By Gautam Bhatia
EQUATOR March 14, 2026
Many years ago, in a Western university that shall remain nameless, I was prescribed an academic article that compared approaches to freedom of expression in the US and Europe. The principle governing constitutional free speech doctrine in the United States, the article grandly proclaimed, was that of “liberty”. In Europe – spearheaded by Germany – it was “dignity”: respect for the intrinsic and equal moral worth of each individual. This difference explained why the US found hate speech legislation to be (largely) unconstitutional, while Europe – informed by the experiences of the Holocaust – viewed it as necessary to protect human dignity.
Earlier this month, I recalled this article when I read the news that a Palestinian man – who had lost his family to Israeli air strikes – applied to the German Constitutional Court to halt Germany’s arms exports to Israel. The Constitutional Court rejected his application. And I wondered what it means to proclaim a “jurisprudence of dignity” that grows mute in the face of genocide.
It is widely acknowledged that the genocide in Palestine has shattered the discipline of public international law. But at the same time, there has been a crisis in another field that has gone relatively unremarked: that of constitutional law.
In Europe, this crisis has infected both the internal and the external dimensions of constitutional law’s relationship with the state. The internal dimension involves suppression of protests and demonstrations, censorship and academic repression. In the UK, the government invoked terrorism legislation to ban the group called Palestine Action, after its members clandestinely entered a Royal Air Force base and spray-painted military planes. The ban was recently overturned by the High Court (on narrow grounds), but in the meantime, police made multiple arrests of people simply for holding up placards supporting Palestine Action. In France, apart from restrictions on demonstrations, the College de France cancelled a symposium on “Palestine and Europe.” In Germany – home of “dignity” jurisprudence – the repression has been the most severe, from police breaking up student demonstrations on university campuses, (unsuccessful) attempts to deport other European citizens for engaging in political speech, and the denial of entry to the British-Palestinian surgeon Ghassan Abu-Sittah in order to prevent him from delivering a speech at a Palestine conference in Berlin.
Externally, the financing of the genocide by European states raises constitutional questions, especially given that many states formally commit to incorporating principles of public international law into domestic legislation. But attempts to challenge arms exports to Israel on human rights grounds have failed – first in England, then in Germany. The reasoning given by the courts is troubling: for example, the German Constitutional Court noted that the German Constitution (“the Basic Law”) requires the state to protect human rights, but that, at the same time, one cannot compel the state to take or refrain from taking a particular action. In other words, no matter what use German arms are put to outside the borders of Germany – including and up to a genocide – the German State cannot be constitutionally required to cease those arms exports.
In the years since I read about dignity in Europe, I have studied and taught comparative constitutional law in universities across the world, participated in conferences, and written and peer-reviewed articles. Comparative constitutional law has its “superstar jurisdictions” – which everyone studies and talks about – each based on certain intellectual and normative conceits. One of those is that German constitutionalism in particular is committed to constraining the State from stripping human beings of their dignity.
Over the last two-and-a-half years, in which countries such as Germany have provided military and diplomatic support for a continuing genocide, I’ve waited for the beginning of a conversation about whether these dignitarian foundations remain intelligible any more. There has been none. Europe’s “dignity jurisprudence” appears not to extend beyond the borders of Europe or to non-Europeans. Nor is this new: for example, there is almost no acknowledgment of how one of the shining instruments of European human rights jurisprudence – the European Convention of Human Rights – came into being in 1950 with a racist “colonial clause”, which made it discretionary for colonial European powers to apply it to their colonies. To hope, then, that the domain of constitutional law will confront the conceit of “dignity” in a time of genocide might be a futile hope.
Source: EQUATOR March 14, 2026
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