A GJ Frontiers article.

Abstract

One of the principles underlying the Canadian Charter of Rights and Freedoms and the Basic Law of the Federal Republic of Germany, if not the most fundamental one, is the concept of human dignity, shared as a common value by western democracies. During the 20th century, it has become a concept of international and domestic law. In this paper, some of the many questions arising out of the concept of human dignity will be addressed by tracing the approach to human dignity taken in the Charter jurisprudence of the Supreme Court of Canada and of the German Bundesverfassungsgericht. To facilitate the conceptualization of human dignity it is defined in the constitutional context, its legal nature is examined, as well as its purpose and function within our constitutional framework. An analysis of the personal and substantive scope of human dignity follows. It will be shown that human dignity is a complex and multi-facetted concept of both Canadian and German constitutional law. In other words, human dignity is a highly abstract concept generating differences in opinion in all but the clearest cases when applied to the concrete situation of a constitutional dispute. It is apparent that the differences between the Canadian and German views are closely linked to the textual basis of human dignity in the written constitution - or absence thereof. In light of the prominent position of the human dignity guarantee in Art. 1(1) of the Basic Law it was easy to construe human dignity not just as a fundamental value, but as the core value of the constitutional value system, as a binding objective principle of constitutional law and as an individual right. Lacking a similar textual inducement, the Canadian approach is much more reserved. In essence, human dignity is a fundamental value exerting its influence indirectly, specifically on the interpretation of the fundamental rights and freedoms in the Charter. In summary, human dignity is an indispensable compass in our continuing journey to promote and protect the rights and freedoms of the individual. We may not always know where it will take us, but the fundamental value of human dignity will always remind us where we are coming from.

Originally published in Global Jurist Frontiers.

Recommended Citation

Ullrich, Dierk (2003) "Concurring Visions: Human Dignity in the Canadian Charter of Rights and Freedoms and the Basic Law of the Federal Republic of Germany," Global Jurist Frontiers: Vol. 3 : Iss. 1, Article 1.
Available at: http://www.bepress.com/gj/frontiers/vol3/iss1/art1