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Human Dignity, Privacy, and Personality in German and American Constitutional Law

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Human Dignity, Privacy, and Personality in German and American Constitutional Law +(,121/,1( Citation: 1997 Utah L. Rev. 963 1997 Content downloaded/printed from HeinOnline (http://heinonline.org) Thu Oct 30 12:00:06 2014 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0042-1448 Human Dignity, Privacy, and Personality in German and American Constitutional Law- Edward J. Eberle- TABLE OF CONTENTS Page I. INTRODUCTION ................................................ 964 II. THE GERMAN CONSTITUTIONAL ORDER AND ITS PROTECTION OF HUMAN DIGNITY AND PERSONALITY ............................... 967 A. The German ConstitutionalOrder ............................ 967 B. Human Dignity in Germany ................................. 971 C. Human Personhoodand the Polity ........................... 973 D. The ConcreteMeaning of Human Dignity ...................... 975 IMI. INTRODUCTION TO GERMAN PERSONALITY RIGHTS ................... 979 IV. FREEDOM OF ACTION: THE OUTER WORLD .......................... 981 A. Elfes and the GeneralRight of Personality ..................... 981 B. Falconry Licensing Case .................................... 989 C. American Law ............................................ 990 V. INNER FREEDOM IN GERMAN LAW: THE PERSONAL SPHRE ............. 992 A. Establishmentof Interiority in German Law .................... 993 1. M icrocensus .......................................... 993 2. Criminal Diary Case .................................... 996 B. Informational Self-Determination ........................... 1000 1. Census Act Case ...................................... 1000 2. Confidentiality ....................................... 1007 3. ReputationalInterest .................................. 1009 (a) Drunkard Case .................................... 1009 (b) M ephisto ........................................ 1011 C. Right to Honor and Rightful Portrayalof Self .................. 1014 1. Soraya: Right to ControlAgainst Attribution of False Statements ........................................... 1016 2. Lebach: Right to PersonalHonor and Control Over Presentationof One's Self in Society ...................... 1019 "© 1998, Edward J. Eberle. All rights reserved. -Professor of Law, Roger Williams University School of Law (B.A. Columbia 1978, ID. Northwestern 1982). The author would like to thank Dean Jay Conison of Oklahoma City and Professor Bodo Pieroth of the University of Mnster, Germany, for their valuable comments on earlier drafts of this Article. He would also like to thank Theresa Kruczek who helped prepare this Article, and Eric Schweibenz, for his valuable research assistance. All translations are the author's unless otherwise noted. 963 964 UTAH LAW REVIEW [1997: 963 3. B611: Right to PersonalHonor and One's Own Words: Right Not to be Misquoted ........................ 1023 VI. IDENTITY, SELF-DETERMINATION, AND AUTONOMY ................. 1024 A. Right to Know One's Heritage .............................. 1025 1. Right to Heritage I ..................................... 1026 2. Right to Heritage I .................................... 1027 B. Sex, Sexuality, and Identity ................................. 1030 1. Transsexual Case ..................................... 1031 2. Transsexual Equal Protection ............................ 1031 3. American Law ........................................ 1032 C. Identity: Right to One's Own Name .......................... 1033 D. American Law ........................................... 1033 VII. ABORTION ..................................................... 1034 A. The Different Premises of German and American Abortion Law... 1035 1. Germany ............................................ 1035 2. America ............................................. 1037 B. The Abortion Decisions ................................... 1039 1. Germany ............................................ 1039 (a) Abortion I ........................................ 1039 (b) Abortion II ....................................... 1041 2. America ............................................. 1043 3. Convergence and Divergence in Abortion Law ............. 1045 VIII. COMPARATIVE OBSERVATIONS ................................... 1048 I. INTRODUCTION The quest for human dignity in modern society is a noble but elusive goal. Difficult to define,' difficult to realize, personally or socially, dignity nevertheless remains a defining trait of human character, and a preeminent ideal of western society. From the perspective of an individual, dignity might be thought of as the ability to pursue one's rights, claims, or interests in daily life so that one can fully realize talents, ambitions, or abilities as one would like. That is one path to satisfaction, social recognition, and stature-certainly attributes of dignity. This might be thought of as 'In western thought, the most definitive elaboration of the concept of human dignity is in the work of Immanuel Kant, especially his seminal FOUNDATIONS OF THE METAPHYSICS OF MORALS 39 (L.W. Beck trans., 2d ed. 1959) ("Act so that you treat humanity, whether in your own person or in that of another, always as an end and never as a means only."). Recently, there has been a renaissance in the influence of Kantian thought as a counterweight to utilitarianism. This is most pronounced in the work of John Rawls. See, e.g., JOHN RAWLS, A THEORY OF JUSTICE (1971); John Rawls, Political Liberalism (1993). There are other conceptions of dignity too. Consider, for example, the work of RONALD DWORKIN, TAKINGRIGHr SEIOUSLY (1977) (developing theory of human rights as part of dignity) and LAW'S EMPIRE (1986) (examining how judges determine legal rights); or ROBERT NOZICK, ANARCHY, STATE AND TOPIA (1974) (arguing from natural law tradition of John Locke). No. 4] GERMAN CONSTITUTION 965 self-realization, although that is not the only conception of dignity. What matters here is that each person should be free to develop his own personality to the fullest, subject only to restrictions arising from others' pursuit of the same.2 Of course, there must be some limit to individual freedom if society is to function in a reasonably orderly manner. Thus, from the standpoint of society, individual aspiration must be measured against the demand for order, peace, and social harmony. This balance between the aspiration of individual freedom and the demands of organized society has been a central quest of modern constitutional law.3 Today this balance is harder than ever to achieve. Social demands have escalated, placing elevated pressures on the integrity of human personhood. The rise of the administrative state, for example, has led to omnipresent government and its potential to suffocate personal freedom.4 Technology now develops so rapidly and pervasively that it risks overwhelming individuality. For example, computers can access, and even gather, store, and transmit5 information so capably that they can mimic, human functions Gene technology, artificial insemination, and the ability to prolong and, indeed, end life pose troubling existential questions. How are we coping in this world, both in isolation and in comparison to others? This Article takes up these themes by exploring the concept of human dignity as reflected in the legal order of two comparable modem western societies: Germany and America. Germany and America are good choices for this comparison because both share similar European intellectual and cultural influences; both are highly developed, 2Itis fundamentally a Kantian thought that all moral agents should develop their talents to the maximum extent compatible with the freedom of others. Note, for example, Kants influence in RAWLS, A THEORY OFJUsrICE, supra note 1, at 60: "[Elach person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others." Anthony Sampson similarly voiced these thoughts: "'What matters... is that each man should be free to develop his own personality to the full; and the only duties which should restrict this freedom are those which are necessary to enable everyone else to do the sam .' ANTHONY SAMPSON, THE CHANGINGANATOMY OF BRITAIN 160 (1982) (quoting Lord Tom Denning, Master of the Rolls). For Kant, the concepts of freedom, development of moral personality, reverence of the moral law, and treating people as the final end are interlinked. 3See, e.g., Poe v. UlIman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting) ("Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court's decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society."). 'Whilethe administrative state in America can be traced to 1887-with the institution of the Interstate Commerce Commission, the first significant administrative agency-the predominant rise of the administrative state occurred during the era of the New Deal and continues today. In Europe, the roots of the administrative state lie in the eighteenth and nineteenth centuries. In Germany, the modem administrative state
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