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Dignity, Rights, and Legal Philosophy within the Anthropological Cross of Decision-Making
Published online by Cambridge University Press: 06 March 2019
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The law must correspond with human nature and be based on criteria equal to all human beings. Many schools of legal philosophy agree on these points. However, many of them tend to disagree as soon as more detailed criteria for “humanity” and the “nature of man” are suggested. This is where the empirical understandings of basic needs clash with loftier concepts such as “reason” and “spirit” over what the actual indicators of humanity are. Relativistic schools point skeptically to the plurality and historicity of many legal convictions. Proceduralists look for a way out of the vagueness and controversy of appropriate indicators of humanity and human law by relying on concretization processes. Such processes are expected to exclude at least violence and in the best case include as much integration as possible of all those affected by legal provisions. This paper proposes that the most important insights into good and human law can be discovered by analyzing the character of human agency (Handeln). All life forms usually act in a functional manner, doing what is required to preserve themselves; many animals are able to learn and communicate to a certain extent. By contrast, humans not only “behave”, rather, they “act” - they sense, interpret, evaluate, articulate and decide. As trivial as that sounds, using “human action” as an indicator of what aspects a good legal system should represent is an illuminating starting point. This is especially true concerning hard cases in the law that, in spite of being typically contested, lead to legally binding decisions. They are burdened by the “anthropological cross of decision-making” or, as one could also say, the “decisional cross”. The question we will turn to is the meaning of the decisional cross.
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References
1 The following remarks are based on the author's book, Winfried Brugger, Das anthropologische Kreuz der Entscheidung in Politik und Recht (2nd ed. 2008) (providing many citations and sources that are left out here), and the article Würde, Rechte und Rechtsphilosophie im anthropologischen Kreuz der Entscheidung“, in Rechtsphilosophie im 21. Jahrhundert, 50–71 (Winfried Brugger & Ulfrid Neumann & Stephan Kirste eds., 2008). For discussions of the “decisional cross” from different disciplines, ranging from philosophy and law to psychology and economics, see Über das anthropologische Kreuz der Entscheidung (Hans Joas & Matthias Jung eds., 2008).Google Scholar
2 See, for example, the following formulation taken out of a court decision: “This is the crux of the decision: The arrest warrants are retained even though they are, at least in part, based on the torture declaration”, Summary of Immigrantion Board's Decision, available at www.peoplescommission.org/files/ivan/IvanSummaryOfDecision.pdf, last accessed 25 September 2008. Or see the article The Crux of the Decision, Novatownhall, 17 April 2008, available at http://novatownhall.com/2008/04/17/the/, last accessed 25 September 2008, on the difficulty of deciding between Hillary Clinton and Barack Obama as presidential candidate of the U.S. Democrats.Google Scholar
3 Taken to its extreme, one can see the link to existentialism that in its many forms deals with human beings having to create themselves in the face of, for example, dread that results from the fact that the decision to be taken is morally suspicious and loaded with far-reaching consequences.Google Scholar
4 As to the enlightening accomplishments of visualization and metaphorical thought, see Ralf Konersmann, Einführung, in Wörterbuch der philosophischen Metaphern, Wissenschaftliche Buchgesellschaft (Ralf Konersmann ed., 2007).Google Scholar
5 In social and legal philosophy, references to “horizontal” and “vertical” arguments and reflections abound, as is demonstrated in the many citations in my book. See, Brugger, supra note 1. The “decisional cross” offers, for the first time, a systematization of these two levels of reflection for a specified area of situations.Google Scholar
6 See the German anthropologist Arnold Gehlen, Der Mensch. Seine Natur und seine Stellung in der Welt, 32 (12th ed. 1978).Google Scholar
7 For an analysis of these Kantian themes, see Gerhard Funke, “Kants Stichwort für unsere Aufgabe: Disziplinieren, Kultivieren, Zivilisieren, Moralisieren“, in Akten des Vierten Internationalen KantKongresses, Mainz, 6 – 10 April 1974, 1–25 (Gerhard Funke ed., 1974).Google Scholar
8 See Sigmund Freud, Abriss der Psychoanalyse, 9–11 (paperback edition 1953/1972).Google Scholar
9 Closer analysis would of course reveal that there exist more constricted types of organizations and institutions as well as multi-purpose institutions that in the extreme case, such as with a comprehensive religious body of rules for leading one's life, can embrace all aspects of human existence.Google Scholar
10 Denial or suppression is a familiar example taken from psychology showing that human beings sometimes cannot act in the face of conflicting motives or options.Google Scholar
11 In other writings of mine, I have analyzed these aspects within the “Menschenbild der Menschenrechte,” the model of person as identified by modern human rights instruments. See Brugger, Winfried, Zum Verhältnis von Menschenbild und Menschenrechten, in: “Vom Rechte, das mit uns geboren ist”. Aktuelle Probleme des Naturrechts, 216–246 (Wilfried Härle & Bernhard Vogel eds., 2007), and an earlier English version: Winfried Brugger, The Image of the Person in the Human Rights Concept, 18 Human Rights Quarterly 594 (1996).Google Scholar
12 To put it in more concrete terms: Should the respective right be “absolute,” inalienable, or be relativized by “limitation clauses?” In the U.S., such a discussion was led in the 1960s on the first amendment by the “absolutist” Justices Black and Douglas against the other “relativist” balancing Justices. In the German Constitution, some constitutional rights (freedom of religion, the arts, and the right of dignity) are without limitation clauses, which transforms them, at least on first glance, into absolute rights.Google Scholar
13 As an example, take Art. 19 II of the German Constitution: “In no case may the essence of a basic right be affected.”Google Scholar
14 See, for example, Henry Shue, Basic Rights (2nd ed. 1996), with regard to “subsistence.”Google Scholar
15 See, for example, Art. 4 I of the German Constitution: “Freedom of faith and of conscience, and freedom to profess a religious or philosophical creed, shall be inviolable.”Google Scholar
16 See, for example, Art. 6 I of the German Constitution: “Marriage and the family shall enjoy the special protection of the state.”Google Scholar
17 See Art. 2 and 12 of the German Constitution, respectively.Google Scholar
18 See the articles on “communitarianism” in Winfried Brugger, Liberalismus, Pluralismus, Kommunitarismus (1999); Winfried Brugger, Communitarianism as the social and legal theory behind the German Constitution, 2 International Journal of Constitutional Law 431 (2004).Google Scholar
19 BVerfGE (Reports of the Federal Consititutional Court) 79, p. 256.Google Scholar
20 Strafgesetzbuch, 211.Google Scholar
21 As is well known, the U.S. balances this differently from Germany and Europe. While there the death penalty is constitutionally acceptable (with exceptions), here the death penalty is mostly outlawed.Google Scholar
22 BVerfGE (Reports of the Federal Constitutional Court) 45 p. 187.Google Scholar
23 Bürgerliches Gesetzbuch, 90.Google Scholar
24 See Friedrich Nietzsche, Vom Nutzen und Nachteil der Historie für das Leben, in: Deutsche Geschichtsphilosophie von Lessing bis Jaspers, 360 (Kurt Rossmann ed., 1959).Google Scholar
25 Gehlen, supra note 6, 9.Google Scholar
26 Think of the history of the U.S. Constitution. The freedom of religion in combination with (religious) censorship were especially endangered under the old English regime and even in some of the newly founded colonies. That is why we find the freedom of religion and the freedom of speech clauses in the First Amendment of the Constitution.Google Scholar
27 Some of these infringements are extraordinary, bound to a special situation that will not repeat itself easily – one example would be the quartering of soldiers in citizens’ houses without their consent; see the Third Amendment of the U.S. Constitution. Some infringements constitute “standard threats” that in a politically organized community can easily repeat themselves and thus require constitutional prevention. As for the term “standard threat,” see the discussion in Shue, supra note 11.Google Scholar
28 Thomas Hobbes, Leviathan, 84 (1998).Google Scholar
29 See Hans Albert, Kritischer Rationalismus, 64–76 (2000).Google Scholar
30 For examples of these four strands of philosophy of law (and methods of interpretation) from the U.S., see Winfried Brugger, Legal Interpretation, Schools of Jurisprudence, and Anthropology: Some Remarks from a German Point of View, 42 American Journal of Comparative Law 395, 415–421 (1994).Google Scholar
31 See, for example, Karl Lewellyn, cited in Brugger, supra note 19, 416: “In a going life-situation, fairness, rightness, minimum decency, injustice look not only back but forward as well, and so infuse themselves not only with past practice but with good practice, right practice, right guidance of practice, i.e., with felt net values in and for the type of situation, and with policy for legal rules.” Harold Berman formulates as follows: “The essence of historical jurisprudence is not historicism but historicity, not a return to the past but a recognition that law is an ongoing historical process, developing from the past into the future … Indeed, history without political and moral philosophy is meaningless. Yet those philosophies without history are empty. In American jurisprudence the time is ripe to restore the historicity of law to its proper role alongside political principles of legal order and moral principles of legal justice.” This citation, in Brugger, supra note 18, 416, is taken from an article of Berman on “Integrative Jurisprudence”. The decisional cross provides such a framework.Google Scholar
32 For a comparison between German and American methods of legal interpretation, see Brugger, supra note 19, and Winfried Brugger, Einführung in das öffentliche Recht der USA, § 2 II and § 16 (2nd ed., 2001).Google Scholar
33 Put differently, there are, in German jurisprudence, two different variants of “historical interpretation”: (1) the will of the legislature at the particular time; here voluntarism prevails, and (2) the (hopefully organic) development of a legal term or doctrine in time, such as “contract” or “constitution”; here tradition and evolution prevail.Google Scholar
34 In the German language, the back of a person is called Kreuz, meaning “cross.” In hard, existentialist cases, one has to show backbone, one has to act within the decisional cross.Google Scholar
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