Religion, Law, and Democracy
Selected Writings
Ernst-Wolfgang Böckenförde
Professor Emeritus, University of Freiburg and
Former Judge of the Federal Constitutional Court of Germany
Edited by
Mirjam Künkler
Research Professor, Netherlands Institute for Advanced Study and
Tine Stein
Professor of Political Theory, University of Göttingen
VOLUME II
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Preface
Ernst-Wolfgang Böckenförde passed away on 24 February 2019. Family, friends, and colleagues travelled from far and wide to pay their last respects at his funeral, held near Freiburg im Breisgau.
As might be expected, former colleagues and students praised his intellectual brilliance, his originality, his discipline, his loyalty, his many contributions to public life in Germany and his ethos in office—as a scholar, constitutional court judge, and public intellectual. But one of the more surprising aspects of the event was the speech given by a local politician of the Social Democratic Party who reminded the audience of ‘Böckenförde the citizen’. As soon as he moved to the small village of Au in 1976 upon accepting a professorship at the University of Freiburg, Böckenförde joined the local choir and the music association. He was a frequent participant in church fairs and town festivals and an ardent interlocutor, asking his neighbours about the ebbs and flows of local public life from kindergarten construction to zoning plans, and, of course, offering his own opinions. In short, Böckenförde lived ‘in the neighbourhood’. To locals, he was the ‘Verfassungsrichter zum Anfassen’ (the constitutional court judge at your fingertips). Living in the neighbourhood was one of his ways of working on behalf of the ‘integration’ of society, one of the phenomena he was fascinated by and grappled with most: how to create understanding in society, relations, exchange, solidarity, cohesion, and in the end ‘agreement on the things that cannot be voted upon’, a phrase coined by jurist Adolf Arndt that Böckenförde cited frequently. After all, Böckenförde was deeply convinced that democracy cannot survive unless the citizens of that democracy as a political community work continuously towards agreement on those things that lie beyond the ballot box.
Three years have passed since the publication of the first volume of English translations of Böckenförde’s writings, containing many of his articles on legal and constitutional issues. Just before the publication of the first volume, we convened two international conferences whose contributions were later published in three special journal issues: ‘The Secular State, Constitution, and Democracy: Engaging with Böckenförde’ in Constellations: An International Journal of Critical and Democratic Theory 25(2) (2018); ‘Böckenförde beyond Germany’ in the German Law Journal 19(2) (2018); and ‘Böckenförde as an InnerCatholic Critic’, in the Oxford Journal of Law and Religion 7(1) (2018).
Many excellent scholars from the fields of law, political theory, and history contributed to the conferences and to these later publications. The international exchanges also elicited the insight that Böckenförde’s work enjoyed surprising
reception literatures in languages other than German. This led to a further conference, convened in February 2019, on the reception of Böckenförde’s work in Japan, Korea, Latin America, and Southern and Eastern Europe. Contributions to this third conference were published as Beiheft Nr. 24, titled ‘Die Rezeption der Werke Ernst-Wolfgang Böckenfördes in international vergleichender Perspektive’, of the journal Der Staat, a journal Böckenförde had co-founded in 1962.
As we prepared the publication of this volume, brilliant friends and colleagues once again provided immeasurable help with comments and advice. They include David Abraham, Markus Böckenförde, Dieter Gosewinkel, Michael J. Hollerich, Olivier Jouanjan, Oliver Lepsius, Reinhard Mehring, Ulrich K. Preuß, and Julian Rivers. We are deeply grateful to them.
Ernst-Wolfgang Böckenförde shared his thoughts on the selection of articles for both volumes and until the end of 2018 was available to meet with us and communicate in other ways whenever we sought clarification. We are very grateful for those opportunities. In April 2017 we convened a launch of Volume I for him at the University of Freiburg, an event which many of his former colleagues at the university as well as other legal scholars and practitioners attended, and which appeared to give him great pleasure.
Other launch events were held at New York University Law School, the Humboldt University Berlin, Uppsala University, the University of Kiel, the Institute for Human Sciences in Vienna, the London School of Economics and Political Science, and at conferences of the German Studies Association and the International Society for Public Law. We thank our colleagues who hosted these events and discussed Böckenförde’s writings there, including Robert Alexy, Andreas von Arnauld, Peter Carl Caldwell, Iain Cameron, Sabino Cassese, Max Edling, Dieter Gosewinkel, Ludger Hagedorn, Michaela Hailbronner, Anna Jonsson Cornell, Olivier Jouanjan, Mattias Kumm, Martin Loughlin, AlineFlorence Manent, Johannes Masing, Ralph Michaels, Kai Möller, Christoph Möllers, Jo Eric Khushal Murkens, Claus Offe, Julian Rivers, Mark Edward Ruff, Sascha Somek, Guglielmo Verdirame, Rainer Wahl, and Christian Waldhoff.
As with Volume I, we have been fortunate to employ the services of Thomas Dunlap for the translation. Due to the range of topics and multiple disciplinary perspectives involved, the translation was a particularly challenging one. We thank Thomas Dunlap for mastering this task so skilfully.
We thank Oxford University Press, especially Eve Ryle-Hodges and Imogen Hill, for guiding this publication along with such generous dedication and support. We further thank Geisteswissenschaften International for partially funding the translations for this volume, and Verena Frick and Sven Altenburger, both of the University of Göttingen, for their assistance in the preparation of this volume.
Wherever it seemed necessary, we have inserted annotations (indented and marked with Latin numerals) that include further explanations on the context of German or European politics and history. A comprehensive list of ErnstWolfgang Böckenförde’s publications is included in the appendix, as well as the
Preface •
laudatio given by former Federal President Joachim Gauck on the occasion of awarding Böckenförde the Grand Cross of Merit of the Federal Republic of Germany.
As this project comes to an end, we marvel at the intellectual journey ErnstWolfgang Böckenförde has moved us to undertake. It has been an honour and inspiration, not only to work closely with his texts and to try to understand better how he reconciled his identities as a social democrat, a political liberal, and a Catholic reformer, but also to enter into conversation with so many of his explicit and implicit interlocutors. These work in disciplines as diverse as legal theory, legal history, constitutional law, legal education, social history, Catholic theology, Catholic social thought, canon law, political theory, intellectual history, social policy, sociology, comparative politics, philosophy, legal ethics, and diverse geographies. The conversations will continue as Böckenförde continues to move his readers into profound intellectual engagement. We are grateful to him, as we editors are to each other, for the exciting journey travelled together. Mirjam Künkler and Tine Stein, December 2019.
Freedom in Religion, Freedom in the State
Ernst-Wolfgang Böckenförde on Religion, Law, and Democracy1
Mirjam Künkler
I. Introduction
The freedom of the individual can always only be defended as the freedom of all. Thus argued Ernst-Wolfgang Böckenförde at the age of thirty-one, in an article he himself later referred to as the article that most shaped his thinking.2 He wrote this apropos the Catholic Church’s approach to democracy in the postwar years before Vatican II,3 which he regarded as driven by instrumentalist considerations. The Church was willing to accept majority rule only as long as the areas relevant to its own interests (education, value debates, the Church’s status vis-à-vis the state) remained beyond the reach of majority rule. What is more, it claimed religious freedom for itself, without being willing to grant the same rights to other religions. Böckenförde had particular trouble understanding such a position as a lawyer. How can one expect to enjoy a right that one is not willing to grant to others, he asked.4
Freedom is a cornerstone in Böckenförde’s thinking, but what does it entail precisely? For Böckenförde, it is first and foremost individual freedom, and it must be protected against both state power and societal power. State power must be limited by a democratic constitution with strongly enshrined personal
1 This chapter has benefited from numerous discussions with my friend and colleague Tine Stein, as well as our past joint publications. I thank her as well as Peter C. Caldwell, Michael Hollerich, Otto Kallscheuer, and Joachim Wieland for excellent comments.
2 Er nst-Wolfgang Böckenförde, ‘German Catholicism in 1933’, CrossCurrents 11 (1961), pp. 283–303, included as Chapter II in this volume. See in this regard in particular his reflections on the article in ‘Vorbemerkung’, in Ernst-Wolfgang Böckenförde, Kirche und christlicher Glaube in den Herausforderungen der Zeit, 2nd ed. (Münster: LIT Publishing House, 2007), p. 114.
3 The Second Vatican Council (Vatican II) fundamentally redefined the Church’s doctrinal position in several areas, notably regarding the issue of religious freedom. See more extensively note 120.
4 Er nst-Wolfgang Böckenförde, ‘Religionsfreiheit als Aufgabe der Christen [1965]’, in Böckenförde 2007 (note 2), pp. 197–212.
• Freedom in Religion, Freedom in the State rights and liberties. ‘The law-based state [Rechtsstaat],’ Böckenförde writes, ‘is aimed at the demarcation and restriction of state power in the interest of the freedom of the individual.’5 As he outlined in his article ‘Securing Freedom Against Societal Power’, it is also the state’s role to protect the individual against the violation of his or her freedom by societal groups.
Based on this dual role assigned to the state, one might conclude then that the state is the supreme guarantor of freedom for Böckenförde.
On the one hand, this is certainly the case, and Böckenförde is Hegelian in regarding the liberal state, in particular the rule of law, as the necessary environment in which individual freedom can be enjoyed. This is so because only thanks to a rule of law can individual freedom be guaranteed against encroachment by others and state power itself. Moreover, the kind of freedom the liberal state ensures is not merely freedom from oppression, but it must also include the creation of possibilities in which the individual can pursue self-realization, should he or she choose to do so.6
Böckenförde goes beyond Hegel when he argues that self-realization can only be possible in a state where in the final analysis people are subject to the rules they have had the possibility to generate and shape, that is, a liberal democracy. It is here that Böckenförde draws heavily on the legal scholar Herman Heller.7 For the state emanates from the people and is first and foremost an ‘organized unity of action and taking effect’ (organisierte Handlungs- und Wirkeinheit). It provides the procedures and channels for social forces to determine policy. Moreover, it is only through citizen participation and representation that the state enjoys legitimacy.
Böckenförde is also a statist in his position on how to deal with the counteracting forces of capitalism and democracy. In several writings, Böckenförde emphasized that the guarantee of private property in the German Basic Law had to be understood as balancing liberal guarantees on the one hand with limits on those guarantees emanating from societal or public needs on the other.8 A concept of the state according to which fundamental rights restrict
5 ‘Der Rechtsstaat zielt stets auf die Begrenzung und Eingrenzung staatlicher Macht im Interesse der Freiheit der Einzelnen’, in Ernst-Wolfgang Böckenförde, ‘Entstehung und Wandel des Rechtsstaatsbegriffs’, in Horst Ehmke and Carlo Schmid (eds.), Festschrift fur Adolf Arndt zum 65. Geburtstag (Hamburg: Europäische Verlagsanstalt, 1969), pp. 53–76; published in English as ‘The Origin and Development of the Concept of the Rechtsstaat’ in Ernst-Wolfgang Böckenförde, State, Society and Liberty: Studies in Political Theory and Constitutional Law, transl. by Jim Underwood (New York: Berg Publishers, 1991), pp. 47–70.
6 Ernst-Wolfgang Böckenförde, ‘The State as an Ethical State’, included as Chapter III in volume I of this edition, Ernst-Wolfgang Böckenförde, Constitutional and Political Theory: Selected Writings, ed. Mirjam Künkler and Tine Stein (Oxford: Oxford University Press, 2017), pp. 86–107.
7 Hermann Heller, Gesammelte Werke, 2nd ed., vol. II. (Tubingen: Mohr Siebeck, 1992 [1928]). On the extent to which Böckenförde’s concept of the state relies on Hermann Heller, see Mirjam Künkler and Tine Stein, ‘Böckenförde’s Political Theory of the State’, in volume I of this edition, pp. 38–53; and Olivier Jouanjan, ‘Between Carl Schmitt, the Catholic Church, and Hermann Heller: On the foundations of democratic theory in the work of Ernst-Wolfgang Böckenförde’, Constellations: An International Journal of Critical and Democratic Theory 45 (2) (2018), pp. 184–195.
8 ‘Eigentum, Sozialbindung des Eigentums, Enteignung’, in Konrad Duden, Helmut R. Kulz et al. (eds.), Gerechtigkeit in der Industriegesellschaft. Rechtspolitischer Kongreß der SPD, Mai 1972 in Braunschweig.
state action, he wrote about the Basic Law, is at the same time constrained by a concept of the state according to which constitutional principles entail the duty to provide social services. Constitutionally guaranteed freedom could not be enjoyed unless specific material needs were met first. If liberty were to be guaranteed to all rights holders, specific societal and legal framework conditions had to be provided for, the most important of which was ‘the constant relativization of societal inequality that arises continually from the exercise of liberty’. The Basic Law in fact imposed a ‘social state as a binding constitutional principle on par with that of the Rechtsstaat’,9 he argued.
On the other hand, Böckenförde is not exclusively a statist, and here again, his position draws in part on Hegel. For the liberal state needs binding forces that ‘hold it’. In Hegel, this is an abstract Geist attitudes and dispositions that support the liberal state. Böckenförde grounded these attitudes and dispositions in societal forces and individuals. Like Hegel, he referred to this as an ‘ethos’ that needed to feed the commons. These binding forces needed to emanate from the citizenry and the citizenry’s willingness to continually work with one another to formulate and secure the public good. Thus, Böckenförde’s entire state theory stands and falls with the ethos that emanates from society and that is needed to sustain the state. As he formulated in his often-quoted dictum: ‘the liberal, secularized state is sustained by conditions it cannot itself guarantee’.10
What are the sources of this social ethos, in Böckenförde’s eyes? Religion, that is personal faith, can be an important source and it was certainly the major source for his own motivation to take on public responsibility as a scholar, judge, and public intellectual.11 But beside religion, ‘philosophical, political and social movements can strengthen . . the willingness to not always look out for one’s own benefit only, but to act companionably and in solidarity with others’.12 Moreover, and this is a crucial point that has been overlooked by some of his readers, he insists that religion can be a source for a democratic ethos only if it is placed in the service of the common good, not of particular religious goals, and not of the interests of individual religious groups,13 a point taken up again towards the end of this introduction.
Further, it is only in the secular state, wrote Böckenförde in 1957, that Christianity can be ‘a religion of freedom’ (again implicitly referencing Hegel).14
Dokumentation, C. F. Muller (1972), pp. 215–231. This article was also included in his 1976 Suhrkamp compilation but unfortunately was the only article not included when the collection was published in English in 1991.
9 ‘Grundrechtstheorie und Grundrechtsinterpretation’, Neue Juristische Wochenschrift (1974), pp. 1529–1538; published in English as ‘Fundamental Rights: Theory and Interpretation’, Chapter XI in volume I of this edition, p. 288. Emphasis in the original.
10 ‘Die Entstehung des Staates als Vorgang der Säkularisation’, in s.ed., Säkularisation und Utopie. Ebracher Studien. Ernst Forsthoff zum 65. Geburtstag, Stuttgart: Kohlhammer, 1967, pp. 75-94; included in this volume as Chapter V, ‘The Rise of the State as a Process of Secularization’.
11 See his article ‘A Christian in the Office of Constitutional Judge’, Chapter XI in this volume.
12 Ernst-Wolfgang Böckenförde, ‘Freiheit ist ansteckend’. die tageszeitung, 23 September 2009, p. 4.
13 Böckenförde 1961 (note 2).
14 Ernst-Wolfgang Böckenförde, ‘Das Ethos der modernen Demokratie und die Kirche’, Hochland 50(1) (1957), pp. 4–19, included as Chapter I in this volume.
At a time when official Catholicism still tried to assert its role as part of the state (in many Latin American countries as well as of course Franco’s Spain), Böckenförde rejected that argument. With his commitment to the secular state, he stood apart from the mainstream in the Church at the time. Only in the secular state, according to Böckenförde, can citizens develop the free commitment to act in accordance with their religious convictions and not because it is backed by the punitive framework of the state. In other words, only the separation of law and morality enables believers to act truly morally.
Following his personal motto ‘civis simul et christianus’ (a democratic citizen while also a Christian), Böckenförde sought to shape public life as a Catholic and he sought to contribute to the reform of Catholicism from his position as a democratic citizen. Böckenförde remained an inner-Catholic critic throughout his life. At the beginning of his career stands an analysis of Catholic complicity in the rise of the Nazi state, and at the end of his career a public intervention on the failure of the Church in dealing with cases of sexual abuse.15 In both cases, he criticized the Church for prioritizing itself over concern for the people, and for subordinating core Christian values to the raison d’être of the institution of the Church.
Just before his passing, Böckenförde had decided that instead of flowers, those wishing to mourn him should donate funds to Donum Vitae, an organization he had helped co-found that provided ethical counselling to women considering to undertake an abortion. The creation of Donum Vitae had caused a serious conflict with the Vatican, which accuses the organization of indirectly abetting the German state’s relatively permissive abortion regulations.16 Even from beyond his grave, Böckenförde sought to represent a different kind of Catholicism: one where respect for people’s individual conscience came first. The collection presented here, the second of two volumes, brings together Böckenförde’s essays on issues of religion, ethos, and the Catholic Church in relation to law, democracy, and the state, while the first volume presented a selection of his essays in constitutional and political thought. Volume II is organized in four parts, containing three to four articles each and arranged in historically ascending manner: on the Catholic Church and Political Order (Part I), on the State and Secularity (Part II), on the Theology of Law and Political Theory (Part III), and on Basic Norms and the Principle of Human Dignity (Part IV). All articles feature annotations by the editors, providing background information on historical, cultural, and theoretical contexts. Each of the four parts is preceded by a short introduction by the editors that includes brief outlines of the articles and the context in which they were written. The last chapter consists
15 Ernst-Wolfgang Böckenförde, ‘Das unselige Handeln nach Kirchenraison’, Süddeutsche Zeitung 29 April 2010. ‘The main concern is that the sanctity of the institution is not endangered – this maxim is the real scandal and the reason for the crisis.’
16 According to a declaration by the German bishops of 20 June 2006, Church staff are prohibited from participating in Donum Vitae, and all other Catholics involved in ecclesiastical councils, committees, associations, and organizations are requested to renounce any senior cooperation with the association.
of excerpts of the biographical interview that historian and legal scholar Dieter Gosewinkel conducted with Böckenförde in 2009/2010.17
Section II of this introductory chapter provides an abridged overview of Böckenförde’s academic career and public engagement (a fuller version is contained in the Introduction to Volume I). Section III offers an overview and periodization of his academic writings in seven phases from 1957 to 2012. Section IV presents some of his key writings and positions as an inner-Catholic critic, as a theorist of the place of ethos in the public order, and as a thinker of ‘open encompassing neutrality’ between religion and state. Section V offers a reflection on the cover images Böckenförde chose for the two volumes, before the conclusion closes with brief remarks on Böckenförde’s view of religion in democracy compared to other theorists of democracy and secularism.
II. A Biographical Synopsis
Böckenförde grew up in the Central German town of Kassel with seven siblings. His father was a forester and his mother a housewife. Among the books he said that formed him were Dante’s Divina Commedia and writings by the Austrian novelist Adalbert Stifter and the German poet Reinhold Schneider (a Catholic anti-war writer). Apart from that, his family’s library included works of philosophy, economics, sociology, and law, and a subscription to the Catholic intellectual monthly magazine Hochland. 18
At the age of thirteen years he had a tram accident, as a result of which he lost half his left leg. Partly as a consequence of this accident, his travel activities were limited, and unlike some of his colleagues of similar academic stature, such as Robert Alexy or Dieter Grimm, he did not spend long sojourns at foreign universities. His travels led him frequently to Austria, Italy, and Poland, but seldom further afield, the only exception being trips to Pakistan and the USA, and an extensive lecture tour to Japan which he undertook in 1996 after retiring from the Federal Constitutional Court and the university.
Böckenförde’s studies were unusual in that he decided to pursue not only one, but two university degrees, which he then also followed up with two doctoral dissertations in two separate disciplines, law and history, followed by a habilitation in law.19 In both doctoral dissertations he chose a conceptual perspective: In the dissertation in law of 1956, he examined the public understanding of law,
17 The 170 page-long interview was published in ‘Biographisches Interview’, in Ernst-Wolfgang Böckenförde, Wissenschaft, Politik, Verfassungsgericht. Aufsätze von Ernst-Wolfgang Böckenförde (Berlin: Suhrkamp, 2011), pp. 307–486. Selections are published here in Chapter XVI, as well as in Volume I.
18 Hochland was a Catholic cultural magazine that published contributions by authors regardless of their denomination and was viewed with scepticism by the Catholic Church for its independence, critical spirit, and anti-denominationalism.
19 For Böckenförde’s academic biography, see in more detail Mirjam Künkler and Tine Stein, ‘State, Constitution and Law. Ernst-Wolfgang Böckenförde’s Political and Legal Thought in Context’, in volume I of this edition, pp. 1–35.
tracing the differentiation between formal and substantive notions of law from the nineteenth century to the Weimar Republic. Against the background of conceptual history Böckenförde showed what the changing meaning of concepts could reveal about changing power constellations, in this case the relationship between monarchy and popular sovereignty.20 In his history dissertation of 1960, Böckenförde examined the models of constitutionalism that emerged over the course of the nineteenth century and how the concept of ‘constitution’ evolved from a mere juridical contract into a political category, transforming the meaning of a political community which bound itself legally.21
How concepts of law changed meaning against the backdrop of evolving societal and respective power constellations remained a major theme in Böckenförde’s work throughout his career.
After completing his habilitation22 in law in 1964 on ‘Organizational Power in the Realm of Government. An Inquiry into the Public Law of the Federal Republic of Germany’,23 Böckenförde was appointed professor of public law in Heidelberg. He became dean of the faculty and in 1969 moved on to the newly founded University of Bielefeld, and then later to Freiburg (1977–95), where he remained until his retirement, exempt from professorial duties during his tenure as constitutional judge (1983–1996). The denominations of these professorships extended to the areas of Public Law, Constitutional History, Legal History, and Philosophy of Law.
Two discussion circles brought the young Böckenförde into communication with some of the leading political thinkers in the early Federal Republic. The first was the Collegium Philosophicum, convened by the philosopher and Hegel expert Joachim Ritter.24 Ritter’s postwar work on Hegel had at its center the problem of the place of the state after the age of democratic revolutions: it
20 He did so through the prism of the statutory basis requirement for encroachment (Gesetzesvorbehalt): the idea that the executive may not encroach upon the citizens’ fundamental rights unless the legislature passes a law permitting such encroachment. With the introduction of the legal concept of the statutory basis requirement for encroachment, the balance between monarchy and popular sovereignty had shifted in favour of the latter. Ernst-Wolfgang Böckenförde, Gesetz und gesetzgebende Gewalt. Von den Anfängen der deutschen Staatsrechtslehre bis zur Höhe des staatsrechtlichen Positivismus (Berlin: Duncker & Humblot, 1958).
21 Ernst-Wolfgang Böckenförde, Die deutsche verfassungsgeschichtliche Forschung im 19. Jahrhundert. Zeitgebundene Fragestellungen und Leitbilder (Berlin: Duncker & Humblot, 1961).
22 To become eligible for a professorship in Germany, it used to be the case that an applicant needed to have a doctorate and a second major work, usually in the same field, i.e. the habilitation (combined with the venia legendi, the authorization to teach the subject at university level). Nowadays a second book is widely regarded as equivalent to the formal habilitation, although many scholars still seek the formal acquisition of a habilitation as well. To have two doctorates like Böckenförde is rather unusual and testifies to his broad intellectual interests.
23 Ernst-Wolfgang Böckenförde, Die Organisationsgewalt im Bereich der Regierung. Eine Untersuchung zum Staatsrecht der Bundesrepublik Deutschland (Berlin: Duncker & Humblot, 1964).
24 Joachim Ritter, professor in Münster, was one of the most influential German philosophers of the postwar period. He edited the 13-volume ‘Historisches Wörterbuch der Philosophie’, a standard work in the discipline of philosophy. Böckenförde contributed three entries: ‘Normativismus’ in Historisches Wörterbuch der Philosophie, ed. Joachim Ritter and Karlfried Gründer, vol. VI (Basel/Stuttgart: Schwabe, 1984), p. 931f.; ‘Ordnungsdenken, konkretes’, in ibid, pp. 1311–1313; and ‘Rechtsstaat’, in: Historisches Wörterbuch der Philosophie, ed. Joachim Ritter and Karlfried Gründer, vol. VIII (Basel/Stuttgart: Schwabe, 1993), pp. 332–342.
posed the questions of how to combine an openness to the people’s will with political order in the early, conservative and skeptical years of the Federal Republic. While a graduate student in Münster, Böckenförde was invited to join the Collegium. The introduction to Hegel, in particular Hegel’s idea of the state, would profoundly shape Böckenförde’s subsequent intellectual development. Beyond the philosophical formation, the Collegium Philosophicum also had a lasting sociological impact: here Böckenförde met future colleagues, such as philosopher Robert Spaemann, who would become occasional co-authors and lifelong companions.
While Ritter's group focused on philosophical thinking, another circle influenced Böckenförde’s development and career as a legal scholar by bringing him into contact with leading legal thinkers, who were also concerned with democracy and the state but more skeptical of democratic claims. This was the ‘Ebrach summer seminar’, a twoweek seminar convened every year by legal scholar Ernst Forsthoff in Ebrach village in Upper Franconia.25 Here aspiring legal scholars were invited to discuss their papers with established ones—and Carl Schmitt was a regular participant. Böckenförde’s groundbreaking article on ‘The Rise of the State as a Process of Secularization’ as well as Schmitt’s ‘The Tyranny of Values’ go back to lectures given at Ebrach.26
Among the participants in Ebrach was also conceptual historian Reinhart Koselleck, later Böckenförde’s colleague at the University of Heidelberg, where the two taught a course in legal history together. Koselleck, too, was concerned with the relationship between freedom, democracy, and the coercive force of both state and society in his early work. Both later moved to the newly founded University of Bielefeld, and Böckenförde contributed an article to Koselleck’s opus magnum Geschichtliche Grundbegriffe (basic historical concepts), one of the foundational works of conceptual history.27
These ideas about freedom and the state, the social prerequisites for democracy, and even the underlying concern of the conservative liberal intellectuals from the early republic about the limits to the state in a democracy provided some of the key themes for Böckenförde’s entire intellectual life. Indeed, Böckenförde actively embodied some of the problems that they brought up, such
25 Ernst Forsthoff (1902–1974) was a German scholar of constitutional and administrative law, teaching over the course of his career at the universities of Frankfurt am Main, Hamburg, Königsberg, Vienna, and Heidelberg. Like Carl Schmitt (Forsthoff’s mentor) and many other German legal scholars, he welcomed the Third Reich and worked on an ideological justification of the totalitarian state. But unlike many other legal scholars, Forsthoff distanced himself from the regime still during the Nazi period and was banned from teaching in 1942. Different from Carl Schmitt, he was ultimately permitted to resume teaching in the Federal Republic and returned to his professorship at the University of Heidelberg in 1952. Forsthoff was a leading drafter of the Constitution of Cyprus and served as the president of the Supreme Constitutional Court of Cyprus from 1960 to 1963.
26 Sergius Buve (ed.), Säkularisation und Utopie; Ernst Forsthoff zum 65. Geburtstag (Stuttgart: Kohlhammer, 1967, Series: Ebracher Studien).
27 ‘Organ, Organismus, Organisation, politischer Körper’ (sections VI–IX), in Geschichtliche Grundbegriffe. Historisches Lexikon zur politisch-sozialen Sprache in Deutschland, vol. 4, ed. Otto Brunner, Werner Conze, and Reinhart Koselleck (Stuttgart: Klett-Cotta, 1978), pp. 561–622.
as the relationship between a community of believers constituting only part of society with the claim of the state to represent the entire society: the problem of church and state in an inescapably pluralist democracy. Böckenförde was unusual in that he combined normative orientations which at his time were associated with different sociopolitical communities in Germany.28 On the one hand, he was a devout Catholic and active in the lay organizations of the Church.29 But while most Catholics until the late 1970s would have associated themselves with the Christian Democrats (the party of the chancellors Konrad Adenauer, Helmut Kohl, later Angela Merkel), Böckenförde joined the Social Democratic Party in 1967 (the party of the chancellors Willy Brandt, Helmut Schmidt, and later Gerhard Schröder). And while Böckenförde no doubt was a statist (like Carl Schmitt), he combined this with a strong political liberal orientation. On the one hand, he regarded the state as the guarantor of societal peace, but on the other hand he was always apprehensive of state encroachment into citizens’ private lives. In the late 1970s, for example, when West Germany was shaken by a number of murders, kidnappings, and assaults committed by leftist terrorists (most notoriously, the Red Army Faction), he made a name for himself by writing extensively about the erosion of the rule of law that was justified with reference to the war against leftist terrorism.30 And elsewhere he commented ‘the order of freedom must set itself apart from the order of unfreedom also—and especially—by the methods of its defense’.31
On the constitutional court, where he served from 1983 to 1996 across the great transformation of German reunification in 1990, Böckenförde contributed to several groundbreaking decisions, including on asylum, abortion, nuclear disarmament, conscientious objection to military service, taxation, and party financing. With eleven dissenting opinions, he was one of the highest dissenters in the court’s history.32 Extraordinarily, in two cases, his minority opinions became the bases for later majority decisions.
28 For his profiles as a political liberal, a Catholic, and a social democrat, see Mirjam Künkler and Tine Stein, ‘State, Constitution and Law. Ernst-Wolfgang Böckenförde’s Political and Legal Thought in Context’, in volume I of this edition, pp. 1–35.
29 He was an advisor to the executive committee of German Catholics, the most important institution of lay Catholicism in Germany. Its tasks include organizing the biennial Catholic Kirchentag (Church Day), discussing pending issues with the German conference of bishops, and representing lay Catholicism in public.
30 Ernst-Wolfgang Böckenförde, ‘The Repressed State of Emergency’, Chapter IV in volume I of this edition, pp. 108–132. In this context, he also devised a possible constitutional amendment that would constitutionalize an internal state of emergency (the Basic Law only recognizes a state of emergency necessitated by natural disaster), arguing that this would better preserve the rule of law than the prevalent practice of dealing with such emergencies through executive measures. See section III. 4. below and in more detail Mirjam Künkler and Tine Stein, ‘Böckenförde’s Political Theory of the State,’ in volume I of this edition, pp. 38–53. His proposal fell on deaf ears then, but the debate has been revived in 2020 in the context of the state’s dealing with the Covid-19 crisis, which is overwhelmingly managed through executive measures without parliamentary consultation, let alone authorization.
31 Böckenförde 2017 (1978) (note 6), p. 100.
32 In two of his dissenting opinions, his social democratic leanings come particularly to the fore. One was his take on party financing, where he argued that a law that made donations to political parties deductible for juridical persons, including corporations, violated the equality principle of the Basic Law’s Article 3, as
Böckenförde’s writings have received wide reception in the academic world. Aside from four Festschrifts, 33 several monographs34 and edited volumes35 have been published about his work. He has received numerous prizes and awards, as well as five honorary doctorates, three in law and two in Catholic theology.36 More than eighty of his articles have been translated into foreign languages, and his work enjoys extensive reception literatures in Italy, Poland, Japan, and Korea.37
would deductible donations by natural persons at a level exceeding the median income. He also dissented in the case regarding the net wealth tax, where the majority had ruled that the fundamental right to property, in connection with other basic rights, imposed a general upper limit on taxation. In the majority’s view, the cumulative burden of all income and net wealth taxes must not exceed 50% of net imputed earnings. Although he strongly defended the right to property otherwise, Böckenförde did not subscribe to the view of a constitutionally mandated upper limit on taxation. In his academic writings, Böckenförde explicitly and implicitly lamented that Article 14 Section 2 of the Basic Law, according to which ‘property entails obligations; its use shall also serve the public good’ did not find sufficient reflection in the public regulation of private property. On this, see also section III.3 below.
33 The Festschrifts are Rolf Grawert (ed.), Offene Staatlichkeit: Festschrift für Ernst-Wolfgang Böckenförde zum 65. Geburtstag (Berlin: Duncker & Humblot), 1995; Rainer Wahl and Joachim Wieland (eds.), Das Recht des Menschen in der Welt. Kolloquium aus Anlass des 70. Geburtstages von Ernst-Wolfgang Böckenförde (Berlin: Duncker & Humblot), 2002; Christoph Enders and Johannes Masing (eds.), Freiheit des Subjekts und Organisation von Herrschaft. Symposium zu Ehren von Ernst-Wolfgang Böckenförde anlässlich seines 75. Geburtstages (Der Staat, Beiheft 17) (Berlin: Duncker & Humblot, 2006); Johannes Masing and Joachim Wieland (eds.), Menschenwürde –Demokratie – Christliche Gerechtigkeit. Tagungsband zum Festlichen Kolloquium aus Anlass des 80. Geburtstags von Ernst-Wolfgang Böckenförde (Berlin: Duncker & Humblot, 2011).
34 For the monographs, see Norbert Manterfeld, Die Grenzen der Verfassung: Möglichkeiten limitierender Verfassungstheorie des Grundgesetzes am Beispiel E.-W. Böckenfördes (Berlin: Duncker & Humblot, 2000); Johanna Falk, Freiheit als politisches Ziel. Grundmodelle liberalen Denkens bei Kant, Hayek und Böckenförde (Frankfurt a.M.: Campus, 2006); Cosima Winifred Lambrecht, Das Staatsdenken von Ernst-Wolfgang Böckenförde: Analogien und Diskrepanzen zu dem Werk ‘Der Begriff des Politischen’ von Carl Schmitt (Universitätsverlag Chemnitz, 2015); and Jonas Pavelka, Bürger und Christ. Politische Ethik und christliches Menschenbild bei Ernst-Wolfgang Böckenförde (Freiburg: Herder, 2015).
35 The edited volumes are Hermann-Josef Große Kracht and Klaus Große Kracht (eds.), Religion—Recht— Republik. Studien zu Ernst-Wolfgang Böckenförde (Paderborn: Schöningh, 2014); and Reinhard Mehring and Martin Otto (eds.), Voraussetzungen und Garantien des Staates. Ernst-Wolfgang Böckenfördes Staatsverständnis (Nomos: Baden-Baden, 2014). Apart from numerous obituaries that were published following his passing in February 2019, the Verfassungsblog in May 2019 convened a review with ten commentaries on Böckenförde’s legacy.
36 Böckenförde received honorary doctorates from the Law Schools of the Universities of Basel (1987), Bielefeld (1999), and Münster (2001), and from the Faculties of Catholic Theology of Bochum University (1999), and Tübingen University (2005). In 1970 he became a member of the North-Rhine Westphalian Academy of Sciences and in 1989 corresponding member of the Bavarian Academy of Sciences and Humanities. He has received the Reuchlin Award of the City of Pforzheim for outstanding work in the humanities (1978), the order of merit of the state of Baden-Württemberg (2003), the Guardini Award of the Catholic Academy in Bavaria for work in the field of the philosophy of religion (2004), the Hannah-Arendt Prize for Political Thought (2004), the Sigmund Freud Prize for scholarly prose (2012), and the Grand Cross of Merit (2016), one of the highest tributes the Federal Republic of Germany can bestow on individuals for services to the nation. Böckenförde was Knight Commander of the Pontifical Equestrian Order of St. Gregory appointed by John Paul II (1999).
37 For an overview of the translations and their reception, see Mirjam Künkler and Tine Stein (eds.), Die Rezeption der Werke Ernst-Wolfgang Böckenfördes in international vergleichender Perspektive, Beihefte zu »Der Staat«, vol. XXIV (Berlin: Duncker & Humblot, 2020).
III. Böckenförde: Inner- Catholic Critic, Constitutional Historian, Social Democrat, Political Liberal, Constitutional Theorist
Böckenförde from the beginning pursued two different publication tracks, publishing his religion- and church-related articles mostly with the Freiburg-based Herder publishing house, which specializes in religion and the humanities, and his legal writings with Suhrkamp (after having published his two doctoral monographs and his habilitation with Duncker & Humblot, the publisher also of Hans Kelsen, Carl Schmitt, and Rudolf Smend).
In 1973 and in 1976, just nine and twelve years respectively after he had become full professor at the age of thirty-four, Böckenförde published two collections of his most important essays. It was a rather early age to publish the first instalment of one’s ‘canon’.38 The first collection brought together his essays on religion and was published with Herder, the second collection his essays on law, published with Suhrkamp. Between 1988 and 1991, while a judge on the Federal Constitutional Court (1983–1996), Böckenförde published the second instalment of his canon. The 1973 collection was extended into three volumes published between 1988 and 1990, again with Herder,39 and the 1976 collection was expanded to two volumes, both published with Suhrkamp in 1991.40 A third instalment followed in 2004, when Böckenförde published a final collection of his writings on religion with the LIT Publishing House (a second expanded edition appeared in 2007),41 and another volume in political and constitutional theory with Suhrkamp in 1999.42 His legal writings received a fourth acknowledgement with a final Suhrkamp collection published in 2011, which also contained an extensive biographical interview that historian and legal scholar Dieter Gosewinkel had conducted with Böckenförde in 2009/2010.43
Throughout his career, then, Böckenförde distinguished between the readership he addressed in his persona as a Catholic and the readership he addressed as a legal scholar, choosing for each audience the publishers and outlets that would ensure the best possible positioning and dissemination of his arguments.
38 Kirchlicher Auftrag und politische Entscheidung (Freiburg: Rombach (Herder Verlag), 1973); and Staat, Gesellschaft, Freiheit. Studien zur Staatstheorie und zum Verfassungsrecht (Frankfurt: Suhrkamp, 1976).
39 Schriften zu Staat, Gesellschaft, Kirche. Vol. 1: Der deutsche Katholizismus im Jahre 1933. Kirche und demokratisches Ethos (Freiburg: Herder, 1988); Vol. 2: Kirchlicher Auftrag und politisches Handeln. Analyse und Orientierungen (Freiburg: Herder, 1989); Vol. 3: Religionsfreiheit. Die Kirche in der modernen Welt (Freiburg: Herder, 1990).
40 Recht, Staat, Freiheit. Studien zur Rechtsphilosophie, Staatstheorie und Verfassungsgeschichte (Frankfurt: Suhrkamp, 1991). Staat, Verfassung, Demokratie. Studien zur Rechtsphilosophie, Staatstheorie und Verfassungsgeschichte (Frankfurt: Suhrkamp, 1991).
41 Kirche und christlicher Glaube in den Herausforderungen der Zeit. Beiträge der politisch-theologischen Verfassungsgeschichte 1957–2002 (Münster: LIT Verlag, 2004), with a revised and expanded edition published in 2007.
42 Staat, Nation, Europa. Studien zur Staatslehre, Verfassungstheorie und Rechtsphilosophie (Frankfurt: Suhrkamp, 1999).
43 Wissenschaft, Politik, Verfassungsgericht. Aufsätze von Ernst-Wolfgang Böckenförde. Biographisches Interview von Dieter Gosewinkel (Berlin: Suhrkamp, 2011).
Böckenförde: Catholic Reformer • 11
Taking a longitudinal view, Böckenförde’s academic work can be organized roughly into seven broad phases, each with different thematic foci, and establishing different components of his later reputation. There are certainly cross-cutting themes and articles that thematically fall into a different phase, not least because writing activity is also a function of publication requests. Nevertheless, a periodization does emerge, partly also coinciding with his changing institutional affiliations. In Section IV below, the first phase will be elaborated in greater detail, as nearly all the major elements in his thinking on the relationship between religion, law, and democracy, and on Catholicism take form in this phase.44
1. On the Church’s need for internal reform
The first phase lasted from about 1956 to 1965. Böckenförde completed his doctorate in law in 1956, his doctorate in history in 1960, and his habilitation in 1964. Also in 1964, he was appointed full professor of public law at the University of Heidelberg where he stayed until 1969.
Strikingly, his published essays in this first phase do not connect directly to his doctoral theses or his habilitation. Instead, they deal predominantly with the Catholic Church and establish him as an inner-Catholic critic. The phase begins with his article on ‘The Ethos of Modern Democracy and the Church’ published in 1957 and ends with his commentary on the Declaration of Religious Freedom, promulgated at the conclusion of the Second Vatican Council in 1965. Years later, Böckenförde reflected on the fact that the writings in this period were perceived by the Church as those of a dissenter, as even antagonistic to the Church, when he had intended to write as a constructive voice for reform from within.45 In the course of the 1970s, this perception changed and the scepticism of his work gave way to appreciation, culminating in the late 1990s and 2000s to his being awarded two honorary doctorates in Catholic theology. He also noted years later that his writings in favour of personal freedom and against Catholic natural law as a basis for state law earned him the reputation in Church circles of being a ‘lefty’, a label to which he objected as reductionist.46
The major outlines of his views on the Catholic Church’s needs for internal reform, his vision for its role in a democratic state, and his general model of democratic religion–state relations all took form during this period and were never fundamentally altered in his later work. Particular aspects would be deepened, such as in his writings on the necessary distinction between state and society in the early 1970s and the undesirability for societal institutions to aspire
44 Many of his writings from the fifth phase were included in volume I of this edition, as well as three from the sixth phase, and two each from the third and fourth.
45 See ‘On the Authority of Papal Encyclicals: The Example of Pronouncements on Religious Freedom’, published in English as Chapter XII in this volume.
46 See Böckenförde (note 17), pp. 396f.
to state-like institutional forms (as some in the ‘total democratization’ movement of the 1970s demanded). He later elaborated in greater detail on the role religions can exercise in democracy, but the basis for his work on religion–state relations was laid in this first phase.
2. Historicizing the law and the state
The second phase lasted from about 1965 to 1970. It comprised his appointment at the University of Heidelberg (1965–1969), where in 1967/1968 he also served as dean of the law faculty. During this phase, most of Böckenförde’s articles were concerned with the development of the concepts of law, rule of law, and constitutionalism from the nineteenth into the twentieth century. Nearly all of the essays written in this period are of a historical-conceptual nature.
In this period, Böckenförde returned to his two PhD dissertations, particularly the one in history, which he now complemented with several shorter studies of how legal concepts evolved and interacted with social reality in the nineteenth century. In the 1965 article ‘The School of Historical Jurisprudence and the Problem of the Historicity of Law’, written for the Festschrift for Joachim Ritter, Böckenförde highlighted the fact that concepts of law were always embedded in a particular context and thus in a particular legal culture. In doing so, however, he rejected the approach of the School of Historical Jurisprudence for reducing history to a space within which a natural development of an ethnic or national ‘spirit’ [Volksgeist] unfolds. He connected this ‘organic’ notion of legal development with the organic state theories that he criticized already in his 1961 article on the Catholic Church and the rise of the Nazis. His belief that law could not function unless supported by an underlying ethos willing to implement such law—a qualitatively different approach to the foundations of law—was then further developed in his article ‘The Concept of Law in its Historical Evolution. Outline of a Problem’ of 1968.47 These essays shifted focus away from a ‘national spirit’ allegedly to be found in law to the pluralistic views and political conflicts that developed law. Böckenförde developed these ideas further in his studies of nineteenthcentury constitutionalism as an unstable balance of power between assembly and monarch, in his essays ‘The German Type of Constitutional Monarchy in the Nineteenth Century’ of 1967, and ‘Constitutional Problems and Constitutional Development of the Nineteenth Century’ of 1971.48 Into this
47 ‘Die Historische Rechtsschule und das Problem der Geschichtlichkeit des Rechts’, in Ernst-Wolfgang Böckenförde and Joachim Ritter (eds.), Collegium Philosophicum. Studien. Joachim Ritter zum 60. Geburtstag (Basel: Schwabe, 1965), pp. 9–36, published in English as ‘The School of Historical Jurisprudence and the Problem of the Historicity of Law’ in Ernst-Wolfgang Böckenförde, State, Society and Liberty: Studies in Political Theory and Constitutional Law (New York: Berg Publishers, 1991), pp. 1–25; ‘Der Rechtsbegriff in seiner geschichtlichen Entwicklung. Aufriß eines Problems’, Archiv für Begriffsgeschichte 12 (1968), pp. 145–165.
48 ‘Der deutsche Typ der konstitutionellen Monarchie im 19. Jahrhundert’, in Werner Conze (ed.), Beiträge zur deutschen und belgischen Verfassungsgeschichte im 19. Jahrhundert (Stuttgart: Klett, 1967), pp. 70–92, published in English as ‘The German Type of Constitutional Monarchy in the Nineteenth Century’ in Ernst-Wolfgang Böckenförde (ed.), State, Society and Liberty: Studies in Political Theory and Constitutional Law (New York: Berg
Böckenförde: Legal Historian • 13
period also fall his articles ‘The Rise of the State as a Process of Secularization’, first given as a talk in October 1964 and then published in the Festschrift for Ernst Forsthoff in 1967; and ‘The Origin and Development of the Concept of the Rechtsstaat’ published in the Festschrift for the Social Democratic politician and intellectual Adolf Arndt in 1969, which lays out the development of the concept of the Rechtsstaat since Kant. Finally, in October 1969 he gave his trendsetting talk on ‘The Fundamental Right of Freedom of Conscience’, published the following year.49 The article, one of the most important of his career, contains three themes he would later develop more fully, all of which have become hallmarks of his thought.50
As Reinhard Mehring has commented, the disposition in favour of liberal democracy that Böckenförde had outlined and proposed to Catholics in his early writings from 1957 to 1965 was now becoming embedded in an emerging historical-constitutional theory.51 In this phase, Böckenförde intellectually took up Carl Schmitt, and engages with the latter’s work, but from a very different normative starting point than Schmitt.52 Since 1957 Böckenförde had developed a strong commitment to liberal democracy, partly fed by his reading of the social democratic jurist Hermann Heller, the sociologist and economist Lorenz von Stein, and his exchanges with Franz Schnabel, his doctoral advisor in history, also a social democrat. Unlike Schmitt, Böckenförde had come to embrace modernity for its achievements in bringing about the state as a structure capable of securing inner and outer peace (the state as a Friedenseinheit, a peace-providing framework). As he wrote in his 1964 Ebrach talk, there was no way back beyond the Declaration of the Rights of Man of 1789. He called on the Catholic Church to come to terms with the breakthroughs of constitutionalism, individual rights, and the secular nature of the modern state, and to relinquish any absolute claims on the design of the public order. And he held the Catholic Church to account for helping the Nazi seizure of power in 1933. By the time Böckenförde set out to work on Schmittian themes in constitutional and legal theory, he had become a committed democrat, calling on Catholics to support democracy with all their resources by prioritizing the public good over particular Catholic pursuits. Publishers, 1991), pp. 87–114; ‘Verfassungsprobleme und Verfassungsbewegung des 19. Jahrhunderts. Ein Überblick’, in Juristische Schulung (1971), pp. 560–566, published in English as ‘Constitutional Problems and Constitutional Development of the Nineteenth Century’ in Ernst-Wolfgang Böckenförde (ed.), State, Society and Liberty: Studies in Political Theory and Constitutional Law (Berg Publishers, 1991), pp. 71–86.
49 ‘Die Entstehung des Staates als Vorgang der Säkularisation’, in Buve (note 26), pp. 75–94 published in English as Chapter V in this volume; Böckenförde 1969 (note 10); ‘Das Grundrecht der Gewissensfreiheit’, Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer 28 (1970), pp. 33–88, published in English as Chapter VI in this volume.
50 See Mirjam Künkler and Tine Stein, ‘Böckenförde on the Secular State and Secular Law’ in this volume.
51 Reinhard Mehring, ‘Von der diktatorischen “Maßnahme” zur liberalen Freiheit. Ernst-Wolfgang Böckenfördes dogmatischer Durchbruch in Heidelberg’, Juristen Zeitung 60 (2015), pp. 860–865.
52 In more detail, Mirjam Kunkler and Tine Stein, ‘Carl Schmitt in Ernst-Wolfgang Böckenförde’s Work: Carrying Weimar constitutional theory into the Bonn Republic’, Constellations: An International Journal of Critical and Democratic Theory 25(2) (2018), pp. 225–241.
