibung treffen sich in der Auslegung des geltenden Verfassungsrechts, das im Hinblick auf das Soziale nur schwach determiniert ist. Die Rechtsprechung des Bundesverfassungsgerichts formuliert Mindestanforderungen, überlässt die Konkretisierung des Sozialen aber weitgehend der Politik. Die Verfassungsrechtswissenschaft sollte diesen Prozess konstruktiv begleiten, dabei aber zwischen Recht und Theorie unterscheiden. The article addresses socio-economic inequality as a constitutional challenge under the German Basic Law (Grundgesetz). Theoretically, several causal relationships between the constitution and socio-economic inequality are possible and plausible. In particular, socio-economic equality can be a resource of de facto legitimacy and a condition of democracy. Empirically, current economic research indicates growing wealth inequality in Germany. Constitutional theory and empirical description meet in the interpretation and application of actual constitutional law, whose social dimension is only weakly determined. The Federal Constitutional Court formulates minimum requirements, but leaves the concretization of the social dimension essentially to the political branches of government. Constitutional law scholarship should analyse this process constructively, while distinguishing between law and theory.

Sign in / Sign up

Export Citation Format

Share Document