What's the story behind human dignity

Biopolitics

Johannes Reiter

biography

Dr. theol., born 1944; Professor of Moral Theology at the Department of Catholic Theology at Johannes Gutenberg University Mainz; Member of the study commission "Ethics and Law of Modern Medicine" of the German Bundestag.
Address: University of Mainz, Department of Catholic Theology, Saarstr. 21, 55099 Mainz.
Email: [email protected]

Numerous publications on questions of medical ethics and bioethics, most recently: The genetic society. Scope of action and limits, Limburg 2002.

The inviolability of human dignity has proven to be the only point of reference that can be reached by consensus. Even so, there is a dispute over several important issues.

introduction

We have to admit that our society no longer has a uniform view of the world and people. The pluralism of worldviews is a fact in the modern world. Therefore, joint action on the basis of shared values ​​hardly seems possible anymore. It is precisely in this situation that the deeper reason for the permanent religious, ideological, moral and legal crises of people today can be found. This pluralism is all the more pressing for us as we are today globally in confrontation with other nations, even with completely different cultures - old and new - that make the same claim to truth as we do.


Human dignity is often and increasingly used as a point of reference within this wide-ranging pluralism. [1] It seems to be the general denominator that expresses the basic ethical concern of the modern world and to which all demands for humanity can be related. Human dignity wants to create the consensus necessary for an orderly coexistence. Because it applies to people as such - regardless of ethnicity, religion and worldview, political convictions, social position, state of health, gender and how other people may differ - it can be fundamental for all political and social orders. [ 2] At the moment, human dignity is at the center of the ethical debate about the position of human beings in technical civilization and the resulting questions about how to deal with biotechnical and biomedical problems. In a world in which knowledge and skills are increasing at an ever faster rate, it must be determined anew to what extent new technological, medical and social developments affect human dignity.

Conceptual history and justification of human dignity

In order to work out the content of the guarantee of human dignity more precisely, its tradition in the history of ideas must be considered. [3] In ancient philosophy, dignity is used in two quite different contexts. On the one hand, dignity means the identification of a social position within society. Dignity is primarily understood as the achievement of the individual, but also as a function of society. To that extent there is more or less dignity. On the other hand, dignity is what distinguishes every human being from nonhuman creatures. Therefore, all people have the same dignity. Both meanings of the term can already be demonstrated in Cicero.

The reason for the last-mentioned conception of the inalienable human dignity was the stoa of human participation in reason, the Christian authors of antiquity and the Middle Ages the image of God in human beings and their direct relationship to God, which is confirmed by the incarnation of God in Jesus Christ has been.

The Renaissance brings a new view of human dignity. The Italian humanist Pico della Mirandola, on the basis of considerations about the similarity of man to God, comes to the conviction, which goes back to stoic teachings, that man unites everything, i.e. represents a microcosm in which all possibilities are laid out. To make a choice between these possibilities, according to Pico, this is the God-given destiny to man. The dignity that distinguishes man is his freedom.

With the beginning of the modern age, the determination of reason again moved into focus. During the Enlightenment, the conception of dignity as freedom is combined with the stoic conception of dignity as participation in reason. The French philosopher Blaise Pascal and the constitutional and international law theorist Samuel Pufendorf see dignity in the freedom of human beings to choose and do what is known by reason. Pufendorf, whose teaching had an influence on the American Declaration of Human Rights of 1776, connects this idea of ​​dignity with that of equality for all people, since all people as such have this quality.

The concept of human dignity then occupies an important position in Kant's moral philosophy, as he developed it in the "Foundation for the Metaphysics of Morals" (1785). In the realm of human purposes, Kant differentiates between what has a price and what has dignity. "What has a price, something else, as an equivalent, can also be put in its place; what, on the other hand, is above all price, and therefore does not allow an equivalent, that has a dignity." Only a being that is able to set ends for itself comes into question as the last point of reference, as the end in itself of any purpose. The reason that human nature has dignity, according to Kant, is the autonomy of the human being, that is, his ability to be freely subject to a law, i.e. to be able to be moral. [4]

Around the middle of the 19th century, the term human dignity then became a political catchphrase for the labor movement. The demands for a humane existence and for humane conditions are among the main slogans of the early socialists. Ferdinand Lassalle demands that the material situation of the working class be improved and that the workers be given a truly decent existence. The Frenchman Pierre Proudhon goes one step further and integrates the dignity of the person into the concept of justice by demanding that every person respect the dignity of the other as well as his own in order to achieve justice.

A renewed reflection on human dignity only began again in the 20th century, not least under the impression of the degrading events in the "Third Reich". After the Second World War, the concept of human dignity found its way into both national and international law. In the Federal Republic of Germany, human dignity forms the center of the constitutional system of values ​​and forms the basis and basis of the fundamental rights. Article 1 of the Basic Law of 1949 reads: "(1) Human dignity is inviolable. It is the duty of all state power to respect and protect it. (2) The German people are therefore committed to inviolable and inalienable human rights as the basis of everyone human community, peace and justice in the world. " The preamble to the United Nations Universal Declaration of Human Rights of 1948 states that "the recognition of the dignity inherent in all members of the human family and their equal and inalienable rights forms the basis of freedom, justice and peace in the world" [ 5]. Article 1 goes on to say: "All human beings are born free and equal in dignity and rights." The United Nations, like the Federal Republic of Germany later, followed a universalistic understanding of human dignity. Humans already have dignity as members of the human species. This means that it applies to all people without having to perform certain services or meet certain qualities.

The "Convention for the Protection of Human Rights and Human Dignity with Regard to the Application of Biology and Medicine: Human Rights Convention on Biomedicine of the Council of Europe" of April 4, 1997 includes both the concept of human dignity and the protection of humans as a species in its preamble . It speaks of the "necessity of respect for human beings both as individuals and as members of the human species" and of the "recognition of the importance of maintaining human dignity". In addition, human dignity is expressly anchored in Article 1. As the latest international law document, the EU Charter of Fundamental Rights of 7 December 2000 included the concept of human dignity in both the preamble and Article 1. "Conscious of its spiritual, religious and moral heritage, the Union is founded on the indivisible and universal values ​​of human dignity, freedom, equality and solidarity," states the preamble. And Article 1 reads: "Human dignity is inviolable. It must be respected and protected."

The previously cited human dignity documents are based on basic anthropological statements that contain clear guidelines for their explication: Human dignity applies equally to all people. The dignity of the human being is given with his existence and is the object not of a recognition, but of recognition. Dignity is immanent in a person's existence, "coextensive" in a person's life, it is not divisible, and in no phase of his life is a person without it. The temporal sequence of life phases of a subject (embryo, fetus, child, adult) must not be reinterpreted as a sequence of different subjects. [6]

The content of human dignity

So what is the protection of human dignity? What is its content? How does it come to fruition, and where does it become concrete? The constitutional lawyer Günter Dürig tries to answer these questions with the so-called "object formula" reminiscent of Kant. In the commentary on the Basic Law he wrote: "Human dignity is met when the concrete person is degraded to an object, to a mere means, to an acceptable size." [7] In other words, it contradicts human dignity when the person undergoes treatment that fundamentally questions or undermines his subject quality. Here, human dignity is essentially determined ex negativo. Specifically, this means that human dignity is affected by torture, slavery, the extermination of certain groups, birth prevention or kidnapping, submission to inhuman or degrading punishment or treatment, branding, the destruction of so-called unworthy life or through human experiments. [8] This casuistry essentially results from infringements by injustice systems. The plausibility of the object formula is based not least on the historical experience of the instrumentalization of people by totalitarian states. And that is why the idea of ​​human dignity was included in the Basic Law in response to the Nazi dictatorship. In this respect, the talk of human dignity represents an offer of meaning to the world that has grown out of the history of human suffering.

Dürig only ever understood his object formula as a guide; this requires more detailed specification and content-related interpretation. However, this does not mean a relativization with regard to their validity. Wolfram Höfling cites the following as a more detailed positive definition of "those core zones and elementary conditions which Art. 1 I is intended to protect against serious injuries": 1. Respect for and protection of physical integrity; 2. Securing humane livelihoods; 3. Guarantee of elementary equality of law; 4. Preservation of personal identity. [9]

The ethical significance of the idea of ​​human dignity lies primarily and in particular in the fact that human dignity is emphasized as the foundation of human rights. Human dignity leads to the formulation of human rights, but conversely also requires political and legal protection through precisely these rights; it establishes and enforces human rights of protection and freedom. [10]

The dispute over human dignity

This is roughly outlined the concept of human dignity that has prevailed so far, with which peace has not been established everywhere, but at least discourse wars have been kept within limits. Since September last year, this traditional concept of human dignity has been debated, at least recognizable to the public. The reason was as follows: In the 42nd supplementary delivery (February 2003) to the relevant Basic Law commentary, the so-called "Maunz-Dürig" [11], the Bonn constitutional and international law expert Matthias Herdegen wrote a new comment after 45 years of the original from Günter Dürig edited Article 1 Paragraph 1 of the Basic Law. Thereupon, in September 2003, the former Federal Constitutional Judge Ernst-Wolfgang Böckenförde subjected Herdegen's comments to a fundamental criticism in the "Frankfurter Allgemeine Zeitung". [12]

The headline of his article "Human dignity was inviolable" draws attention, and the response to the article was correspondingly broad. For Böckenförde, Herdegen's new comment marks a break in an era. According to Dürig, the guarantee of human dignity is a "moral value" that precedes positive constitutional law as a "pre-positive foundation", as a "natural law anchor". [13] Dürig wanted, so to speak, to place an eternal and inviolable substance in front of the brackets of specifically standardized law, which cannot be weighed up and is therefore inviolable. In contrast to the basic rights, which are subject to limits and considerations, the requirement to respect and protect human dignity is universal and inviolable, and cannot be weighed up.

Herdegen renounces this claim, which precedes positive constitutional law, and describes it as a declaratory and nostalgic factor (No. 17). But with this, Böckenförde argues, the fundamental norm of the Basic Law loses its "supporting axis". [14] What is new about Herdegen is the change he makes: human dignity is no longer a pre-positive foundation of the constitutional norm, but rather it becomes a "constitutional norm on the same level" [15]. Thus it is at the same time open to "considerations and considerations of appropriateness", "abandoned and entrusted to the society of constitutional interpreters for whom there is no binding canon of ways of interpretation" [16].

If one wants to take into account the circumstances of the creation of the guarantee of human dignity in the Basic Law with its current interpretation, the following becomes apparent: When voting on the human dignity article, as can be seen from the minutes, the Parliamentary Council "has an opposite religion and metaphysics abstinent attitude "although very close, but triumphant. In the Basic Law, human dignity is not given "by God", but neither is it "against" him. However, it is - and that is its punchline - not given by the state. It is given, ahead of the community. And this "ahead" is expressed with the legal recognition of the inviolability of human dignity. [17]

Tiered protection of human dignity

Herdegen does not question human dignity as such. It applies to "all human beings as a species" and also "does not depend on any mental or physical abilities of the individual or social characteristics". (No. 48) One can unreservedly agree with this. But then comes the key sentence on which the opinions differ: "Despite the categorical claim to dignity of all people, the type and degree of protection of dignity are quite open to differentiations that take into account the specific circumstances." (No. 50) Herdegen therefore advocates a "process-based consideration of the protection of dignity with a development-dependent intensity of an existing claim to respect and protection" (No. 56). The claim to dignity as such (the "whether") is not based on the state of development, but its content (the "how") (No. 56). The embryo's claim to dignity increases in vitro after implantation (implantation) and nidation (nidation) and further as it grows in the womb. The indiscriminate quality of the claim to dignity of the zygote on the one hand and the born human on the other - Herdegen believes it can be ascertained - is alien to the intellectual history of the past centuries. Also, the case law of the Federal Constitutional Court can only be presented without contradictions on the basis of development-dependent protection of dignity. Finally, respect for human dignity mostly relates to the subject of interpersonal relationships. However, these are difficult to experience at an early stage of human development, so that a violation of dignity at this point in time can only be accepted with caution (nos. 65 - 67). [18] "A protection of dignity seen in this way," says Böckenförde, "is open to many gradations and variations. Through its own relativization, it necessarily also leads to the relativization of the indispensability of human dignity itself, although the impression is given that it continues.(...) Ultimately, it is about the freedom to grant and dismantle protection of dignity according to the interpreter's ideas of appropriateness. "[19] Herdegen emphasizes that in a tiered protection of dignity system there is not just one less, but also through special protective measures could give more protection (No. 67), but unfortunately this view does not break through in his commentary.

Biomedicine and human dignity

How Herdegen's tiered concept of human dignity actually works can be illustrated using a number of thematic fields from biomedicine. According to Herdegen's understanding of human dignity, only a few things are guaranteed without restriction by this, but much is made possible. For him, the guarantee of human dignity not only results in the realization of a desire for children, but also the freedom to use the methods of modern reproductive medicine. Neither homologous nor heterologous insemination, nor in vitro fertilization therefore represent a violation of human dignity. Dürig, on the other hand, saw heterologous insemination as a clear violation of human dignity: "The sperm donor who doesn't care who the sperm is going to And what will become of the children can only be thought with a shudder. The husband is degraded to an “acceptable size.” The mother is expected to accept the husband as interchangeable (...). The child is systematically taken in his right to know his bloodline. " The state not only has the duty of non-legalization, but a real duty of protection and defense. According to Herdegen, even surrogacy does not affect human dignity. "Neither the embryo nor the genetic mother or the pregnant mother are affected in their dignity." (No. 97) The joint working group of the Federal Minister for Research and Technology and the Federal Minister of Justice, the so-called Benda Commission, saw it differently: "An agreement on surrogate motherhood disregards the human dignity of the child because it ignores it that the development in the womb is an important part of the child's personality development and that the biological and psychological relationship between the pregnant woman and the child is of particular importance for this development Mother is justified would be impaired if the pregnancy were accepted as a kind of service. The close personal relationship between the pregnant woman and the child, which is essential for the development of the child, could hardly be established under these circumstances. Therefore, there are general concerns about a surrogate motherhood, also against an 'altruistically' taken over. "[20] In the Embryo Protection Act, surrogate motherhood is also prohibited for these considerations in Section 1, Paragraph 1, No.

According to Herdegen, totipotent cells, i.e. cells that have the ability to develop into a whole individual, do not have human dignity - although the legislature in the Embryo Protection Act regards such cells as embryos. Consequently, the splitting off of cells from an embryo in the eight-cell stage, e.g. for diagnostic purposes, does not represent a legal problem for Herdegen (No. 64). According to Herdegen, human dignity is also not very productive for pre-implantation diagnosis (PGD) and normally remains unaffected. The investigation of the genetic disposition to certain diseases lies outside the scope of protection of Article 1, Paragraph 1 of the Basic Law. "A threat to human dignity can at best be justified with the 'selection pressure' that emanates from PGD with a 'positive' eugenic objective (in the service of 'breeding' desired traits)." (No. 106)

According to Herdegen, human dignity is also not affected by germline therapy. To those who see it differently, he replies that they represent an "astonishingly long-lasting idea of ​​an unchangeable, natural order and the iniquity of corrective interventions even for healing purposes". "That human dignity should protect hereditary diseases" is incomprehensible. (No. 101) A therapy ban due to the health risks for the offspring still associated with germ line therapy would be on a different level. With reference to these risks - but not only to them - the Benda Commission has called for a ban on germ line therapy for constitutional reasons: "It can be assumed that targeted gene transfer into human germ line cells is currently not possible is associated with unforeseeable risks for those affected and their descendants, this method can be combined with the basic decision of Art. 1 Para. 1 GG for the protection of human dignity and also with the objective legal content of the fundamental right to life and physical integrity in Art. 2 (2) sentence 1 GG because human life would become the object for experiments. In addition, the implementation of the gene transfer with a larger number of embryos with the aim of later only having the few successfully transformed embryos carried to term would be carried out with the the protection of life that is to be granted to the embryos is not consistent either. "[21]

In the European area there have long been fears with regard to possible manipulative changes in human identity. As early as 1982, the Parliamentary Assembly of the Council of Europe called for the recognition of a human right to "non-artificially modified" genetic makeup. Measures of "genetic refinement", i.e. positive eugenics or human breeding, are also not a violation of human dignity for Herdegen. "A constitutionally weakly determined organizational task of the legislature lies in the drawing of barriers." (No. 102)

Herdegen's thesis of development-related protection of dignity is particularly striking when it comes to dealing with so-called surplus embryos: "In the use of 'surplus' embryos that are not implanted during in vitro fertilization and remain for the purposes of Stem cell research may be seen as an 'instrumentalisation' for external benefit. However, due to the lack of implantation, these embryos are doomed to die and therefore no longer have any development perspective. Therefore, the extraction of embryonic stem cells from these embryos appears for therapy-oriented research or directly for healing purposes - also with regard to the Legal interests of Article 2, Paragraph 2, Clause 1 of the Basic Law and Article 5, Paragraph 3, Clause 1 of the Basic Law - not as degrading or otherwise detrimental treatment. A strict prohibition of this use must seek justification other than protection of dignity. " (No. 107) His colleague Christian Hillgruber in Bonn sees it differently: "Even the orphaned embryos, as 'morituri', have one final claim that must be fulfilled under all circumstances: to a humane, i.e. 'useless' death." The constitutional lawyer Josef Isensee, also from Bonn, sees it similarly: the sole treatment of these embryos in accordance with their dignity is to let them die. [22]

Even with therapeutic cloning, in which the extraction of stem cell material is in the foreground, human dignity is not a reason for prohibition. The protection of dignity does not extend to the embryo thus created in vitro. In addition, there is no violation of the dignity of the donor of the duplicated chromosomes, since maturation into humans is not intended (No. 99). [23] In contrast, reproductive cloning is an evident violation of human dignity, even for Herdegen, namely that of the cloned donor. "The cloned person is deliberately genetically duplicated and thus consciously robbed of his genetic identity through the creation of a genetically identically endowed person. The cloned person's consent to a reproductive process that is completely removed from natural generation conditions exceeds his or her right of disposition." (No. 98)

Likewise, the formation of chimeras (cell associations with more than two parents) and hybrids (living beings that result from the fusion of egg and sperm cells of different species) represent a violation of human dignity. The human dignity of the donor of the germ cell used is violated. (No. 100)

Human dignity also unfolds its relevance at the end of life. One can largely agree with Herdegen when he states: "Human dignity includes the right to decide to die in dignity in the event of severe suffering and physical or mental decline (subject to sufficient discernment), in particular the right to discontinue life-prolonging measures A claim to active euthanasia oversteps the claim to dignity. " Herdegen also believes that human dignity also implies a right to suicide. (No. 85) Former commentators considered suicide reprehensible because it contradicted the substance of human dignity.

Human dignity - not an empty formula

The history of human dignity, as the introductory considerations have shown, is at the same time the history of its foundation and interpretation. Despite a general and cross-national approval of human dignity, one occasionally encounters the objection that the term is unclear. In the modern, ideologically neutral, secular state he forms an empty formula, it is a "metaphysical ballast concept" or - as Theodor Heuss already said - an "uninterpreted thesis". Today's inflationary appeal to human dignity further devalues ​​it. [24] With regard to this objection, one has to admit that there is a risk of superficial claims on human dignity. What is more decisive, however, is that human dignity can very well be interpreted in different ways in terms of content, form and content. "This fact that human dignity can be concretized in a filled, humane way speaks against the thesis that it is just an empty formula." [25]

It is then above all the outlined difficulties of determining the content of human dignity that make it advisable not to overestimate them as an appeal body in solving ethical and legal controversies. As early as 1840 Schopenhauer had warned the careful use of the term and criticized the fact that this term had "become the shibboleth of all thoughtless and thoughtless moralists who found their lack of a real, or at least something meaningful, basis of morality behind this impressive expression 'Hide human dignity' "[26].

The current dispute over human dignity can also have a fruitful effect. "The argument about the interpretation itself is what binds the contestants. The binding effect that the idea of ​​human dignity unfolds is shown in the fact that the contestants refer to this idea and no other. That is not nothing." [ 27] Perhaps through the majority of justification perspectives, the validity and acceptance of human dignity within the pluralistic society can even be additionally supported.

However, there are a few questions to be asked about the concept of tiered protection of dignity. Doesn't this concept bring the germ of relativization into human dignity? And if differentiations are adopted in the type and extent of the protection of human dignity, will the fundamental equality of all people not be violated? Is it - if one grants the human embryo a graded, which means nothing other than restricted, protection worthiness and thus treats it differently from born humans - not even a development-related discrimination?

The concept of human dignity is a dynamic one. It can and should be recognized more and better what further dignity is due to the human being on the basis of his inalienable basic dignity. It is a process that knows stages, but in principle cannot be completed, just as little as the development of the human being as a social-cultural being.