The Fundamental Right of Freedom of Conscience [1970]

2020 ◽  
pp. 168-198
Author(s):  
Ernst-Wolfgang Böckenförde ◽  
Mirjam Künkler ◽  
Tine Stein
Keyword(s):  
Religious Freedom ◽  
Modern Concept ◽  
Constitutional Court ◽  
Constitutional History ◽  
Freedom Of Conscience ◽  
Legal Documents ◽  
Federal Constitutional ◽  
History Of ◽  
Constitutional Thought ◽  
Religion And State

This article has been described as constituting the liberal core of Böckenförde’s constitutional thought. Böckenförde lays out why he regards freedom of conscience to be the basis of all modern individual liberties, and indeed, as the basis of the modern concept of freedom itself. The article builds on his work on religious freedom to argue that only in modernity can religion be chosen freely and the believer be free in her/his belief. The modern state draws its justification from the non-identification with the moral convictions of its citizens and therefore from the distinction between legality and morality. In other words, the state prescribes what is legal (or not) but leaves questions of morality to individual citizens and to society. Looking back at the constitutional history of this particular freedom and the different connotations attached to it in West European and German legal documents from the 1500s until 1970, Böckenförde analyses how freedom of conscience was slowly and progressively carved out as a right emanating from deepening notions of religious freedom gained successively in peace agreements that ended the confessional wars in Europe. The article contains the kernel for three core contributions Böckenförde developed later: his insistence on the distinction between state and society directed against the Smend school, his critique of the value-based grounding of law directed against Federal Constitutional Court jurisprudence following the (in)famous Lüth Decision of 1958, and his notion of secularity as requiring ‘open encompassing neutrality’ as opposed to ‘distancing neutrality’ between religion and state.

5 Art. 4 GG: Freedom of Faith and Conscience

2019 ◽  
Author(s):  
Bumke Christian ◽  
Voßkuhle Andreas
Keyword(s):  
Religious Freedom ◽  
Religious Faith ◽  
Legal Order ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Freedom Of Conscience ◽  
State Neutrality ◽  
Federal Constitutional ◽  
Scope Of Protection ◽  
Special Protection

This chapter discusses Art. 4 of the Grundgesetz (GG), which guarantees freedom of faith and conscience. Art. 4 para. 1 GG encompasses freedom to profess a religious faith, whereas Art. 4 para. 2 GG deals with freedom to practice a religion without interference. These fundamental rights are available to all persons. GG provides special protection for religious societies (Art. 140 GG in combination with Art. 136 et seq. of the Weimar Constitution). The chapter first considers the jurisprudence of the Federal Constitutional Court concerning the scope of protection for freedom of religion, taking into account the principle of state neutrality, and the constitutional justification for interference with religious freedom. It then explains the scope of protection for freedom of conscience, focussing on the conflict of norms between the state legal order and the freedom to act according to one's conscience.

The Role of the Constitutional Court in the Development of the Rule of Law in Kosovo

2018 ◽  
Vol 43 (3) ◽  
pp. 274-313
Author(s):  
Enver Hasani
Keyword(s):  
Material Culture ◽  
Rule Of Law ◽  
Constitutional Court ◽  
Constitutional History ◽  
Constitutional Courts ◽  
The Rule Of Law ◽  
The Past ◽  
History Of ◽  
Communist Countries

Kosovo’s Constitutional Court has played a role of paramount importance in the country’s recent history. The author uses a comparative analysis to discuss the role of the Court in light of the work and history of other European constitutional courts. This approach sheds light on the Court’s current role by analyzing Kosovo’s constitutional history, which shows that there has been a radical break with the past. This approach reveals the fact that Kosovo’s current Constitution does not reflect the material culture of the society of Kosovo. This radical break with the past is a result of the country’s tragic history, in which case the fight for constitutionalism means a fight for human dignity. In this battle for constitutionalism, the Court has been given very broad jurisdiction and a role to play in paving the way for Kosovo to move toward Euro-Atlantic integration in all spheres of life. Before reaching this conclusion, the author discusses the specificities of Kosovo’s transition, comparing it with other former communist countries. Among the specific features of constitutionalism in Kosovo are the role and position of the international community in the process of constitution-making and the overall design of constitutional justice in Kosovo. Throughout the article, a conclusion emerges that puts Kosovo’s Constitutional Court at the forefront of the fight for the rule of law and constitutionalism of liberal Western provenance.

The Karlsruhe Phenomenon

2020 ◽  
pp. 32-69
Author(s):  
Matthias Jestaedt
Keyword(s):  
Supreme Court ◽  
Constitutional Court ◽  
Constitutional History ◽  
Constitutional Development ◽  
New Creation ◽  
Political Actors ◽  
Basic Law ◽  
Federal Constitutional ◽  
Constitutional Adjudication ◽  
The U.S

This chapter stresses that nothing in the Federal Constitutional Court’s growth was preordained. It depicts the Court’s initially fraught relations with political actors, ordinary judges, and legal academics, scrutinizing the institutional peculiarities that have made the Court what it is. The manner and direction in which the Court developed was recognizable merely in outline in the fundamental decision by the constitution’s founders for an institutionally independent constitutional adjudication, which according to the size and extent of its jurisdiction would be powerful. This was due to the fact that the Federal Constitutional Court in its totality was unprecedented both in terms of constitutional history and comparative constitutional development: during the deliberations on the Basic Law and Federal Constitutional Court Act, there were repeated specific references to the Staatsgerichtshof in Weimar and the U.S. Supreme Court. But both in its numerous distinctive details and even in the overall concept, the constitutional court of the Basic Law represents a new creation.

The Secularized State

2020 ◽  
pp. 220-236
Author(s):  
Ernst-Wolfgang Böckenförde ◽  
Mirjam Künkler ◽  
Tine Stein
Keyword(s):  
Religious Freedom ◽  
Religious Faith ◽  
The State ◽  
Religious Communities ◽  
Constitutional Court ◽  
Freedom Of Association ◽  
Democratic State ◽  
Federal Constitutional ◽  
Freedom Of Belief ◽  
The Right

In this article Böckenförde contrasts his concept of open encompassing neutrality (found in most Scandinavian countries and in Germany) with that of distancing neutrality, as practised in France. While the latter champions negative religious freedom, open encompassing neutrality aims for a balancing of negative and positive religious freedom. Religious freedom for Böckenförde is multidimensional and includes the right to have (or not) a religious faith (freedom of belief), to affirm (or not) this faith privately and openly (freedom to profess), to exercise (or not) one’s religion publicly (freedom of worship), and to join together (or not) in religious communities (religious freedom of association). The correlate to these individual and group rights is the open and overarching principle of the state’s neutrality towards religion and other worldviews, entailing a prohibition on the state justifying law on religious grounds. Furthermore, it requires the state not to privilege religion over non-religion and one religious faith over another. Siding with the ruling of the Federal Constitutional Court (at a time when he was not a sitting judge), Böckenförde underlines that even religious communities who reject the democratic state have the right to be recognized and legally protected. What matters is not whether communities accept or reject the state, but whether they obey or violate its laws. This was the court’s view on the Jehovah’s Witnesses, and it must also be applied, Böckenförde writes, to religious fundamentalists who do not accept the secular order, as long as they do not violate any laws.

French Constitutional History, Garden or Graveyard?

2007 ◽  
Vol 3 (3) ◽  
pp. 476-487
Author(s):  
Gustaaf van Nifterik
Keyword(s):  
Nineteenth Century ◽  
European Country ◽  
French Revolution ◽  
Constitutional History ◽  
Fifth Republic ◽  
European Constitution ◽  
History Of ◽  
Constitutional Thought ◽  
Constitutional Monarchy ◽  
Constitutional Changes

On 29 May 2005 the French said no to the draft of a European Constitution. And frankly, the French should know about constitutions! One can differ whether the history of France should be considered a fruitful garden of constitutional thought, a graveyard of constitutional experiments, a ‘musée des constitutions’, or a minefield; in any case it is beyond doubt that the French are rather experienced in constitutions and constitutional changes. Since the French Revolution in 1789, France has been a monarchy, a republic more than once, an empire twice and a constitutional monarchy in between; the nineteenth century shows the pattern monarchy, republic, empire; since 1958 the French live in their Fifth Republic.There is a lot to learn from the constitutional history (perhaps struggle is a better word in this context) of this important European country for any political entity in search of a proper constitution. Which constitutional institutions were a success, which were not; why did it or did it not work out the way it was planned?

Review Essay –Principles of European Constitutional Law (Armin Von Bogdandy & Jurgen Bast eds., 2006)

2009 ◽  
Vol 10 (11) ◽  
pp. 1551-1560
Author(s):  
Giuseppe Martinico
Keyword(s):  
European Union ◽  
Review Essay ◽  
Constitutional Law ◽  
Lisbon Treaty ◽  
Systemic Approach ◽  
Constitutional Court ◽  
The European Union ◽  
Federal Constitutional ◽  
History Of

Recently the GermanBundesverfassungsgericht(Federal Constitutional Court) knocked on the European Union's door with its impressive judgment on the Lisbon Treaty, recalling all the weight of the German scholarship tradition steeped in the German dogmatic flavor: the attention to the history of sovereignty and the attempt to catch all the European Union constitutional system's life revealed the systemic approach peculiar to the German dogmatic scholarship.

Religion, Law, and Democracy

2020 ◽  
Author(s):  
Ernst-Wolfgang Böckenförde
Keyword(s):  
Catholic Church ◽  
Constitutional Court ◽  
Modern Democracy ◽  
Legal Scholar ◽  
Vitro Fertilization ◽  
Constitutional Principle ◽  
Copernican Revolution ◽  
Federal Constitutional ◽  
Religion And State

This is the first representative edition in English of Ernst-Wolfgang Böckenförde’s writings on religion, law, and democracy. As a historian, legal scholar, and former judge on Germany’s Federal Constitutional Court, Böckenförde (1930–2019) has shaped legal and political discourse in twentieth-century Germany like few others. Doing so, he combined three normative orientations writings as a political liberal, as a social democrat, and as a Catholic. The included articles discuss the place of religion in modern democracy, the role of the Catholic Church in the Nazi seizure of power in 1933, the Copernican revolution of Vatican II in embracing religious freedom and accepting the modern secular state, the history of the concept of freedom of conscience, the relation of religion and state in Hegel’s writings, democratic models of secularism, theological reflections on the character of secular law, models of political theology, the need for canon law reform, and bioethical issues, such as the regulation of abortion, genetic screening, and in vitro fertilization in light of the constitutional principle of human dignity. This is the second of two volumes, of which the first, published in 2017, brought together articles in constitutional and political theory. Beside fifteen articles, the volume contains excerpts of the biographical interview that historian and legal scholar Dieter Gosewinkel conducted with Böckenförde in 2009/2010. Introductions and annotations by the editors accompany the text throughout, providing background explanations on the context of German and European politics and history. A comprehensive list of Ernst-Wolfgang Böckenförde’s publications is included in an appendix.

Seven Seeds of Freedom

2019 ◽  
pp. 177-205
Author(s):  
Daniel Philpott
Keyword(s):  
Religious Freedom ◽  
Full Bloom ◽  
Human Right ◽  
Islamic Tradition ◽  
History Of ◽  
Muslim Majority ◽  
Religion And State

This chapter looks at potentialities for freedom in the Islamic tradition, identifying these potentialities as “seeds of freedom,” which are concepts or practices that express religious freedom in a significant way but that fall short of a full human right of religious freedom that is articulated in its many dimensions, enshrined in law, protected in contemporary political orders, and broadly accepted by Muslims. Nurtured, these seeds might grow into religious freedom in full bloom. These include verses in the Qur’an and their interpretation; the life of the Prophet Muhammad; the history of Muslim toleration of non-Muslims; liberal Islam; contemporary Muslim advocates of religious freedom; freedom in law and institutions in Muslim-majority states; and the history of the separation of religion and state.

Another Test in Proceduralizing Democracy: The Oral Proceedings in the NPD Party Ban Case before the Federal Constitutional Court

2002 ◽  
Vol 3 (11) ◽  
Author(s):  
Felix Hanschmann
Keyword(s):  
Democratic Party ◽  
Constitutional Court ◽  
Federal Constitutional ◽  
History Of

After recognizing that the motions in the party-ban proceedings against the “National Democratic Party of Germany” were partly based on evidence provided by so-called V-Männer informants (members of the party who were supervised and paid by the secret-services) and after suspending the decision to hold the substantive hearing because of this information, the Bundesverfassungsgericht (BVerfG – Federal Constitutional Court) last Tuesday, 8 October 2002, resumed the party-ban proceedings with an extraordinary and – in the history of the Court - unique session.

Lisbon in Karlsruhe: Maastricht's Epigones At Sea

2009 ◽  
Vol 10 (8) ◽  
pp. 1201-1218 ◽  
Author(s):  
Christoph Schönberger
Keyword(s):  
Democratic Legitimacy ◽  
Constitutional Court ◽  
The European Union ◽  
Federal States ◽  
Basic Law ◽  
German Constitution ◽  
Federal Constitutional ◽  
History Of ◽  
The Moment ◽  
German Federal Constitutional Court

On 30 June 2009, the Second Senate of the German Federal Constitutional Court handed down its long-awaited decision on the compatibility of the Treaty of Lisbon with the German Constitution, the Basic Law. It was no surprise that the Court upheld the constitutionality of the treaty. Even the plaintiffs could not have imagined in their wildest dreams that the Court would actually say “no”. What is more than disturbing, however, is the tortuous way in which the Court's vast and verbose opinion purports to be justifying the approval of the treaty. There is probably no other judgment in the history of the Karlsruhe Court in which the argument is so much at odds with the actual result. To the point of perplexity and bewilderment, the reader of the opinion is hardly able to find any reasons supporting the outcome of the case. At the moment when the Court approves the most far-reaching revision of the European founding treaties since Maastricht, it does not present any serious argument supporting the conclusion it has reached, except sketchy evocations of a principle of “openness towards European law” it finds enshrined in the Basic Law and brief solemn reminders of a murderous past. Instead, the main thrust of the argument is a ringing indictment of European integration based on a certain idea of egalitarian and majoritarian parliamentary democracy that the Court derives from the Basic Law. Unfortunately, this standard of democratic legitimacy can only describe certain centralized states; it is unable to account for federal States, including Germany, and cannot be made to fit the federal system of the European Union.

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