독일 기본법상 절대 불가침으로서 인간의 존엄성에 관한 담론의 흐름과 그 변화에 관한 고찰

We accept a proposition for human dignity as a matter of course. We need to try to doubt once, however, whether the human beings is real dignity one, and whether it shall never be a non-aggression. In addition, this is also necessary to clarify when they have been included into the system of values of the Constitution. In ordinary modern usage the dignity denotes ‘respect’ and ‘status’ and it is often used to suggest that someone is not receiving a proper degree of respect, or even that they are failing to treat themselves with proper self-respect. First of all, the human dignity is a constitutional norm which made an objective principles included in the Constitution such as ‘the ideological point of departure of all fundamental rights’ or ‘highest principle of national order of law,’ ‘premise a value of all fundamental rights’ or ‘the highest value,’ ‘sovereign principle of the creation.’ The constitutional human dignity have objective legal effects as the foundation of constitutional order which means a best value system under the constitution, best-in-class compositional principles, basic philosophy of the fundamental rights and the fundamental principle of public welfare. We can get a lot of implications if we read, “Bleibt die Menschenwürde unantastbar?” written by Ernst Wolfgang Böckenförde, which is rated one of the most great German historical classic in domestic and abroad. Above writing is his most recent discussions contained in the last chapter of “Recht, Staat, Freiheit: Studien zur Rechtsphilosophie, Staatstheorie und Verfassungsgeschichte” (A study on the law, state and freedom - constitutional history, state theory, and philosophy of law”). The basis of this paper is coming from the open lecture delivered on June 11, 2004, hosted by Heinrich Böll Foundation in Berlin, Human Ethics, Science Research Center (Heinrich-Böll-Stiftung und des Instituts Mensch, Ethik, Wissenschaft) under the “Rütteln am Fundament? Die Debatte um eine Neuinterpretation der Menschenwürde-Garantie des Grundgesetzes,” (Disturbance of fundamental framework-A controversy surrounding the new analysis of human dignity of Basic Act). In this article, I reviewed the arguments of Ernst Wolfgang Böckenförde focusing on the flow of the discussion and the changes of persistence of norm surrounding human dignity as a nonaggression value under the German Basic Act.