Böckenförde dictum

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The Böckenförde dictum (also Böckenförde theorem , Böckenförde doctrine or Böckenförde dilemma ) was formulated by the constitutional and administrative lawyer and legal philosopher Ernst-Wolfgang Böckenförde in the essay "The emergence of the state as a process of secularization". The central sentence of the dictum - "The liberal, secularized state lives on conditions that it cannot guarantee itself" - was first used in a seminar paper from 1964. It describes the problem of secularized states to create social capital and is controversially discussed by both constitutional lawyers and theologians .

history

Ernst-Wolfgang Böckenförde first used his catchy and frequently received dictum in a contribution to the Ebrach vacation seminar organized by Ernst Forsthoff in 1964, a conservative group of Heidelberg students in which Carl Schmitt also took part. The text “The emergence of the state as a process of secularization” first appeared in the Festschrift for Forsthoff in 1967. The contribution was resumed in Böckenförde's anthology “State, Society, Freedom”, which was published by Suhrkamp in 1976 , and again in “Law, State "Freedom" from 1991 (extended edition 2006).

With his contribution, Böckenförde turned primarily to other Catholics, whom he “before 1965, when the Catholic Church fully recognized freedom of religion for the first time at the end of the Second Vatican Council ”, “the emergence of the secularized, i.e. secular, i.e. no longer religious, state “Wanted to explain.

content

In his essay “The emergence of the state as a process of secularization”, Böckenförde describes the development of European states as a dualism of constitutional history and secularization . He emphasizes the “gradual” course of secularization, which was a historical process. “For a long time, old and new building elements lay close to each other”.

Böckenförde distinguishes three phases in which this process took place: the investiture dispute , the age of religious struggles and the French Revolution .

  • The separation of “spiritual” and “secular” goes in its earliest form to the investiture dispute during the 11th and 12th. Century back. During this time "the political order as such was released from the sacred and sacramental sphere". Since then, politics has required a secular, that is, a natural law justification.
  • After the split in faith in the 16./17. In the 19th century, the question arose of how "the different denominations can live together in a common political order". The distinction between "spiritual" and "secular" was first used by the Popes . However, it then subsequently led to a policy of supremacy vis-à-vis the church. The French jurists of the "Politiques" had differentiated between a secular ruler as a neutral authority and the warring religious parties. As a result, religion was “no longer a necessary part of the political order”. Conversely, since then religion has only been guaranteed de facto, not de jure.
  • In the declaration of human and civil rights of 1789, finally, humans were only thought of as individualized and profane beings. The state has emancipated itself from religion, while religion has been “relegated to the realm of society” and has become a private matter with no effect on one's status as a citizen. The religious freedom includes both the positive freedom to practice religion and the negative freedom from religion. The Christianity had since then only been a "decor for highly secular business."

Proceeding from this, the author raises the question of what the secular state has been based on since then, “where does he find the force that sustains it, guarantees homogeneity, and the inner regulatory forces of freedom that he needs after the binding force of religion is no longer essential for him and can be? ”In the 19th century, attempts were made to make the nation , later, especially after the Second World War in Germany , also“ values ”in this respect. Both failed. But there is no way "back over the threshold of 1789" either. Therefore Böckenförde comes to the conclusion:

“ The liberal, secularized state lives on conditions that it cannot guarantee itself. That is the great risk he took for the sake of freedom. On the one hand, it can only exist as a free state if the freedom it grants its citizens is regulated from within, based on the moral substance of the individual and the homogeneity of society. On the other hand, he cannot seek to guarantee these internal regulatory forces on his own, that is, by means of legal coercion and authoritative command, without giving up his freedom and - on a secularized level - falling back into that claim to totality from which he led out in the denominational civil wars. "

- Ernst-Wolfgang Böckenförde : "The emergence of the state as a process of secularization" In: Law, State, Freedom . 2006, p. 112 f. (Emphasis in the original)

In this line of thought he refers explicitly to Carl Schmitt's theses on Thomas Hobbes , to Hegel's basic lines of the philosophy of law and to Karl Marx's On the Jewish Question .

Reception and criticism

Gerhard Czermak believes that Böckenförde is "thoroughly misunderstood, if not instrumentalized" if it is deduced from his dictum that "the state must support the churches and religious communities as value creators in a special way, because otherwise the destruction would be promoted [...] He (Böckenförde) speaks of risk and refers back to the very different forces at work in society. He is concerned that all groups contribute to the integration of a part of society with their own, also moral, self-image. "

In 2009 and 2010, Böckenförde responded to the criticism in two interviews that he would overemphasize the ethical power of religion . In 2010 Böckenförde specified it as follows: “Conceived from the perspective of the state, the liberal order needs a unifying ethos , a kind of ' common sense ' among those who live in this state. The question then is: where does this ethos come from, which the state can neither enforce nor enforce sovereignly? One can say: first of all, from the culture that is lived . But what are the factors and elements of this culture? That brings us to sources like Christianity, Enlightenment, and Humanism . But not automatically with every religion. "

A secular version of these thoughts can already be found in Aristotle: that the virtue of a state is based on the virtue of the citizens and that this is based on their disposition, habit and reasonable insight - which is also in the popular wisdom that every people has the government, who deserves it. Therefore, political (character) education appears as a condition of existence and therefore also as an essential - although institutionally difficult to guarantee - task of good state order.

In this context, the discussion about changing values must be considered.

According to Elisabeth Noelle-Neumann's culturally pessimistic interpretation , there has been a continuous decline in values since the 1960s . Symptoms mentioned above all are the erosion of “civic virtues” such as community spirit and the joy of working, but also the loss of importance of church and religion. According to Helmut Klages , on the other hand, there is less a decline in values, but rather a value synthesis of old and new values. Ronald Inglehart postulates a change from material to immaterial values, which ultimately strengthens democracy: As a consequence of the change in values, he assumes a high willingness to participate and greater freedom.

Gerhard Himmelmann draws attention to the fact that the sociologists oppose the discussion about a decline in values ​​that "modern social regulatory mechanisms and democratic manners serve as the basis for social integration". Not the appeal of the communitarians , among others , but the public discourse, the domination-free communication ( Jürgen Habermas ) create out of themselves ("self-creation process") those values ​​and behaviors (democratic virtues) that the free state needs to live and survive. Jürgen Habermas also sees the danger that a derailing modernization of society will tire the democratic bond and drain the kind of solidarity on which the democratic state depends, without being able to legally enforce it.

Michael Haus also rejects the Böckenförde thesis as unfounded. From Böckenförde's statement that the modern democratic state emerged under the influence of the Christian religion, it does not necessarily follow that today's society depends on religion as a foundation. On the other hand, there is much to suggest that a basic civic consensus could also be based on common commonalities such as common interests, interdependencies, dependencies, opportunities for cooperation, a common history or common historical learning processes.

Axel Montenbruck follows Böckenförde's approach. But Montenbruck introduces the western-secular idea of civil religion , albeit in line with Böckenförde's demand for a “unifying ethos”, which is old and goes back to Rousseau's idea of ​​“civil religion”: “The 'solution' to this dilemma can only take place at an even higher level, such as that of the preambles . The people must create their own 'substitute religion for internalized values ​​and principles' beyond the state, to which they must then submit. The peoples have these at their disposal, as the preambles of their constitutions etc. show. But understandably it is difficult for them to speak of a religion again, even if it is only a civil religion. "

effect

Since the 1990s, this idea has been taken up in a modification by Paul Kirchhof and related to demographic development. To this extent he also speaks of the Diogenes paradox .

The Böckenförde doctrine is considered the "center of liberal conservatism".

The publicist Heribert Prantl described the dictum in an obituary for Ernst-Wolfgang Böckenförde in the Süddeutsche Zeitung in February 2019 as “the E = mc² of constitutional law ”.

expenditure

  • The emergence of the state as a process of secularization . In: Sergius Buve (Ed.): Secularization and Utopia. Ebracher studies. Ernst Forsthoff on his 65th birthday . Kohlhammer, Stuttgart a. a. 1967, p. 75-94 .
  • The emergence of the state as a process of secularization . In: State, Society, Freedom. Studies on state theory and constitutional law (=  Suhrkamp-Taschenbücher Wissenschaft . No. 163 ). Suhrkamp, ​​Frankfurt am Main 1976, ISBN 3-518-07763-5 , pp. 41-64 .
  • The emergence of the state as a process of secularization . In: Law, State, Freedom. Studies on legal philosophy, state theory and constitutional history (=  Suhrkamp-Taschenbuch Wissenschaft . No. 914 ). Suhrkamp, ​​Frankfurt 1991, ISBN 3-518-28514-9 , pp. 92-114 .

literature

  • Ernst-Wolfgang Böckenförde: The secularized state. Its character, its justification and its problems in the 21st century . Volume 86 of the Carl Friedrich von Siemens Foundation. Munich, Carl Friedrich von Siemens Stiftung , 2007. ISBN 978-3-938593-06-6 .
  • Gotthard Breit, Siegfried Schiele (ed.): Values ​​in political education . LpB, 2000.
  • Felix Dirsch: "... lives from conditions that he cannot guarantee himself". Readings and problems of interpretation of the Böckenförde doctrine as a canonized theorem of German constitutional law . In: Journal of Politics . tape 56 , no. 2 , 2009, ISSN  0044-3360 , p. 123-141 , JSTOR : 43783523 .
  • Horst Dreier : State without God. Religion in Secular Modernity. CH Beck, Munich 2018, ISBN 978-3-406-71871-7 . (here Chapter VI: The Böckenförde dictum: Success story of a problem report, pp. 189–214)
  • Theodor Ebert : Ernst-Wolfgang Böckenförde - A man and his dictum. From someone who set out to pursue a career in justice policy . In: Enlightenment and Criticism 2 (2010), pp. 81–99. ( PDF ( Memento from May 15, 2011 in the Internet Archive ))
  • Hermann-Josef Große Kracht: Fifty Years of the Böckenförde Theorem. A federal republican confession formula in the dispute of the interpretations . In: Hermann-Josef Große Kracht / Klaus Große Kracht (Hrsg.): Religion - Law - Republic. Studies on Wolfgang-Ernst Böckenförde. Schöningh, Paderborn 2014, pp. 155-183, ISBN 978-3-506-76611-3 .
  • Hartmut Kress: Modern religious law in the light of secularization and the basic right to religious freedom. Is the Böckenförde dictum still viable today? In: Theologische Literaturzeitung 131/2006, pp. 243-258.
  • Julia Palm: Justification and topicality of the Böckenförde dictum. A review against the background of the state's religious and ideological neutrality. Opportunities for the state to maintain its prerequisites through value education in public schools . In: Writings on state church law . tape 60 . PL Academic Research, Frankfurt am Main 2013, ISBN 978-3-653-02610-8 (Zugl .: Köln, Univ., Diss., 2012).
  • Ute Sacksofsky : Ernst-Wolfgang Böckenförde's Oeuvre on Religious Freedom Applied to Recent Decisions of the European Court of Human Rights . In: German Law Journal . tape 19 , no. 2 , 2018, ISSN  2071-8322 , p. 301-320 , doi : 10.1017 / S2071832200022707 (English, cambridge.org ).
  • Christian Walter : The Böckenförde dictum and the challenges of modern religious constitutional law. In: Hermann-Josef Große Kracht, Klaus Große Kracht (Hrsg.): Religion - Law - Republic. Studies on Wolfgang-Ernst Böckenförde . Paderborn: Schöningh 2014, pp. 185–198, ISBN 978-3-506-76611-3 .

Web links

Footnotes

  1. ^ A b Ernst Wolfgang Böckenförde: The emergence of the state as a process of secularization . In: Law, State, Freedom. Studies on legal philosophy, state theory and constitutional history (=  Suhrkamp-Taschenbuch Wissenschaft . No. 914 ). Suhrkamp, ​​Frankfurt 1991, ISBN 3-518-28514-9 , pp. 92–114, 112 (extended edition 2006).
  2. ↑ a b Anna Katharina Mangold: The Böckenförde dictum. In: Verfassungsblog . May 9, 2019, accessed May 21, 2019 .
  3. ↑ a b Secularization and Utopia. Ebracher studies. Ernst Forsthoff on his 65th birthday . Kohlhammer, Stuttgart a. a. 1967, p. 75-94 .
  4. ^ Ernst Wolfgang Böckenförde: State, Society, Freedom. Studies on state theory and constitutional law . In: Suhrkamp pocket books science . tape 163 . Suhrkamp, ​​Frankfurt am Main 1976, ISBN 3-518-07763-5 , pp. 41-64 .
  5. ^ A b Christian Rath: "Freedom is contagious" . In: The daily newspaper: taz . September 23, 2009, ISSN  0931-9085 , p. 4 ( taz.de [accessed on May 21, 2019] interview).
  6. ↑ Ernst Wolfgang Böckenförde: The emergence of the state as a process of secularization . In: Law, State, Freedom. Studies on legal philosophy, state theory and constitutional history (=  Suhrkamp-Taschenbuch Wissenschaft . No. 914 ). Suhrkamp, ​​Frankfurt 1991, ISBN 3-518-28514-9 , pp. 92–114, 107 (extended edition 2006).
  7. ↑ Ernst Wolfgang Böckenförde: The emergence of the state as a process of secularization . In: Law, State, Freedom. Studies on legal philosophy, state theory and constitutional history (=  Suhrkamp-Taschenbuch Wissenschaft . No. 914 ). Suhrkamp, ​​Frankfurt 1991, ISBN 3-518-28514-9 , pp. 92-114, 96 f . (extended edition 2006).
  8. ↑ a b c Ernst Wolfgang Böckenförde: The emergence of the state as a process of secularization . In: Law, State, Freedom. Studies on legal philosophy, state theory and constitutional history (=  Suhrkamp-Taschenbuch Wissenschaft . No. 914 ). Suhrkamp, ​​Frankfurt 1991, ISBN 3-518-28514-9 , pp. 92-114, 100, 101, 102 ff . (extended edition 2006).
  9. ↑ Ernst Wolfgang Böckenförde: The emergence of the state as a process of secularization . In: Law, State, Freedom. Studies on legal philosophy, state theory and constitutional history (=  Suhrkamp-Taschenbuch Wissenschaft . No. 914 ). Suhrkamp, ​​Frankfurt 1991, ISBN 3-518-28514-9 , pp. 92–114, 107–109 (extended edition 2006).
  10. ^ A b Ernst Wolfgang Böckenförde: The emergence of the state as a process of secularization . In: Law, State, Freedom. Studies on legal philosophy, state theory and constitutional history (=  Suhrkamp-Taschenbuch Wissenschaft . No. 914 ). Suhrkamp, ​​Frankfurt 1991, ISBN 3-518-28514-9 , pp. 92-114, 111 ff . (extended edition 2006).
  11. ↑ Ernst Wolfgang Böckenförde: The emergence of the state as a process of secularization . In: Law, State, Freedom. Studies on legal philosophy, state theory and constitutional history (=  Suhrkamp-Taschenbuch Wissenschaft . No. 914 ). Suhrkamp, ​​Frankfurt 1991, ISBN 3-518-28514-9 , pp. 92-114, 98, 106, 108, 113 f . (extended edition 2006).
  12. ↑ Gerhard Czermak: Religious and Weltanschauung law . P. 36, paragraph 71.
  13. ^ "Freedom is contagious" ( Memento from November 4, 2010 in the Internet Archive ), Frankfurter Rundschau , November 1, 2010 online, November 2, 2010, p. 32f
  14. ^ Aristotle , Politics , 1332
  15. ^ Aristotle , Politics , 1337
  16. ↑ Reinhold Zippelius , Law and Justice in the Open Society , 2nd edition, 1996, p. 149 ff.
  17. ↑ Florian Fleischmann: Waterless washing on withered grass - on the Habermas-Ratzinger debate ( Memento from January 9, 2008 in the Internet Archive ). In: perspektiven89.com , May 14, 2006.
  18. ^ Michael Haus: Place and function of religion in contemporary democratic theory . In: Michael Minkenberg (Ed.): Politics and Religion . Wiesbaden 2003, p. 49f.
  19. ^ Axel Montenbruck: civil religion. A legal philosophy I. Foundation: Western “democratic preamble humanism” and universal triad “nature, soul and reason” , 3rd considerably expanded edition, 2011, 175, University Library of the Free University of Berlin ( open access )
  20. ^ Ulrich Bielefeld: Review of: Hacke, Jens A .: Philosophy of Bourgeoisie. The liberal-conservative justification of the Federal Republic. Göttingen 2006 . In: H-Soz-u-Kult , June 7, 2007.
  21. ↑ Heribert Prantl: The Basic Law . In: sueddeutsche.de . February 25, 2019, ISSN  0174-4917 ( sueddeutsche.de [accessed on May 21, 2019]).
  22. ↑ “Secularization and the role of religion in public space was the topic, and the speakers were Jürgen Habermas, Charles Taylor, as well as two of the most important American intellectuals, the black theologian Cornel West and the feminist Judith Butler. What holds our pluralistic societies together in a secularized world? The four were asked, and above all: Can a relapse into fundamentalism be avoided? "