HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

They explain that the absoluteness of human dignity is only apparent since, in most situations, human dignity takes precedence over other principles. 28 There is no such thing as an absolute principle, which would be a principle that is superior to other principles in all cases. 29 However, it is possible to portray a sense of precedence by assigning human dignity a much higher weight than other balancing principles. 30 3. Dignity–Dignity Conflict: The Problem of Weight and Inadequate Justification This chapter briefly explains the current way to solve conflicts, where both sides of the case contain an aspect of human dignity. Klatt and Meister expand upon Möller and describe a way to solve a dignity– dignity conflict. Their approach is to set the principle of human dignity on both sides, each with the same abstract weight. 31 This will effectively cancel out the abstract weight of the principle of human dignity on both sides, which will then lead to the weighing of intensities of interference, epistemic probabilities, and other rights present in the case. 32 While this approach provides a way to solve dignity–dignity conflicts, we believe that assigning the same abstract weight to the principle of human dignity on both sides can be problematic in some instances. The Same Abstract Weight Issue The weight of a principle in the test of proportionality is characterised by its abstract weight and the intensity of interference in the concrete case. 33 The abstract weight can be explained as the importance of the given principle in the legal system. Because it is one principle, Klatt and Meister assign the same abstract weight to dignity on both sides in applying this broad rule to solve dignity–dignity conflicts. The problem with assigning the same weight to human dignity on both sides is that, in some cases, there might be a different aspect of human dignity on each side. This fact may require a different weight to be assigned to human dignity on one side. We then believe that human dignity does not have and shouldn’t have the same abstract weight every time. In addition, it cannot be said that constitutional courts follow this rule, as we display in the following chapter. 28 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. 29 Ibid. p. 32. 30 Ibid. 31 Ibid. p. 39. 32 Ibid. 33 ALEXY, R. A Theory of Constitutional Rights . Oxford: Oxford University Press, 2010, p. 406.

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