The guiding principle of the post-war German legal order is human dignity, which stands symbolically at the very beginning of the modern German constitution, the Basic Law:
(1) Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.
But what exactly is human dignity? In common-law countries, it’s seen as a philosophical concept with little relevance to law. ‘Dignity’ is notoriously difficult to define, and lawyers dislike vague concepts. Common lawyers think about how humans treat each other, and how the state should treat humans, in terms of privacy (a protected sphere where the state cannot intrude) and autonomy (the state should leave citizens alone so long as their actions don’t infringe others’ rights). Once you ensure the state respects the privacy and autonomy of citizens, there’s not much work left over for the concept of ‘dignity’ to do. One comparative scholar even proposes a basic contrast (pdf) between European civil-law cultures of ‘dignity’ and common-law legal cultures of ‘liberty’.
But continental civil-law lawyers think dignity is a perfectly sensible legal concept. It may be hard to define, but the law is full of concepts, such as ‘good faith’, which are hard to define yet used every day. Since human dignity is at the beginning of the German constitution, German courts have by far the best-developed modern jurisprudence of ‘human dignity’. It is one of the fundamental principles which, in Robert Alexy’s words, ‘irradiates‘ the entire German legal system, like background radiation. Since it is omnipresent in German legal culture, it has been invoked in the all over the place, from prison sentencing (g) to anti-terror laws (g) to the law of defamation (g) to dwarf-tossing (g). One definition of dignity used by German courts declares holds that it forbids the treatment of human beings as ‘mere objects‘ (g).
One of the odder applications of human dignity came in a decision about laser tag, of all things. Laser tag and paintball are considered wholesome family fun in the UK and the USA. You put on your goggles, charge your rifle, and hunt your friends and family members in the forest, or in an indoor obstacle course. It’s harmless, pulse-pounding excitement for all!
But not in Germany. A company tried to open a laser-tag hall in Bonn in the early 1990s, and found itself embroiled in a court odyssey lasting well over a decade (g). The company, OMEGA, applied to the local Bonn building authority on 7 September 1992 for a permit to construct a laser-tag hall in a large building. The administrative court denied the permit, holding that the “playful killing” of human beings violated the “fundamental value-system” of postwar Germany. The court said it would be fine to operate a practice target range. But simulated firing on other living humans was verboten.
The company appealed all the way to the Federal Administrative Court, which upheld the agency ruling. OMEGA then requested the German courts to refer the case to the European Court of Justice, claiming that the order forbidding it to build a laser tag hall violated European-law guarantees of free movement of goods and services. The ECJ summarized the German courts’ reasoning:
According to the Bundesverwaltungsgericht, the Oberverwaltungsgericht was right to hold that the commercial exploitation of a ‘killing game’ in Omega’s ‘laserdrome’ constituted an affront to human dignity, a concept established in the first sentence of Paragraph 1(1) of the German Basic (Constitutional) Law.
The referring court states that human dignity is a constitutional principle which may be infringed either by the degrading treatment of an adversary, which is not the case here, or by the awakening or strengthening in the player of an attitude denying the fundamental right of each person to be acknowledged and respected, such as the representation, as in this case, of fictitious acts of violence for the purposes of a game. It states that a cardinal constitutional principle such as human dignity cannot be waived in the context of an entertainment, and that, in national law, the fundamental rights invoked by Omega cannot alter that assessment.
The ECJ considered whether the ban on laser-tag involving ‘play-killing’ was acceptable under the proportionality principle, and concluded it was. Germany was within its rights to ban laser tag. The decision of the Bonn authorities was narrow and limited: You could have a laser-shooting practice range, and even shoot at moving targets. The only thing you couldn’t do was shoot at other people. So the ban was limited and fair. Or, in the inimitably clunky prose of the ECJ:
In the light of the above considerations, the answer to the question must be that Community law does not preclude an economic activity consisting of the commercial exploitation of games simulating acts of homicide from being made subject to a national prohibition measure adopted on grounds of protecting public policy by reason of the fact that that activity is an affront to human dignity.
Of course, the ECJ ruling did not decide on the merits of whether the ban was justified — it simply said a German locality could impose such a ban if it wanted to.
OMEGA went back (g) to the Federal Administrative Court and made one last try to open a laser-tag hall. OMEGA said the ban violated its property rights and its freedom of occupation under the Basic Law, since it would be forced only to operate a shooting range and there was ‘no market’ for this in Germany; hunting other people was the ‘special’ feature that people wanted. OMEGA also claimed its right to equal treatment was violated, since laser-tag halls had been allowed in Berlin, Munich, and Stuttgart. Further, laser tag did not genuinely offend public morality, since ‘simulated violence happens every day’.
The Court disagreed:
Games can … violate the constitutional guarantee of human dignity by either creating or fostering a viewpoint which denies the claim to fundamental value and respect to which every person enjoys. This is especially the case when acts of violence are portrayed with the intent of inspiring sadistic pleasure in the action. This attitude is based on a world-view which sees human beings as mere disposable objects whose lives and bodily integrity can be infringed at will.
So the Court upheld the Bonn city ban on laser tag. However, it did not proclaim a general principal that all laser tag or paintball games violated human dignity. It noted that courts had urged the legislature to regulate these sports, but the legislature saw no need. Therefore, decisions would still be made on a case-by-case basis, usually based on vague notions of “public order” and “general morality”.
Since then, the trend has been toward allowing laser tag and paintball in Germany under strict licensing conditions — although local authorities still try to block it altogether, leading to long, expensive legal battles, like the one which inspired this Bavarian court decision stating that paintball did not automatically violate human dignity (g). That decision notes that the Federal Interior Ministry actually requested the ‘Central Criminology Bureau’ to prepare special expert opinion on whether ‘lasertag, paintball, and gotcha games’ tended to encourage violence and/or violate human dignity.
So there you have it: Because of the human-dignity guarantee, German has expended millions of Euros of judicial and administrative resources to assess the legality of games which other countries allow without a second thought. I leave you to decide whether this strikes you as a massive waste of resources or the mark of a truly civilized society.
