The role of ‘dignity’ in the protection of human rights: lessons from Germany
An uncodified concept of dignity is an unacceptably ineffective way to protect human rights within Europe. This article will first examine the legal systems of the European Court of Human Rights (ECtHR) and the United Kingdom (UK), as the central human rights instruments in both of these systems, the European Convention on Human Rights (ECHR) and the Human Rights Act 1998 (itself giving domestic effect to the ECHR) respectively, fail to provide a codified concept of human dignity. In this discussion I will outline why an uncodified concept of human dignity is unsuitable to protect human rights. I will then move on to discuss the German legal system that offers a codified, constitutional concept of human dignity – here I will consider why the codified system is more effective in protecting human rights in relation to the uncodified systems of the UK and ECtHR. In my last paragraph, having already established the theoretical superiority of the codified system, I will contemplate how far and in what capacity the concept of human dignity must be codified in order to protect human rights most effectively. To do this, I will reflect on some of the issues the German system has faced in its application of dignity, and how to avoid devaluing the concept to the point that it loses its unique ability to protect human rights.
UK and the ECHR: Uncodified Dignity
The first step in any evaluation of the effectiveness of human rights protection via the principle of human dignity must be to identify human dignity’s place in the legal system in question. Before any criticism of the substantive uses of human dignity can be made, here lies the first pitfall of the uncodified system – the issue of visibility. The ECtHR has firmly declared in their previous jurisprudence that human dignity and human freedom forms the ‘very essence’ of the Convention and its fundamental objectives; this is so even as the principle of human dignity remains uncodified and absent from the Convention itself. This immediately poses what Dupré has described as a ‘paradoxical status’ for dignity under the ECHR, this being the scenario of a whole Convention of rights protecting and reflecting an invisible principle. The corollary of this is uncertainty for both applicants and judges when relying on dignity arguments and the lack of a firm legal basis for dignity. Whilst the non-codification of a dignity principle within the ECHR, having emerged from a post-war continent, scarred by totalitarianism and mass human rights violations is surprising to say the least, the lack of a codified dignity principle within UK law is more understandable. Whilst continental systems such as Germany utilised the concept of human dignity as a signifier of the ‘never-again’ principle, the UK system never suffered the constitutional ‘big bang’ of a totalitarian or fascist regime. This again leaves us with the preliminary task of identifying the uncodified dignity within UK law. In the optimistic judgement for human dignity of East Sussex, Munby J held that dignity had and continued to form a ‘core value of the common law, long predating the Convention’. Whether this is accurate or not, we may say with some certainty that since the introduction of the Human Rights Act 1998 (HRA), which incorporated the protections of the ECHR into UK law, there has been a marked increase in the number of judgements in the UK courts that refer to the concept of dignity. The influence of the ECtHR’s jurisprudence within contemporary UK case law however, delivers us back to the same visibility problem identified above. Whilst UK judges may state that it ‘has often been said’ that dignity provides the essence of Convention rights, this alone does not grant dignity the requisite certainty or legal basis that is essential for a principle tasked with underpinning the protection of human rights.
This lack of visibility and the danger of inconsistency inherent in an uncodified concept of human dignity has come to fruition in the substantive case law, and in doing so has undermined its role as a mechanism to aid the protection of human rights. A glaring flaw of uncodified dignity principles is their tendency to be ‘conspicuously absent’ from cases and context where we would expect them to ‘figure heavily’. An example of the conspicuous absence of dignity can be well demonstrated by the UK and ECtHR jurisprudence surrounding the issue of end-of-life-decision making that was brought by R. (on the application of Burke) v General Medical Council.In the English High Court, human dignity achieved a historic milestone, as it was used for the first time as the central argument in an English case, with Munby J ruling that dignity, along with autonomy and self-determination ‘are fundamental rights, recognised by the common law and protected by Articles 3 and 8 of the Convention’. However, upon appeal to the ECtHR, there is suddenly a ‘complete absence’ of any reference to human dignity in the decision – an oversight made even more egregious by the fact that in the Burke v UK decision, the ECtHR makes reference to two of its previous decisions, Pretty and Glass, both of which are cases revolving around end-of-life decision making and both of which make explicit references to dignity in their decisions.
Worse than conspicuous absence, however, is active disregard. Whilst there have been judges, notably James Munby and Baroness Hale, within the UK system who have consistently bolstered human rights protection with their utilisation of the concept of dignity, other judges have been reluctant to follow suit. A particularly damning case for the proposition that an uncodified concept of human dignity is sufficient for effective human rights protection is that of R. (on the application of McDonald) v Kensington and Chelsea RLBC. In an attempt to save money in assisting an incontinent 67 year old woman with reduced mobility to get to her commode at night, the council removed her assistance and instead had her wear incontinence pads and put on ‘special sheeting’ at night, effectively requiring her to lie in her own urine and faeces until the following day. In what Clements describes as a ‘Cri De Coeur’ dissent, Baroness Hale ruled that the indignity of Ms. McDonald’s treatment could not be tolerated when ‘assessed against the standards of civilised society’. What is so worrying for the protection of human rights is not only the rejection of this argument by the majority, but the manner of the rejection; Lord Walker going as far as to say it was one with which he ‘‘totally disagree[d with] and ‘deplore[d]’. Clements makes the comment that ‘McDonald is a triumph of black letter law’ – the fact that a majority failed to rule that such blatantly undignified conditions did not engage the protection of fundamental human rights, as well as the emphatic disregard of human dignity as a principle, is an illustrative example of why the concept must become part of the black letter law. By codifying dignity as a fundamental, constitutional value, it is forced into the judicial consciousness within the legal system – even reluctant judges will have to engage with the concept and its role in protecting human rights. The case law tells us that through a wider engagement with the concept of dignity, courts reach decisions that more effectively protect the human rights of the applicant. Dupré has already identified that when dignity principles are deployed in the majority reasoning of a case, the applicant’s claim is successful – as demonstrated by the results in Limbuela and Ghaidan, both extremely positive results for human dignity and the protection of human rights for vulnerable groups often designated by society as “other” (asylum seekers and homosexuals respectively). Contrast this with cases where the dignity argument was rejected by the court, McDonald being a key example (Burke being another), and the application fails. For the sake of effective human rights protection, surely it is time to end the era of the uncodified human dignity.
Germany: Codified Dignity
The first criticism that was levied against those systems reliant on an uncodified concept of dignity above was the ‘visibility issue’; that to effectively protect human rights, dignity had to be visible to both applicants and judiciary. This is the first major, self-evident advantage of a codified concept of dignity – by its very nature as a codified piece of law, it is visible. Nowhere is this better demonstrated than the German Grudgesatz, or ‘Basic Law’, Article 1(1); ‘Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority’. The positioning of human dignity within the German constitution has, as Kommers puts it, placed the concept at ‘the core of its value system’. The importance of the human dignity principle cannot be understated, as Kommers goes on to tell us that it comprises ‘the highest value of the Basic Law, the ultimate basis of the constitutional order, and the foundation of all guaranteed rights’. What allows codification to protect human rights so effectively is the power which can be vested within human dignity by the codifying instrument, which the Basic Law demonstrates. Firstly, the principle of human dignity is given binding effect on ‘the legislature, the executive, and the judiciary as directly enforceable law’. Secondly, there is a bar to any government action or legislation that would run counter to ‘the essential content of [any] basic right’. Thirdly, Article 79(3), containing the ‘eternity clause’, bars Basic Law amendments that would obstruct the ‘[…] the basic principles laid down in Articles 1 and 20’. Before even examining any German case law, we have thus identified several legislative footholds provided by codification upon which human dignity can protect human rights. A corollary of the visibility of a codified dignity principle is that judges are also far more comfortable with utilising the concept, thus, avoiding the dismissive and hostile language of the McDonald case. Indeed, as Kommers draws our attention to the early jurisprudence of the German Federal Constitutional Court (FCC) which already accepted that the Basic Law as a ‘system of values, which centers on the dignity of the freely developing person within society, [and] must be seen as fundamental to all areas of law’.
Another weakness identified earlier was the ability of dignity and human rights within the uncodified systems of the ECHR and UK law to be subject to ‘“necessary”’ restrictions. Whilst the concept of human dignity is often attached to the right to respect for private life under Article 8(1), we have seen in many cases, one being Pretty, that dignity and Art.8 rights are often qualified by policy considerations and conflicting principles under Art.8(2). This cannot offer a firm and consistent platform for the protection of human rights. One of the key advantages, identified by Enders, for the protection of human rights that human dignity obtains within a codified system is that it restricts the state’s power to encroach upon the individual’s fundamental rights, as there is no question of dignity being balanced against other principles or considerations. This is what Enders has described as ‘the limitation limit’; whilst the aim may even be legitimate, the aim ‘may not be pursued by infringing upon human dignity’. Human dignity, as the ‘superior value’ of the Basic law, essentially becomes ‘untouchable’. This aspect of the dignity principle has been an important focus in many cases that have reached the FCC; two of particular interest here being the Luftsicherheitsgesetz case (‘Aviation Security Act’) and the Gäfgen case. A coincidental advantage for the codified dignity concept is the ability for the formation of a clear philosophical and moral approach to the principle, and as such, a defined Kantian, ‘object formula’ argument permeates the judgments of the FCC. Per the FCC; ‘The Aviation Security Act infringes the complainants’ fundamental rights to human dignity and to life pursuant to Article 1.1 and Article 2.2, sentence 1 of the Basic Law. The Act makes them mere objects of state action. […] A weighing up of lives against lives according to the standard of how many people are possibly affected on the one side and how many on the other side is impermissible.’ In the ‘ticking-time-bomb’ scenario of Gäfgen, the German courts made the ruling, in the face of moral and policy considerations, that ‘necessity’ was not a defence to a violation of the absolute protection of human dignity under Article 1 of the Basic Law’. Both of these cases, made extremely opaque due to policy and moral concerns, were able, with the help of a codified dignity principle, to protect the fundamental rights of the individual against state interests in a way that uncodified dignity could not do, avoiding the proclamation of utilitarian or public policy considerations that have been so corrosive to individual human rights within UK law.
If one case were to endorse codified dignity as a means of protecting human rights in modernity, it is the Hartz IV decision. The positive obligation upon the state, based on the principle of human dignity, to guarantee a ‘subsistence minimum’ to facilitate a dignified existence for all is a step only achievable in a system that not only codifies human dignity, but grants it constitutional supremacy. It is also a testament to how a codified dignity principle can continue to adapt to societal changes; Bittner recognises that the original framers of the Basic Law, despite including the dignity principle, ‘did not envisage a constitutional right to state benefits’. However, the principle of human dignity with the German codified system continues to adapt as the courts continue to recognise new areas affecting the human rights of citizens. The recognition by the FCC that there is a positive obligation on the state, triggered by the principle of dignity and the socio-economic right of citizens to attain certain indispensable materials for their ‘physical existence and for a minimum participation in social, cultural, and political life’ creates the first right of its type. The potential for the codified concept of dignity to protect human rights is increased greatly by the approach of the FCC in Hartz IV . The consideration of human and fundamental rights within modernity to include appreciation of an individual’s ability to partake in civic life, and in doing so to enforce positive obligations on the state surely protects the ‘private life’ of an individual far better than the vagaries of dignity within the qualified right of Art.8 in ECHR and UK jurisprudence.
Necessary Considerations for a Codified Dignity
Whilst this article takes the stance that a codified concept of dignity is required for effective human rights protection, merely codifying a legal concept does not guarantee its effective application. Even the German system, which I have held as far more effective than the UK and ECHR systems, faces serious issues in how its principle of human dignity is applied. These issues will be addressed below as ‘trivialization’ and ‘state paternalism’.
The trivialization of dignity is a subject that Dreier has covered comprehensively, as he gives a number of factors that have contributed to this trend in Germany. One such factor is how the FCC has applied human dignity in Article 1(1) in conjunction with other fundamental rights within the Basic Law – in effect, combining the right to the absolute protection of human dignity with rights subject to constitutional restriction. This then creates a boundary problem of where the protection of human dignity begins, leading to unpredictable jurisprudence as a result of the balancing act that ensues; Dreier cites the conflicting results of Diary Entry Caseand the Eavesdropping Case. This application of the principle threatens the absolute nature of human dignity that is supposedly ensured by its enshrinement in Article 1(1), as it ‘evaporat[es] in favour of a balancing procedure, as is frequently employed for other fundamental rights’. Further to this, the increasing resort to the use of the highest constitutional principle in ‘utterly insignificant’ instances of state interference, or in cases that call for a concrete balancing of rights, threatens to devalue the concept totally. Even in those decisions of the FCC that we may rightly praise as proper and commendable applications of human dignity, there is a lingering danger of trivialization. If we take the Hartz IV decision as our example, the protection of human rights offered by the positive obligation on the state to provide a subsistence minimum is threatened where there is a misunderstanding as to the nature of human dignity’s role – ‘[i]f the argument in a case before a Social Court concerns whether the state, through its funding agency, should have transferred €790 to the plaintiff’s account rather than €785 in a particular month, and this difference in payment is framed as a violation of the plaintiff’s human dignity, then the term is used excessively’. Just as in economics, ‘inflation results in devaluation’. Therefore, what is essential for the protection of human rights is not just the codification of dignity within a constitutional framework, but to ensure that this principle of human dignity is codified in such a way that its use in practice is ‘limited to a small but absolutely undisputed and generally accepted number of factual situations’.
A second consideration for the application of a codified dignity principle is the danger of its utilisation as an instrument of state paternalism, or as a way for the court to insert their own view into a judgment. This comes somewhat as a corollary of the above, as the continually eroding boundaries of the absolute right of Article (1) of the Basic Law is challenged further by its drawing together with the limitations of Article 2(1), invoked by laws that protect the ‘good morals’ or the ‘public order’. An illustration of these concerns can be found in the infamous Peep-Show Case, a case in which the German courts upheld a trade prohibition on peepshows on the basis that it degraded the dignity of the women performing in them, taking no account of the views of the women involved. Dreier makes the incisive point that what becomes ‘increasingly clear’ in such decisions is that the principle of human dignity, as the highest constitutional principle, is in fact in danger of being used as a justification ‘in order to give force to one’s own conclusions’ as this gives the impression that there is no alternatives – Article 1(1) is then engaged and so the decision is required. The same paternalistic streak can be found within the judgement of the Omega Case,a ruling upholding a ban on ‘kill games’ within laserdromes, as the games encouraged and engendered behaviours contrary to human dignity and public order. The courts have therefore made a balancing act from a right that is supposed to be absolute and immune from any balancing act or utilitarian equations. What particularly emerges as important from the Peep-Show Case, is that when codified, dignity should not be seen as a rigid and objective concept; this engenders a responsibility on behalf of the state and on the courts to ‘protect people from themselves’, which will necessarily be framed within the lens of the prevailing morality of the day. This would fail to give effect, and even run contrary to the purpose of human dignity as a principle of ‘individual autonomy and self-determination over one’s own life and the way the life is lived’.
The above factors begin to demonstrate that whilst a system in which dignity is a codified concept is preferable when compared to one in which it is not, the bare fact of codification does not necessarily guarantee the most effective protection of human rights. The rights of personality and private life of the peep show performers, for example, would have been much more effectively protected within a system that recognised their capacity for autonomous choice through a subjective consideration of human dignity, not tainted by other constitutional principles that threaten dignity’s absolute protection. The codification of dignity then would have to extend to a restricted right, used only in a prescribed number of circumstances, that is not subject to consideration or balancing with any other constitutional or fundamental rights, and is assessed without recourse to the objective standards of the courts in order to give the most effective protection to the human rights of the applicant.
What becomes clear when examining the uncodified systems of the UK and the ECHR is that the concept of human dignity within them is far too vague and illusory to be relied upon as a foundational mechanism for the protection of human rights. When uncodified, dignity is applied by judges far too inconsistently to be relied upon by an applicant and it is unacceptable to place reliance on a handful of activist ‘dignity judges’, commendable though they are, to ensure the principle’s effective use. For every Limbuela, there is a Pretty v UK, where dignity is forgotten, or even more troubling, there is a McDonald, where dignity is actively dismissed by the judiciary. In contrast, the codification of dignity empowers both applicant and judge to make use of its power as a means of protecting the human rights of the individual. The FCC of Germany has demonstrated many times within its case law that when applied correctly, human dignity can provide a principle with which to ground a state’s commitment to the human rights of its citizens. What should not be forgotten however, is that codification in of itself does not provide an iron-clad guarantee that the principle will be applied in a way that is most amenable to the rights of the individual, as Dreier and Enders are at pains to explain to us, creeping factors such as trivialization and paternalism can threaten to devalue the concept so that it becomes just another right. The extent then, to which the concept of human dignity needs to be codified in law in order to provide effective human rights protection, is as a limited constitutional instrument, able to give effect to the autonomy and self-actualisation of citizens free of any paternalistic assessment of morality and under no circumstances to be subjected to balancing considerations in conjunction with other fundamental rights.
 European Convention on Human Rights 1950.
 Human Rights Act 1998.
 Catherine Dupré, ‘Human Dignity and the Withdrawal of Medical Treatment: A Missed Opportunity?’ (2006) 6 EHRLR, 678, 684.
 Pretty v United Kingdom (2346/02),  4 WLUK 606.
 SW v United Kingdom (A/355-B),  11 WLUK 336.
 Dupré ( n 3),684.
 Dan Bedford, ‘Human Dignity in Great Britain and Northern Ireland’ in P Becchi and K Mathis (eds), Handbook of Human Dignity in Europe (Springer, 2019) 321.
 R (A and others) v East Sussex County Council (No 2)  EWHC 167 (Admin),  (Munby J).
 Justin Bates, ‘Human Dignity: An Empty Phrase in Search of a Meaning?’  Judicial Review 10(2) 165.
 Ghaidan v Godin-Mendoza UKHL 30,  (Baroness Hale).
 Bedford (n 8), 322.
  EWCA Civ 1003.
 Dupré (n 3).
 ibid (n 13), .
 Burke v United Kingdom App. No.19807/06.
 Dupré (n 3), 683.
 ibid (n 4).
 Glass v United Kingdom (61827/00),  3 WLUK 240.
  UKSC 33.
 ibid, .
 Luke Clements, ‘Disability, Dignity and Cri du Coeur’  EHRLR, 675.
 (n 20), .
 (n 20), .
 (n 22), 676.
 R (on the application of Limbuela) v Secretary of State for the Home Department  UKHL 66.
 (n 11).
 Catherine Dupré, ‘Dignity, Democracy, Civilisation’ (2013) Liverpool LR33 263, 273.
 German Basic Law, Article 1(1).
 Donald Kommers and Russell Miller, Constitutional Jurisprudence of the Federal Republic of Germany (3rd edn, Duke University Press 2012) 44.
 German Basic Law, Article 1(3).
 German Basic Law, Article 19(1).
 German Basic Law, Article 79(3).
 Kommers (n 30) 57.
 Party Finance V Case, 73 BVerfGE 40 (1986).
 ibid (n 4).
 Human Rights Act 1998.
 Christoph Enders, ‘Human Dignity in Germany’ in P Becchi and K Mathis (Eds), Handbook of Human Dignity in Europe (Springer, 2019).
 ibid, 300.
 Kai Möller, ‘On Treating Persons as Ends: The German Civil Aviation Act, Human Dignity, and the German Federal Constitutional Court’ (2006) Public Law Aut. 457, 458.
 BVerfG, 1 BvR 357/05.
 Gäfgen v Germany (22978/05),  6 WLUK 4.
 Enders (n 39), 290.
 (n 43)  – .
 (n 44) .
 3 Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], 1 BVL 1/09, 1 BVL 3/09, 1 BVL 4/09 of 9 Feb. 2010 (Hartz IV).
 Claudia Bittner, ‘Case note – Human Dignity as a Matter of Legislative Consistency in an Ideal World: the Fundamental Right to Guarantee a Subsistence Minimum in the German Federal Constitutional Court’s Judgment of 9 February 2010’ (2011) Ger Law Jl 12 1941.
 ibid, 1950-1.
 ibid (no 48).
 Horst Dreier, ‘Human Dignity in German Law’, in M Düwell et al (eds), The Cambridge Handbook on Human Dignity (CUP, 2014).
 BVerfGE 80 (1989) 367; 109 (2004) 279.
 Dreier (n 52), 379.
 ibid, 379.
 Bittner (n 49), 1957.
 Dreier (n 52), 380.
 Dreier (n 52), 375.
 Enders (n 39), 301.
 BVerwG 1 C 232.79 = BVerwGE 64, 274 (279).
 (n 52), 380.
 Omega Spielhallen und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn C-36/02  10 WLUK 391, deriving from FAC order BVerwG 6 C 3.01 = BVerwGE 115, 189 (200).
 Enders (n 39), 300-1.
 Dreier (n 52), 383.