Making assessment truly individual : the importance of the philosophical concept of objectification of man for the interpretation of the right of children in conflict with the law to individual assessment

Abstract

The right to individual assessment of children in conflict with the law is an integral part of European criminal law. However, understanding this right remains largely intuitive. This leads us, in keeping with the historical roots of the practice of individual assessment, to equate it with variously focused professional diagnostics such as psychiatric, psychological, or pedagogical diagnostic tools or social work assessment frameworks not based on a dialogue with the assessed persons. Drawing on the concept of ‘objectification of man’, this article submits that the traditional understanding of individual assessment contradicts both the attribute of the individual and the nature of a subjective right. The concept of objectification of man is chosen because it may be - at least in some constitutional traditions, such as Germany and Czechia - directly linked to human dignity as a constitutional value. This article, nevertheless, relies on the philosophical concept of objectification as it appears in the work of Adorno, Hejdánek, and Marcel. Unlike the constitutional concept, the philosophical one does not foreground the aspect of instrumentalisation, but that of abstraction and subsumption. The article argues that the philosophical concept of objectification of man allows us to formulate a strong link to anti-discrimination concepts of international human rights law, and, thus, enables us to reconceptualise the right to individual assessment primarily as a right to social availability and dialogue.