HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

human dignity is inevitably a violation of the Constitution ”. 19 The German Federal Constitutional Court has often upheld this view, emphasising that human dignity cannot be relativised or balanced. 20 On the other hand, the German Federal Constitutional Court has, on several occasions, embraced a different approach, which attempts to link other fundamental rights to human dignity. 21 This is done by distinguishing the absolutely protected core value and the surrounding area, which is subject to restrictions. 22 This approach, taken by German doctrine and the German Federal Constitutional Courts, shows that balancing certain aspects of human dignity is possible. The absolutely protected core cannot be balanced, but the surrounding area can. Alexy’s View In A Theory of Constitutional Rights, 23 Alexy explains that human dignity is characteristic in that it consists of a rule of dignity and a principle of dignity. We will shortly repeat the definitions of rules and principles to dive deeper into his explanation. Alexy describes a rule as a norm that can be either fulfilled or not. On the other hand, principles are optimisation requirements, norms that require something to be realised to the greatest extent possible. 24 Through the prism of the theory of principles, Alexy points out that human dignity consists of a principle and a rule. Thus, human dignity may at first appear absolute, which is valid for the rule of dignity but not for the principle of dignity. Klatt and Meister’s View Klatt and Meister expand upon Alexy’s thoughts but say that his categorisation of human dignity into a principle and a rule needs to be further studied. 25 Reacting to criticism of Alexy’s categorisation of dignity, Klatt and Meister state that the rule and principle of human dignity are not independent of one another, and so this approach fails to adequately portray whether dignity is absolute. 26 They state: “ In the end, everything depends on the absoluteness of the principle of human dignity ”. 27 19 Ibid. See these cases, that Dreier mentions: BVerfGE 93 (1995) 266 (293); 107 (2003) 275 (283f). 20 Ibid. 21 Dreier, H. 2013.‘Art.1 Abs. 1 GG’, in H.Dreier(ed.), Grundgesetz-Kommentar, 3 vols, vol. I. Tübingen: Mohr Siebeck, paras. 76, 140. 22 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. 5. 23 ALEXY, R. A Theory of Constitutional Rights. Oxford: Oxford University Press, 2010. 24 Ibid. p. 47. 25 KLATT, M. – MEISTER, M. The Constitutional Structure of Proportionality. In: Oxford University Press [online]. 2012, p. 31 [cit. 2024-07-13]. Available at: https://www.researchgate.net/publication/315767984_ The_Constitutional_Structure_of_Proportionality.

26 Ibid. 27 Ibid.

25