Böckenförde’s Political Theory of the State

Künkler, Mirjam; Stein, Tine

doi:10.1093/acprof:oso/9780198714965.003.0002

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“…He was also completely persuaded, he states, by Schmitt's insistence (shared by Schmitt's antipode Hermann Heller) on seeing law as embedded in broader political, economic, and cultural contexts (and thus rejecting the legal formalism that had been shared in the Weimar Staatsrechtslehre following Kelsen). As we have suggested elsewhere (Künkler & Stein, ), substantively Böckenförde was highly influenced by Schmitt in three areas: first, the idea of the primacy of the state, and thinking of the state as a framework providing peace and stability and a unit of decision‐making (Hobbes); second, the state of emergency and the distinction between law and measure; and third, resisting the attempt to ground law in values. A comparison of the positions of the two scholars shows that Schmitt's theorizing on the state, the Constitution, the rule of law, and sovereignty were extremely formative for Böckenförde.…”

Section: The State As a Constitutional State Based On The Rule Of Lawmentioning

confidence: 98%

“…We also thank Sven Altenburger and Sebastian Bergmann for their editorial help. Parts of this text draw on Künkler and Stein (, ).…”

Section: Acknowledgementsmentioning

confidence: 99%

“…'"(Böckenförde, 2005, p. 598). Böckenförde also provided the subtitle for "The Theory of the Partisan: Intermediate Commentary on the 'Concept of the Political'"(Böckenförde, 2017a, p. 360).4 The following discussion draws extensively onKünkler and Stein (2017b).5 Böckenförde explicitly relates his use of Friedenseinheit to Schmitt (specifically, Schmitt's essay on The Concept of the Political).See footnote 7 inBöckenförde, 2017a, p. 88. 6 Similar arguments had been made earlier byPasquino (1986) and were later made byMeier (1998).7 It is not entirely clear whether Schmitt would have seen it that way.…”

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confidence: 99%

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Carl Schmitt in Ernst‐Wolfgang Böckenförde's work: Carrying Weimar constitutional theory into the Bonn Republic

Künkler

Stein

2018

Constellations

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Section: The State As a Constitutional State Based On The Rule Of Lawmentioning

confidence: 98%

“…We also thank Sven Altenburger and Sebastian Bergmann for their editorial help. Parts of this text draw on Künkler and Stein (, ).…”

Section: Acknowledgementsmentioning

confidence: 99%

mentioning

confidence: 99%

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Carl Schmitt in Ernst‐Wolfgang Böckenförde's work: Carrying Weimar constitutional theory into the Bonn Republic

Künkler

Stein

2018

Constellations

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Statism, Secularism, Liberalism - Böckenförde's Contributions to German Staatsrechtslehre in the Light of Contemporary Challenges within and beyond the State

Künkler¹,

Stein²

2018

Ger. law j.

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This introduction lays out the rationale behind the special issue examining Böckenförde's concepts and arguments in light of contemporary crises of democracy. Considering the enormous challenges facing democracies today, how should one judge Böckenförde's optimistic view of the regulatory capabilities of the state? Is it irrelevant, given the de facto power of both supra- and non-state actors? Or does Böckenförde's view still possess explanatory value, as the state remains the most important political unit? The article consists of two parts. First, Böckenförde will be introduced as a thinker whose work centred on questions of statism, liberalism and secularism. He paid special attention to the relation between politics and religion in contexts of democratic statehood. In addition to his interest in these themes, his understanding of the constitution and constitutional interpretation will be sketched. Second, we will introduce the three topoi on which the articles of this special issue focus: Böckenförde's insistence that the state of exception ought to be constitutionalised by exploring the relevance of this proposition in four different jurisdictions; whether his model of democratic secularism as open encompassing neutrality can serve as a useful starting point to manage religious and social diversity; the future of Europe. Against this backdrop, the conclusion then aims to connect Böckenförde's ideas on relative homogeneity with the contemporary crises of democracy.

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Constitutionalizing Emergency Power in a Time of Jihadist Terrorism: France 2016 as a Case of Misunderstanding and Failure

Pasquino¹

2018

Ger. law j.

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In this article, I present some aspects of the debate on the state of emergency that ensued in France after the terrorist attack at the Bataclan on November 13, 2015. The proposal by President Hollande to constitutionalize emergency provisions triggered the debate. I will also discuss why that attempt failed. In agreement with what Ernst-Wolfgang Böckenförde wrote in his article “The Repressed State of Emergency: The Exercise of State Authority in Extraordinary Circumstances,” I intend to show that constitutionalizing emergency measures—rather than presenting a threat to theRechtsstaat—may be the best way to protect it. In the absence of a constitutionalized definition of competence and limits of such an exceptional power, the government can act without limits as to the exceptional measures that it may want to take.

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Böckenförde’s Political Theory of the State

Cited by 3 publications

References 0 publications

Carl Schmitt in Ernst‐Wolfgang Böckenförde's work: Carrying Weimar constitutional theory into the Bonn Republic

Carl Schmitt in Ernst‐Wolfgang Böckenförde's work: Carrying Weimar constitutional theory into the Bonn Republic

Statism, Secularism, Liberalism - Böckenförde's Contributions to German Staatsrechtslehre in the Light of Contemporary Challenges within and beyond the State

Constitutionalizing Emergency Power in a Time of Jihadist Terrorism: France 2016 as a Case of Misunderstanding and Failure

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