Constitutional Review of Criminal Prohibitions Affecting Human Dignity and Liberty: German and Israeli Perspectives

28 Pages Posted: 11 Jan 2016

See all articles by Miriam Gur-Arye

Miriam Gur-Arye

Hebrew University of Jerusalem - Faculty of Law

Thomas Weigend

University of Cologne

Date Written: January 10, 2016

Abstract

Criminal laws must conform to each state's constitutional law. In both Israel and Germany, the highest courts have ruled on the compatibility of criminal prohibitions with constitutionally protected rights. One recurrent issue is the relationship between criminal prohibitions and the right to liberty, which is constitutionally guaranteed in both countries. The authors show that there are clear parallels in the case law of Israeli and German courts with regard to liberty. Human dignity is likewise protected in both legal systems, although it plays a different role in each. Under article 1(1) of the German Basic Law, human dignity enjoys "absolute" protection, which leads to problems in defining human dignity and accommodating countervailing interests in individual cases. In Israel,by contrast,human dignity is placed on the same level as liberty in the constitutional hierarchy of rights and is not afforded any "special treatment" by the Supreme Court. The authors suggest an intermediate solution: human dignity should not be granted "absolute" protection but should be treated with the greatest respect when criminal laws are reviewed for their constitutionality.

Keywords: criminal, constitutional, Israel, Germany, rights, liberty, courts, human dignity, Supreme Court

Suggested Citation

Gur Arye, Miriam and Weigend, Thomas, Constitutional Review of Criminal Prohibitions Affecting Human Dignity and Liberty: German and Israeli Perspectives (January 10, 2016). 44 Isr. L. Rev. 63 (2011), Hebrew University of Jerusalem Legal Research Paper, Available at SSRN: https://ssrn.com/abstract=2713424

Miriam Gur Arye (Contact Author)

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel

Thomas Weigend

University of Cologne ( email )

Albertus-Magnus-Platz
Cologne, 50923
Germany

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