Ernst-Wolfgang Böckenförde (1930–2019) was one of Germany’s foremost postwar legal scholars. He coined or popularized key terms and ideas that have left their mark on postwar German political debate to an extent matched by only few, from the chain of legitimation to the concept of the constitution as an ordering frame, the importance of the idea of subsidiarity in EU political competency, and his insistence that society must continuously work toward agreement on the things that cannot be voted on: the ultimate agreements in society that lie beyond the ballot box, such as the nature of the political or economic system. He gave expression to this insight in a sentence that has become a common phrase in the Federal Republic of Germany, the so-called Böckenförde dictum: “The liberal, secularized state is sustained by conditions it cannot itself guarantee. That is the great gamble it has made for the sake of liberty.”Footnote ¹

This symposium brings together five reflections on some of Böckenförde’s writings in the realm of religion and politics. Böckenförde was a lifelong commentator on Catholic affairs in Germany and involved in several important inner-Catholic reform initiatives.Footnote ² At the age of thirty-one, Böckenförde became known to a wider German public with an article that presented a critical historical reappraisal of the role of the Catholic Church under National Socialism (an article that was almost immediately translated into English and published in Cross Currents).Footnote ³ While still a postdoc, he co-authored a widely publicized critique of Jesuit Gustav Gundlach’s justification on theological grounds of a war of nuclear deterrence.Footnote ⁴ In 1968, he was the first to publish a German edition of De Libertate Religiosa, the final declaration of the Second Vatican Council (Vatican II), and provided an authoritative commentary that is cited to this day.Footnote ⁵ In the late 1960s, he joined a group of German Catholic intellectuals working toward reconciliation with Poland, and after having served as a judge on Germany’s Federal Constitutional Court from 1983 to 1996, he reflected on his identity as a committed Catholic in relation to the judge’s responsibility to serve the constitution.Footnote ⁶ Toward the end of his career, Böckenförde received honorary doctorates in Catholic theology from the universities of Bochum and Tübingen and honorary doctorates in law from the universities of Basel, Bielefeld, and Münster. Böckenförde regarded religious freedom, especially freedom of conscience, as the cardinal freedom from which all others emanated, and Vatican II as the decisive dogmatic turning point transforming the Catholic faith into a religion of freedom.Footnote ⁷

The first contribution to this symposium, authored by Michele Nicoletti, professor of philosophy at the University of Trento and the editor and translator of several of Böckenförde’s writings in Italian, underlines the importance of Vatican II to Böckenförde’s work. By fully recognizing religious freedom as a right of the human person regardless of the person’s religious faith, Christianity relinquished any temptation of conceiving itself as a religion of the polis. This, however, did not render Christianity a private religion, far from it: “By freely embracing within itself the life of the spirit, human conscience is able to creatively act in history and contribute to more human conditions of life.”Footnote ⁸ It also did not render natural law obsolete, for from every individual’s human conscience as a reference point follows that the interpretations of natural law must be understood not as blueprints for statutory law but as ethical orientations guiding individual behavior.

Böckenförde also identified the important consequences of Vatican II for the concept of authority within the church. Lumen Gentium, the dogmatic constitution on the Roman Catholic Church laid down by Vatican II, redrew the authority structure between Catholic believers and the magisterium with the statement, “The entire body of the faithful, anointed as they are by the Holy One [citing John 2:20, 27] cannot err in matters of belief.”Footnote ⁹ The instinct of sensus fidelium could enable, if not a reconciliation, then at least a dialogue between the magisterial authority and the plural voices within the church. Lumen Gentium underlined the communio structure of the church and the fact that all authority relations are themselves dependent on the contextual relationships of the community of believers. Böckenförde concluded, “Papal authority cannot free itself from this, lest it end up being perverted into an ecclesiological system of power.”Footnote ¹⁰

Nicoletti’s summary of Böckenförde’s writings on the character of church law and the need for a relationship between ecclesiastical authority and the community of believers based on traditio and receptio rather than replicating the structure of command and obedience of secular law is highly relevant for contemporary church reform in the various synodal paths in the Catholic world. Highly relevant considering contemporary problems in the church is also Böckenförde’s work on the importance of an ethos of democracy, as Nicoletti discusses. In all his writings on democracy, Böckenförde argued that its cornerstone principles of freedom, equality, self-determination, and majority rule were accompanied by an ethical flip side: a specific ethos of the citizenry to support and maintain democratic procedures instead of a mere tactical attitude toward democracy according to which one supports democratic decisions only as long as they cohere with one’s own value preferences. Therefore, believers and their associations must bear in mind that in the realm of secular democracy they must adhere to the rules of the game: “Under no circumstances may the churches utilize democratic mechanisms only when favorable to themselves” lest they forfeit their credibility.Footnote ¹¹

The second essay in this symposium is authored by Massimo Faggioli, professor of historical theology at Villanova University, who compares the writings of the Jesuit theologian John Courtney Murray and Böckenförde on the relation between church, society, and the state. Faggioli traces the “widening gap between US and European Catholicism concerning the role of the church in the public square” to differences in the understandings of the relationship between state and society.Footnote ¹² Ultimately, Faggioli suggests, these hark back to different ideas of freedom and of sovereignty.

To show this, Faggioli recapitulates Murray’s view of US revolutionary history and the (often underestimated) importance of Catholicism for the formation of the American consensus of democracy as “a free people under a limited government” with its clear distinction between government and society. Murray’s point was to reassure both Protestants and the liberal establishment that Catholics did not want to turn US democracy into a Catholic state but, on the contrary, were an important force in maintaining the American consensus. Böckenförde places the accent differently in the distinction between state and society: society needs the state, especially to provide social peace, because unregulated society turns into one of social unfreedom. While Murray sees society as the antagonist of an expansionist state that threatens freedom, and here also assigns important roles to the church in pushing the state back, Böckenförde, as a representative of European Catholicism, sees the state, on the contrary, as a necessity to enable individuals to live a life in peace and freedom.

For Faggioli, these differences can explain the rift between the political cultures of Catholicism in Europe and the United States, which became apparent most recently in the handling of state measures during the COVID-19 pandemic, when US Catholic politicians, intellectuals, and even clerics criticized state measures as an attack on freedom. Faggioli notes that this idea of freedom is “disconnected from responsibility for the common good and based in a concept of society and religion as superior to the state.”Footnote ¹³ In Faggioli’s view, such a concept of freedom forfeits the advances made with Vatican II.

Böckenförde was also a pro-life Catholic who nevertheless supported and contributed to the Federal Constitutional Court’s 1993 decision not to criminally prosecute abortions if conducted in the first trimester of pregnancy. About ten years before his 1983 election as a constitutional court judge—and before he could ever have fathomed this honor and distinction—Böckenförde published an article discussing reform of West Germany’s abortion law, which at that time prohibited it in nearly all cases. The problem, as Böckenförde saw it, was that the strict prohibition led to a situation where people circumvented the law by conducting abortions underground, often with lethal or life-threatening consequences for the mother, or by traveling to neighboring countries, such as the Netherlands, where abortions were legal.Footnote ¹⁴ This circumvention of the law, he observed, severely undermined the rule of law in Germany. Beside his personal position as a pro-life Catholic, Böckenförde also shared the view of the Federal Constitutional Court in its first abortion decision of 1975, according to which the protection of the dignity of human life enshrined in the Basic Law extended also to the unborn life. But noting also that abortions were nearly always undertaken out of a situation of despair, Böckenförde suggested what became a novel formula in German criminal law: the idea that something could be unlawful but exempt from criminal prosecution (“rechtswidrig, aber straffrei”).Footnote ¹⁵

Since the legal reform in the early 1990s, based on the Federal Constitutional Court’s jurisprudence, in which Böckenförde took part, abortion in Germany has generally been unlawful except in cases where the mother’s or baby’s life is in danger or the pregnancy is the result of rape. If these conditions are not met, abortion is unlawful. However, similar to the considerations Böckenförde had outlined in the 1970s, the termination of pregnancy is not criminally prosecuted if undertaken in the first trimester by medical professionals and after the woman has undergone ethical counseling. This counseling session usually lasts for about forty-five minutes and is offered by secular and religious civil society organizations. The aim is to discuss with the woman the consequences of either having or not having the child. (Prospective fathers may join or individually schedule such counseling sessions for themselves, as well.)

Sabine Demel, professor of theology and canon law at the University of Regensburg, presents, in the third essay of this collection, Böckenförde’s view (as a Catholic, not as a constitutional court judge) that this mandatory ethical counseling should not replace or anticipate the woman’s decision, but it should be an encouragement to continue the pregnancy.Footnote ¹⁶ Catholic welfare organizations such as the Caritas or the Social Service of Catholic Women had offered so-called pregnancy conflict counseling for pregnant women since abortion became exempt from criminal prosecution in highly exceptional, mostly medical, circumstances in West Germany in 1976. Following liberalizing legislation in 1992 and the 1993 court decision, however, after which the mother’s participation in one session of ethical counseling became a requirement if an abortion was not to be criminally prosecuted, the church hierarchy decided to stop offering this kind of counseling, for it saw in it the risk of indirectly sanctioning the killing of the unborn. Therefore, Böckenförde, who had participated in the Federal Constitutional Court’s 1993 decision, as a Catholic had to deal with the fact that those who hold the governing power in the church—the bishops—did not support the court’s decision. Böckenförde then, together with other committed Catholics, including Demel, founded the Catholic lay association Donum Vitae so that Catholic counseling would continue to be offered to pregnant women who sought it.

As Demel argues in detail, from an ecclesiological and canonical point of view, Catholic lay people have the freedom to establish such an organization. The German bishops, however, declared that Donum Vitae must be seen as an association “outside the Catholic Church” and that persons in ecclesiastical service would henceforth be prohibited from participating in this “private” association.Footnote ¹⁷ Demel argues that canon law does not grant the bishops the right to place the association outside the church. It is in accordance with the lay apostolate of Vatican II that such an association is founded as a free association in the church, which serves to promote the ecclesial testimony in the world: “[A]n association founded by Catholics, invoking their baptismal mission and baptismal responsibility, for the charitable purpose of protecting unborn life and ‘for the promotion of the Christian vocation in the world’ (c.215) in this area of prenatal life, cannot therefore be placed outside the church by anyone.”Footnote ¹⁸

Today, there are about 200 Donum Vitae counseling centers in Germany. Demel concludes that Donum Vitae has written a great success story, also by offering supplemental services and guidance beyond pregnancy conflict counseling, including assisting mothers in the first years, offering sex education in schools, and advising the public regarding prenatal diagnosis and in related matters, “like a paramedic who intervenes to save lives,” as Böckenförde himself once said of Donum Vitae.Footnote ¹⁹ To underscore how close the issue was to his heart, Böckenförde decided shortly before his death that his obituary should request donations to Donum Vitae in lieu of flowers.

In the fourth essay, Raul Pangalangan, professor of law at the University of the Philippines, and until recently judge of the International Criminal Court in The Hague, reflects on the struggle of the two souls of a religious judge: the potential to feel torn between private convictions and responsibility to the public at large. Pangalangan looks at the nature of judicial power to explore techniques “for avoidance of normative conflicts”Footnote ²⁰ Overall, he concludes, such techniques are less available today than they used to be, which further exacerbates the dilemma of the “competing souls.”Footnote ²¹

Himself a judge and a Catholic, Pangalangan reflects on the question of how religious commitment can then be reconciled in a manner compatible with the secular requirements of a judge as the holder of public office, a topic that Böckenförde addressed in his essay “A Christian in the Office of Constitutional Judge.” As Pangalangan points out, Böckenförde only once chose religious affirmation to take the oath of public office, and that was when he was sworn in as a constitutional court judge (he did not choose religious affirmation when being sworn in as a public servant earlier in his life). He did so because he wanted to assure himself of the intense binding forces that arise from a religious formula in order to exercise the office of constitutional judge solely bound by the secular norms of the constitution. The clincher of Pangalangan’s remarks, however, is that he wants to show that “in the end … the clash is resolved not so much by asking which of the two [souls] prevails, but by redefining the nature of law and of rights, and of the role of courts in advancing substantive values.”Footnote ²² Pangalangan sees a tendency that the more social rights are enshrined in constitutions as justiciable goods, the harder it will be for judges to resolve potential conflicts between personal convictions and responsibility to the public at large.

The last article takes up Böckenförde’s argument that society must constantly work toward agreement on the things that cannot be voted upon. How can one create understanding and, in the end, solidarity in societies that are increasingly diverse, and often polarized, in worldviews and outlook? Philip McDonagh, poet and former ambassador of the Republic of Ireland to India, the Holy See, Finland, the Russian Federation, and the Organization for Security and Co-operation in Europe, now director of the Centre for Religion, Human Values and International Relations at Dublin City University, discusses this in the particular context of the Aristotelian conception of koinōnia, a shared or common life, and deliberations about the future of Europe. First, he reconstructs Böckenförde’s analysis of the processes of globalization and European integration. In Böckenförde’s eyes, too much emphasis had been placed on the economic integration of the European Union at the expense of political and cultural factors. What was missing was the support of the cultural prerequisites, so that a sense of belonging could develop at the European level to complement (but not replace) the multitude of national identities. In a second step, McDonagh carries out a literary conversation with classical Greek philosophers who anticipate Böckenförde on the topic of political ethos, as a factor both in individual communities and in the society of states: “We can compare the Böckenförde paradox, which distinguishes ethos from law, to the kindred Greek understanding of a common peace … .”Footnote ²³ He underlines that for Aristotle in the polis there is a need for koinōnia as joint participation or common life, which leads to friendship among the citizenry. The more intense the friendship in the sense of solidarity between citizens, the less detailed the rules of the law need to be. In the end, McDonagh concludes, supported by one of the last interventions Böckenförde had published in the midst of the 2009 economic crisis, solidarity is what is needed in the twenty-first century also across and beyond national borders.

It is not only the multifaceted nature of Böckenförde’s interventions, from Vatican II and religious freedom to abortion and the crisis of capitalism, that make him a prominent voice in contemporary discussions about church reform; it is also the originality of his theoretical contributions toward understanding, questioning, and criticizing particular church structures and interpretations of doctrine. The Catholic Church suffers today from deep polarization, internal culture wars, and a widely diagnosed lack of commitment to address the institutional bases for past and continuing abuses of power (be they political, sexual, or otherwise) that plague the institution. Böckenförde’s writings on how the Catholic Church can serve Christianity’s promise to be “a religion of freedom” are of central interest in this regard.