The ProblemIt is often said that constitutional democracy, or, as it is termed in the continental European context, the democratic constitutional state, is the best of all possible political orders. Two chief features distinguish this type of political order from others. First, the political will in constitutional democracies is not completely sovereign; it is bound to several individual rights, sometimes to specific collective goals of the society, and also to a set of procedural rules. These rights, goals and rulings are (mostly) written in the constitution. The second main characteristic of a constitutional democracy is its institutional arrangement; the process of political will-formation is arranged in such a way that it provokes not only decisions based on consent, but also decisions that are factually appropriate to the problems they answer.The democratic constitutional state, however, is not able to actualize these two aforementioned capabilities in view of the world's current ecological crises. In other words, this type of political order does not keep its promise to bind and confine the political majority, nor does it support appropriate solutions for the ecological crisis through its institutional arrangement. The following discussion demonstrates that much evidence supports the above hypothesis.The solution to the ecological crisis demands exactly the aforementioned capacities from a political order. To solve the ecological problems it would be necessary for the majority to alter its way of life (such as reducing energy wastefulness, changing and reducing consumption habits and levels, as well as production styles) in order to reduce those gases that are harmful to the climate and ruinous to the atmosphere. Second, it would be necessary to concentrate politically on solutions
This is the first representative edition in English of Ernst-Wolfgang Böckenförde’s writings on religion, law, and democracy. As a historian, legal scholar, and former judge on Germany’s Federal Constitutional Court, Böckenförde (1930–2019) has shaped legal and political discourse in twentieth-century Germany like few others. Doing so, he combined three normative orientations writings as a political liberal, as a social democrat, and as a Catholic. The included articles discuss the place of religion in modern democracy, the role of the Catholic Church in the Nazi seizure of power in 1933, the Copernican revolution of Vatican II in embracing religious freedom and accepting the modern secular state, the history of the concept of freedom of conscience, the relation of religion and state in Hegel’s writings, democratic models of secularism, theological reflections on the character of secular law, models of political theology, the need for canon law reform, and bioethical issues, such as the regulation of abortion, genetic screening, and in vitro fertilization in light of the constitutional principle of human dignity. This is the second of two volumes, of which the first, published in 2017, brought together articles in constitutional and political theory. Beside fifteen articles, the volume contains excerpts of the biographical interview that historian and legal scholar Dieter Gosewinkel conducted with Böckenförde in 2009/2010. Introductions and annotations by the editors accompany the text throughout, providing background explanations on the context of German and European politics and history. A comprehensive list of Ernst-Wolfgang Böckenförde’s publications is included in an appendix.
Böckenförde shows how and why the modern state is a product of the historical process of secularization. Three key conflicts between papacy and European kings led to the establishment of administrative, political, and later legal structures independent from the Catholic Church: the Investiture Controversy (1087–1122), the confessional wars of the sixteenth and seventeenth centuries, and the declarations of rights as universal rather than based on religion in the Virginia Bill of Rights of 1776 and the French constitution of 1789. The modern state emerged from this process independent from the Church, without claims on the religious lives of its citizens or questions of sin and salvation. Böckenförde regards the constitutional recognition of freedom of religion as the bedrock of modernity. In the article, Böckenförde identifies what he regards as the core challenge facing the liberal democratic state, formulated in his most prominently cited sentence: ‘The liberal secularized state is sustained by conditions it cannot itself secure.’ Böckenförde argues that the modern state relies on a moral substance, thriving only under conditions of solidarity and cohesion that need to emanate from within society. Religiosity is one potential source of this moral substance. At the same time, one of the goals of the liberal state is the promotion and safeguarding of pluralism: If the modern state were to promote a given worldview or a sense of morality, it would violate the very liberalism on which it is founded. This dilemma has become known in the literature as the ‘Böckenförde dictum’.
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