cc. Strong efforts continue to erode and undermine the state’s obligation to protect life – our foundations of human and fundamental rights. This was demonstrated once again when on 16 November 2020, starting at 8.15 pm, in Switzerland and Germany the film “God”, which makes propaganda for “euthanasia”, was broadcast simultaneously, accompanied by a more or less one-sided discussion round minted specially for the respective country. For us this was the occasion to publish the following text. The German Teacher of Constitutional Law, Karl Albrecht Schachtschneider, originally wrote this contribution shortly after the ruling of the German Federal Constitutional Court on so-called “euthanasia” in February 2020. The text is more than just a fitting response to films like the one mentioned above. It refers to fundamental rules for the human community and for the state, which must be recalled consistently.
In its judgement of 26 February 2020 (2 BvR 2347/15), the Federal Constitutional Court derived from the general right of personality “a right to die in a self-determined manner as an expression of personal autonomy,” (Guiding Principle 1) as well as to claim assistance, even assistance on a commercial basis, in the event of suicide.
Judgement fails to recognise the fundamental principles of law
The judgment fails to respect the fundamental principles of our legal system, indeed, the fundamental principles of law in general. These basic principles are human dignity, which Article 1 (1) sentence 1 of the Basic Law declares inviolable, and freedom, which constitutes human dignity and which Article 2 (1) of the Basic Law formulates and protects. Justice can only be brought about in freedom, by general laws to which every citizen has consented, directly or indirectly, in accordance with majority rule.
According to its consistent case-law, the court bases the general right of personality on the general fundamental right to freedom in conjunction with the principle of human dignity (marginal no. 205 of the judgment, most recently BVerfGE 120, 274 (303); 147, 1 et seq. (19 marginal no. 38)). It gives to this right the highest status that a right can have in Germany.
In its Guiding Principle 3b, the court states on p. 2: “Respect for the fundamental right of self-determination, which also encompasses the end of one’s own life, of a person who decides on his own responsibility to end his life himself, and who seeks support for this, collides with the state’s duty to protect the autonomy of persons wishing to commit suicide and beyond this also the high legal right to life.”
Article 1 (1) of the Basic Law reads
“Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.”
Article 2 (1) of the Basic Law reads
“Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law.”
Serious breach of culture
The Court and the doctrine following its case-law understand neither the dogma of freedom nor that of human dignity. They completely ignore the moral law governing the German legal system. In the euthanasia judgment, these errors have consequences which curtail the prohibition of killing imposed in Christianity. This is a serious breach of culture.
The freedom of the Basic Law is defined by the moral law. As an external freedom it is the independence from outside constraining arbitrariness and as an internal freedom it is morality, whose law is Kant’s categorical imperative, the moral law, the human love principle of the lex aurea of the Sermon on the Mount. It is not the right to do what one likes, not the right to arbitrariness within the limits of the law, as judged by the Federal Constitutional Court. Reality finds universal freedom in legality; for liberal laws are the universal will of the people. Those who follow the laws do not hurt anyone. The laws must ensure that justice be done, that is, they must respect the constitution, especially that constitution that is born with man. This is freedom in morality, and it respects the rights of others, especially their freedom. When this freedom is realised through justice, well-being is brought about for all. The materialisation of freedom is a matter for the state, as this is the organisation of the people for a good common life, the reality of law, according to the rules of constitutional law.1
Freedom is the humanity of man. Only this freedom stemming from “the idea of the dignity of a rational being, who obeys no law other than that which he himself at the same time gives.” (Kant2) is the dignity of man, which Article 1 (1) sentence 1 of the Basic Law declares inviolable. According to Article 1 of the Universal Declaration of Human Rights, this concept of dignity is the principle of universal jurisdiction:
“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”
In contrast to this, the Court derives from the human dignity clause a wide range of legal propositions and rights, which are not contained in any law; i.e. they have not been decided by the people, directly or indirectly, in a free manner. Contrary to the democratic principle as well as to the separation of powers under the rule of law, through its judicature the Court makes itself a constitutional legislator whose dictates are irrevocable.3 However, the people are the legislator, not the Constitutional Court.
The right to kill oneself is argued to result from human dignity, of all things
Rather than the principle of freedom, the material constitutional basis of the judgement on euthanasia is above all the – misunderstood – principle of human dignity. According to the judicature, general freedom can be restricted by laws. One such law, which was not legally questionable, was § 217 (1) StGB (Criminal Code). This penal provision had made “commercial promotion of suicide” a punishable offence; however, non-business euthanasia was largely excluded from criminal liability (paragraph 2). This penal provision has now been declared unconstitutional and void because it is said to be incompatible with human dignity. None other than human dignity, of all things, is alleged to result in the right to kill oneself. Yet death ends the subject of dignity, the life of the human being. The killing of human beings is not justifiable. There are exceptions in cases of self-defence and emergency aid and consequently in cases of defence.
Article 2 (1) of the Basic Law protects the right to free development of his personality, not the right to deprive this personality of its subject, the human being. The dead person can no longer develop his or her personality.
The court argues with the “idea of autonomous self-determination rooted in human dignity”, which it sees as protected by the general right of personality (marginal no. 207 of the judgement). This concept may be introduced, but it should also be understood. Laws that are “autonomous” are valid in themselves; therefore their subject matter is not set by the legislator in an authoritative manner, but is instead recognised freely as practical reason. But the right to self-determination as the right to live under one’s own law, which is, as law, at the same time general, and is the right and duty to morality, to practical reason.
Suicide is neither moral nor rational, because as a maxim it cannot be the basis of a general law, for example: whoever wants to take his own life, may do so. Those who do not manage to do so alone may seek help, including commercial assistance.
The Federal Constitutional Court explicitly denies the human being’s capacity for practical reason, for moral freedom, his dignity, and thus reveals that it does not understand the ethics of the Basic Law, i. e. the moral law, and therefore ignores it. The court confuses will with arbitrariness, freedom with inclinations. There is no such thing as “free will” (Rnn. 240 et seq. et al.), which the court places above all the state’s duty to protect life.
“That will which is based on nothing else but the law, can be called neither free nor unfree, because it is not based on actions but directly on legislation for the maxims of actions (i. e. on practical reason itself), and is therefore absolutely necessary and in itself not capable of coercion”; for will is objective; it is practical reason. “Only arbitrariness can therefore be called free;4 for man can, although he must not, fail to be free in his actions, for example, disregard the laws of the legal framework.”
As regards marginal no. 210 of the judgment:
“The will of the holder of a fundamental right is decisive, and this evades assessment on the basis of general values, religious commandments, social models for dealing with life and death or considerations of objective reasonableness [...]. Self-determination of the end of one’s own life is part of the ‘innermost area of the personality’ of man, in which he is free to choose his own standards and decide according to them.”
Man as a community-related person versus the dogma of individualism
The idea that “the individual can find, develop and maintain his identity and individuality autonomously” (marginal 207) is the dogma of individualism and not the ethics of freedom for the human being as a rational being, living and dying under the self-given but general law, namely as a person.5 The Court has apparently moved away from that image of man that has been placarded for decades, namely that “man is not an isolated and autocratic individual, but a person related and bound to the community” (BVerfGE 4, 7 (15 f.); 65, 1 (44), constant jurisdiction. The Court thus calls into question the principle of reasonableness of international law.
The ability to self-determination of a person seriously wanting to kill himself is more than doubtful. This is a question for empiricists. From suicideologists we read that most people with the will to kill themselves suffer from a disorder which is psychiatrically treatable, despite somatic illness. Attentive care could preserve many of these people’s will to live. The necessary attention can hardly be expected from commercial suicide assistants. The Federal Constitutional Court has not exacted it.
Suicide is not a punishable offence for good reasons, but there is no freedom to kill oneself. Kant justifies the ban on “self-disembodiment” with the respect that every human being owes to “humanity in his person.”6 This enlightened ethic corresponds to millennia of Jewish and Christian tradition. The 5th commandment “Thou shalt not kill” also prohibits suicide; for life is given by God and can only be taken by God. One does not have to be religious to accept the comprehensive prohibition of killing. It belongs to the culture of the Christian world, at least in Germany and Europe.
The freedom to take one’s own life is also to include assistance in this killing, and even professional euthanasia and death assistance is to be made legal. Euthanasia is killing. It is causal for the death of a person and is done intentionally. It is questionable to classify it as the unpunished aiding and abetting of an unpunished killing act, because as a rule, the suicide’s authority of action is doubtful. If he had physical control, he would not need to be assisted in his suicide. Physical control and therefore authority of action lies with the so-called assistant to the killing. It is he who can refrain from “euthanasia”. If he does not refrain, he commits indirect manslaughter. If he is controlled by a commercial purpose, he is a murderer for base motives. At least he commits homicide upon request (§ 216 StGB*). Because of the difficulties of practising the various killing offences, it was helpful to create a separate criminal offence, § 217 StGB.
The delicate dogmatic demarcations of criminal law are better dealt with by a criminal law expert. In any case, the impunity of suicide cannot be transferred to assisted suicide.
Euthanasia sentence – a big step towards euthanasia
The euthanasia ruling of the Federal Constitutional Court takes a big step towards euthanasia, firstly for people who want to die in an “autonomously self-determined” manner, as they have lost the will to live because of their age, because of an illness or for other reasons. The step towards euthanasia, which is heteronomous, i.e. other-directed, has become smaller. We have already had that. In general, the human dignity principle could justify killing others, for example: New generations of people should be able to live. That is what their dignity demands. There are too many people for our earth. Resources are no longer sufficient. Lifetimes must be limited. Infanticide in the womb has long been largely legalised.
The dangers of abuse of legal euthanasia are obvious. After all, how long must the heir wait until the testator has finally died? Many old, sick people no longer want to burden their loved ones with their care. However, the court has relativised the state’s duty to protect life (Rnn. 228 ff. of the judgement) for the “free will” of the person willing to die.
The right to life (Article 2 (2) sentence 1 of the Basic Law) is also a moral duty to live. It is the duty of the state to protect life until death without restriction. This is our culture and the only possible justice in a community that has made human dignity its guiding principle. •
1 Zur Freiheitslehre des Grundgesetzes (On the freedom doctrine of the Basic Law) Schachtschneider, K. A. Freiheit in der Republik (Freedom in the Republic), 2007
2 Grundlegung zur Metaphysik der Sitten (Groundwork of the Metaphysics of Morals), ed. Weischedel, 1968, vol. 6, pp. 67f.
3 Schachtschneider, K. A. Der Menschenwürdesatz des Grundgesetzes (The Human Dignity Clause of the Basic Law), 2017, homepage www.KASchachtschneider.de. Current issues, also see Dürig, G., Kommentierung Art. 1 GG (Commentary Art. 1 of the Basic Law), in: Maunz-Dürig, Grundgesetz, Kommentar (Basic Law, Commentary), 1958, marginal no. 4 to Art. 1 (1) GG against the subjectivation of the human dignity clause
4 Kant. The Metaphysics of morals, ed. Weischedel, 1968, p. 332
5 Kant. Grundlegung zur Metaphysik der Sitten (Groundwork of the Metaphysics of Morals), op. cit., pp. 60f., 72, Metaphysik der Sitten – Metaphysics of morals, op. cit.
6Metaphysics of morals, ibid., p. 554
* § 216 StGB Tötung auf Verlangen (§ 216 Criminal Code Homicide upon Request)
(1) If someone is induced to homicide by the express and earnest request of the person killed, then imprisonment from six months to five years shall be imposed.
(2) An attempt shall be punishable.
[notes by the editors]
(Translation Current Concerns)
Professor Dr iur. Karl Albrecht Schachtschneider was full professor of public law at the University of Erlangen-Nuremberg from 1989 until his retirement in 2010. He became internationally known through various fundamental Proceedings before the German Federal Constitutional Court, among others in 1992/93 on the Treaty of Maastricht, 1998 on European Monetary Union, 2005 on the treaty establishing a constitution for Europe, 2008 on the Lisbon Treaty, 2010ff on the euro rescue policy, 2016 on the quantitative easing of the ECB.
His areas of work include freedom, law and state theory (Kantian); constitutional, administrative and economic law; European constitutional and economic law; world economic law; international law.
Professor Schachtschneider has written or co-authored numerous books, including Res publica res populi. Grundlegung einer Allgemeinen Republiklehre. Ein Beitrag zur Freiheits-, Rechts- und Staatslehre (Res publica res populi. Foundation of a general republican doctrine. A contribution to the doctrine of freedom, law and state), 1994; Die Euro-Klage. Warum die Währungsunion scheitern muss (The euro lawsuit. Why monetary union must fail), 1998, co-authored by W. Hankel, W. Nölling, J. Starbatty; Demokratiedefizite in der Europäischen Union, Festschrift für W. Hankel (Democratic Deficits in the European Union, Festschrift for W. Hankel), 1999; Die Euro-Illusion. Ist Europa noch zu retten? (The euro illusion. Can Europe still be saved?), 2001, co-authored by W. Hankel, W. Nölling, J. Starbatty; Freiheit – Recht – Staat. Aufsatzsammlung zum 65. Geburtstag (Freedom – Justice – State. Collection of essays for the 65th birthday), 2005; Prinzipien des Rechtsstaates (Principles of the rule of law), 2006; Freiheit in der Republik (Freedom in the Republic), 2007; Die Rechtswidrigkeit der Euro-Rettungspolitik (The illegitimacy of the euro rescue policy), 2011; Die Souveränität Deutschlands (The Sovereignty of Germany), 2012; Souveränität. Grundlegung einer freiheitlichen Souveränitätslehre (Sovereignty. Foundation of a liberal theory of sovereignty), 2015; Erinnerung ans Recht. Essays zur Politik unserer Tage (Reminder of justice. Essays on contemporary politics), 2016; Die nationale Option (The national option), 2017.
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