A Christian in the Office of Constitutional Judge

Ernst-Wolfgang Böckenförde on religion and democracy
Ernst-Wolfgang Böckenförde, right, in December 1989 (German Federal Archive/Wikimedia Commons)

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.

In short: still illegal but not in practice criminal.

German unification in 1990 made it necessary to revisit the 1976 law, because the DDR— the Democratic Republic of (East) Germany—had a more permissive law that decriminalized abortion in the first trimester. In 1992 the Bundestag passed a law that decriminalized abortion in the first trimester, while preserving mandatory ethical counseling but not the Indikations process.

That was the law on whose constitutionality Böckenförde had to rule. He sided with the majority decision, which ruled against the 1992 law and upheld the 1975 decision prohibiting abortion at any time as illegal. But the decision added two significant qualifications. First, an abortion could be lawful if it answered to the Indikations provided by the 1976 legislation. Second, an otherwise illegal first-trimester abortion would still be illegal, but no criminal sanctions would be assessed if it was preceded by counseling. In short: still illegal but not in practice criminal.

The illegal-but-not-criminal formula was probably Böckenförde’s contribution. His rationale was twofold. First, he had consistently held that abortion was not only a moral wrong but also necessarily a legal wrong, by virtue of German constitutional law. He had dealt with the question of “personhood,” mentioned in Basic Law Two, by appealing to Article One: “Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.” Human dignity is premised of human life. Because the fertilized ovum is human life, it too deserves the protection of its dignity rather than being instrumentalized as a mere thing. Any effort to find a transitional state at which human life supposedly begins to deserve protection will be arbitrary.

His second rationale for the illegal-but-not-criminal compromise is that it preserves constitutional protection of human life while recognizing that all positive law, to be successful, must be roughly commensurate with general social practice. Law that deviates too drastically from what people are ordinarily able to do will cease to be respected as law. The deterioration of respect for law is deleterious to law’s general purpose of protecting the common good of peace. (An American might think of our failed national experiment with Prohibition as an example.) Böckenförde writes elsewhere that he had discovered years earlier that enforcement of the 1976 law was inconsistent and infrequent. Hence the need to compromise.

One benefit of reading Böckenförde’s work might be a recognition of the relevance of the social foundation of law. Positive law in a secular liberal democracy exists in part to secure the common good of peace among citizens who may disagree about a vast number of matters, many of which involve unresolvable differences. The pro-life movement in the United States has not persuaded a majority that first-trimester abortions should be criminalized. That is not likely to change soon. Those of us who believe that abortion is the unwarranted destruction of human life may also believe that criminal law is an unworkable instrument to deal with that. It is unworkable in part because we can safely predict that if Roe v. Wade is overturned and abortion is returned to the states (where, arguably, it should have stayed in the first place), enforcement will be arbitrary and inconsistent in those places where it again becomes illegal.

A second benefit for American Catholics may be to provide a reasoned justification for urging our bishops to reconsider their intransigent insistence that abortion is the preeminent issue facing us when we cast our vote. This insistence forces Catholic voters into a moral calculus unhinged from the real political landscape facing Americans and the world today. It is an exercise in futility that leads not to “faithful” but to politically irresponsible citizenship. —Michael Hollerich

 

I. Professional Life and Christian Spirituality

As a Christian, one seeks to live Christian spirituality. But what exactly does Christian spirituality mean? In his essay, Abbot Ansgar (801–865) gave a concise, and perhaps accurate, definition: “Spirituality is the integration of all of life into a way of life borne by and reflective of faith.” These words can be supplemented by those of Monsignore Karlheinz Ducke (1941–2011): Christian spirituality is the life-shaping power of faith that is drawn from the heart. In theological terms, Christian spirituality appears thus as the realization of God’s devotion in baptism through the response to this devotion. It finds its forms of expression and its concretization not only in prayer and divine service, but precisely also in daily life; it is a holistic way of life.

Two things follow from this. First, Christian spirituality knows no separation between the personal-private and the occupational spheres: it realizes itself in both, it relates to all of life, it is undivided. Christ’s call applies also to one’s profession, which is usually work in the worldly realm: “You shall be my witnesses, you are the salt of the earth, the leaven that permeates the world.” But how can this be put into practice? What does “doing the words of Jesus” mean for being active in one’s profession and society?

Second, this realization of Christian spirituality has a special quality if the profession is a public office, especially an office of the state. Here Christian spirituality specifically encounters pluralistic normality. The state in which we live is no longer a “Christian state,” it itself does not have or profess a religion, it does not have its center in the truth of the Christian faith. Its guiding idea is not that truth, but neutrality with respect to religion and other worldviews. It is a house, a common house, in which Christians and non-Christians live together as equal citizens and bearers of rights. The guarantee of religious freedom ensures that Christian faith can be realized by Christians in this state, but the state itself does not realize it.

How, then, does Christian spirituality manifest itself as a faith-based way of life in an office that is part of this state order and plays its part in realizing it? To put it differently: How, in such an office, can the professional life be brought before God?

 

II. Historical-Biographical Flashback

At this point a historical-biographical flashback is necessary to allow the full scope of the question and the problem to become clear. Arising from a strong interest in politics, which was born out of my conscious experience of the final years and end of the Third Reich, the question of how to be civis simul et christianus [citizen and Christian at the same time] was already preoccupying me in secondary school and then at university, and it has accompanied me throughout my life ever since. What guidance on this question was offered by Church teachings—indeed, by official church doctrine—after the war and well into the 1950s?

The relationship of Christians to politics and to the holding of political office was shaped decisively in the application and elaboration of Pope Leo XIII’s doctrine of the state. The latter has its foundation in a binding ordo of Christian natural law. It gave rise to objective claims of validity and absoluteness, which had to clash with the construct and rules of a democratic system resting on the equal political rights of all citizens and the freedom of political decision-making. To illustrate with an example: during the deliberations of the Parliamentary Council in the spring of 1949, the Catholic bishops were determined to reject the Basic Law as a whole because it did not contain the recognition of the confessional right of parents, that is, the right of parents to determine the confessional character of public schools (with respect to the Volksschule [compulsory elementary and lower secondary education]). A pastoral letter to that effect had already been prepared, but Adenauer (at the time the president of the Parliamentary Council) was able to prevent this in internal negotiations. In the eyes of the Church, democratic majority decisions could exist only below and above what was regarded as inalienable natural law within the framework of the presupposed ordo. The criterion for whether a political party was electable for Christians was its (at least) practical recognition of natural law, with the Church claiming for itself the authority to interpret this natural law and thus determine its scope. Moreover, on the basis of Leo XIII’s state doctrine, the position of the “Catholic state as thesis” held. It maintained that the state as such should be a Christian (Catholic) state. However, if the concrete circumstances did not permit the realization of this goal, because it would create discord or civil war, the state could grant religious tolerance and temporarily dispense with the complete realization of the Christian ordo. Religious tolerance arose as a concession, not from a right of the person to religious freedom.

The second is the possibility to fully recognize the religious-ideological neutral state, which guarantees religious freedom as a basic right, without having the “Catholic state” in the back of one’s mind as the real goal.

The upshot of these positions was that Christians in political offices should act as the phalanx or vanguard for the realization of (Christian) natural law. Divergent views among Christians could legitimately exist only on purely factual matters unaffected by natural law; only to this extent were compromises and coalitions with other political forces possible.

As time went on, I developed growing doubts about the sustainability of this concept for the realization of the civis simul et christianus, namely precisely with regard to the foundations and functional conditions of a democratically organized state. In the process, the concept of the commonweal, which is indigenous to both the Christian and the secular ordo, became the bridge concept for my reflections in order to reconcile them with the traditional Christian state doctrine and not simply set the latter aside. To my mind, if one understood this commonweal not as a normative-abstract ideal, but as something related to the reality of a democratic and liberal state, this raised two positions that Christians, too, should not only accept but actively and positively advocate.

The first is the possibility for Christians to place themselves fully into the democratic order, to work within its framework and under its conditions for the realization of the commonweal without a permanent reservation based on authoritative natural law. The second is the possibility to fully recognize the religious-ideological neutral state, which guarantees religious freedom as a basic right, without having the “Catholic state” in the back of one’s mind as the real goal. This amounted to turning one’s back on the position of Pius XII’s toleration address of 1953, which maintained that error as such had no “right to exist, engage in propaganda, and take action [against the truth]” not only morally, but also within the external sphere of the law, though special circumstances could justify(!) not interfering in this regard with prohibitions. By contrast, for me, especially in my capacity as a jurist, the right of the individual to religious freedom, independent of the content of faith, was obligatory. The step towards the acceptance of this right that Pope John XXIII made in his encyclical Pacem in terris (1963) was for me a stroke of liberation.

My early essays arose out of this context: “The Ethos of Modern Democracy and the Church” (1957), “German Catholicism in 1933” (1961/62), and “Religious Freedom as a Task of Christians” (1965). They were a reflection of the engagement with the prevailing Church teachings and at the same time an attempt to reorient this Church doctrine and practice through criticism from the inside, to change it from a personal struggle for Christian spirituality. The goal was to achieve credibility of the civis simul et christianus.

 

III. The Office of Constitutional Judge and Christian Spirituality

Now on to the real topic: the office of constitutional judge and Christian spirituality.

1. The starting point for me was that it is—and must be—part of Christian spirituality to take on such an office as intended in the constitution: as an office in a democratic and religiously and ideologically neutral state. It seems to me that it is a part of and an imperative especially of Christian conduct in the world to fully embrace this office, its task as well as its commitments.

This office is not one that is politically formative in an active and deliberate way, as is the case for members of parliament or the government. It is a judicial office: it is charged with preserving and guaranteeing the constitution in the way it is fixed as a legal system and articulated as to content. That means right away that it is not a sphere of activity in which one could act as an agent for the Catholic cause, as an advocate for the realization of a Christian natural law, or as a representative of the Church’s concerns. Precisely such an approach would invert the meaning and function of the office as envisaged by the constitution, for it demands strict independence also towards one’s own politically or religiously motivated views and priorities. What matters is the commitment solely to the constitution as the order created for and applicable to the political community.

This takes on special importance because of the power of interpretation that a constitutional court commands. Such a court is mandated to come up with the final, non-appealable and therefore authentic interpretation of the constitution. In the process it often confronts the task of defining in greater detail more or less open normative principles, many of which are contained in the constitution as a framework, not least in the fundamental rights. However, this kind of closer definition, which goes well beyond mere application or strict deduction, must not be used as a “loophole” for clandestinely smuggling certain positions into the constitution, positions that are not already contained in the constitution itself, its regulatory context, and its idea of order. When it does happen, the court engages in the articulation of (legal) policy, which is not its task but that of the legislature. No office in the democratic state is invested with as much trust as that of the constitutional judge; not only is it free from oversight, it is also exempt from justification and endowed with the authority of the “last word.”

How did my intention of immersing myself fully into this office and to internally accept its commitments and obligations find concrete expression?

  • The judge’s oath that I swore at my appointment was the first and only oath of office I performed with a religious affirmation. A religious oath mobilizes the internal powers of commitment of someone who swears it consciously. I wanted to mobilize those powers on behalf of the obligation to this office.
  • I told my party, the SPD [Social Democratic Party], that I would not exercise the rights of my party membership for the duration of my judicial office. This pronouncement arose from the fact that the party bylaws do not envisage putting membership on hold, which is what I considered the appropriate step.
  • Finally, I terminated my work in the Executive Committee of German Catholics because the Executive Committee undertakes activities—legitimately so—in the pre-political realm and targeted at politics. [Editor’s note: The executive committee of German Catholics is elected by an assembly of Catholics representing the different groups and branches of lay German Catholicism. 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. Böckenförde served as an advisor to the committee for many years.]
It would have been a transgression against the mandate of the office I had assumed—and thus a renunciation of Christian spirituality—had I tried to act on these questions as a representative of Church interests.

From the outset, the goal was to avoid any appearance that I was in any way an “advocate” in this judicial office—either of a political party or of organized Catholicism.

2. The question of how Christian spirituality could be realized in the exercise of such a judicial office did not arise sporadically, but continuously. The problems emerged with particular clarity in two areas, which I want to address in greater detail: in the area of state-church law [Staatskirchenrecht], and concerning the law on abortion.

a) The state-church law of the Basic Law rests essentially on the adoption of what is known as the Weimar Church Compromise (Articles 136–141 WRV). Time and again there have been efforts to dissolve this compromise—described in the Weimar period as a “separation of its own kind”—towards one side or the other: either in favor of a more extensive autonomy of the churches, or in favor of a strict separation of state and church and a leveling of the special status of the churches. In this area my goal was to preserve and continue this compromise rather than dissolving it in constellations favoring one side—that of the Church. I opposed such tendencies that were evident in existing case law. For me it would have been a transgression against the mandate of the office I had assumed—and thus a renunciation of Christian spirituality—had I tried to act on these questions as a representative of Church interests, according to the motto “our man on the Federal Constitutional Court.”

b) The constitutional dispute over the law on abortion brought a dramatic intensification of the problem in some respects. According to my personal conviction, which is supported by my faith, an abortion is not only a very terrible thing, it is also the killing of a (still unborn) human being, a human being who is entirely defenseless and in extreme need of protection. I share all essential positions in the encyclical Evangelium vitae—not always their justifications, but their conclusions. In Christian terms, one can hardly discern a reason that would make an abortion appear permissible and justifiable. After all, living a Christian life also entails the willingness to make major, life-constraining sacrifices. The situation is different on the legal level, also the natural-law level. Here one can certainly identify limits to a mother’s sacrifice, limits where the legal obligation to bring a pregnancy to term, enforceable with coercive or punitive actions, ends.

During the proceedings before the Federal Constitutional Court, the public discussion became at times highly political and emotional; for a while it was focused on me, because it was assumed that I would play a key role in the vote: four judges were supposedly against the law, three considered it constitutional, which is why the decision depended on my vote (a 4:4 split decision means that no unconstitutionality can be determined). A well-known journalist spoke of the “three souls” in my breast: that of the Catholic, of the jurist, and of the Social Democrat. Which would carry the day? The feminist Alice Schwarzer, who was at the forefront of the campaign to decriminalize abortion, showered malicious gleefulness on the Social Democrats: they would have only themselves to blame if the law failed, for how could they have sent a practicing Catholic to the constitutional court? On the other side, so I was told, novenas were held in religious houses to keep Judge Böckenförde from “giving in.”

What to do? Take advantage of the office of judge to help one option prevail against the “culture of death,” deploy the court’s powers of assertion—by virtue of its authoritative powers of interpretation—for a core position of Christian truth? Seize the opportunity to act as a “vanguard”? The only thing that was relevant to me in the entire process was the “soul of the judge,” which was, revealingly enough, not introduced into the public discussion. Anything else, including the option for the Catholic in me, would have amounted in my mind to a violation of my official duty and of the oath of office I had sworn with religious affirmation. The question could and had to be decided solely according to the guarantee in the constitution, on the basis of its content and scope, independent of the extent to which it is aligned with Christian ecclesiastical positions or falls short of them.

To what extent does the legal duty to protect unborn human life depend primarily on the actual efficacy of the law or on an internally coherent normative concept?

I emphatically defended and supported the fundamental approach of the decision: that unborn human life, by virtue of its participation in human dignity, has a right to life from the beginning of pregnancy, and that every abortion during the entire duration of the pregnancy is fundamentally wrong. This is so because—and the senate informed itself thoroughly on this point—it is one of the definite insights of modern medical anthropology (and not simply part of a faith-based position) that the development of human life experiences no further rupture or qualitative leap once the sperm and egg have fused. It follows from this that the embryo develops as a human being rather than into a human being. Added to this are specific considerations of constitutional law: Which basic rights and rights of the woman (mother) must be considered? How far does the guarantee especially of the constitution extend vis-à-vis the legislature? To what extent does the legislature have an evaluative prerogative which the constitutional court must respect? To what extent does the legal duty to protect unborn human life depend primarily on the actual efficacy of the law or on an internally coherent normative concept?

I am aware that the outcome of the decision must be seen as highly unsatisfactory from a Christian point of view, and that there are good reasons for seeing the new law passed three years after the court’s decision as an “unjust law” in the sense of Catholic moral theory. This law could not even make up its mind to explicitly qualify an abortion carried out during the first twelve weeks following counseling as wrong—even if it went unpunished—as the court had stipulated.

 

IV. What Remains?

In conclusion and looking back, however, the question that remains is this: Where does all of this leave us? Does this kind of behavior, which seems right and necessary to me, not lead to the disappearance of Christian spirituality? Does it not lead to a complete assimilation to the “world” and its ways? Could not anyone else do the same, and is there anything specifically Christian still visible here? Does Christian spirituality not turn into an atrophied entity, in which only fidelity to the office and personal credibility are left?

Yet the question can also be asked the other way around: Does Christian spirituality, precisely in fidelity to office and personal credibility, not demonstrate its openness to the world and its service to the world, unselfishly, in the embrace of all rather than any specific group or one’s own? Moreover, what options are there? One option could be missionary work. But is that possible by infiltrating or instrumentalizing the institution? After all, missionary activity is neither credible nor Christian if a Christian—to that end—acts in a partisan fashion in institutions like a court, seeking his own advantage at the expense of what has been laid down as obligatory for all. Another option would be withdrawal from engagement into inner emigration. Although the Christian does not assimilate to the world by doing so, he remains entirely within himself and seeks to remain “pure.” But can anything emanate from Christian spirituality with this kind of self-referentiality? It then leaves the world to itself and does not contribute to sustaining it.

To be sure, Christian spirituality must also be able to become a sign of dissent within and towards a secular world, which is compliant with respect to the culture of death or entirely under its spell. The crucial thing is how this can be done. It seems to me, at any rate, that it can be done only by preserving sincerity and the credibility of one’s actions, not by setting them aside. Should there be situations of conflict that call for a sign of dissent because loyalty would lead to the renunciation of Christian spirituality, the option that remains is public resignation from the relevant offices—that, too, is a visible sign. What is not an option is their (disloyal) instrumentalization. The example of King Baudoin of Belgium, who had himself declared incapable of exercising his office for one day so he would not have to sign the Belgian abortion law, but who did not abdicate the throne, strikes me as only half-successful.

Was the manner in which I sought to exercise the office of judge entrusted to me—taken typologically and with reference to this office—the right way to realize Christian spirituality within pluralistic normality? I am open to argument, but I believe the answer is yes. At any rate, there is something that has not happened to date and which I would rather see as an affirmation of my position: I have not been awarded a Catholic medal for my work as a judge.

This article is adapted with permission from Religion, Law, and Democracy, published by Oxford University Press (2020). It was translated by Thomas Dunlap. © E. W. Böckenförde, M. Künkler, and T. Stein 2020. © This Translation, Thomas Dunlap 2020.

Published in the January 2021 issue: 

Ernst-Wolfgang Böckenförde (1930–2019) was a Professor of Public Law at the University of Freiburg. He served as a judge at the Federal Constitutional Court of Germany (1983–1996) and made pathbreaking contributions in the fields of constitutional history, constitutional dogmatics, philosophy of law, the status of natural law and canon law in modern democracy, and to democratic theory.

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

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