Dignity in a Legal Context: Dignity as an Absolute Right
Dignity in a Legal Context: Dignity as an Absolute Right
This chapter concentrates on dignity as a legal notion. Which difference does it make if a term like ‘dignity’ appears in a theological or a philosophical text or in a law? What happens when an existing idea of dignity is endowed with legal validity? The specific way of existence of a legal norm is its validity (Geltung). It requires compliance. Yet, while laws are formulated in general and abstract terms, the requirement for compliance arises in concrete situations. The gap between the abstract norm and the concrete case has to be bridged by interpretation. What are the guidelines for interpretation? Does the interpretation of a legal text differ from the interpretation of, say, a philosophical text? Is it possible to use philosophical or theological authorities to interpret a legal notion? In other words, can a legal decision be justified by non-legal considerations? The second part of the chapter concentrates on one legal problem peculiar to the notion of dignity. In some jurisdictions, Germany included, dignity is regarded as an absolute right. Absolute rights are extremely rare and raise a number of problems. Can the idea of an absolute right be consistently upheld in legal practice? What follows from the absolute character of a right for its scope? What follows for the definition of the value, good or interest that is protected by dignity? Can there be more than one absolute right in a given legal order? These problems are avoided in legal systems that treat dignity as a fundamental right like others. But does this pay sufficient attention to the reasons for which dignity claims a particularly prominent place in post World War II constitutionalism?
Keywords: German Basic Law, legal interpretation of dignity, dignity as an absolute right
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