HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

Based on how doctrine explains that dignity can be viewed as communitarian and individualistic, we were inspired to try and connect this approach to the proportionality test and weigh the different aspects of dignity against each other. We were not the first to ask questions about the so-called dignity–dignity problem. Klatt and Meister have created an algorithm 4 to solve such cases based on Alexy’s theory of principles. While this approach can solve dignity–dignity conflicts, we believe it can be improved by assigning different weights to each dignity and adding justification for the weight. This will then ultimately fulfil the purpose of the proportionality test, which is to provide adequate justification. 1. Individualistic and Communitarian Dignity In this chapter, we shortly explain the two main aspects of dignity: individualistic dignity and communitarian dignity. Individualistic Dignity As the name suggests, individual dignity focuses more on the individual from a libertarian point of view. 5 This is clearly present in the approach of certain constitutional courts like the Hungarian Constitutional Court. It is essential to recognise that these differences come from the philosophies used by these courts, oftentimes greatly influenced by historical events. Such can be argued with the Hungarian constitutional court, as McCrudden states, “person is envisaged as someone considered in isolation and fighting against the state to protect her rights ”. 6 This approach does not focus on relationships and interactions between people and solely adheres to the dichotomy of a person and the state. Moreover, it not only doesn’t recognise these relationships but has the opposite effect: “ Instead, human dignity surrounds the individual in a sort of protective sphere, and thus isolates individuals from each other ”. 7 Finally, the historical effect is also present. What is interesting in the case of Hungary is the post-communist push for individuality and autonomy, which is much more aggressive than in other post-communist countries. 8 All these countries indeed experienced policies which pushed capitalism and individualism; however, 4 KLATT, M. – MEISTER, M. The Constitutional Structure of Proportionality. In: Oxford University Press [online]. July 2012, p. 39 [cit. 2024-07-04]. Available at: https://www. researchgate.net/publication/315767984_The_Constitutional_Structure_of_Proportionality. 5 KARIKÓ, S. Some Aspects of Respect and Dignity of Individual On the Europeanism as Values-system: Moral and Individual. In: Education, Society and Human Studies [online]. 2022, Vol. 3, Iss. 4, p. 9 [cit. 2024-07-04]. Available at: https://www.researchgate.net/publication/365619293_Some_Aspects_of_ Respect_and_Dignity_of_Individual_On_the_Europeanism_as_Values-system_Moral_and_Individual. 6 MCCRUDDEN, C. Human Dignity and Judicial Interpretation of Human Rights. In: European Journal of International Law [online]. Vol. 19, Iss. 4, p. 700 [cit. 2024-07-12]. Available at: https:// papers.ssrn.com/sol3/papers.cfm?abstract_id=1281979. 7 Ibid. p. 700. 8 Ibid. pp. 700–701.

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