Three years ago, I published an article in Commonweal about the German Catholic legal scholar, judge, and public intellectual Ernst-Wolfgang Böckenförde, who passed away in 2019 (see “The Böckenförde Paradox” in our December 1, 2017 issue). The subject of my article was Böckenförde’s reflections on the secular liberal state and his celebrated assertion that the liberal state depended on conditions that it itself could not guarantee, or the “Böckenförde paradox.” At the time, Oxford University Press was publishing the first of two volumes of his translated articles, speeches, and essays on constitutional and political theory.
Now OUP has published the second volume, which deals with Böckenförde’s writings on law, religion, and democracy. Several items in the new book draw on his experience as a judge on the Constitutional Court of the Federal Republic of Germany (1983–1996), including his involvement in a landmark 1993 decision on German abortion law. One of these writings is a retrospective on what it meant to be “A Christian in the Office of Constitutional Judge” (1999), with specific reference to the abortion decision. It is reproduced here, with the permission of the collection’s editors and OUP.
Böckenförde’s meditation on Christian spirituality, as he calls it, is about how to draw necessary boundaries in one’s life as a Christian and as a citizen. The specific public domain he’s talking about deals with law and the judiciary. But his meditation’s broader principles can speak to all Catholics and even all believers in a liberal democracy. Böckenförde believed that the constructive role of natural law is on the ethical-moral side, not the side of external law, which exists for the common good of social peace. Natural law can shape how we think about and formulate positive law. But it cannot substitute for it if it imposes moral expectations that deviate too much from existing social practices. When that happens, the result is the deterioration of external law as well.
As a judge on the Constitutional Court, Böckenförde took an oath before God to rule only as the Basic Law (Grundgesetz), Germany’s constitution, required. He says he took democratic rules with religious seriousness. That meant he could not be expected to act as though he was the Church’s man on the court. (Here it’s important to remember that the German Federal Constitutional Court’s main duty is to rule on the constitutionality of legislation and executive decisions. There is a separate Supreme Court that acts as the final court of appeals of judicial decisions. Our own Supreme Court serves both purposes.)
The legislation that occasioned his reflections on being a Christian in the office of a judge was a 1992 law that legalized first-trimester abortions. The case attracted enormous attention when it went before the Constitutional Court. It was the Federal Republic’s second abortion controversy. In 1975 the court had invalidated a 1974 law that also legalized first-trimester abortions. The basis for the court’s decision was Article Two of the Basic Law: “Every person shall have the right to life and physical integrity.” In response to that earlier decision, a law was passed in 1976 that continued to treat abortion in general as illegal but recognized exceptions. An abortion could be permitted if it met certain Indikations (a declaration following an official process) on the basis of medical (e.g., a threat to the life of the mother), criminal (e.g., rape), or social circumstances (e.g., teen pregnancies). The latter two categories required ethical counseling three days before the abortion.