Recht, Staat und Demokratie in menschenrechtlicher Perspektive / von Hans Jörg Sandkühler, Universität Bremen

Abstract

The question has been often posed concerning the post-1945 human rights, which developed out of the experience of injustice, whether these rights are in need of an “ethical foundation”. Moral claims, which are directed against the violation of human rights, and which owing to moral intuition are held to be good and just, have further contributed to their emergence. Yet, “the” legitimate and universally valid morality does not exist in a pluralistic society, beyond perhaps the general form of legal equality. Thus, the positively conceived human rights have come to have their meaning as a universally binding commitment grounded in the protection of human dignity. Their legal validity is grounded in what has been negotiated in the Covenants on Human Rights, as well as in the universal principle of ius cogens, which is considered “compelling law” in all states. Moral claims are politically transformed in the sphere of neutrally-bound states into positive law, to the extent that they are generalizable. The “charging” of constitutional law with specific ethical opinions or philosophical speculations along the lines of natural law must be avoided in constitutional democracy.