HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

Those who would ban the veil, however, treat dignity as a different social ideal – one that measures up to majority standards of individual self-expression and exposure. This is not respect for the equal human dignity of each woman as an individual agent, but rather a paternalistic (at best, and at worst, intolerant) decision about what makes women dignified. This debate about balancing religious expression with social norms continues to be waged across Europe, both with regard to the burqa and also with regard to the headscarf that some Muslim women wear ”. 15 However, we also recognise that certain rights are not at the disposal of the individual, such as the right not to be enslaved. Which approach is then the right one? Moreover, if we recognise that both views come from sound reasoning, is there a different and perhaps better way to solve cases where individualistic and communitarian dignity oppose each other? 2. Dignity as an Absolute Right This chapter briefly reviews the different conceptions of human dignity to discern whether it is weighable. German View At first glance it may be thought that Germany is the bastion of the absoluteness of human dignity, which makes it unweighable, but that is not entirely correct. The German Federal Constitutional Court characterises dignity as the central constitutional principle and even the highest legal value of the constitution. 16 The wording of Article 1 of the German Constitution itself alludes to the absoluteness of dignity, stating that: “ Human dignity shall be inviolable ”. This is interpreted by the German Federal Constitutional Court and German doctrine as dignity being granted a special normative status, an absolute guarantee, which cannot be legitimately restricted and has no exceptions. 17 This is in strict contrast to other fundamental rights, which include “ inviolable” in their provisions. Intrusions into these other rights may be legally justifiable and these rights can be balanced. 18 Human dignity cannot be balanced, and an intrusion upon it cannot be legally justified. The dominant view of German doctrine is that “ Every intrusion upon 15 Ibid. p. 228. 16 DREIER, H. Human dignity in German law. In: MIETH, D. et al., eds. The Cambridge Handbook of Human Dignity: Interdisciplinary Perspectives . Cambridge: Cambridge University Press, 2014, p. 2. See these cases, that Dreier mentions: BVerfGE (German Federal Constitutional Court Decisions) 5 (1956) 85 (204); 50 (1979) 166 (175); 27 (1970) 344 (351); 117 (2006) 71 (89); 109 (2004) 279 (311); 115 (2006) 118 (152). 17 DREIER, H. Human dignity in German law. In: MIETH, D. et al., eds. The Cambridge Handbook of Human Dignity: Interdisciplinary Perspectives . Cambridge: Cambridge University Press, 2014, p. 2. See these cases, that Dreier mentions: BVerfGE 93 (1995) 266 (293); 107 (2003) 275 (283f). 18 Ibid.

24