Die Person als ethische Rechtsgrundlage der Verfassungsordnung

Abstract

To understand the meaning of human dignity as the supreme constitutional value enshrined in the Basic Law, one must have a fundamental preconception (Vorverständnis) of this term. In the jurisprudence of the Federal Constitutional Court (FCC), the ‘personhood’ of man takes center stage in this regard. The approach followed by the FCC is based on an idea that, according to the constitutional thought of Hermann Heller, can be conceived of as an ethical principle of law (ethischer Rechtsgrundsatz). This article outlines the history of ideas of ‘personhood’ as it has inspired the FCC's approach of ethical personalism, and examines which conclusions can be drawn from this ethical principle of law for the interpretation of human dignity. The analysis then compares and contrasts these conclusions to recent FCC jurisprudence; it also elaborates on the interrelationship between ‘duties to respect’ and ‘duties to protect’, an issue that has prominently surfaced in the FCC's recent judgment on the constitutionality of the Aviation Security Act.