Menschenwürdegarantie und Absolutheitsthese Zwischenbericht zu einer zukunftsweisenden Debatte

The German Federal Constitutional Court as well as the prevailing opinion within the science of constitutional law in Germany both regard the guarantee of human dignity within the German Basic Law as absolute: It contains a right, which always takes absolute priority over and cannot be balanced with other constitutional values. Nevertheless, from the beginning of the interpretation of Article 1 (1) BL, prominent scholars have casted doubt on this thesis of absoluteness. In the last decade, the number of critics has increased starkly, so that warnings against a dismantlement of the guarantee can be heard. Taking a closer look at the jurisdiction of the German Federal Constitutional Court, it becomes apparent that even the Court itself includes the guarantee of human dignity in its balancing of constitutionally protected interests, just like it does with other fundamental rights. In the light of this practice of decision-making, some scholars try to save the absolute character of the guarantee of human dignity by interpreting it as an idea or a basic principle. However, these attempts appear to be unsuitable. Instead, the thesis of absoluteness should be abandoned a.0nd the guarantee of human dignity should be accepted as a basic right, which can be balanced with other constitutional values considering special parameters. The German Basic Law would allow for such an understanding of the guarantee of human dignity. It would also contribute to legal rationality, legal clarity and constitutional honesty.