Federal Constitutional Court of Germany / Bundesverfassungsrericht

In February of this year, the Federal Constitutional Court of Germany ruled that an individual’s autonomy was far more important than the value of his or her life.

It did this when declaring that a law prohibiting assisted suicide was unconstitutional, with the Court’s press release indicating: “The general right of personality guarantees the right to choose, in self-determination, to take one’s own life based on an informed and deliberate decision.” Adding: “This right includes the freedom to … resort to assistance provided voluntarily by third parties for this purpose.”

Moreover, the Court stated that all persons had a right to commit suicide, as such, and that this “is not limited to situations defined by external causes like serious or incurable illnesses, nor does it only apply in certain stages of life or illness. Rather, this right is guaranteed in all stages of a person’s existence.”

But in this ruling, the German Court has also indirectly reduced human beings to “autonomy entities” since the worth of life is seen as secondary. Thus, persons can now just be seen as units of self-determination. Their inherent immeasurable value, which was for so long the basis of all legislation, is no longer seen as having priority.

In fact, they have become human entities who only need a justice system (in the context of a social contract) in order to police any conflicts between them.

In other words, the Court completely undermined the very notion of inherent human dignity. Of course, the German judges were right to indicate that: “Inalienable human dignity … requires that any human being be unconditionally recognised as an individual with personal autonomy.” It is also true that personal autonomy is inherent in human dignity.

But where the Court made one crucial and fundamental mistake, was to assume that individual autonomy was the main element of human dignity.

Article 1 of the 1949 Basic Law of the Federal Republic of Germany indicates that “Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.” However, according to its Constitutional Court this Article now basically means: “Self-determination shall be inviolable. To respect and protect it shall be the duty of all state authority.”

This, of course, is absurd and is even incompatible with the crucial equality provisions of the 1948 United Nations’ Universal Declaration of Human Rights. For example, this states in Article 1 that: “All human beings are born … equal in dignity and rights.”

In this regard, the Oxford English Reference Dictionary defines dignity as the “state of being worthy of honour and respect” although the concept also includes aspects of “value” and “worth”. Thus, according to this Declaration, the important reality of human equality (in dignity) must reflect the equal value and worth of all human beings.

That is to say, this equality cannot be based on autonomy since this varies considerably between all members of society. It is even very limited in infants and adults with serious mental disabilities.

Consequently, a civilised society can only exist if the social contract between all individuals is based on justice and the equality of value of all persons. This means that the concept of autonomy must come second to this equality in value. Indeed, the only reason why anyone would actually respect the autonomy of the other, in an appropriate and just manner, is because all individuals are seen as equal in dignity, value and worth.

It should also be noted that nowhere in German constitutional legislation is it explicitly stated that the concept of human dignity is equivalent to the notion of individual autonomy. Thus, for the Constitutional Court to infer such an understanding of human dignity is deeply misleading.

The judges were thus clearly confused in their mistaken and very dangerous understanding of human dignity when they put the concepts of freedom and autonomy above the equal worth and value of human beings.

Indeed, in so doing, the Court was sawing off the very branch of the tree on which it was sitting. This is because if the equality in worth of all persons is no longer the highest value in society or if certain lives are seen to be unworthy of life, drafting laws based on justice and human rights becomes meaningless as does the very existence of a Constitutional Court.

Moreover, if autonomy has priority over the value and equality of life, a total collapse of civilised society is inevitable. It would result in a degenerate brutal jungle where no reason, whatsoever, would exist for the autonomy of the strong not to abuse, with impunity, the autonomy of the weak.

The 1983 Nobel Prize winner for Literature, English novelist William Golding, captured the collective moral erosion of a group of schoolboys marooned on a desert island in his book “Lord of the Flies”. They begin as upper-middle-class civilised Englishmen for whom rules protecting the autonomy of the weak in a setting of equality are important but they end up losing any restraint and killing those who are vulnerable and do not agree with them.

Golding’s masterpiece, which was published in 1954, was written as an illustration of the fragility of civilised society. It was also a warning to those who believe they have a naturally kind, robust and decent society which cannot eventually descend into savagery if it loses the moral foundations of the equal and immeasurable worth of life.

This means that Germany’s Constitutional Court must return, as a matter of urgency, to the provisions of the UN’s Declaration of Human Rights which were actually drafted, in part, to bring civilised values back to this country after the barbarities of its Nazi government at the beginning of the 20th century.

If this does not happen, modern Germany will eventually lose its way in an unethical quagmire where the value of human life is no longer considered as equal – where it can even be seen as cheap and unimportant – as is happening in other countries where assisted suicide has been legalised.

Calum MacKellar

Calum MacKellar

Dr Calum MacKellar is Director of Research of the Scottish Council on Human Bioethics