The Böckenförde Paradox

What a German Jurist Can Teach American Catholics
Ernst-Wolfgang Böckenförde in 1989 (Engelbert Reineke, German federal archives)

In 1961 a young German law professor named Ernst-Wolfgang Böckenförde wrote a devastating analysis of German Catholicism in the epochal year of 1933. After years of episcopal condemnations of Nazi ideology, the German bishops had reversed themselves two months after Hitler’s legal coming to power and had endorsed cooperation with the new regime. At the same time the Catholic Church’s political voice, the Center Party, provided the parliamentary votes to give Hitler the two-thirds majority in the Reichstag necessary for suspending the constitution and granting power to rule by decree. (Civil liberties had already been suspended a month earlier after the burning of the Reichstag.) And in July the Vatican signed the controversial Concordat with the Third Reich. Böckenförde argued that Catholicism’s rapprochement with the Nazis, which in some quarters became enthusiastic endorsement, could only be fully explained in terms of an ingrained Catholic opposition to pluralistic democracy and secularized modernity. A certain affinity for authoritarian solutions disposed many Catholics to see what they wanted to see in National Socialism, even if they came to regret it.

 

Böckenförde was advised against publishing the article for fear of the damage it might do to a promising academic career. He did so anyway, in the pages of the influential German Catholic monthly Hochland. In the words of a contemporary, it produced a real hornets’ nest. “German Catholicism in 1933” drew instant international attention, and an English translation was rushed into print in the American Catholic journal Cross Currents. In Germany it provoked Catholic authorities to establish the Kommission für Zeitgeschichte (Commission for Contemporary History) to oversee publication of documents and scholarly research into the whole era of the two world wars and the dictatorship.

In the event, the brash young scholar did not get stung. Böckenförde, born in 1930 and now eighty-seven years old, went on to have a long and distinguished career as a scholar, judge, and respected public intellectual. The highlight of his career was his term as a judge on the Constitutional Court of the Federal Republic. (Judges serve for limited terms, an admirable practice that Americans must envy, since our extreme polarization—and litigiousness—make lifetime appointments to the Supreme Court so apocalyptically decisive that all other political considerations are cast to the side in presidential elections.) Böckenförde’s term (1983–1996) coincided with German unification and saw landmark decisions on abortion and citizenship, the first necessitated by the need to reconcile lax East German abortion law with West German prohibition, the latter by the early onset of anxiety over the prospect of European unification and open borders.

Böckenförde is also a Roman Catholic and one of Germany’s most prominent Catholic lay intellectuals, but he is not well known in the English-speaking world. That is about to change with the publication by Oxford University Press of two volumes of his papers and articles. I believe that American Catholics may find him a stimulating voice that bridges some of the current divisions in our church and our politics, especially where the neuralgic subject of law and religion is concerned. 

 

Let me begin with a comparison with Judge John T. Noonan Jr., who passed away in April at the age of ninety. Noonan was a figure of truly exceptional stature, with original and substantive books and articles on a host of important subjects. Born only four years apart, he and Böckenförde have a great deal in common. Both were law professors and federal judges, possessed of a keen commitment to history’s importance in illuminating both law and religious doctrine and practice. Both enjoyed standing as Catholic laymen whose independent voices were respected (though not always endorsed) by Catholic authorities. Both were passionately loyal to the way their respective countries have dealt with the place of Catholicism and religion in general in a pluralistic liberal democracy. Both took principled and independent stands preserving the integrity of the law, while at the same time defending the institutional life and public involvement of the Catholic Church (and of course of other religious bodies). Both denied that the state can impose a worldview on its citizens. At the same time, both doubted that law could function without some sort of basis in morality, though they construed the relationship in very different ways.

The differences between the two men are largely due to the differences between the place that Catholicism has in the history and governance of Germany and the place it has in the United States. Here, the religion clauses of the First Amendment prohibit an established state religion and protect religion’s free exercise. Jurisprudence has swung back and forth between interpreting the First Amendment to require strict governmental neutrality regarding religion and seeing it as permitting some measure of accommodation. Ever since Germany’s first experiment with democracy after World War I, the German constitution has also rejected a state religion and guarantees religious freedom, but legalizes a measure of accommodation that has been inconceivable in the United States ever since James Madison and his allies in the Virginia House of Burgesses pushed through Jefferson’s Statute of Religious Freedom over the opposition of Patrick Henry and the advocates of state support for religion. The religious clauses of the Weimar Constitution, for instance, guaranteed state-collected taxes for the churches and supported religious education at various levels and in various settings, clauses that were preserved—over vociferous opposition—after World War II, when West Germany in 1949 adopted its new democratic constitution, the Basic Law (Grundgesetz).

From an American perspective—and also in the eyes of more secular-minded observers in Germany—German Catholicism looks in practice to be a quasi-established church, particularly so in the decades before reunification with the more secularized and historically Protestant eastern regions diluted Catholicism’s dominance in West Germany. There is also a long tradition of lay independence in German Catholicism that American Catholics have only acquired since the Second Vatican Council. (Böckenförde, for example, was for a long time a member of the Central Committee of German Catholics, a large lay organization that has no true American Catholic counterpart.) Similarly, the German hierarchy is historically freer of Roman control than the American episcopate, which was thoroughly Romanized at the beginning of the twentieth century. On the other hand, Noonan’s education spared him the sometimes stifling parochialism of New England Catholicism—“Catholic but not churchified” is how early biographer Kevin Starr described his upbringing. He never attended a Catholic school (apart from after-hours religious education in privileged circumstances) until he started graduate study in philosophy at the Catholic University of America in 1947.

Noonan’s work covered a host of fundamental moral issues and their relationship to law, both civil law and canon law—usury, bribery, contraception, abortion, slavery, and marriage and divorce, for example. He also wrote historical and legal works on religious liberty in the United States, and yet other books on the way law is applied in judicial decisions. He wrote with enviable grace and clarity, reflecting his literary and humanistic education. Böckenförde has favored the form of articles and essays rather than books and monographs. Besides writing on specific legal issues and judicial decisions, he has shown a lifelong concern with the nature and functioning of the modern state and of constitutional theory. He tilts toward political theory and the philosophical foundations of the state as favorite subjects, always with a historical sensitivity. 

I believe that American Catholics may find him a stimulating voice that bridges some of the current divisions in our church and our politics

 

Böckenförde was born into a large middle-class Catholic family in west central Germany. He first studied history and law at the universities of Münster and Munich, passing the law exam in 1953, and then completed doctoral work in law in 1960 at Munich. He completed his second doctorate, the “habilitation” thesis that enables a German university career, in 1964. He taught as professor of public law, constitutional and legal history, and philosophy of law at Heidelberg, Bielefeld, and Freiburg im Breisgau, until his retirement in 1995. Politically he has stood on the left as a member of the Social Democratic Party (SPD), whereas the favored Catholic political vehicle has been the conservative Christian Democratic Union (CDU), the reconstituted and renamed version of what had been the Center Party. His entry into the SPD in 1967 was a declaration of intellectual and political independence. A constant in his thinking over fifty years has been his conviction that the liberal freedoms of the democratic state require active social supports if they are to be real and not merely nominal rights—that is evident as recently as his 2009 article during the world financial crisis, on “the roots of capitalism’s sickness.”

 

His legal and constitutional thinking was shaped informally by his long-standing relationship with Carl Schmitt (1888–1985), the brilliant but controversial jurist and political theoretician whose disgraceful Nazi dalliance ended his professorial career after 1945. Schmitt was a conservative thinker with fascist inclinations, and his concrete political views and doubts about democracy could not be more different from Böckenförde. The two men do however share a concern for the legitimacy and successful functioning of the state in a modern, secularized context, and it is in the area of constitutional theory that Böckenförde (always a little sensitive about his links with Schmitt) has located Schmitt’s main influence on him.

Böckenförde is probably best known for a celebrated paper published fifty years ago, “The Origin of the State as a Process of Secularization.” There he formulated what has come to be known as “the Böckenförde Paradox,” according to which “the liberal, secularized state lives on the basis of assumptions that it itself cannot guarantee. That is the great gamble (Wagnis) it has made, for the sake of liberty.” The thesis is that the secular state was forced to cut itself loose from traditional means of legitimation, and from religious legitimation above all, for the sake of keeping the peace among its citizens, whose views on ultimate matters could embrace a range of religious choices or no religion at all. If that formula sounds familiar, it’s because Americans have been taught a version of it as the Whig history, so to speak, of the First Amendment (all those churches in the colonies that gave up trying to dominate one another and accepted federal neutralization). In the past generation or so, a recurrent theme among Christian conservatives in the United States has been that the liberal state has lost that gamble, having hollowed out its own moral infrastructure by pushing religion out of the public square.

 Whether that it is true or not—or even whether the state has really been secularized—can be debated. On the one hand, Böckenförde has been emphatic ever since the 1950s, years before Vatican II’s Declaration of Religious Freedom, that the era of the Christian state is over. He insists that the state exists first of all to keep the peace, and that in what Germans call a Rechtsstaat or “rule of law” state, all that the state can demand of its citizens is agreement to obey the rules that govern democratic life. It cannot expect them to adopt a worldview or complete system of morality that exists as a justification or grounding for the state. All we can ask, for example, of Muslim newcomers is that they comply with existing laws, regardless of what they may think privately. Laws govern actions, not convictions or attitudes.

 That type of governmental self-denial also prohibits imposing the doctrine of natural law as an entailment of the order of the state. The consequences of failing to honor the distinction between morality and law are “freedom-destroying and totalitarian. The right of truth and of those who believe they possess it—and the means of enforcement—take the place of the right and freedom of the person.” (I don’t know what he thinks about former Pope Benedict’s denunciation of a supposed “dictatorship of relativism,” but I suspect he would find the charge incomprehensible.) Böckenförde’s skepticism about natural law arises from the way the Catholic Church—which arrogates to itself a privileged status as the interpreter of the natural law—in Germany has used natural law as a protective shield for specifically Catholic concerns, such as control of education, at the expense of other political considerations. That had been part of Böckenförde’s analysis of the political blinders worn by German Catholic leaders in 1933. And he saw it in operation again after World War II, when Catholic bishops balked on accepting the new democratic constitution without guarantees over Catholic schools.

On the other hand, Böckenförde is also aware that an “ethos” of democracy is necessary in order to secure respect for liberty and equality and the principle of majority rule. There must be some measure of felt commonality to ensure the successful integration of masses of diverse citizens. He has spoken of the need for a “relative homogeneity” in a pluralistic democracy. In Germany, of course, such language raises anxiety. He has hastened to add, borrowing a phrase from an older liberal legal thinker, Hermann Heller (1891–1933), that this relative homogeneity is ethical, not ethnic. (Schmitt had actually insisted that democracy required ethnic homogeneity—we know where that leads.) Religion can nourish such an ethos, but other sources of conviction are also possible. Yet it has to come from somewhere. Hence the paradox. 

Critics have sometimes accused him of smuggling natural law in through the back door.

 

Böckenförde is not opposed to natural-law doctrine per se. In a 2004 lecture, he said that natural law has a role to play in thinking about human dignity. Its proper place is not to serve as valid law in itself but as a “pressure” on the law, a Rechtsethik or “ethic” of law, by which he means that it can be a critical stimulus for evaluating and improving positive law. What does this tell us about his position on abortion? He has consistently argued that the guarantee of the inviolable dignity of the human being in the Basic Law (Article 2, §2) extends to the right to life of the unborn, a right that begins with the moment of conception (not just of implantation, as he had once held). He grounds his position in the wording of the constitution, not in an a priori doctrine of natural law or of personhood. But critics have sometimes accused him of smuggling natural law in through the back door.

At the time of his appointment to the Constitutional Court in 1983, public questions about his Catholic profile led him to take a religious oath to uphold the duties of his appointment as a judge of constitutional law in a religiously neutral secular state. At the same time he resigned his position on the Committee of German Catholics (he also dropped his rights as a party member of the SPD). His justification (the oath was voluntary) was that he considered it a religious duty to guarantee his constitutional impartiality. This became acutely relevant in 1992, when the court had to rule on the constitutionality of a law permitting abortion within the first twelve weeks of a pregnancy, after mandatory counseling with a doctor and a three-day delay. The law originated as a compromise after German reunification in 1991, because of the need to reconcile East Germany’s permissive legislation on abortion with the West German Criminal Code’s prohibition of abortion.

The court took six months to deliberate before rendering a verdict in May 1993. To general surprise, the court ruled 6-2 (there are eight justices on each of the two “senates” of the Federal Constitutional Court) against the constitutionality of the new law and upheld the West German prohibition. At the same time, however, it ruled that there would be no legal penalty attached to breaking the law, if the counseling requirements were met. Hence the odd result: abortion was still illegal but no penalty was imposed for breaking it—as long as the counseling conditions were met. Because voting is anonymous and the verdict is collective, no one knows Böckenförde’s vote. When an interviewer (see below) asked him point blank if he was the person who proposed the novel “illegal but free of penalty” formula, he refused to answer and pointed to the confidentiality of the proceedings.

He may have tipped his hand, however, by submitting what is called a “special opinion” (Sondervotum), which a justice is entitled to do if he or she objects to a specific feature of the verdict—not a minority opinion in the American sense, but a qualified and specific dissent. Böckenförde disagreed that it was also unconstitutional to refuse to pay for the procedure—such a refusal was not required by the Basic Law.

Böckenförde has defended the court’s verdict as the only way in a deeply divided society to honor both a woman’s right to choose with the (to him) inviolable constitutional right to life of the unborn. The crucial circumstance, and one to which he has devoted much thought over the years, was the history of enforcement of the West German prohibition, which turned out to be spotty and rather arbitrary, when it was enforced at all. In his view the inefficacy of the existing law made compromise necessary. A law enforced so haphazardly was bad law measured by the test of social invalidity. He has also said that his position as a judge was different from what it would have been as a legislator: faced with such a law in the Bundestag, he would in conscience have been obliged to vote against it.

There is of course much more to say about this tortuous issue, as deeply divisive in the United States as it is in Germany, and the many other topics on which Böckenförde has written. I have singled this one out partly because I find Böckenförde’s work useful in thinking critically about how the American bishops have, for the past several presidential cycles, let a narrow menu of “non-negotiable” issues overrule any other political considerations in how Catholics might form their conscience in voting. For those interested in learning more about Böckenförde, an excellent place to begin is the long biographical interview conducted by Dieter Gosewinkel in 2009–2010 and published in 2011. It is now in English in the first volume of the new Oxford Press publication, Constitutional and Political Theory: Selected Writings, Ernst-Wolfgang Böckenförde, edited by Mirjam Künkler and Tine Stein. A second volume of papers dealing more directly with religion is forthcoming. But the moral and ecclesiastical issues that may especially interest Commonweal readers are already front and center in the Gosewinkel interview. I recommend it.

Published in the December 1, 2017 issue: 

Michael J. Hollerich teaches theology at the University of St. Thomas.

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