Freedom in Religion, Freedom in the State

This article provides an overview of Böckenförde’s writings on issues of religion, ethos, and the Catholic Church in relation to law, democracy, and the state. It presents Böckenförde as an inner-Catholic critic, who attempted to persuade Catholicism that one’s own freedom can be defended only as part of the general freedom. This was finally achieved, at least dogmatically according to Böckenförde, with the Declaration of Religious Freedom at the end of the Second Vatican Council. The article lays out how Böckenförde sees the role of religion and natural law in secular democracy, namely as one informing the citizens’ ethos. Democracy cannot survive in the long term unless it is carried out by people who consider themselves part of the same demos and work towards a shared democratic culture. The article includes information on his intellectual biography, a periodization of his academic writings in seven phases from 1957 to 2012, a discussion of some of his core arguments as an inner-Catholic critic, a reflection on the cover images he chose for the two volumes, and closes with concluding remarks on Böckenförde’s view of religion in democracy compared to other theorists of democracy and secularism.

Böckenförde on the Relationship Between Theology, Law, and Political Theory

Part III comprises four articles dealing with the relation between theology, law, and political theory. Throughout all of these, Böckenförde clearly distinguishes between the demands on the individual that arise from religion, positive state law, and politics respectively. He also points out that religious legal concepts and state law need not be irreconcilably opposed to each other—there is the possibility of reconciliation between the truth-claims of revealed religion and the positivity of modern state law, as long as religious claims do not claim to be universally binding. Since the Second Vatican Council, the Catholic Church and the democratic constitutional state share common ground in the recognition of the freedom of the individual. The chapters reflect Böckenförde’s personal belief and attitude, expressed in the motto ...

A Christian in the Office of Constitutional Judge [1999]

In this personal reflection, Böckenförde portrays the dilemma he faced during his tenure as a judge on Germany’s Federal Constitutional Court: trying to bridge his Christian Catholic spirituality with his work as a high-ranking public servant in a secular state. He describes his struggle with the Catholic teachings prior to Second Vaticanum, which at that time still defined the state as ideally Catholic and demanded every believer in public office to act as a vanguard for Christian natural law. But by committing himself to the public good, Böckenförde sidestepped the requirement of the Catholic Church and fully embraced the democratic, religiously neutral political order. Böckenförde justified his position (deviant in the eyes of the Church) by insisting on the strict neutrality demanded from a judge. He pointed to the so-called Church Compromise of the Weimar Republic (Weimarer Kirchenkompromiss), which established the neutrality of the state with regard to religion, and which was re-adopted in West Germany after 1949. He also relinquished his consultative role in the Central Committee of Catholics once he was nominated to the Constitutional Court. Even in cases affecting abortion, he only dealt with the issues at hand as a judge, not as a Catholic. In his view, Christian spirituality can manifest itself in faithfulness to one's office and an integrity that is open to the world.

The Secularized State

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.

Political Theory and Political Theology

In this article, Böckenförde tries to determine the proper means of conducting political theology. After dismissing juridical political theology in the vein of Carl Schmitt as not so much theological but rather sociological in its discussion of how original theological terms such as ‘sovereignty’ were transposed to the state, people, or government, he turns to two other models: Böckenförde sees a shift away from classical institutional political theology à la Augustine, which explores what Christianity has to say about a state’s status, legitimation, and structure, to what he calls appellative political theology. Immediately concerned with action, the latter manifests itself inter alia as liberation theology and tends to run the risk of dissolving into theologically justified, and ultimately arbitrary, politics. As an alternative model, Böckenförde extols the political theology of Pope John Paul II. By focusing on the words of Jesus and the Gospel and other topics that appear ‘nonpolitical’ at first glance, the pope makes the case for dignity, liberty, and the purpose of man, taking the side of the weak and rejecting violence. In Böckenförde’s view, such a political theology is not about to be rendered obsolete by modernity. Since politics is essentially concerned with relations between individuals and groups, religion cannot avoid being drawn into the political field and raise its voice there as well.

On the Authority of Papal Encyclicals

In this article Böckenförde connects two of the most important concerns throughout his life: the freedom of man and the constitution of the Catholic Church. Böckenförde shows that papal encyclicals are inherently fallible, demonstrated historically for example with reference to magisterial statements on religious freedom, which as late as the nineteenth century condemned religious freedom as leading to the dissolution of the divinely given order of truth. Böckenförde shows that this position is based on a perceived unity of morality and juridical law, which fails to distinguish their respective functions. Böckenförde then discusses the ‘Declaration on Religious Freedom’ by Vatican II as an epochal shift from the right of truth to the right of the person, endorsed with a theological legitimation, namely the dignity of the human person arising from the likeness of God. Böckenförde also proposes that the authority of encyclicals is dependent on the question of how far encyclicals are open to internal criticism, which does not signal a lack of faith, but rather an important corrective that needs to be taken into account by the magisterium based on the concept of sensus fidelium. Without such engagement, the connection between the authority of the teaching staff, which traditionally provides meaningful orientation, and the faithful’s willingness to follow, is in danger of dissolution. As Böckenförde elucidates with reference to the Codex Iuris Canonici of 1983, the political practice inside the Church is far from permitting such engagement. Böckenförde’s concluding remarks are dedicated to the need for canon law reform.

German Catholicism in 1933

Böckenförde examines here why almost the entire leadership of organized Catholicism in Germany, that is both of the Church organization and Catholic societal associations, became complicitous in and sometimes actively helped Hitler amend the constitution and dismantle the democratic state. Böckenförde identifies three main reasons for this sudden transformation: the legacy of the Prussian Culture War (Kulturkampf), the dominance of natural law in Catholic thought, and the inherent anti-liberalism of the Catholic magisterium. Since the Kulturkampf, Catholic citizens felt alienated from the state, chose to withdraw into “inner emigration” and rallied around matters of personal faith, issues internal to the Church, and questions of religious schooling, each of which had a strong connection to natural law and—although specifically Catholic concerns—were equated in their minds with the public good. The Concordat between the Vatican and the Nazi regime in July 1933 promised the Catholic leadership the possibility of achieving the kind of autonomy they had sought for decades, in exchange for officially accepting the new Nazi order. As Böckenförde dryly diagnoses, in the minds of Catholic leaders the preservation of the democratic order carried no weight by comparison. Additionally, leading Catholics attached great hopes to the new Reich, expecting that it would revive the old Christian-Catholic, anti-enlightenment and ‘organic’ alternative to the modern, individualist, and secular state. Written in 1961, the article was the first in-depth historiographic study of Catholic complicity in the rise of the Nazi regime and caused a lasting public controversy, which ultimately vindicated Böckenförde’s account.

Böckenförde on the Secular State and Secular Law

Part II brings together four articles dealing with aspects of the secularity of the modern state. It opens with one of Böckenförde’s most widely cited articles—translated into seven languages—‘The Rise of the State as a Process of Secularization’ published in 1967, in which he lays out the emergence of the modern state as a process of emancipation from the influence of religious authority that occurred in three distinct stages. Although less well-known internationally, the second article included here is no less important in Böckenförde’s intellectual development. It deals with ‘The Fundamental Right of Freedom of Conscience’ (1970), which Böckenförde regards as the cornerstone of the religiously neutral modern state and as the cardinal individual liberty, from which all others spring. In the third article, ‘Remarks on the Relationship between State and Religion in Hegel’, written in 1982, Böckenförde reviews Hegel’s major writings on questions of religion and the state to guide him in his own quest for the ‘inner regulatory forces’ and the binding ethos that keep democratic societies together. The interest in this binding ethos and the Hegelian notion of freedom places the article in a direct line with Böckenförde’s 1967 secularization essay as well as his 1978 article on ‘The State as an Ethical State’ (included in volume I). In the fourth article in this part, ‘The Secularized State: Its Character, Justification, and Problems in the Twenty-first Century’ of 2007, Böckenförde returns to the core ideas of the 1967 secularization essay fifty years later, asking what is the secular state, and how can it deal with a plurality of worldviews? Böckenförde lays out the cornerstones of his views on the desirable relationship between religion and state in contemporary democracy by juxtaposing his concept of ‘open encompassing neutrality’ vis-à-vis that of ‘distancing neutrality’, of which he regards the French laïcist model as paradigmatic. The latter ‘tends towards consigning and confining religion to the private and private-social sphere’ and prioritizes the freedom ...

Remarks on the Relationship between State and Religion in Hegel [1982]

Is and can religion be seen as a foundation of the modern state? In this article Böckenförde discusses the relationship between state and religion while reviewing Hegel’s main writings on this question. Reconstructing Hegel’s concept of the state, Böckenförde points out that for Hegel, the state is simultaneously universal and historical. It is more than the political system or government—it is the polity in general and the structured form in which the people exist. Moreover, the state is the materialization of the ethical idea as such and the manifestation of how ‘truth’ in history became reality. In Hegel’s view, ‘truth’ is ultimately God’s will in the world. Further, for Hegel, state and religion are two forms of the same substance: reason. Morality and reason are closely intertwined in Hegel. Religion is a source of morality for the people, and the state and the Church are the institutional manifestations of reason. Böckenförde shows that Hegel identifies individual conscience as the core of each person’s freedom; however, Hegel denies a right to an aberrant conscience, indicating a very limited notion of freedom. Finally, Böckenförde discusses Hegel’s philosophy in light of the state today with its separation of state and religion. Since today’s state does not consider religion as part of its foundation, in Hegel’s view it would ‘stand freely in the air’. Böckenförde concludes, contrary to Hegel, that only the democratic process and the people’s agreement on the things that cannot be voted upon can form the basis of the state.

Biographical Interview with Ernst-Wolfgang Böckenförde [2011]

The chapter consists of excerpts of an interview historian and legal scholar Dieter Gosewinkel conducted with Böckenförde in 2009/2010. The selected sections discuss Böckenförde’s critique of Catholic natural law thinking and the Catholic Church’s position on democracy; his analysis of the failure of Catholic leadership during the Nazi seizure of power in 1933; his famous dictum and how he himself interprets the sentence according to which ‘the liberal secularized state is sustained by conditions it cannot itself secure’; the place of religion in the public sphere; his notion of political theology (which he contrasts with that of Carl Schmitt); and what he considers to be the key breakthroughs of Vatican II, namely the acceptance of the secular state, religious freedom, and the differentiation between morality and state law. Some personal reflections regarding his understanding of the ethos of a constitutional judge and the very idea of the Rechtsstaat conclude the chapter. Twenty extensive annotations provide the reader with crucial background information. Additional excerpts of the interview are included in Volume I of this edition (Constitutional and Political Theory, OUP 2017).