Considering the commitment of Member States to promote, in cooperation with the United Nations, universal respect for and observance of human rights and fundamental freedoms, The primary role of human dignity as a constitutional value is expressed in the approach that it constitutes the foundation of all constitutional rights. Human dignity is the central argument for the existence of human rights. That is everyone`s raison d`être. It is the justification for the existence of rights. According to Christoph Enders, it is the constitutional value that determines that every human being has the right to have rights. This does not mean that human dignity is the fundamental norm of the legal order. An important and fundamental constitutional value is one thing; One basic standard is another. The basic norm determines the binding nature of the constitution. It has nothing to do with human dignity. Moreover, it should not automatically be concluded that human dignity is the most important value that serves as the key to resolving all difficult constitutional issues. Human dignity requires study and enlightenment, and each legal system must ultimately define its own position on this constitutional value. Of all visible creatures, only man is “capable of knowing and loving his Creator.” He is “the only creature on earth whom God has willed for himself,” and he alone is called to participate in God`s life through knowledge and love. He was created for this purpose, and that is the fundamental reason for his dignity.
In the image of God, the human individual possesses the dignity of a person who is not just something, but someone. He is capable of self-knowledge, self-control and free surrender and community with other people. And he is called, by grace, to a covenant with his Creator to give him a response of faith and love that no other creature can give in his place.20 Although this constitutional use of dignity increased, it remained rather marginal until the end of World War II. It is perhaps not surprising that among the new national constitutions that included dignity between 1945 and 1950, three of the most important (Japan, Italy and Germany) were defeated nations of World War II, responsible for a substantial part of the horrors that the human rights movement sought to eradicate. In 1946, Japan,64 Italy65 in 1948 and West Germany66 in 1949 included dignity in constitutional documents. However, the movement to incorporate dignity into the new constitutions was by no means limited to European and Latin American states. When Israel declared independence in 1948, the Declaration of Independence referred to how “survivors of the Nazi Holocaust in Europe, as well as Jews from other parts of the world, continued to emigrate to Eretz Yisrael, without fear of hardship, limitations and dangers, and never ceased to assert their right to live in dignity. freedom and honest work in their national homeland.” [67] In 1950, the Indian constitution did the same.68 In his 1950 assessment of postwar constitutionalism, Carl Friedrich identified “the emphasis on human dignity” as its core value.69 Carozza`s explanation is one that understands the interpretation of dignity as a search for the universal. The universality of human rights is often seen as essential to a valid understanding of human rights.
In this, Carozza can be identified not only with a strong ideological position that considers human rights as normatively universal, but also with those who, in comparative law theory, see the function of comparative law as examining commonalities between legal systems, sometimes even going so far as to identify the “best” approach with the ultimate goal of its universality. 293 However, he differs from some traditional universalists in comparative law in that he is prepared to see this universalist consensus not as a consensus simply found, but as a consensus that is being built. In this, it seems to share certain similarities with the current of comparative law theory, which emphasizes the importance of dialogue. This theorizes the comparative method “as a dynamic interpretative and discursive practice”.294 Particularly in the context of comparative constitutionalism, “the dialogical approach focuses on processes of constitutional interpretation. The comparative exchange is not path-dependent or hierarchically linked. Rather, it is a “transjudicial” enterprise based on accommodation – a decentralized view of constitutional practices stemming from pluralistic sources, with the possibility of “cross-fertilization.” 295 Paolo Carozza`s analysis of this phenomenon in the context of the case law on the death penalty was based on the assumption that, in these cases, there was a “common commitment” between different legal systems, namely the “concrete specification of the principles of natural law”.291 He continued: “The trend of courts in death penalty cases .. Placing their appeal to foreign sources coherently at the level of the common premise of the fundamental value of human dignity is a paradigmatic example of naturalistic foundations. Despite differences in positive law, historical and political context, religious and cultural heritage, there is a common recognition of the value of the human person as a fundamental principle to which positive law should be reflected.
The “Joint Undertaking”. is first and foremost the elaboration of the practical implications of human dignity on the right to life and physical integrity in different concrete contexts. 292 Moreover, dignity may itself be regarded as a right or duty with a specific content and not merely as the foundation of human rights in general or of a catalogue of specific rights. In some jurisdictions, human dignity is recognized as an enforceable right by an individual in the same way as any other right. In other cases, human dignity is a principle that takes precedence over other individual rights, but does not lead to application by an individual. In Germany, there is an ongoing scientific debate on the particular importance of human dignity in this regard175, although the importance of the debate in this context may be less than it seems, because “in all the cases pending before the Constitutional Court in which questions of human dignity have been raised, the alleged violation of human dignity has been accompanied by alleged violations of other individual rights. so that access to the Court never depends on the characterization of human dignity as an individual right”.176. 2. Where conjugal visits are permitted, this right must be applied without discrimination and prisoners must be able to exercise this right on an equal footing with men.
Procedures and facilities must be in place to ensure fair and equitable access, with due regard to safety and dignity. Dignity is also frequently used by the courts in relation to the death penalty. Justice Brennan of the U.S. Supreme Court can echo the trend observed in Furman v. Georgia.223 In reviewing the application of the Eighth Amendment`s prohibition of cruel and unusual punishment, he summarized previous constitutional amendment jurisprudence as a “prohibition on the imposition of uncivilized and inhuman punishments.” The State, even if it punishes, must treat its members as human beings with respect for their intrinsic value.