Kant in European Constitutional Law

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(By Andrew MacKie-Mason)

Our own Chief Justice Roberts may mock the appearance of Kant in legal scholarship, but two judges on the European Court of Human Rights took up Kantian ethics directly in interpreting the German constitutional concept of human dignity.

The case was about about an ad campaign designed by PETA, to be run in Germany. The ads as described by the court very closely resemble the ones pictured at right, which I believe are from the American version of this same campaign.

Germany objected to the campaign and banned it, and the European Court of Human Rights upheld that ban. I won't comment on the specifics of European free speech law, except to say that this is an obvious example of political speech that shouldn't be banned in any civilized democracy.

But what interests me more here is the specific rationale employed in a concurring opinion written by Boštjan Zupan�i� (of Slovenia) and joined by Dean Spielmann (of Luxembourg, the President of the Court). Zupan�i� writes:

13.  Here we are reminded of Immanuel Kant’s categorical imperative. His position was that every human being must be treated as an end in himself. This perhaps coincides with the German constitutional concept of dignity.

14.  But when human beings in their utter suffering and indignity are, as here, compared to hens and pigs for the lesser purpose of protecting otherwise legitimate advancement of animal rights, we are no longer in the position to maintain that the human beings seen in these pictures are treated as an end in themselves.

15.  Clearly, these human beings, not only Jewish but of all nationalities, in a concentration camp, are here treated as an instrument for the advancement of animal rights. If their image is so instrumentalised, little is left of their human dignity, I’m certain, even in the context of German constitutional law.

I'm all in favor of philosophy receiving more attention in law. But I think that Zupan�i�'s attempt here to use Kant's categorical imperative as a way of interpreting the constitutional notion of "human dignity" is extremely misguided.

As anyone who has read much Kant knows, the formulation of the categorical imperative that ZupanÄ�iÄ� quotes here is considered equivalent to its other formulations. And the categorical imperative is the basis of Kantian ethics, wholesale. By letting "human dignity" stand for "the categorical imperative," ZupanÄ�iÄ� is effectively trying to constitutionalize Kantian ethics — and I'm not sure anyone really understands what that would mean.

Even if one is a fan of Kantian ethics (and I do, at times, find myself partial to it) it is almost an axiom of law that not all moral or ethical duties should be legal ones. To import an entire ethical system into two vague words in a constitution is, to me, the height of judicial ridiculousness.

(H/T: Eugene Volokh)