HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

Different Weight for Individualistic and Communitarian Dignity The aforementioned comes to light in the specific case of a collision of individualistic human dignity on one side and communitarian human dignity on the other. At first glance, these aspects of human dignity may portray the same principle of human dignity and warrant the same abstract weight following the doctrine of Klatt and Meister. Yet, this is not the case in many jurisdictions. As mentioned before, McCrudden states that the German Constitutional Court’s view of dignity is more communitarian-oriented, and the American, Canadian and Hungarian Constitutional (Supreme) Courts view it as more individualistically oriented. 34 We have already gone over different approaches in the chapter explaining individualistic and communitarian dignity. Due to this, we presume that different constitutional courts could assign a different abstract weight to the individualistic and communitarian aspects of dignity. This illustrates the differing importance of these aspects in the legal systems of the given country. We believe this is why we cannot simply assign the same abstract weight to human dignity on both sides, although we’re dealing with the same principle. The ability to assign different weights to dignity on both sides can also be supported by another argument. The communitarian and individualistic view of dignity illustrate that the principle of human dignity has an enormous scope. This immense scope differentiates human dignity from other principles. This different scope compared to other principles makes the principle of human dignity unique and warrants a different approach when dealing with it. In our view, the principle of human dignity is composed of two semi-independent halves, which can have different abstract weights due to them being very different from one another. The Need to Justify the Assignment of a Weight As we stated above, different abstract weights might be warranted for human dignity in some cases, mainly when human dignity takes the form of individualistic dignity on one side and communitarian dignity on the other. This approach might not be so novel; in fact, constitutional courts may already be using it when deciding these types of cases. The issue with this is that the assignment of a weight must be properly explained. Klatt explained that the proportionality test requires the judges to use it to provide an external explanation for the values that influence its outcome: the intensity of interference and the abstract weight of the principle. 35 Koref made a similar statement, 34 MCCRUDDEN, C. Human Dignity and Judicial Interpretation of Human Rights. In: European Journal of International Law [online]. Vol. 19, Iss. 4, p. 699 [cit. 2024-07-12]. Available at: https:// papers.ssrn.com/sol3/papers.cfm?abstract_id=1281979. 35 KLATT, M. Proportionality and Justification. In: HERLIN-KARNELL, E. – KLATT M. – MORALES ZÚÑIGA H. A. (eds.). In: Constitutionalism Justified: Rainer Forst in Discourse . Oxford: Oxford University Press. [online] P. 22 [cit. 2024-07-13]. Available at: https://papers.ssrn.com/sol3/papers. cfm?abstract_id=3518502.

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