CHEN Sibin*

 

 

Keywords: general personality rights · constitutional personality rights · self-realization · self-determination · human dignity

 

What is the constitutional nature of personality rights and what are its fundamental values? This is a question worth considering. Generally speaking, constitutional personality rights and personality rights in civil law seem to exist independently of each other and justify each other. But in practice, it is not without doubt in both logical and practical dimensions of the concept of constitutional personality rights. Firstly, the arguments for constitutional personality rights lack universality. Its current arguments mainly come from German jurisprudence and the legal doctrine developed from the jurisprudence. But legal doctrine is country-specific and should be tested by universal argument. Secondly, it is noteworthy that few constitutional texts in the world use the term personality rights. Article 2 (1) of the German Basic Law for the Federal Republic of Germany (hereinafter referred to as the German Basic Law), which has been cited to define personality rights, is also controversial in its exact meaning. Finally, a more in-depth question is that it seems hardly workable from the literal sense to confine constitutional personality rights to concrete rights for the purpose of protection. Personality is about human beings themselves, so confining personality rights to concrete rights may seem just like swallowing an elephant. These questions lead us to go beyond legal doctrine and examine the concept of constitutional personality rights from the perspective of universal argument, in the hope of clarifying its connotation, grasping its value pursuit, and providing insights for understanding personality rights in civil law.

 

For this purpose, this paper will: (1) Explore and analyze the concept of personality, which is the object of personality rights. Jurisprudence explores carefully the essence of personality, while universal argument hopes to understand the concept so as to avoid drawing conclusions from partial understanding in practice. (2) Analyze the evolution of the concept of general personality rights in the German Basic Law, and draw the constitutional nature of personality rights by mirroring this process with the concept of personality. (3) Examine the evolution of the protection of constitutional personality rights in the United States and Japan and their constitutional doctrines, in order to confirm with the general personality rights theory in the German Constitution. (4) Analyze the significance of constitutional personality rights in the constitutional value system, and reveal the value and normative connotations of constitutional personality rights. (5) Compare the similarities and differences between constitutional personality rights and personality rights in civil law, and explain how civil law reflects the value of personality rights and the justifiability of personality rights in civil law.

 

 

The interpretation of personality phenomena belongs to the domain of psychology. According to modern psychology, personality is a unique and enduring pattern of how a person thinks, feels and acts. Each person has his or her own talents, values, expectations, loves, hates and habits. The combination of these elements makes people different. This is the unique pattern of the personality. And a person as what one was, one is and one will be, is the enduring pattern of the personality.¹ This interpretation is basically consistent with its literal meaning in the Chinese language. In the Modern Chinese Dictionary, the word “personality” has several meanings: (1) the combination of a person’s characteristics such as character and abilities; (2) the moral quality of a person; (3) the qualification of a person as the subject of rights and obligations. (1) and (2) are related to the object of personality.² Moreover, the moral quality is also one of the important human characteristics. Therefore, the meaning of (2) can be covered by (1). It thus can be inferred that the connotation of personality is defined by the Modern Chinese Dictionary as the combination of a person’s characteristics such as character, abilities and qualities. This interpretation coincides with the modern psychological, though limited to the phenomenal understanding of personality. Modern psychology provides a deeper and more essential cognition of the formation of personality and its goals from both objective and subjective levels. The cognitive process in modern psychology is: from seeking external factors in the formation of personality to revealing the subjective role of a person in the formation of personality.³

 

 

Psychology at early times tended to discover the causes of personality formation from objective factors, such as the human body, instinct and even the environment in which a person grows up. The Greek physician Hippocrates was the first to describe personality types. He distinguished several personality types based on personal temperament and humoral signs: choleric, namely irritable and quick-acting; sanguine, namely active and agile; phlegmatic, namely calm and slow moving; and melancholic, namely fragile and sluggish.⁴ No one is more famous for this objective approach than Sigmund Freud, who attributed the driving force of personality development to the instinct or motivation that every individual is born with.⁵

 

We cannot say the objective cognition of personality won’t help. The formation of each personality is influenced by a combination of genetic and environmental, innate and acquired, biological and cultural factors. But it is clear that objective factors cannot fully explain the formation of personality, and their limitations are obvious: (a) Genes are not all that explain personality differences. While experiments have shown that 50% of human differences are caused by differences in genes⁶ , even in the case of twin brothers, similarities can still be explained by social class, upbringing or coincidence. “Genes are everything” is obviously not credible.⁷ (b) Culture is also an important factor in influencing personality. Concepts of what is right for people to say and do begin in a specific cultural context. Moreover, not only is personality formed from culture, but people are also creators of culture. (c) Personality and environment are reciprocal. The environment can also have an influence on personality. The relationship between personality and environment is not one-way, but an uninterrupted interaction. The social cognitive learning theory of modern psychology refers to this process as reciprocal determinism.⁸

 

 

Humanistic psychology explores personality by going back to the individual person. They believe that a person’s choice plays a key role in the formation of personality. Unlike machines produced on assembly lines, people are different from each other. People differ in their choice of life goals, and the knowledge they possess and the strategies they employ to achieve these goals.⁹ Then what are the motivations and ultimate goals for people to make different choices? Humanistic theorists give their answer with the concept of “self-realization.”¹⁰

 

Abraham Maslow in his theories of personality believed that the core of self-realization is the continuous pursuit of personal fulfillment. Human fulfillment can only be achieved in a relative or progressive manner. Their needs are automatically arranged in a certain hierarchy of superiority. These needs in order of priority include: physiological needs, safety, love and belonging, self-esteem and self-realization. Self-realization is the desire for self-actualization and self-fulfillment, that is, a tendency to realize one’s potential. Such tendency makes a man increasingly himself and all that he can be.¹¹ Self-realization is both a motivation and a goal. It is the culmination of needs that drives a person towards the realization of their full potential. It is also an idealized state of personality, a long-term stable psychological characteristic that encompasses the nature and type of personality. In Maslow’s view, becoming oneself is the essence of self-realization. A practical activity aimed at becoming oneself and realizing one’s full potential will bring harmony between oneself and the environment, the ultimate state of personality development.¹² Carl Rogers, another important representative of humanistic psychology, divided the self into the real self and the ideal self, and believed that self-realization is the unity of the real self and the ideal self. The goal that one most wants to achieve, that one is consciously and unconsciously pursuing, is to become one’s true self.¹³

 

Modern psychology has made a deep cognition of personality from objective to subjective, from static to dynamic, from elements to the individual person, and condensed such cognition in the term “human self-realization.” Modern psychology’s cognition of personality will inevitably raise at least two requirements for the practice of judicial protection of personality rights: (a) To give up the objective approach of protection. Objective elements cannot represent personality. By the same token, neither the protection of objective elements nor the objective protection of subjective elements can represent personality protection. (b) To take human self-realization as the ultimate and the highest goal of personality protection. The self-realization view of personality will put forward different requirements for the nature, scope and means of personality protection.

 

 

German laws have provided important reference for exploring personality rights.¹⁴ Article 2 (1) of the German Basic Law sets out that: every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law. Based on this Article 2 (1) and in conjunction with Article 1 (1) of the German Basic Law, the German Court, created the concept of constitutional general personal rights and general personal rights in civil law, respectively. Constitutional general personality rights are the German expression of constitutional personality rights. Similar to the cognition process of personality, the protection of general personality rights in the German Constitution has also gone through a winding path from objectivism to subjectivism. Coinciding with the modern cognition of personality, it ultimately takes the protection of human self-realization as its main content and purpose.

 

 

The term “free development of personality” used in Article 2 (1) of the German Basic Law was initially ambiguous. The Elfes Case in 1957 interpreted it as general freedom of action.¹⁵ The Reader’s Letter Case in 1954 and the Soraya Case in 1973 opened up another path: the German Constitutional Court developed the concept of general personality rights by connecting Article 1 (1) and Article 2 (1) of the German Basic Law. ¹⁶ In the Mini-census Case in 1969, the German Constitutional Court elaborated on the right to self-determination of personal information as a sub-concept of general personality rights, i.e., the right of a person to choose when and to what extent to disclose personal information about one’s life. The right to self-determination of personal information locks the right to self-determination within the scope of one’s private life¹⁷, defining private life as the core of personality. By extension, general personality rights are the rights to ensure that every citizen has an inviolable scope of private life and that no public power could interfere with it.¹⁸

 

The concept of “general personality rights” has been in competition with that of “general freedom of action” since it was developed. In order to distinguish from the latter, general personality rights must firmly keep within their adjustment range and emphasize the uniqueness and objectivity of the adjustment range. This approach leads it down the path of objective protection with the following characteristics:

 

(a) General personality rights have a specific adjustment range, while general freedom of action does not. Robert Alexy said, if there had to be an entry condition for general freedom of action, it would be the scope of actions.¹⁹ This scope is of course very broad, concerning all the behaviors of the rights subject. General personality rights can only distinguish itself by emphasizing the specific scope of rights — to protect the development of personality at the “spiritual-moral” level, so as to protect the person as a spiritual and moral subject in nature. The German Constitutional Court has held that personality rights include: (1) rights to protect one’s private, secret and confidential information; (2) rights to protect one’s reputation; (3) rights to dispose of personal descriptions of oneself; (4) rights to use one’s portrait and particular languages; and (5) rights against being falsely described.²⁰

 

(b) General personality rights are defensive rights of freedom, while general freedom of action is an expansive right of freedom, with the latter emphasizing more on the protection of an action than the protection of a fortress. General personality rights are defensive rights, mainly protecting the rights to be quiet and alone.²¹ It tries to close off the space to provide a safe fortress for the person. General freedom of action opens up the space to allow the person to go out, protecting their right to have “activities.”

 

(c) General personality rights are concrete rights. General freedom of action, on the other hand, plays a complementary role and aims to protect every possible human action as long as it is not included in other specific fundamental rights. When the state restricts its citizens’ freedom to do or not to do something, limits their capacity to act, or affects their legal status, general freedom of action will request justification from the state, when no specific fundamental right is affected. In contrast, general personality rights, as concrete rights, are juxtaposed with other rights to freedom.

 

We can clearly draw from the above comparison that the scope of protection of general personality rights is based on objectivism. Such objectivism is the lifeblood of general personality rights. In the theory of personality rights, there are two basic elements of personality protection: the scope of private life and individual autonomy. General freedom of action ignores or even abandons the former. While the logic of general personality rights presupposes the scope of private life as a fortress, thus delimiting the scope of protection of rights. It is the former that proves the independence of general personality right, distinguishes it from general freedom of action, and jux-taposes it with other fundamental rights. The more definite, concrete and objective the scope of private life is, and the more important it is for the free development of personality, the more solid and justifiable is the theoretical foundation of the general personality rights.

 

 

The question is whether this objective approach can meet the needs of the protection of personality. The objective approach to protection protects the objective elements of personality, including its extrinsic realm and objective components, which in any case are not the personality itself. To fill up the gap, general personality rights take the approach of continuously deriving concrete personality rights, which, while meeting immediate needs, raises questions about the nature of general personality rights. In contrast to general freedom of action, general personality rights coexist with concrete personality rights. From the standpoint of coexistence with concrete personality rights, the theory of general personality rights holds that the scope of private life has universality and uncertainty, and as time and social situations change, various concrete personality rights are constantly derived; at the same time, there is always uncertainty in the scope of private life, so it is necessary for general personality rights to serve as the bottom-line rights to achieve dynamic and closed-loop protection of personality rights. In the context of coexisting with concrete personality rights, general personality rights lose certainty in the scope of private life, thereby endangering its objectivity. What’s more, as to individual autonomy and the scope of private life, the former plays a more important role. It is the positive power of individual autonomy that general personality rights rely on to develop concrete personalities one after another. The loss of objectivity and the rise of subjectivity work together to drive general personality rights toward safeguarding self-realization as the nature of personality. To make it more specific:

 

1. The scope of protection of general personality rights has expanded. The right to privacy, reputation and portrait are not the only personality rights, which were later expanded by the German Constitutional Court to include: the right to information about one’s genes, the right to sexual freedom of choice, and the right to economic self-determination. This scope is also constantly expanding.

 

2. General personality rights have gradually shifted to the protection of individual autonomy. The Mini-census Case in 1969 revealed two possibilities for general personality rights: one based on the core domain of personality and the other emphasizing individual autonomy.²² The latter has gradually prevailed in the protection of general personality rights. Taking legal restrictions on sexual activity as an example, in 1957, the German Constitutional Court made morality a restricting factor for casual sexual activities.²³ In the 1977 Sex Education Curriculum Case, however, a morally neutral position was taken to advocate sexual autonomy for the purpose of safeguarding personality rights. The German Constitutional Court holds that the German Basic Law safeguards the right to self-determination in sexual matters. People are able to handle their sexual relations autonomously and, in principle, self-decide whether, and to what extent and for what purposes, to take in influence from a third party.²⁴ For this reason, primary and secondary schools must give up indoctrinating the students and forcing them to agree or deny a specific sexual behavior. In the Transgender Case, later on, the German Constitutional Court put that “human dignity... and the free development of personality require...that a person can autonomously determine their gender affiliation in accordance with their psychological and physiological conditions.”²⁵ In addition, the Constitutional Court has further developed a series of concrete personality rights, all of which are characterized by individual autonomy: the right to self-identification and the rights to self-determination such as sexual self-determination, informational self-determination and personal character self-determination.²⁶

 

3. The criteria for judging the protection of personality rights have become increasingly subjective. The emphasis on autonomy has also had an impact on the target person to whom rights are protected, leading the protection of rights to develop in a subjective direction. Firstly, the delineation of areas for protection has gradually become subjective. The objective approach seeks to divide the personality domain into three levels: the private domain, the personal domain and the social domain, with varying degrees of protection.²⁷ But this approach is not prioritized. What counts most is personal judgment and will, because what means to each person as to the objective area is different. It can only be scientific to define an area if it is based on the personal judgment of the subject of the right. Different matters in different areas mean different things to different people.²⁸ Taking the right to privacy as an example, the German Constitutional Court holds that whether or not a piece of information belongs to the core area depends first and foremost on the person’s wish to keep it confidential. If the person does not have a desire to keep the matter private, then it doesn’t fall within the core area of personality.²⁹

 

Second, the content of the protection of rights has also become subjective. This is most obvious in the field of religious freedom. In the past, the content of the so-called religious freedom was regarded as religious behaviors with a historical background and relatively objective content, such as religious rituals and activities. However, since the Proselytizing Case in 1960, the Constitutional Court has held that religious freedom protects a person’s freedom to “arrange their way of life based on personal beliefs.”³⁰ Religious freedom covers not only the freedom to engage in relatively objective religious rites and activities based on traditions and teachings, but also the freedom to behave or live according to religious teachings, i.e., a person can arrange their life in accordance with their religious understanding.³¹

 

As can be seen above, the objective protection strategy has fallen short, and the general personality rights have become subjective whether in criteria or content. Since this approach takes individual autonomy as its basic clue, its ultimate goal must be self-realization oriented. The judicial practice of the protection of personality rights coincides with the recognition of the concept of personality. However, what is more dramatic is that, in terms of the scope of protection, this change can be seen as general personality rights receding to general freedom of action. The development of general personality rights is originally intended to fill up the gap of general freedom of action in terms of personality protection,³² but practice has shown that personality does not lie in a specific field or a core area, but in action, and is even omnipresent, because ultimately, personality lies in the person themselves and in the process of self-realization through individual autonomy.

 

 

Such recession has deepened the cognition of general personality rights, that is, general freedom of action is their outward manifestation, while autonomous development of personality is their inner mechanism, which are seemingly different but same in nature. Autonomous development of personality naturally extends to the realm of general freedom of action. In the 1957 Elfes Case, the Constitutional Court clearly held that the German Basic Law uses the term “free development of personality,” which means that the German Basic Law does not only protect the development of the core elements of personality.³³ General freedom of action also naturally centers on the autonomous and free development of personality. General freedom of action is not an aimless protection of all actions. In Alexy’s view, general freedom of action is only a manifestation in the form. Whether concrete freedom of action should be protected depends on the substantial reasons behind,³⁴ and depends on the weighing of a number of factors, but first and foremost on the importance of this matter for the free development of personality. In this sense, the concepts of general freedom of action, free development of personality, general personality rights or personality rights are actually the same thing.

 

The nature of personality rights is also reflected in the fact that it can’t be a constitutional right, but a constitutional principle. In the Prayer Healing Case, the German Constitutional Court reiterated the view how Article 2 (1) of the German Basic Law relates to other fundamental rights, and held that Article 4 is lex specialis in relation to Article 2 (1).³⁵ In this connection, the Federal Constitutional Court further elaborated on the relationship between personality rights and the right to concrete freedoms in another case, holding that, on one hand, personality rights are complementary to the right to concrete freedoms, such as freedom of religion, freedom of conscience and freedom of expression, and on the other hand, the right to concrete freedoms is a positive component of personality.³⁶ Along the same theoretical lines, we can see that personality rights essentially represent the general principle of the right to freedom, rather than a concrete constitutional right.

 

 

Whereas the general personality rights in German Basic Law carry the form of legal doctrine, the constitutional personality rights in the United States and Japan only have a theoretical form. Neither of these two states has formed the concept of constitutional personality rights. The United States, in particular, does not have any term related to personality or constitutional personality rights, but adopts the concept of the right to privacy in judicial practice. Although the Japanese Constitution adopts the concept of the right to the pursuit of happiness, such wording is rather theoretical in literal meaning. Moreover, looking at the development of the protection of the right to privacy in the U.S. Constitution and the right to the pursuit of happiness in the Japanese Constitution, we can observe the coexistence and competition between the subjective and objective factors in the protection of personality and self-realization, which ultimately takes on a look of objectivity constantly retreating and subjectivity breaking through and expanding its territory.

 

 

In 1890, the Harvard Law Review published the article “The Right to Privacy” by American scholars Samuel Warren and Louis Brandeis. The definition of privacy given by Warren and Brandeis is the “right to be let alone.” They argued that the law shall provide protection for the privacy of citizens on two fronts, namely, protection from harassment by either profit-driven news media or other citizens who have modern devices for recording or reproducing odors, voices, etc. Of course, the matters that can be exempted from public disclosure are limited to private affairs, that is, matters related to personal life, habit, behavior, and personal relationships.³⁷ In 1960, another famous paper “Privacy” by American legal scholar William Prosser was published in the California Law Review. In this paper, he identified four privacy torts: (a) intrusion upon a person’s seclusion or into his private affairs, (b) public disclosure of a person’s private facts, (c) publicity which places a person in a false light in the public eye, (d) appropriation of a person’s name or portrait for commercial gains or personal interests.³⁸ The constitutional right to privacy, as interpreted by the philosophy of solitude, is the right to live in peace without government interference.³⁹ The right to privacy from this perspective should take an objective approach to define the objective scope of private life, and establish the right to defend against violation. However, in reality, this is not the case with the right to privacy in the U.S. constitutional practice. The objective approach is in fact taken by the freedom of residence, that is, based on the Fourth Amendment to the Constitution, to protect citizens’ freedom of residence to ultimately meet their expectations for privacy.⁴⁰ The right to privacy in the judicial context, on the other hand, takes a subjective approach, with the main task of ensuring citizens’ freedom of choice in their private affairs, including marriage and childbearing, sexual behavior, family education, health care and choice of life.

 

Although the U.S. Constitution has a situation where the subjective and objective approaches are taken separately, which is different from Germany where subjective and objective approaches are taken together, it should be noted that the objects regulated by the Fourth Amendment to the U.S. Constitution are clearly limited, and the main task of protecting the right to privacy still remains under the concept of the right to privacy. U.S. constitutional jurisprudence understands the latter, in particular, from the perspective of right to freedom from the outset. The 1965 Griswold Case holds that: “If having to define the right to privacy, it would be the right of a person, whether married or not, to decide whether or not to become pregnant or have children, without government interference.”⁴¹ The question of the right to privacy is thus first and foremost a question of individual autonomy, which is a person’s right to independently make specific important decisions.⁴² Afterwards, the courts continued to discuss the constitutional right to privacy, but this term has been widely used as a synonym for individual autonomy. One can say that the protection of the right to privacy in the United States set off and firmly keeps in the direction of individual autonomy.

 

In subsequent jurisprudence, the U.S. Supreme Court has gradually discarded the veil of the right to privacy and established a direct link between freedom and personality. In the 1973 Roe Case, the Supreme Court ruled that: the prohibition of abortion in Texas criminal law over broadly restricted a woman’s right to choose and infringed on the personal freedom protected by the Due Process Clause of the Fourteenth Amendment to the Constitution. In the famous Casey Case, the Supreme Court stated in its judgement that the core of the right to freedom “is the right to determine one’s own conception of existence, significance, the universe and personhood.”⁴³ These are the things that symbolize personality is made up of concepts.

 

Entering the 21st century, the Supreme Court once again addressed the obvious connection between freedom and personality in the Lawrence v. Texas Case. It stated in the judgment that: “These are the things that relate to one’s innermost and utmost personal choices in life, which are at the core of human dignity and autonomy, and represent the core freedoms protected by the Fourteenth Amendment to the Constitution. The core essence of freedom is that each person defines life, significance, the universe and secrets of life by themselves. If their belief in these things were to be forced by the state, they would be deprived of their personhood.”⁴⁴

 

 

Article 13 of the Constitution of Japan is known for the “right to the pursuit of happiness”, which sets out: “All of the people shall be respected as individuals. Their right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs.” There are also two basic debates in Japan regarding the understanding of the right to the pursuit of happiness: the general freedom of action and the rights related to personality.⁴⁵ The constitutional annotation compiled by the Japanese Law Society in the 1950s supported the first viewpoint, holding that the right to the pursuit of happiness, which is a general description of the rights and freedom indispensable to the sustainability of personality, is the fundamental right to freedom and requires that the state power should not interfere with a person’s pursuit of happiness.⁴⁶ Nobuyoshi Ashibe took the second view, emphasizing that the right to the pursuit of happiness comprises the totality of rights for the interests indispensable for the sustainability of personality, and explicitly opposing the generalization of its content as total freedom of action in life (general freedom of action).⁴⁷

 

The earliest concern was that the theory of general freedom of action led to a scope of rights that was too broad to match the importance of fundamental rights. But this concern didn’t stop the expansion of the right to the pursuit of happiness. After the 1960s, social and economic changes, as well as scientific and technological development, raised many questions. The right to the pursuit of happiness gradually became understood as a general and generalized right that served as the basis for new human rights not yet cited in the constitution.⁴⁸ Through a series of practical cases, the courts made the right to the pursuit of happiness concrete and developed concrete personality rights, including the rights to portrait, privacy, reputation, environment, sunlight, anti-smoking, peaceful living, information, knowledge and self-determination.⁴⁹

 

The inner driver for the expansion of the right to the pursuit of happiness is the burgeoning individual autonomy. This can be seen from the development of the right to privacy. As to the right to privacy, Japan has also gone through the development process from a passive right that requires others to respect one’s right to be left alone and undisturbed, to a proactive right that controls personal information.⁵⁰ The 1964 Post-Feast Case established the protection of citizens’ private life by the constitutional value of “personal dignity” and “the pursuit of happiness.”⁵¹ The Kyoto Student Union Case in 1969 defined the right to privacy as passive and negative. The Criminal Record Note Case in 1981 pointed out that, protecting the sensitive information of a person’s criminal record from being disclosed casually, is a constitutional right to privacy protected by Article 13 of the Japanese Constitution.⁵²

 

After 1985, the protection of the right to privacy by Japanese courts began to shift its focus toward the autonomous control of personal information. The right to privacy includes not only the right not to have one’s private matters disclosed, but also extends to autonomous control over access to and provision for use of, personal information. The right to privacy is even interpreted as the right to make personal information decisions. Nobuyoshi Ashibe holds that the right to privacy, should broadly refer to the freedom of a person to decide on important private matters closely related to the sustainability of personality (information concerning oneself such as appearance and criminal record) in a self-disciplined manner.⁵³ In a case in 2005, the Kanazawa District Court argued that: in order to maintain a peaceful private life and the self-discipline of personality, it is far from enough to simply understand the right to privacy as a refusal to allow intrusion or publicity into one’s private life. Every person should have the right to decide whether to disclose to others, or allow others to use, or provide them with, the information that concerns themselves.⁵⁴ The Revision of Information X Case further deepened the theory of self-information control by clarifying the right of private entities to request the correction or deletion of information retained by

the information holder that is inconsistent with the facts.⁵⁵

 

The subjective shift in the protection of personality rights in Japan can be more clearly seen in the concept of the right to self-determination they invented. The right to self-determination, as the bottom-line personality right, generalizes the right to determine important personality interests and matters other than portrait, privacy and reputation. The right to self-determination, by definition, refers to a person’s right to make decisions on certain private matters, which is understood to be free from interference from public power.⁵⁶ Private matters are many and varied, such as clothing, attire, appearance, sexual freedom, smoking, drinking, sports, hiking and yachting, all theoretically fall under the right to self-determination. Shigeru Matsui is concerned that, if the right to self-determination were to be given all freedoms, it could lead to issues such as excessive judicial authority and power inflation, and virtually reduce the importance of fundamental rights such as freedom of expression and freedom of religion.⁵⁷ But even if it were the case, there would not be a problem if Alexy’s Weight Formula were to be applied. In practice, however, the right to self-determination is generally applied to more important matters: (1) fertility issues, such as sterilization, contraception and abortion; (2) lifesaving issues, such as euthanasia; and occasionally applied to (3) freedom of lifestyle such as grooming (hairstyle, clothing). In the 2000 Prayer Healing Case, a believer of Jehovah’s Witnesses claimed to have been transfused against her will with her right to self-determination violated. The Court made two judgements on this case. Firstly, the patient’s refusal to have a blood transfusion was based on a sincere religious belief, and the parents had no right to make decisions on behalf of their children to give permission to the hospital to perform surgery and blood transfusion.Secondly, blood transfusion must be fully justified by the hospital as a necessary treatment and should be subject to the consent of the patient. Such consent is a manifestation of the person’s right to self-determination as to how they decide to live.⁵⁸

 

 

The protection of personality is not realized through the protection of a concrete right, but through the constitutional law as a whole. Neither is personality right a concrete constitutional right, nor a general principle of the constitution law, but a fundamental principle of the constitution law. We will analyze in this part in what sense personality right is a fundamental principle of the constitutional law.

 

 

Rational theories since modern times have generally held that personality represents the understanding of human nature. In Kant’s view, personality is “an independent moral subject who is free from the mechanical effects of nature and submits to the unique freedom based on the purely practical rule given by the person’s own rational thinking.”⁵⁹ Personality reflects that man no longer exists as an object and thus acquires the status of a subject.

 

Personality indicates that man is a unity of body and spirit, and a rational being beyond natural existence. First, personality affirms the natural existence of man. “For body, ‘has’ and ‘is’ are overlapping with each other. Having no body, man is no longer man (no longer exists); and having a body means: man is what man is and fundamentally is.”⁶⁰ Second, personality values the spiritual being of man. The spiritual being makes man transcend the laws of nature. The fact that man makes laws voluntarily shows that “man is the representative of the unconditioned in the world of the conditioned.”⁶¹ This is the superiority of man and the strength of personality.

 

Personality reflects that man is a moral subject. Personality reflects that man “paradoxically transcends all natural giving,” thereby confirming their moral nature. And, “my relation to myself determines and at the same time depends on my relation to other persons with personality and, indirectly, depends on my relation to other things.”⁶² “What personality is” and “what a person is” overlap on the boundary, and the relationship between myself and my personality reflects that between myself and other personalities. Therefore, personality means the mutually recognized status of moral subject.

 

Personality also reflects that man is a legal subject. Man is both a moral subject and a legal subject, and law reflects the fulfillment of personalities.⁶³ Kant pointed out that a legal subject is also a moral subject. Law treats people as moral subjects, expects them to turn norms imposed externally to their moral norms internally, and at the same time accepts their moral critique of law. Law treating people as personalities is treating them as persons. Hegel said: “Being a person and respect others as persons.”⁶⁴

 

Professor Wang Kai makes a distinction among person, persona and personality, arguing that they represent the person in the biological, legal and ethical senses respectively, therefore, should not be equated with each other.⁶⁵ Such distinction is nuanced. And if we can understand the interconnection between the three, we will better understand the value of modern law. The law’s treatment of people as moral subjects means that it should not treat people as objects and bind them with the law of nature and instinct. Instead, it should bring people back to their rational beings, leaving them free to explore the significance of life and share their free creation. States in modern times are not growing out of their citizens’ indifference to the significance of life, but rather out of their pride that they “can and must find the significance of life from themselves.”⁶⁶

 

 

Analyzing the relationship between dignity and personality can better explain the noble legal status of personality. Human dignity, human self-realization and personality are essentially homogeneous. In Roman times, human dignity signaled a person’s social status and was a differentiated concept — only the privileged class had dignity. Cicero’s revelation of man as a rational being made dignity a universal value for the first time. And Kant used his rational critique to analyze man as a rational being in a most profound way, and put forward his masterpiece of dignity theory, thus making human dignity the supreme value of human and human society. Entering the 20th century, The Charter of the United Nations and the Universal Declaration of Human Rights officially introduced the concept of “human dignity” in legal documents, and, with limited publicity, also added the value orientation of human dignity, based not only on human pride as the wisest of all creatures, but also on the requirement to provide social equality and decency as the bottom line to safeguard human dignity. This bottom line requirement realizes the transformation of the concept of dignity from human nature to social orientation, returning to and also going beyond the orientation focus of the Roman times. It is a requirement raised on society based on the rational human nature following Kant’s concept of dignity. The inherent dignity is the foundation of the two orientations of human dignity, the inherent orientation and the social orientation, and the inherent dignity is homogeneous with the fulfillment of personality.

 

Human dignity, in its inherent dimension, shows that human being is not only superior to any other creature, but also has unique and irreplaceable attributes. Kant believed that everything has either a price or a dignity. What has a price can be replaced by something else as its equivalent; what on the other hand is raised above all price and therefore admits of no equivalent has a dignity.⁶⁷ Kant’s famous Formula of the End put it as: “Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means but always at the same time as an end.”⁶⁸

 

This classic exposition on dignity shows the dialectical relationship between dignity and personality. Kant distinguished between personality and personhood in this Formula. Personality expresses man as a unity of emotional and rational beings, while personhood expresses man’s moral ability to make laws. The relationship between personality and personhood is: “Personality in both its emotional and rational senses, submits to its personhood.”⁶⁹ An integral part of personality, personhood is also the development goal and development approach of personality. When people tame their emotions and desires, they treat themselves as an end to enhance their personality, and thus gain their dignity; when they submit to their emotions and desires, they treat themselves as a means to meet their desires and degrade themselves to animals, and thus lose their dignity. In this sense, to realize personality is to achieve dignity. Kant also proposed the notion of the Kingdom of Ends as the path from individual dignity to universal dignity. The Kingdom of Ends, by definition, refers to the orderly union formed by different rational beings through a common law. The common law is: every rational being should treat themselves and all other rational beings not merely as a means, but always at the same time as an end.⁷⁰ In other words, the Kingdom of Ends is where every person respects others’ personality development and respect their moral autonomy and self-determination. To summarize, only personality qualifies to be treated as an end in itself. The absolute split between personhood and objecthood has always served as the principle of using our dignity to define the boundary of human beings.⁷¹ Therefore, dignity falls under the category of relationship with personality. We can also say that the realization of personality is homogeneous with dignity.

 

 

Article 1 (1) of the German Basic Law states that: “Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authorities.” In his interpretation of this clause, German scholar Günter Dürig put forward the famous Object Formula based on the Formula of the End. The Object Formula requires that all state authorities, social organizations and individual citizens should treat others with special respect, and should not treat them in the same way as they would treat animals, plants or objects.⁷² Dürig put it as: “When a person is degraded to an object, a simple means or something that can be replaced, their dignity is trampled upon. Violating human dignity means degrading the person, controlling, processing, recording, brainwashing, replacing, using and expelling them as objects.”⁷³

 

Dürig constructed a closed system of fundamental rights under the principle of dignity supreme. He organized fundamental rights on four levels: human dignity; right to freedom and equality; general freedom of action and general personality rights under the right to freedom; freedom of expression and belief under the general freedom of action, and right to privacy, reputation and name under the general personality rights.⁷⁴

 

From the perspective of the theory of personality rights, Dürig made two mistakes in his theory. First, he misunderstood the relationship between dignity and personality rights. Second, he wrongly juxtaposed general freedom of action and general personality rights.

 

Dürig’s concept of dignity has nothing to do with personality, but only represents the bottom line that a state respects for its citizens. It is a concept in the form only without capturing the nature of personality rights to take man as a moral subject. Therefore, his concept of dignity failed to develop more values of a higher level. Alexy’s arguments against Dürig focused on the failure of his concept of dignity to develop the right to freedom and equality, as freedom and equality are the conditions of dignity only.⁷⁵ However, if he had recognized the homogeneity between dignity and personality, he would have developed the right to freedom and equality from the need for the fulfillment of personalities. It is personality and dignity it supports that provide value for the right to freedom and equality.

 

Juxtaposing general freedom of action and general personality rights, as Dürig did in his theory, is also a misunderstanding of personality rights. Dürig’s logical premise is that personality rights are limited to the core area of personality only, but even this was true, general freedom of action could still cover general personality rights. It has been demonstrated in the above two arguments that, for the development of personality, the adjustment range of personality rights is bound to expand indefinitely to the extent that it overlaps with the scope of general freedom of action, creating a two-in-one form with the free development of personality inside the general freedom of action. The expansion of the scope of personality will not lead to the inflation of rights or the so-called hypertrophy of fundamental rights.⁷⁶ The scope of the protection of general freedom of action is open, but the effect of protection is not. It needs to be weighed in individual cases by considering the factors including: the importance of the subject matter for the development of personality, and the importance of the competing public or individual interests.

 

So far, we have further explained the reasons for the expansion of the scope of constitutional personality rights. We can also draw from it that, it is not the expansion of the scope that prevents constitutional personality rights from being concrete rights, but rather that constitutional personality rights seek to realize the highest value of modern law — human dignity. We hereby reorganize the concept of constitutional personality rights as: in its extension, equivalent to general freedom of action, and in its intrinsic value, being individual autonomy and self-realization, thus interchangeable with human dignity. In short, constitutional personality rights are not fundamental rights, but rather concepts of human dignity and individual autonomy under its veil.

 

 

The value form of constitutional personality rights poses two issues for civil law to address together: one is how civil law can realize the value of human self-realization. The other is what the nature of personality rights in civil law is and how to justify it. The subjective nature of personality makes it questionable as to the validity of personality rights in civil law, which entails justification. If personality rights in civil law can be justified, there must be something particularly subtle about their internal structure. In addition, the cognition of the mirror relationship between constitutional personality rights and personality rights in civil law in expectation urgently needs to be adjusted.

 

 

Personal self-realization is the mission of all laws, and civil law also practices this value as a whole. However, constitutional law and civil law take different approaches in achieving this mission. The subject of constitutional law obligations is the state, and the state and its constitutional law directly address the integral personalities of its citizens. Constitutional law recognizes citizens’ personality first and foremost, and provides protection for citizens’ personality and its realization with self-realization as the goal. The subject of civil law obligations is other citizens. Civil law regulates the legal relations between citizens on behalf of the state. The rights and obligations under civil law mainly occur between civil subjects, and civil relations are basically where citizens develop and realize their personalities without the direct involvement of the state. Therefore, civil law does not directly address the integral personalities of citizens, but rather provides conditions for citizens to realize their personalities in civil relations. In Georg Jellinek’s words, the rise and elimination of private law rights does not benefit or harm the subject’s personalities,⁷⁷ as they are established in the constitutional law. However, he failed to note that, though the establishment of personality may be static, its realization is dynamic. Personalities also need to be practiced in civil relations. Though personalities are not established in civil law, respect for personality established in the civil law system is equally important. Such respect is mainly reflected in the concept of “autonomy of private law,” specifically, in the following areas:

 

1. Making the system of capacity for rights the starting point of individual self-realization. Capacity for rights is the precondition of legal personality as defined by positive law.⁷⁸ The Civil Code grants every person capacity for rights, from which concrete rights and their limits are derived⁷⁹, thus setting the legal starting point for individual self-realization.

 

2. Ensuring individual self-realization through autonomy of private law. The significance of the autonomy of private law is that the law provides a person with a legal means of rights to realize their will.⁸⁰ Its fundamental significance lies in the recognition of each person’s ability to make their own decisions and take their own responsibilities, paving the way for individual self-realization.

 

3. Laying the foundation for self-realization through civil rights. In Hegel’s view, personality is purely self-relevant and develops into a universal concept that is abstract and with form only.⁸¹ Therefore, personality has to give itself some substance, firstly property. Property rights lay the material foundation for the protection of personality rights by law.⁸² Personality rights are manifested and defined through the right of ownership.⁸³ Besides, the protection of personality under civil law is directly manifested in the provision of remedies for infringement to the subject of the right.

 

 

Logically, the justification of personality rights in civil law leads to the development of the personality rights section in China’s Civil Code. The inclusion of the personality rights section in the Civil Code, however, undoubtedly demonstrates the strongest support for the theory of personality rights in civil law. As mentioned earlier, constitutional law directly addresses the integral personalities of citizens, which determines that no objective fields can be defined in constitutional personality rights to support it to be an objective concept. In civil law, in contrast, civil subjects contact in one dimension or a certain dimension. They are not necessarily entitled to full rights, even though they are independent beings. For civil law to effectively regulate civil relations, it is necessary to make the dimension of contacts between civil subjects objective, conventionalized, and preferably measurable. When civil subjects interact in relation to a personality interest, civil law must objectify and then conventionalize this personality interest in order to regulate this civil relationship. Therefore, personality rights in civil law are actually the result of demarcating the boundaries between citizens. The decomposability and objectifiability of personality elements justify personality rights in civil law.⁸⁴ And such decomposability and objectifiability are attributed to human endeavors. Civil law externalizes ethical values as objects of rights, thus establishing an independent and unified concept and system of personality rights⁸⁵. China’s Civil Code has set a good example for personality legislation by innovatively making a special section on personality rights in the sub-legislation⁸⁶, reflecting the systematicity of the decomposition and objectivization of personality elements.

 

The justification of personality rights in civil law originates from the objectivization of personality interests as a result of the dimensionalization of civil law perspectives. In the past, Civil law failed to establish personality rights in it, mainly restricted by the idea that personality interests are indemarcable. The concerns were: (a) the recognition of a right to oneself would lead to the conclusion of a right to suicide; (b) a debt would presuppose an infringement of property value; (c) the content and scope of personality rights couldn’t be clearly defined.⁸⁷ These concerns had plagued the courts since the days of the German Empire. The citation of the German Basic Law to prove that general personality rights are other rights within the definition of Article 823 (1) of the German Civil Code made a breakthrough in this matter. But it was a breakthrough only. Lying behind it are long-established historical issues of civil law that may break out at any time. Neither a derivative relationship nor a corresponding relationship can it prove between constitutional personality rights and personality rights in civil law. Constitutional personality rights in the objectivist sense are juxtaposed with the constitutional rights to life and freedom, intending for the protection of freedom and security at the core of personality. The objects of protection of personality rights in civil law, on the other hand, include life, body and personal freedom. In terms of objects, personality rights in civil law can correspond to many constitutional rights such as the right to life, personal freedom and freedom of religion. The two do not exist in correspondence. Constitutional personality rights in the objective sense, even if established, cannot be mirrored by personality rights in civil law. Of course, the emergence of personality rights in civil law is still influenced by the concept of constitutional personality rights, which represents the value and normative changes of civil law from only focusing on “thing” to returning to “person” itself. It is important to note that the impact of such values is not cascaded or commanded, and that the values of the constitution are not copied into civil law. The application of constitutional values in civil law will definitely be realized through the legal techniques employed within civil law in line with its historical context and problem logic.⁸⁸ Ultimately, personality rights in civil law have their own logic.

 

Personality rights in civil law also have something in common with constitutional personality rights in the objective sense, in that they are both powered and sourced from the subjectivity and integrity of personality. Demarcating and objectivizing personality interests will not cut them off from their connection with the personality itself and its whole. Personality in the sense of self-realization must be subjective, as are personality elements and personality interests by nature. This also means that the protection of personality rights is naturally uncertain. To make it more specific:

 

1. The material connotation and overall scope of personality elements are uncertain. Firstly, judicial decisions are uncertain. As the judgment of personality rights always oscillates between subjectivity and objectivity, weighing and comparing becomes a necessary judicial technique, as well as an objective approach to give judges greater discretion. In the jurisprudence of the German Federal Supreme Court, the weighing of legal rights and interests based on well-established rules of life and etiquette among the general public has always been an important part of the decision-making process.⁸⁹ This is manifested in Article 998 of China’s Civil Code. Secondly, the scope of protection is uncertain. General personality rights are highly inclined to extend or expand, leading to huge uncertainty in the scope of personality rights protection. Therefore, there has been a huge debate in the legislative process on whether to put in provisions on general personality rights.⁹⁰ However, if we look into the nature of various personalities, we can understand why we have Article 990 of the Civil Code. In other words, the uncertainty of the scope of protection of personality rights is hinged on the nature of personality rights. Overall, the legislation on personality rights in civil law reflects to some extent the competition and the “rise and fall” between legislative and judicial powers.

 

2. The active exercise of personality rights has gradually come to the fore. Most personality rights are exercised in a passive-defensive manner, and the Civil Code generally uses the term “shall not be infringed” when regulating these rights. However, in modern society, especially in the information age, the protection of personality rights places more emphasis on self-determination⁹¹ than on passive defense. In this context, extensive use of personality claims is required for the protection of personality rights, such as the claims for cessation of infringement, removal of nuisance, prevention of nuisance and restitution.⁹² The right to claim personality rights, on the one hand, shows that the protection of personality rights is gradually moving from passive defense to active protection, which is more in line with the nature of personality. On the other hand, it has also brought about uncertainty in the approaches to protection, as well as deepened the concern about the ambiguous connotation and boundary of concrete personality rights.

 

 

This paper is not only intended to lift the veil of constitutional personality rights or unfold the inherent homogeneity of personality and dignity. Fundamentally, I wish to introduce the self-realization view of constitutional personality rights. Constitutional personality rights ultimately aim to protect individual autonomy and self-realization, rather than simply providing a fortress to “hide one’s lover”. Only from the perspective of self-realization can one explain the rapid development of concrete personality rights in modern society, and fully grasp the legal connotation of constitutional personality rights and concrete personality rights. The paper also: (1) Compares constitutional personality rights and personality rights in civil law with individual cases. Constitutional personality rights and personality rights in civil law are not mirroring each other as they differ greatly in its connotation, extension and legal function. This finding may provide a reference for the theory of the horizontal effect of constitutional rights. (2) Narrows the room for interpretation of Article 38 of the Constitution. Constitutional personality rights shall not be replaced by human dignity. It may be more appropriate to interpret Article 38 from the perspective of concrete personality rights.

 

 

(Translated by CHANG Guohua)