Human dignity, personality and constitutional review

Strong normativity without metaphysics?

Abstract

The concept of human dignity has been criticized as either too thick or too thin. However, according to the non-positivistic standpoint, the legal normativity of human dignity can be justified and thus strengthened by means of its moral correctness. From the individual perspective, “Mencio’ understanding of human dignity as an intrinsic value and Kant’s formula of “human being as an end in itself” can be adequately understood based on the differentiation of, as well as the connection between, principium diiudicationis and principium executionis, between will and “choice”, and between homo phaenomenon and homo noumenon (that is, “humanity in the person of human beings”). From the social perspective, since the dual dimensions of the individual and the social person are both fictive constructions, even Radbruch, once as a supporter of social law, has not replaced the concept of “legal person” and, in the post-War period, acknowledges individualistic human dignity as the criterion for applying the famous “disavowal formula”. On the one hand, human dignity shows at least a weak normative character, which requires, firstly, balancing between the exercise of state powers and the constitutional review under the guidance of the dual dimensions of man and, secondly, optimization of the principle of human dignity in individual cases. On the other hand, through the necessary connection between the concept of dignity and that of personality, human dignity can exhibit a strong normative character, which unavoidably requires a metaphysical justification.