Germany

Lembke, Ulrike

doi:10.4324/9781315204574-3

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“…This point has raised criticism in the literature by considering the lack of elaboration in the decision on the social state clause. It has been contended that the FCC has left it to the legislature to substantiate a right that stems from the most cherished constitutional principle, but with no clues on such issues as “inclusion, distribution, autonomy or state-citizen citizenship” (Lembke, 2017: 63), even though the Court made it clear that a social minimum must be guaranteed in any event. 39…”

Section: Case Law Trends In the Superior Courts Of Four European Jurisdictionsmentioning

confidence: 99%

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The expressive function of human dignity: A pragmatic approach to social rights claims

Matteucci

Repetto

2021

European Journal of Social Security

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In this article, we appraise an idea of human dignity (HD) as pragmatically oriented to support social rights claims. By analysing the role of dignitarian arguments in the constitutional-like case law of four European jurisdictions (France, the UK, Italy and Germany), we demonstrate that caution prevails about the possibility of using HD in each of these countries as an ultimate yardstick for upholding social policies. Such findings challenge the assumption that one can grasp HD as a legal notion through a foundational approach. In our view, neither HD reflects any natural or social essence of men and women, nor can it consequently be conceived as the source of universal fundamental rights. Instead, (1) we recommend a notion of HD as a status primarily conceived as a political-institutional (conventional) artefact. Thus, (2) we consequently sustain that dignity may pertain to states too, and we can see it as a way of reciprocating the duty to fair cooperation in a just society. In the same vein, (3) HD works best in the social realm when an expressive function, rather than a defining one, is recognised as its proper function. This aspect helps explain why HD is often called to support other principles in judicial argumentation. This notion of HD seems to us coherent with social rights as relying on a complex institutional arrangement centred on political responsibility and a commitment to social justice. Concerning the assessment of the conditions attached by the states to the enjoyment of welfare benefits, HD tells us that disproportionate sanctions, whose objective appears to be more a way of blackmailing welfare recipients than pursuing an ideal of fair reciprocity, do violate both the institutional dignity of public authorities and that of the persons affected.

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Section: Case Law Trends In the Superior Courts Of Four European Jurisdictionsmentioning

confidence: 99%

“… 39. The Court stated that the Parliament must assess seriously and comprehensively all expenditure necessary for a dignified existence, even though the Court ruled out the existence of a constitutional obligation for the legislator to give reason in a transparent procedure (Lembke, 2017: 65). …”

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confidence: 99%

The expressive function of human dignity: A pragmatic approach to social rights claims

Matteucci

Repetto

2021

European Journal of Social Security

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Germany

Cited by 1 publication

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The expressive function of human dignity: A pragmatic approach to social rights claims

The expressive function of human dignity: A pragmatic approach to social rights claims

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