"Human dignity is inviolable." This is the wording of Article 1, Paragraph I, Sentence 1 of the German Basic Law. Whether in the proceedings over the shooting down of a hijacked aircraft, or in the current Corona pandemic - the discussion about the concept of human dignity is sparked again and again.
In general, it can be observed that the more fundamental rights permeate our legal system, the more often they also intervene in the relationship between citizens and the state and in the relationship between individual citizens themselves. What is then required is a weighing of the competing fundamental rights claims, whereby a reasoned decision is often only possible by asserting a violation of the absolutely valid, i.e. claiming priority, human dignity (Habermas, 2010, p. 347).
But where does the concept of human dignity come from, how long has it existed at all and what is its significance in terms of the sociology of law? These questions will be answered in this article.
Historical background of human dignity
It is questionable when the concept of human dignity was first mentioned.
The concrete concept of dignity derives from the world of hierarchically structured traditional societies. At that time, a person could derive his or her dignity and self-respect from, for example, the code of honour of the nobility, the ethos of craftsmen's guilds or the consciousness of universities (Habermas, 2010, p. 350).
The concept of human dignity as a legal concept in itself, on the other hand, did not appear for a long time (Gisbertz, 2018, p. 55). It was not used specifically in the classical human rights declarations of the 18th century or in the codifications of the 19th century. There is only one exception from the mid-19th century. In the justification for the abolition of capital punishment and corporal punishment in §139 of the Paulskirche Constitution, it was stated that a free people had to respect human dignity even in the criminal (Habermas, 2010, p. 344). Another use of the concept of dignity is shown, for example, in Art. 68 of the Paulskirche Constitution, which speaks of the "dignity of the head of the empire" (Gisbertz, 2018, p. 55).
A direct mention of the concept of "human dignity" cannot be found in the draft of the Basic Rights of the German People, even in July 1848. Only the statement "...that all men are born equal, that they are endowed by their Creator with certain inalienable rights, that among these are life, liberty and the pursuit of happiness..." shows that there must be irreplaceable rights which man possesses from the beginning and on the basis of which he must be accorded a certain "rank" or "dignity".
However, the concept of "dignity" is then more clearly emphasised at the beginning of the Second Reading of the Basic Rights of the German People in 1848. An article in the Deutsches Volksblatt of 9 December 1848 shows the statement of Frederick William, King of Prussia: "... to which this assembly is called, with the same without injury to the dignity of our crown and without impairment of the welfare of the country, which is inseparable from it...". It is questionable whether this statement already suggests a fundamental idea of human dignity. This cannot be ruled out from the outset. At the very least, the dignity of the royal crown was inseparably linked with the welfare of the country.
It is only in the later Weimar Reichsverfassung of 1919 that Art. 151 explicitly mentions for the first time the "guarantee of a dignified existence for all" (Habermas, 2010, p. 346).
On the concept of human dignity
Linguistically, the concept of human dignity also has a long history. In Greek philosophy, there was talk of the so-called "dignitas humana", which described a special position of human beings, based on their generic characteristics such as the gift of reason and reflection, compared to lower creatures (Habermas, 2010, p. 351).
The word origin of "dignity" also derives from the Latin status term "dignitas", which denoted a position of pre-eminence to which certain norms of conduct, both on the part of the dignitary and towards him, were attached (Gisbertz, 2018, p. 116).
Directly translated, the Latin term "dignitas" means "worthiness", "efficiency", "respect" and "prestige".
Human dignity from the sociological point of view
However, it is not only in linguistics that the origin of human dignity is studied. The study of it is also widespread in the social sciences, and it is above all the sociology of law that has the task of examining it more closely.
Sociologically, the concept of dignity can be distinguished between two different understandings of dignity: a contingent and a necessary dignity. Contingent dignity is characterised by its randomness and graduability. An example of this would be the existence of different offices or modes of behaviour, which, depending on their rank, also have a different dignity. Necessary dignity, on the other hand, refers to the idea that all human beings have inherent dignity due to certain qualities or characteristics, such as reason or freedom, regardless of specific achievements (Gisbertz, 2018, p. 118).
The German sociologist Jürgen Habermas, however, takes a different view in this regard. In his opinion, it is only the guarantee of human rights that creates the status of citizens who, as subjects of equal rights, have a claim to be respected in their human dignity. In his view, human dignity is not an ex post classificatory expression, but the moral "source" from which the contents of all fundamental rights are fed. Since human dignity is one and the same everywhere and for everyone, it establishes the indivisibility of fundamental rights (Habermas, 2010, p. 345 ff.).
The sociologist Niklas Luhmann also dealt with this topic. For him, freedom and dignity are preconditions for humans to socialise as individuals. They are value-based terms for the external and internal problems of human self-expression (Luhmann, 2019, p. 63). Dignity in itself must be constituted in the process. According to Luhmann, it is the result of difficult representational performances related to general system interests of the personality and constant social cooperations. Unlike Habermas, he believes that basic rights guarantee neither freedom nor dignity. This is not within the power of the state. The state only has to presuppose that people have enough understanding and experience to handle their personality properly. In this respect, according to Luhmann, it makes sense to consider freedom and dignity as pre-state legal goods (Luhmann, 2019, p. 69 f.).
Inviolability of human dignity?
The concept of human dignity is frequently used, but its direct meaning is rarely addressed. Does it describe a certain unchangeable position of the human being from birth or did it only develop through the recognition of fundamental rights? These questions do not seem to have been fully clarified even in the sociology of law. What is clear, however, is that the concept of dignity appeared as early as the Second Reading of the Basic Rights in 1848 and that it was thus obviously already anchored in people's minds before today's Article 1 of the German Basic Law was formulated. Finally, one of Luhmann's approaches to this is interesting. He describes human dignity as one of the most sensitive human goods because it is so strongly generalised that all details affect the whole person. Since a single lapse or indiscretion can radically destroy it, human dignity is also anything but "inviolable" according to Luhmann (Luhmann, 2019, p. 72).
Gisbertz, Philipp, Menschenwürde in der angloamerikanischen Rechtsphilosophie, 1st edition 2018.
Habermas, Jürgen, Das Konzept der Menschenwürde und die realistische Utopie der Menschenrechte, DZPhil, 58 (2010) 3.
Luhmann, Niklas, Grundrechte als Institution, Berlin 2019.
ReConFort / Weber