The concept of dignity I discuss has two main historical sources: the religious, biblical idea of humanity's resemblance to God, and the philosophical, Kantian view of human autonomy. I offer an interpretation of the two sources that highlights a common ground, and then point to some aberrations that may result from confounding theological or metaphysical issues with the concept of dignity and its normative implications.

This article applies comparative law tools to portray eight significant aspects of the constitutional right to human dignity in Germany and Israel. The elements considered are: the constitutional status of human dignity; the nature of the right; its effect on other constitutional rights; its scope and definition; waiver of human dignity; human dignity after death; negative and positive aspects of the right; and the right to asylum. The textual foundations of the respective constitutional guarantees are as different as human dignity's core meaning. In Germany, such guarantees are held to be absolute, immune to restriction, and therefore quite narrow in scope. In Israel, the scope of the right is much broader, but it is subject to limitations when placed against the public interest. Still, based on the findings of our comprehensive comparison, similar dynamics can be identified in Germany and Israel The constitutional coverage of both absolute and relative principles is broad, as are the constitutional lacunas, which are those dimensions of constitutional law neglected by the written constitution.

Criminal laws must conform to each state's constitutional law. In both Israel and Germany, the highest courts have ruled on the compatibility of criminal prohibitions with constitutionally protected rights. One recurrent issue is the relationship between criminal prohibitions and the right to liberty, which is constitutionally guaranteed in both countries. The authors show that there are clear parallels in the case law of Israeli and German courts with regard to liberty. Human dignity is likewise protected in both legal systems, although it plays a different role in each. Under article 1(1) of the German Basic Law, human dignity enjoys “absolute” protection, which leads to problems in defining human dignity and accommodating countervailing interests in individual cases. In Israel, by contrast, human dignity is placed on the same level as liberty in the constitutional hierarchy of rights and is not afforded any “special treatment” by the Supreme Court. The authors suggest an intermediate solution: human dignity should not be granted “absolute” protection but should be treated with the greatest respect when criminal laws are reviewed for their constitutionality.

This comment argues that courts should focus on the negative liberty interests of the accused and the proportionality of state-imposed limits on those interests, as opposed to the human dignity of either the accused or the victim, when determining the constitutionality of criminal laws. The first part of the comment examines the Canadian experience with regard to the constitutional control of the criminal law. Canadian courts have focused on the liberty of the accused but have been unwilling to consider how the liberty interests of the accused can be subject to proportionate limitations. The next part suggests that human dignity has a dual character that can both support and oppose many controversial parts of the criminal law and as such is not particularly helpful for courts in assessing the constitutionality of criminal laws. The third part critically examines the presumptions of constitutionality proposed by Gur-Arye and Weigend and suggests that human dignity has little work to do in these presumptions. The last part suggests that a focus on the negative liberty of the accused and the proportionality of the state's limits on those rights provides the best foundation for constitutional control of the criminal law.

The paper describes the origins and implications of the principle of culpability in Germany and Israel. The comparison shows that the principle of culpability is more closely related to human dignity in German law and that it carries more weight there than in Israeli law. However, the adoption of the Basic Law: Human Dignity and Liberty and the new General Part of the Israeli Criminal Code in the 1990's have increased the role and impact of the principle of culpability in Israeli law.

Human dignity can be a protected interest in criminal law. This paper starts with some reflections about the meaning of human dignity and then examines offense descriptions in the German Penal Code and the Israeli Penal Code. These codes are used as sources for identifying possibly relevant prohibitions. One can indeed find numerous examples of offense descriptions that can be justified by pointing to human dignity, either as a main protected interest or as a protected interest in addition to other interests. The protected interest can be either the individual victim's right to human dignity or human dignity as an objective value. Offense descriptions that can be connected to “protection of human dignity” should, for analytical purposes, be divided into three groups: violations of the dignity of individual human beings through acts other than speech; violations of the human dignity of individuals through speech; and media content that does not contain statements about individuals but shows scenes of severe humiliation (e.g., fictional child pornography). Questions that need further discussion primarily concern the second group (what role should free speech play in cases of human dignity violations?) and the third group (does the acknowledgement of human dignity as an objective value mean to endorse a re-moralization of the criminal law?).

I respond to Hörnle and Kremnitzer via a brief review of the development of our modern concept of human dignity, in which I take issue with their account of human dignity as non-humiliation, preferring instead the language of non-degradation. In addition, I offer a different account of the role of human dignity in criminal law, not as a criminally protected interest but as a foundational value.

The search for truth lies at the basis of German criminal procedure. Human dignity can be protected by basing criminal judgments on the truth, and human dignity must be protected against overreach by law enforcement agents in their effort to determine the truth. New instruments of investigation, including secret methods and measures affecting non-suspects, jeopardize human dignity. The same is true for plea bargaining, which signifies the abandonment of the search for the truth in the criminal process.

German constitutional law proclaims to grant human dignity “absolute” protection, whereas Israeli law permits a weighing of human dignity against other important interests. In spite of this difference in principle, German and Israeli law arrive at remarkably similar results with respect to the regulation of “dignity-sensitive” areas of criminal procedure, such as the privilege against self-incrimination, the search of the body and the home of suspects, and secret surveillance of private communications. With regard to privileged conversations, Israeli law provides for even stronger safeguards against state intrusion than German law. The protection against forced self-incrimination, by contrast, goes further under German law. In order to optimize the protection of human dignity in the criminal process, the authors suggest a strict distinction between measures designed to investigate past offenses and those aimed at preventing crime.

The issue of whether interrogative torture may ever be tolerated has been discussed explicitly by both the Israeli High Court of Justice and the Frankfurt Regional Court in Germany. The Israeli court ruling related to the use of interrogative torture in the war on terror; the case brought before the German court was one of routine police work. This paper analyzes the two rulings in depth and offers a comparative reading of the rulings. The comparative analysis reveals that, despite some fundamental differences, the Israeli and German rulings should both be seen as an attempt to uphold the ban on torture, on the one hand, and yet to grant fair treatment to an individual interrogator who used, or threatened to use, force in order to save innocent lives, on the other. While determining the lessons to be learned from the German and Israeli experiences, this paper raises doubts as to whether it is possible to keep the ban on torture intact while either excusing the individual interrogator (Israel) or significantly mitigating his punishment (Germany). The paper further suggests that, in order to provide a real barrier against the practice of interrogative torture, the evidence resulting from such interrogations should be inadmissible in any criminal proceedings.

Human dignity is constitutionally protected in both the German and the Israeli legal system. This article examines to what extent respect for victims' human dignity has influenced the development of victims' rights within the criminal process in Germany and Israel, bearing in mind the differences between the two legal systems regarding the definition of “human dignity” and the scope of constitutional protection. Following a detailed examination of the role and rights of victims within each jurisdiction and a short comparative analysis, this article concludes that, in both countries, the concept of human dignity has played a relatively minor role in the context of victims' procedural rights. The main, albeit tentative, explanation for this conclusion is that, although their trial rules differ considerably, both legal systems share common concerns and difficulties regarding the participation of victims in legal proceedings.

While this comment primarily addresses the article by Anat Horovitz and Thomas Weigend on human dignity and victims' rights in the German and Israeli criminal process, it begins with a consideration of the role of the victim in other component parts of the criminal justice system, and in particular the substantive criminal law—a topic addressed in other articles included in this issue. There follows a review of the comparative analysis of the victim's role in Germany and Israel put forward by Horovitz and Weigend and a critique of the issues they raise, particularly as to the salience of the victim's procedural role. It is argued here that the victim should have a somewhat more meaningful role than that envisaged by these authors. The comment concludes with a brief consideration of the potential for the advancement of alternative remedies currently neglected by both systems, such as restorative justice.