300   Basic Rights and Liberties
that tends to inhibit the free development of personality because of the psu cal pressure of general public compliance.
(c) However, not every statistical survey requiring the disclosure sonal data violates the dignity of the individual or impinges upon the right determination in the innermost private areas of life. As a member of societ person is bound to respond to an official census and to answer certain qi about himself, because such information is necessary for government pla nm [One] can regard a statistical questionnaire as demeaning and as .11 one's right of self-determination when it intrudes into that intimate realm sonal life which by its very nature is confidential in character. In a moden 1 in society there are restrictions against such aaministrative depersonalization, other hand, where an official survey is concerned only with the relation of t Ik to the world around him, it does not generally intrude on personal priv.icv true.. .when the information loses its personal character by virtue of its.mo The prerequisite for [this conclusion] is that anonymity be adequately pn In the present case [two factors] guarantee [anonymity]: a statutory pro against the publication of information obtained from individuals, as well a-, that census takers are bound under penalty of law to maintain the confident the information. [The census taker] has no statutory duty to report data to revenue agencies; moreover, responsible officials may not convey any | information to their superiors in an official capacity if they have not been e given this power under the law.
(d) The collection of census data regarding vacations and recreatioi does not violate Article 1 (1) of the Basic Law. The questionnaire at iss implicate the sphere of privacy, but it does not force the individual to reveal i details of his personal life. Nor does it allow the state to monitor individual 1 ships which are not otherwise accessible to the outside world and are come of a private nature. [The state] could have obtained data regarding the des and length of vacation trips, lodging, and transportation without a census a with much more difficulty. The information solicited does not, therefore, that most intimate realm into which the state may not intrude. [The *-t.ii [therefore J use the questionnaire for statistical purposes without violatu ig t vidual's dignity or right to self-determination....
[The Census Act case, reprinted below as case no. 7.6, is the sequel to A census. Census Act, however, is more appropriately placed in the section o\ right of personality. ]
note; the basis and origin of human dignity. "The dignity of ma founded upon eternal rights with which every person is endowed by nature," r the first draft of Article 1 produced by the Herrenchiemsee Conference. Later, in
Human Dignity and Personhood    301
Committee of the Parliamentary Council, Christian Democratic delegates it to characterize these "eternal rights" as "God-given." Social Democrats and Democrats resisted the use of such language because of its implications for rutional interpretation.5 The result was a succinct and neutral formulation: dtgnitv of man is inviolable." Except for the most dogmatic of legal positivists * the framers, the main party groups (Christian, Social, and Free Democrats) council were united in the proposition that human dignity, like other funda-[| rights of personhood, is anterior to the state. Such rights belong to persons sons, and in this sense they were regarded as transcendental. The framers were Liccessful in refusing to identify the concept of human dignity with a particular onhical or religious school of thought. The constitutional text seems fully tent witii a variety of philosophical perspectives, although úieMicrocensus case rs to adopt Kantian language in that persons are always to be treated as ends, ■x as mere objects of manipulation. The term "language" is used here because ľw that people are ends and not means is certainly shared by non-Kantians .s Christian natural-law theorists. Moreover, as the Mephisto case shows, the s view of human dignity falls far short of any judicial glorification of the .■>t of personal autonomy. Kantian autonomy, in the court's eyes, includes a ; sense of the "morality of duty."
7.2 Mephisto Case (1971) 30 BVerfGE 173
■rhilc in exile from Nazi Germany in the 1930s, Klaus Mann published ßhisto, a satirical novel based on die career of his brother-in-law, Gustaf ündgens, a Fausrian actor who had attained fame and fortune during the ird Reich by renouncing his former liberal views and currying the favor of y.i leaders. Mann later admitted that for him Gründgens personified "the itor par excellence, the macabre embodiment of corruption and cyni-n . . . who prostitutes his talent for the sake of some tawdry fame and nsiiory wealth." The fictionalized character, Hendrik Höfgen, was a carica-e of the model on which he was based. When Mephisto was about to be isiied by a West German publisher in 1964, Griindgens's adopted son urcd from the Hamburg Court of Appeals an order banning its distribu-n. 1 he judgment was affirmed by the High Court of Justice on the ground t tlie novel dishonored the good name and memory of the now-deceased or. The publisher filed a constitutional complaint in the Federal Constitu-ual (]ourt against both judgments on the ground that they contravened :'C'L' 5 (3) of the Basic Law, which guarantees the freedom of art and -'"«.■. The court sought to balance the right to freedom of art against the "simality and human dignity clauses of Article 1. The extracts below focus ■inly on the balance between speech and dignity. ]
302   Basic Rights and Liberties
Judgment of the First Senate-----
The constitutional complaint is rejected.
C. III. 4. . . . [We] must also reject the opinion that the constitutional ordt rights of others, and the moral code may restrict the freedom of the arts pursu: Article 2(1), second half of the sentence. This view is inconsistent with the si iary relationship of Article 2 (1) to the individual liberty rights specifically tioned [in the Constitution]. The Federal Constitutional Court has consis recognized [this relationship] in its case law.
[The sentences above show how the court uses the concept within the Ba Law's hierarchy of values. See the section in this chapter on the right personality for a detailed explanation of the subsidiary character of the pi sonality clause of Article 2(1).]
5. On the other hand, the right of artistic liberty is not unlimited. Like .ill rights, the guarantee of liberty in Article 5(3) [ 1 ] is based on the Basic Law's i of man as an autonomous person who develops freely within the social comtn But the [fact that] this basic right contains no limiting proviso means that on Constitution itself can determine limits on artistic freedom. Since freedom < arts does not contain a provision entitling the legislature to limit [this basic rig.' cannot be curtailed by [provisions of] the general legal system. [If] an iudt clause that applies when goods necessary for the continued existence of the 11.1 community are endangered has no anchor in the Constitution and does not ciently [conform] to the principle of the rule of law, it may not limit this Rather, [we] must resolve conflict[s] relating to the guarantee of artistic hv by interpreting the Constitution according to the value order established i Basic Law and the unity of its fundamental system of values. As a part ot the Law's value system, freedom of the arts is closely related to the dignit}-" oi guaranteed in Article 1, which, as the supreme value, governs the entire value s; of the Basic Law. But the guarantee of freedom of the arts can conflict \vk constitutionally protected sphere of personality because a work of art can aist duce social effects. -
Because a work of art acts not only as an aesthetic reality but also exists : social world, an artist's use of personal data about people in his environmei affect their rights to societal respect and esteem-----
6. The courts [below] properly referred to Article 1 (1) in order to dere: the late actor Grundgens's protected sphere of personality. It would be incomp with the constitutional commandment that human dignity is inviolate—J mandment which acts as the foundation for all basic rights—if a person, pos« of human dignity by virtue of his personhood, could be degraded or debase
Human Dignity and Personhood    303
after his death. Accordingly, the obligation that Article 1(1) imposes on all authority to afford the individual protection from attacks on his dignity does
:id with death-----
7 The resolution of the conflict between the protection of one's personality and
trht to artistic freedom must therefore take into account not only the effects of a
of art in the extra-artistic social sphere but also art-specific aspects. The guaran-
' liberty in Article 5 (3) [ 1 ] leaves its mark on the image of man upon which
e 1 {1) is based, just as the value conception of Article 1 (1} in turn influences
he guarantee [of artistic freedom]. The individual's right to societal respect and
•steem does not have precedence over artistic freedom any more than the arts may
disregard a person's general right to respect....
Only after carefully weighing all the facts of individual cases can [one] decide .vhether an artistic presentation's use of personal data threatens such a grave en-;roachment upon the protected private sphere of the person it describes that it could jreclude publication of the work of art. [One] must take into account whether and 0 what extent the "image" [of a particular person] appears so independent from he "original" because of the artistic shaping of the material and its incorporation nto and subordination to the overall organism of the work of art that the individ-lal, intimate aspects have become objective in the sense of a general, symbolic haracter of the "figure." If such a study ... reveals that the artist has given or even v.infed to give a "portrait" of the "original," then the [the resolution of this con-lict] depends on the extent of artistic abstraction or the extent and importance of he " falsification5' of the reputation or memory of the person concerned.
V. 2. . . . [Tjhe Hamburg Appeals Court and the Federal High Court of Justice .ssumed that the protection of Grundgens's right to respect extends to the social phcre. In this regard the Federal High Court correctly considered that the need for irotection—and accordingly the obligation to protect—diminishes as the memory )f the deceased person fades. . . . On the other hand, the courts also assumed that
Clans Mann's novel constitutes a work of art within the meaning of Article 5 (3)-----
-he courts tried to solve this conflict by weighing the conflicting interests against ■aeh other....
[In sustaining the judgment against the complainant, the Constitutional Court stressed the narrow limits of its powers of review. "In particular," said the court, "the establishment and evaluation of facts and the interpretation of laws and their application to individual cases are the business of the regular courts and cannot be reviewed by the Federal Constitutional Court." The Constitutional Court sees its task as one of determining whether the court below did, in fact, properly weigh the conflicting rights of the parties under the Basic Law, and whether it attached the proper significance to the constitutional rights implicated in the case. The court found that the judgment below
304   Basic Rights and Liberties
was fully and adequately explained. It thus did not "demonstrate anv incorrect conception of the essence of the basic right that was defeated."] Finally, [complainant] cannot challenge the conclusion of the courts ... bv ar^uii that the ban on publication is disproportional to the encroachment on the la Gustaf Gründgens's right to respect. It is true that the Federal Constitutional Cou has repeatedly emphasized that the principle of proportionality has constitution rank and must therefore be considered whenever state authority encroaches on tí citizen's sphere of liberty. But the instant case does not involve such an cncrnacl ment. The courts simply had to decide a claim based on private law made bv 01 citizen against another; that is, to give concrete definition to a relationship of priva
law in an individual case___The primary function of private law is to settle con flic
of interests between persons of equal legal status in a manner as appropriate possible___
possible....
[Chapter 8 includes extracts from Mephisto dealing with the free-speech aspects of the case as well as the dissenting opinions of Justices Stein and Rupp-vonBriinneck {seeno. 8.12).]
NOTE: HUMAN DIGNITY AND THE IMAGE Oř MAN AND POLITY. The Constil utional
Court's "dignitarian" jurisprudence contains numerous declarations about the nature of the human person and the polity. Indeed, this jurisprudence would be unintelligible without reference to the concepts of person and society on w liicli ir is based. In seeking to advance human dignity as a constitutional value, both conn and commentators have relied on three politically significant sources of ethical ihcory in postwar Germany—Christian natural law, Kantian thought, and social democratic thought—present in the constitutional text as a whole. It is hardly surprising, therefore, on the natural-law side, to find the human person described in letr.il literature and in several constitutional cases as a "spiritual-moral being" enritlet rights found in a "preexisting supra-positive order of justice."6 On the other banc G. P. Fletcher has pointed out,7 emphasis in the case law on individual autono moral duty, and human rationality manifests equally strong Kantian influence1;, as the more socially oriented strands of constitutional thought may be said to ref egalitarian theory. These orientations have converged in German constiturj nnal <■ law to produce an integrated conception of the human person as an indivU possessing spiritual autonomy, which—in a properly governed society- is tc guided by social discipline and practical reasonableness.8
A strong personalist and communitarian philosophy pervades this concept of the human person. Mephisto captures the essence of this philosophy when opinion refers to "man as an autonomous person who develops freely within social community" (emphasis added).9 The Investment Aid I case (1954; ')()- f advanced the concept of man as a community-centered person for the first tj>
Human Dignity and Personhood    305
"he image of man in the Basic Law," declared the court, "is not that of an iso-■ed sovereign individual; rather, the Basic Law has decided in favor of a relationin between individual and community in the sense of a person's dependence on d commitment to the community, without infringing upon a person's individual lue ";" The morality of duty and the principle of human solidarity implicit in this itement and reflected in parts of the Basic Law bear the clear imprint of Kantian oral theory.11 Needless to say, however, this theory is also shared by other reputa-■; philosophical traditions in Germany.
Mephisto articulates a vision of die polity which may remind Americans of
ncoln's elevated image of a fraternal democracy.12 Society, the court affirmed, is
ore than an aggregation of isolated individuals motivated by self-interest and a
site to manipulate one another for purely personal ends. Neither did the court
fer a blanket endorsement of the value of autonomy as against competing social
lods. Indeed, the notion of a simple opposition between person and polity is alien
the court's jurisprudence and the political theory of the Basic Law itself. The
urt's vigilant defense of personal freedom is embodied in the larger context of
mmon life. Human dignity resides not only in individuality but in sociality as
:11. Such dignity requires the protection of the personality and freedom of the
Jividual, but must also promote the goods of relationship, family, participation,
niniunication, and civility.13 The Basic Law was framed not for individuals alone
■t for an organic association of persons expressing its will to live a common social,
'litical, economic, and moral life grounded in the overwhelming ethical principle
it human beings must always be treated as ends, never as means. Mephisto even
goes so far as to include in its vision of community not only the living, but the dead
as well. According to the court, the dead—particularly those in living memory—
rem .1 i n in communion with the living, and we, the living, owe them continuing
honor and respect.
ľíiis highly personalistic conception of human dignity was the focal point of a more recent constitutional attack on the sentence of life imprisonment, even for the crime of murder. The Life Imprisonment case (1977) is the closest available analogy to the American death penalty cases, in which the notion of human dignity has also played a significant role in constitutional argument.14 (Owing to the abolition of capital punishment under Article 102 of the Basic Law, no death penalty cases haw arisen in West Germany.) In Life Imprisonment the Constitutional Court considered an extensive literature as well as expert testimony on the effects of life imprisonment on the prisoner's dignity and personality. The Kantian injunction chat human beings are to be treated as ends, not means, applies as much to closed environments as it does to normal society. Even the use of the polygraph in a enminal proceeding has been invalidated by the court on the basis of human dignity. 10 el [cit the truth by attaching a person to a machine, said the court, is to regard him as an object, and not as a human being capable of telling the truth through ordinary questioning.15