Die Zeit of 7 May 2020 featured an exchange of views between the German philosopher Jürgen Habermas and Klaus Günther, professor of legal theory, criminal law and criminal procedure at the Goethe University in Frankfurt am Main.
The dialogue was about what matters more in the fight against the COVID-19 pandemic:
- the constitutional protection of human life
- or another constitutionally protected law such as that of freedom.
The constitutional system has a greater role in German constitutional thinking than in the Netherlands. Nor does the Netherlands have a special judicial body that deals with constitutional questions (such as the constitutionality of legislation or case law). This is different from everywhere else in Europe. Germany has its Bundesverfassungsgericht and Austria has its Verfassungsgerichtshof for example.
The German constitution (https://www.bundestag.de/gg) states in Article 1:
(1) Die Würde des Menschen ist unantastbar. Sie zu achten und zu schützen ist Verpflichtung aller staatlichen Gewalt.
(2) Das Deutsche Volk confesses sich darum zu unverletzlichen und unveräußerlichen Human rights as a Grundlage jeder menschlichen Gemeinschaft, des Friedens und der Gerechtigkeit in der Welt.
(3) Die nachfolgenden Grundrechte bind Gesetzgebung, vollziehende Gewalt und Rechtsprechung as unmittelbar geltendes Recht.
(1) Jeder hat das Recht auf die freie Entfaltung seiner Persönlichkeit, in any case nicht die Rechte anderser und nicht gegen die Verfassungsmäßige Ordnung oder ditten Sittengesetz.
(2) Jeder hat das Recht auf Leben und körperliche Unversehrtheit. Die Freiheit der Person ist unverletzlich. In these Straight darf nur auf Grund eines Gesetzes eingegraven were.
Fundamental rights can clash. This condition justifies that most fundamental rights can be restricted by legislation. Not only to prevent clashes between rights, but also to achieve balanced constitutional objectives. A well-founded legal consideration is a requirement for this.
Such an exercise involves not only a constitutional basis, but also a well-founded balance between the constitutionally justified aim to be protected and the degree of curtailment of the other fundamental right that has been affected. Proportionality is central to this consideration, but the government has a certain freedom because decision-making involves weighing up uncertain factors.
However, all factors must be legally weighted, the outcome of which may be largely determined by priority rules, such as for the fundamental principle of the protection of human dignity (Art. 1), summarized Günther.
Projected on current societal developments related to the COVID-19 virus, the current problem raises the question of the extent of the state’s obligation to protect people’s lives and health, with the law not only protecting against a boundlessly powerful government (the classic fundamental right), but it also pertains to claims against the government about the availability of an adequate health care system (social fundamental right).
Assuming that both fundamental rights apply, the answer to the question of how far these claims go will depend on the knowledge and experience available in a country, and the organizational and financial resources to equip a health system. The better this health system is equipped, the more the center of gravity shifts, of where you can still speak of an overall life risk. The availability of a treatment works in the direction of protection.
According to Günther, the crux of the discussion about the controversy “right to life” and the right to “go where you want” is the disagreement over the boundary between what is an avoidable and what is an unavoidable fatal disease course in relation to the size of the sacrifices of freedom-restricting measures that are difficult to estimate in their consequences. In other words, what is the minimum and what is the maximum and how can we compare the measured values.
In this context, Günther refers to the German case law on abortion from 1975, in his opinion the finding that the constitutional right to life (art. 2 (2)) is an inseparable part of the inviolable “primal fundamental right”, the protection of human dignity (Article 1), and that the Bundesverfassungsgericht appears to have given it priority over other fundamental rights. That is why the state has an obligation to protect and cherish this part of human dignity, so that the possibility of legal curtailment and a constitutional, “normal” balancing exercise between this so called “primal fundamental right” and other fundamental rights (such as the right to liberty) cannot be done.
Günther then goes on to say that those who are currently seeking to relax the corona measures, relying on the relativity of the right to life, presumably believe that they can do so because the boundary between what is an avoidable and unavoidable fatal disease course is so difficult to establish. As a consequence (if the constitutional right to life is not to be applied ad absurdum), these people should then indicate with what number of foreseeable deaths the mortality number as a result of the pandemic may rise. They should also explain to the first patient who is denied access to a ventilator that he or she must die in order to promote the freedom of others.
This approach may not seem satisfactory, but it does clearly indicate where we will end up once we handle principles such as the protection of ‘human dignity’ and the ‘right to life’ on equal footing, thereby opening the door to the idea of instrumentally measurable interests of what was taboo when the German constitution was made, shortly after the Second World War.
Habermas picks up the discussion with the question of what the constitutional criterion is, if we (would) know what the measure of constitutional restriction of freedom is or would be to keep the corona virus curve flat, read, the situation where adequate medical care is still possible, and whether that science should then serve as a criterion for justified exit strategies, read, the relaxation of measures. Günther seems to agree with a nuance about subjective legal protection aspects of fundamental rights.
In this way, the (protection of) human dignity and, as part of it, the right to life in the German view, appears to be a primal fundamental right, which only in very exceptional cases can be accepted to be curtailed by the legislator or (only voluntarily) by the legal subject itself (selbstbestimmungrecht).
In my view (even if the criterion of the curve were to be considered) no one is able to calculate a number that can be considered an acceptable argument here. At least not on an individual level. For the patient who cannot receive treatment or the physician who has to decide who should and who should not be treated. That cannot be explained with such mathematical functions either, the criterion is not individual but statistical. I don’t think that is a good, morally sustainable approach.
A priority ranking seems to be able to adequately prevent such erosion of the aforementioned ‘primal rights’ and makes them less susceptible to political discussions and the suggestion of the possibility of an equal weighing of the interests they protect. But there is something else going on too.
Discussions about the negative effects of freedom-restricting measures should take place in the context of the discussion about which measures can actually be used to combat the negative consequences thereof as much as possible and effectively, for people and companies. These discussions should indeed be about what is still proportional in the given circumstances, but not at the level of weighing up the constitutional right to life versus that of individual freedom. That opens the discussion to improper comparisons.
The discussion seems to overlook the fact that fundamental rights are the rights of individual citizens. No statistical criteria apply there. The balancing of more collective interests is a political issue. Whether the chosen policy can subsequently withstand the test of fundamental rights is ultimately (after the policy is formulated) input for lawyers such as Günther — and ultimately for the Bundesverfassungsgericht.