Comentarios a Dignidad y Proporcionalidad de Robert Alexy

FEDERICO LEANDRO DE FAZIO

Buenos Aires

Conferencia; Dignidad y Proporcionalidad; 2016

Facultad de Derecho de la Universidad de Buenos Aires

Comentario a la conferencia brindada por Robert Alexy en la Facultad de Derecho de la Universidad de Buenos Aires el día 18/8/2016. A continuación se copia los comentarios realizados:Remarks on Robert Alexy´s presentationHuman Dignity and Proportionality AnalysisUniversity of Buenos Aires, 18-8-2016  1. First of all, I want to thank toProf. Robert Alexy for his interesting paper and for exposing it in ourUniversity.2. Regarding the paper itself, I consider that Alexy has managed to justify the thesis that human dignity guarantee should be understood from the point of view of a relative conception,that means, a conception which recognize its restriction. This thesis is, indeed, based on the norm-distinction between rules and principles. 3. It is also true that human dignityguarantee has a particular feature, which contribute to create dogmaticperplexity. This feature indicates that, even though it is a relative right, ittends to an absolute protection. This means that it provides a great resistanceagainst those reasons, which pretend to limit it.4. Regardless ofthe above, I have some questions related to the thesis of the dual-construction of the human dignity norm. 5.  The fundamental law of Germany (das Grundgesetz) and the Charter of Fundamental Rights of theEuropean Union contain a disposition which says: Human Dignity is inviolable. According to Alexy, from both dispositions it is possible to justify two differentnorms relating to human dignity: a rule and a principle of human dignity.Between the rule and the principle of human dignity exists a dominance relationship. The basis of this relationship is founded in the fact that therule of human dignity is semantic indeterminate and its content dependscompletely on the balancing in the level of the principle of human dignity. Therefore,Alexy states that those dispositions are an expression of a rule that isviolated if and only if the human dignity principle takes precedence over thecolliding principle.6. The first question is: how can therule of human dignity be reconciled with the dominance relationship? If itwas possible to justify directly from those dispositions a rule of humandignity, then this rule would have, by definition, determination in the fieldof its factual and juridical possibilities. That means that its content wouldbe already determined without any balancing, something that the dominance-thesis presupposes. This can be thought in an inverse way. If the dominance-thesis was appropriate, then it would be doubtful that from those dispositionscould be justified directly a rule instead or alongside a principle of humandignity. 7. The second question is related tothe manner, in which Alexy reconstruct the norm directly established for thosedisposition. According to him, those disposition are ?an expression of a rulethat is violated if and only if the human dignity principle takes precedenceover the colliding principle?. In this point, Alexy gets closer to theconception of principles in the strict sense of Atienza and Ruiz Manero.According to Atienza and Ruiz Manero principles are distinguishable in principles in the strict sense and policies. Policies are command to optimize. On the contrary, principles in the strict sense are definitive norms, whose factual conditions are opened. Alexy has previously reject thislast concept, because of its triviality. Indeed, every principle can beformulated as a definitive norm and, therefore, as a rule, if someone add the non-written condition if and only if the human dignity principle takes precedence over thecolliding principle. But that would be irrelevant, since the determination ofits content need necessarily a balancing.8. These two questions suggest thatfrom those disposition only can be directly justify a principle of humandignity. However, Alexy is right that there exist a relationship between humandignity guarantee and rules. But this can only be explained refining a littlebit more his own conception.In this regard, we must use another distinction that was delineated by Alexy inhis Theory of Constitutional Rights: thedistinction between direct established and indirect established norms(zugeordnete Normen). In this sense, the direct established norm that can bejustified from those dispositions, is always a principle of human dignity. Thatbecause it only can be fulfilled gradually. In this way it is explainable why some limitations to the guarantee ofhuman dignity are constitutionally permitted, such as the possibility that aperson be searched at home or requisitioned by the police under a court order.This is compatible with the thesis of the relative conception of human dignityguarantee. However, that does not implies to reject the possibility to justifyindirect established norms from those dispositions, which have structure ofrules and represent a concretization of the principle of human dignity. Anexample in Germany is the indirect established rule, which guarantee the right of a minimum subsistence level (Existenzminimum). This rule is founded with the help of asystematic-teleological argument, which does not depend on balancing explicitly.That is true regardless the semantic und structural vagueness of this rule.9. This refinement allows to addanother reason to explain why the human dignity guarantee is a right, whichtend to an absolute protection. That is not only because of the abstract weightand epistemic normative reliability of the principle of human dignity, but alsobecause alongside this direct established principle there can be justifiedindirect established rules, which represent a concretization of that principle.