The German Constitutional Court and the Right to End Life


Justin Collings is Associate Dean for Research and Academic Affairs and Francis R. Kirkham Professor of Law in the J. Reuben Clark Law School at Brigham Young University.

On 26 February 2020, the German Federal Constitutional Court ruled that the state cannot criminalize assisted suicide. The judgment struck down § 217 of the German Criminal Code (Strafgesetzbuch), which made it a crime to offer assisted suicide as a professionalized service. (The law did not apply to individual doctors who helped their patients to end their lives.)

The basis of the Court’s ruling was Article 2(1) of the German Basic Law, which enshrines the right to the free development of one’s personality, in connection with Article 1(1), which proclaims the sacrosanctity of human dignity. Across several decades, the Court has derived from these two provisions a robust series of constituent rights—the general personality right (allgemeine Persönlichkeitsrecht); the general freedom of action (allgemeine Handlungsfreiheit), which extends to virtually every human act or admission; the right of informational self-determination (Recht auf informationelle Selbstbestimmung); the right to the integrity of information systems; the right to state recognition of the gender with which one identifies; and more. Now the Court has added to this list the right to take one’s own life and, as needed, to secure other’s assistance toward that end. (more…)

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Believing in the Death Penalty?


Greg Marcar is a Research Affiliate at the Center for Theology and Public Issues at the University of Otago, where he is also a Teaching Fellow within the Theology program. Greg is a 2019 alumnus of the ICLRS Religion and the Rule of Law Young Scholars Fellowship Program.

This post is derived from Marcar’s article “Revisiting Death’s Difference: The Philosophical Anthropology of the U.S. Death Penalty and the Impossibility of Capital Due Process”, British Journal of American Legal Studies | Ahead of Print, 21 April 2020.

Introduction

Few judicial issues are as polarising in the U.S. as the death penalty. Akin perhaps to abortion, attitudes towards capital punishment can often approximate a litmus test for liberal and conservative dispositions. For many of its legal and political opponents, the death penalty is a quintessentially disproportionate punishment, and thus contrary to the Eighth Amendment’s prohibition on “cruel and unusual punishments.” For many of its supporters, the death penalty is not only congruent with the Eighth Amendment (particularly under a historically-focussed “originalist” reading);[1] it also instantiates the moral principle that those who commit the most horrendous acts within society must face the ultimate sanction. Between these positions, the possibilities for mediation appear slim. This is also true within religious thought, where assertions concerning the dignity of every human being and the value of forgiveness are often mirrored by equally forceful assertions concerning the sanctity of human life and the need for a retributive punishment of murderers which reflects this sanctity.[2] (more…)

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Religious Liberty and the Corona Crisis before the German Constitutional Court


Justin Collings is Francis R. Kirkham Professor of Law at Brigham Young University J. Reuben Clark Law School and author of Democracy’s Guardians: A History of the German Federal Constitutional Court, 1951-2001(Oxford University Press, 2015)

Global lockdowns intended to slow the spread of COVID-19 have raised wrenching questions about religious liberty. Although many faith communities have voluntarily shuttered to combat the plague, many religious people have chafed at regulations that require religious sanctuaries to close while permitting liquor stores to offer their “essential services.” Why, the faithful wonder, is booze more essential than the Sacred Host? Why should rum trump Ramadan? Some believers have expressed their anguish in constitutional challenges. In a pair of noteworthy decisions, the German Federal Constitutional Court has grappled with the tension between public health and religious exercise. In both cases, the Court has charted a pragmatic course through the crisis. (more…)

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