Person and Personality as Cultural Norms at Law
The research project deals with the categories in which law defines the human being. In modern tradition this is the person, bearer of rights and duties, equal to all other humans and – in principle – in abstraction from any definite qualities. As early as the 18th century another concept acquired equal importance at law, the idea of individuality at law, the specific human being, the »personality«. As a rule, however, the latter category presents some difficulties at law, as holistic ideas of a »concrete human being« in many ways defy legal definition. But all aspects of law have to deal with them nevertheless. Under the aspect of »human dignity«, constitutional law protects also individual identity and integrity: a debate on »general rights of personality« in civil law has been going on for more than 200 years, and for the same period criminal law has been discussing »protection of feelings«, »protection of identity« and »protection of orientation« extending beyond the safeguarding of a person’s individual rights or legal assets. Closer scrutiny of these phenomena calls for historical and systematic investigation. Historically, terms such as person or individual in our culture go back to Christology and the theories of the Trinity, especially dating from the 13th century, in which elements of representation from the original meaning of the word in Greek – prosopon – are still attached to the term person. When, in the 15th century, the dignitas-hominis tradition and the miseria-hoiminis tradition merge, a new understanding arises of man as a distinctive human being, an understanding to be found from literature to portrait painting. In the 16th century this concept is in turn taken up by jurists without, however, extending legal protection to the individual as such, but using it as a synthesis for the holding of various subjective rights. Many of these connections are in need of closer investigation. As far as is possible and in order to correctly assess the processes of reception, the emergence of the occidental self-image has also to be contrasted with the self-image in East Asian tradition, which at a first glance displays many similarities, but also dissimilarities. Recent developments in legal categorization of the human being need to be confronted systematically with the various possible patterns of interpretation. Forms of respect for the identity of another could, for example, be interpreted as processes towards moralizing or sacralizing the subject. What originally faces man from outside as »morality« or even »taboo« is shifted inside the person in the form of an intangible self purpose and moral self value, that is to say a »dignity« not open to consideration. Research carried out so far into the consequences this has for the law of the future is still far from sufficient. Of what significance is it in the various areas of law if there is a legal obligation to respect the concrete individual?