An obituary for Ernst-Wolfgang Böckenförde (1930-2019)
By Mirjam Künkler and Tine Stein
One of Europe’s foremost legal and political thinkers passed away on February 24, 2019. Ernst-Wolfgang Böckenförde was more than the conventional scholar of constitutional law: he was a regular commentator on public affairs, an outstanding legal historian, and a decisive voice on Germany’s constitutional court at which he served from December 1983 until May 1996. He held appointments as professor of Public Law, Constitutional History, and Philosophy of Law at the Universities of Heidelberg (1964-69), Bielefeld (1969-1977) and Freiburg (1977-1995). Böckenförde’s writings on constitutional law have become classics in German legal training, ranging from contributions in legal and political theory, the history of ideas and European constitutional history, to the conceptual framework of the modern state, and thorny political and ethical issues including the deployment of nuclear missiles and the ethics of genetic engineering. As a judge on Germany's Federal Constitutional Court, Böckenförde authored one of the highest number of dissenting opinions in the court’s history, two of which, remarkably, became the basis for later majority decisions. His interventions as a scholar and a judge have shaped not only academic but also wider public debates from the 1950s to the present, to an extent that only few European scholars can match.
With translations into many languages and a new Oxford University Press-published English translation of many of his writings, Böckenförde’s oeuvre is receiving growing international attention. As a testimony to a classic strand of German political and legal thought beyond Hans Kelsen and Carl Schmitt, his sharply analytical body of work helps audiences understand the liberal and secular state as dependant on conditions it cannot itself guarantee: chiefly, so Böckenförde, societal cohesion and a shared ethos that sustains commitment to the common good. He became famous for this latter formula (“the democratic state’s reliance on conditions it cannot itself guarantee”) which is widely known among European publics as “the Böckenförde dictum”.
Böckenförde wrote as a political liberal, as a social democrat, and as a committed Catholic. As a Catholic, he was concerned with questions of social cohesion, political community, and the ethical foundations of the state: what holds society together, and whether the state should promote certain worldviews over others (a position he rejected). As a social democrat, he deeply cared about not only political but also economic and social injustices. It was a duty of the democratic state, so Böckenförde, to address these injustices, and no political stability could be achieved without social and economic security. Moreover, he frequently reminded his audiences that the enjoyment of rights depends on certain socio-economic conditions. The right to education means little if the path to school bears existential danger. Ultimately, it was the state which might need to provide for these conditions if society does not. As a political liberal, Böckenförde argued fervently in favor of protecting the rights of minorities, especially of individuals who belong to religious minorities (defending the right of Muslim teachers to wear the headscarf, for example), and of guaranteeing the rights even of those who oppose the constitutional democratic system, insisting that individuals can be prosecuted only on the basis of violations of the law, not on the basis of a lack of Gesinnungstreue (publicly professed commitment to the liberal democratic order) – a stand which put Böckenförde at odds with the German civil servants law until the 1990s.
Three episodes highlight how these three different normative stands (liberalism, social democracy, Catholicism) have expressed themselves in his work. Böckenförde became publicly known with an article titled “The Ethos of Modern Democracy and the Church”, published in the Catholic monthly magazine Hochland. He was 27 years old and had just completed his second PhD (he held one in law and one in history). At a time when from the doctrinal point of view of the Catholic magisterium it was still unacceptable for Catholics to live in a secular state, Böckenförde argued that democracy and human rights were the legitimate form of political order from a Christian perspective, and he did so long before Vatican II adopted the same view. He again raised attention when in 1961, while working on his habilitation, he published an article on the role of the Catholic Church in tolerating and implicitly aiding the emergence of the Nazi state in 1933. The article was considered so explosive that several of his mentors strongly advised against publishing it before having attained a tenured position. Böckenförde went ahead nevertheless, and once the article was published, the Catholic Church saw itself compelled to convene an association of historians, the “Committee for Contemporary History”, to probe the young scholar’s outrageous claims. The committee ultimately confirmed all of his major findings.
As a liberal, Böckenförde made ground-breaking contributions to legal theory, especially in the area of fundamental rights doctrine. Starting with the Lüth decision of 1958, the Federal Constitutional Court decided that the fundamental rights enshrined in the West German Basic Law ought to radiate into all other spheres of law and that the state had the duty to ensure they were at the basis not only of the relationship between the individual and the state but also between the citizens towards one another. Böckenförde did not necessarily object to this view on normative grounds, but he did on methodological ones. In his article “On Grounding Law in Values”, he tried to show that it would be futile to do just that, to ground law in values, as this would require the development of reliable hierarchies of values for judges to be consistent. Since to date such hierarchies had not been developed (should liberty always be prioritized over equality? Could one develop reliable criteria for exceptions to this rule?), this view of constitutional principles would lead to nothing less than judge-made law. His analysis of how constitutional rights after Lüth were no longer defensive rights against state intrusion only, but also rights embedded in an allegedly objective order of values gave rise to an entire generation of fundamental rights scholarship in Germany, of which Robert Alexy’s account has become the most internationally prominent.
It is in the aftermath of this period, in the late 1970s that Böckenförde developed some of his most liberal-minded work. This was in the context of the emergence of radical leftist movements in West Germany, at the forefront the Red Army faction, which threatened to bring down the young West German democracy. The period began in 1974 with the famous Grundwertedebatte (debate on core values). Whereas the Catholic bishops argued that especially in times of social crisis, it was the government’s duty to work towards a shared, common ethos, Chancellor Helmut Schmidt rejected this view in a famous speech of 1976, which had been ghost-written by Böckenförde and another Catholic intellectual. The speech titled “Ethos and Law in State and Society” emphasized that working towards a shared ethos was a task for society, and not the state. Böckenförde developed the stance taken in the speech further in his article “The state as an ethical state”, which was the opening work to a series of five articles in which he probed what the state can and cannot do in times of crisis. Reflecting on the 1968 Emergency Laws that were active at the time in order to deal with the activities of the Red Army Faction, Böckenförde argued provocatively in “The Repressed State of Emergency,” that the extant Emergency Laws enabled the erosion of the rule of law, justified by a war against internal enemies. He provided numerous examples of how exactly that had happened: how the state security services had violated attorney-client privileges, had illegally installed eves-dropping devices in the offices of nuclear scientists, and how judges’ decisions had not been enacted due to interference by the domestic security agency. To preclude a further erosion of the rule of law, Böckenförde argued, a very tightly circumscribed state of emergency ought to be embedded in the constitution, of which he developed a blueprint. In two follow-up articles he then laid out why a democratic state must prove itself especially in how it deals with its internal enemies.
This period was followed by 12 years on Germany’s Federal Constitutional Court during which he contributed to pathbreaking decisions in the realm of asylum, abortion, taxation and party financing. With his eleven dissenting opinions, he became one of the most frequent dissenters in the court’s history. In two of these, his social democratic leanings come to the fore. One was his take on party financing, where he argued that a law that made donations to political parties deductible for legal persons (including corporations) violated the equality principle of the Basic Law’s Article 3. He also dissented in the case regarding the net wealth tax where the majority had ruled that the fundamental right to property, in connection with other basic rights, imposed a general upper limit on taxation. In the majority’s view, the cumulative burden of all income and net wealth taxes must not exceed fifty percent of net imputed earnings. Although he strongly defended the right to property otherwise, Böckenförde did not subscribe to the view of an a priori upper limit on taxation.
After his retirement from the court in 1996, Böckenförde’s work turned to the topic of European integration. Here his writings appear almost prophetic in light of contemporary challenges of populism and EU-scepticism. A fervent pro-European, Böckenförde warned that far too little was done to integrate the peoples of Europe on a cultural level – not to replace national belonging, but to complement it. He argued that Europe needed joint history text book commissions to transcend the nation-focused history curricula still in place in EU member states. He lamented that European publics still consumed their news almost exclusively through national media that were ill suited to promote a European public consciousness. The implications of the currency union were too little explained to EU citizens with the result, Böckenförde wrote in 1997, that once financial crises were to break out, European publics would be ill prepared and therefore reluctant to put up the transfer payments such crises required. Importantly, Böckenförde argued, those advocating an “ever-closer union” (especially Germany and France at the time) would need to accept that other member states would never wish to pursue the same goal, notably Britain. Therefore, Böckenförde insisted, it did not help to simply aim at a “multi-speed Europe”, but one also needed to embrace the idea of a “multi-goal Europe”. The practical implications of this were that one would need to open different EU treaty mechanisms to different audiences and drop the goal of an ever-closer union for all member states. For example, he proposed that Turkey might eventually join the Euro group, but stay out of the political union of the EU. Britain on the other hand should be allowed to opt out of those mechanisms aiming at a closer political union, while remaining economically integrated. If Böckenförde’s suggestions of a “multi-goal Europe” had been more widely discussed when they were published, today’s Euro-sceptics might have less success in attracting support with arguments against an ever-closer union.
Whether at the national or European level, the rule of law and democratic procedures, so Böckenförde, cannot be sustained in the long term unless they are carried by people who consider themselves part of the same demos. Yet, many democracies suffer today from deep polarization, pandered by growing economic inequality and increasingly separate life-worlds with divergent cultural outlooks, nationalist versus cosmopolitan, particularistic versus universalist, and laissez-faire versus regulatory views of government. New culture wars have emerged accompanied by new nationalist populisms. Böckenförde’s writings on how plural societies need to, and can, come to a shared understanding of their responsibilities to one another as citizens, and which tools are at the disposal of the state in this undertaking, and which ones of society, are of central interest in this regard.
Mirjam Künkler and Tine Stein are the editors of Ernst-Wolfgang Böckenförde’s Constitutional and Political Theory: Selected Writings, Oxford University Press, 2017. They have also guest-edited a special section on “Böckenförde beyond German Law” in the German Law Journal, Vol. 19 (2), 2018, pp. 137-460, and special sections on “The Secular State, Constitution, and Democracy: Engaging with Böckenförde” in Constellations: An International Journal of Critical and Democratic Theory, Vol. 25 (2), 2018, pp. 181-241, and on “Böckenförde as an Inner-Catholic Critic”, in the Oxford Journal of Law and Religion, Vol. 7 (1), 2018, pp. 1-123.