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i
OXFORD CONSTITUTIONAL THEORY
Series Editors:
Martin Loughlin, John P. McCormick, and Neil Walker
Religion, Law, and Democracy

ii
OXFORD CONSTITUTIONAL THEORY

Series editors:
Martin Loughlin, John P. McCormick, and Neil Walker
Oxford Constitutional Theory has rapidly established itself as the primary

point of reference for theoretical reflections on the growing interest in consti-
tutions and constitutional law in domestic, regional and global contexts. The
majority of the works published in the series are monographs that advance
new understandings of their subject. But the series aims to provide a forum
for further innovation in the field by also including well-conceived edited
collections that bring a variety of perspectives and disciplinary approaches to
bear on specific themes in constitutional thought and by publishing English
translations of leading monographs in constitutional theory that have origi-
nally been written in languages other than English.
ALSO AVAILABLE IN THE SERIES
Constituent Power and the Law The Three Branches

Joel Colón-Rios A Comparative Model of Separation
of Powers
Euroconstitutionalism
Christoph Möllers
and its Discontents
Oliver Gerstenberg The Global Model of Constitutional
Rights
Beyond the People
Kai Möller
Social Imaginary and Constituent
Imagination The Twilight of Constitutionalism?
Zoran Oklopcic Edited by Petra Dobner and
Martin Loughlin
The Metaethics of Constitutional
Adjudication Constitutional and Political Theory
Boško Tripković Selected Writings
Ernst-Wolfgang Böckenförde
The Structure of Pluralism
Edited by Mirjam Künkler and
Victor M. Muniz-Fraticelli
Tine Stein
Law and Revolution Constituting Economic and
Legitimacy and Constitutionalism Social Rights
After the Arab Spring Katharine G. Young
Nimer Sultany
Constitutional Referendums
Constitutionalism: The Theory and Practice of Republican
Past, Present, and Future Deliberation
Dieter Grimm Stephen Tierney
After Public Law Carl Schmitt’s State and Constitutional
Edited by Cormac Mac Amhlaigh, Theory: A Critical Analysis
Claudio Michelon, and Neil Walker Benjamin A. Schupmann
iii
Religion, Law, and Democracy

Selected Writings
Ernst-Wolfgang Böckenförde
Professor Emeritus, University of Freiburg
and
Former Judge of the Federal Constitutional Court of Germany
Edited by
Mirjam Künkler
Research Professor, Netherlands Institute for Advanced Study
and
Tine Stein
Professor of Political Theory, University of Göttingen
VOLUME II
••
1
iv
1
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© E.W. Böckenförde, M. Künkler, and T. Stein 2020
© This Translation, Thomas Dunlap 2020
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The translation of this work was supported by Geisteswissenschaften International—Translation Funding
for Humanities and Social Sciences from Germany, a joint initiative of the Fritz Thyssen Foundation, the
German Federal Foreign Office, the collecting society VG WORT and the Börsenverein des Deutschen
Buchhandels (German Publishers & Booksellers Association).
v
Preface
Ernst-Wolfgang Böckenförde passed away on 24 February 2019. Family, friends,

and colleagues travelled from far and wide to pay their last respects at his
funeral, held near Freiburg im Breisgau.
As might be expected, former colleagues and students praised his intellec-
tual brilliance, his originality, his discipline, his loyalty, his many contributions
to public life in Germany and his ethos in office—as a scholar, constitutional
court judge, and public intellectual. But one of the more surprising aspects of
the event was the speech given by a local politician of the Social Democratic
Party who reminded the audience of ‘Böckenförde the citizen’. As soon as he
moved to the small village of Au in 1976 upon accepting a professorship at the
University of Freiburg, Böckenförde joined the local choir and the music asso-
ciation. He was a frequent participant in church fairs and town festivals and an
ardent interlocutor, asking his neighbours about the ebbs and flows of local
public life from kindergarten construction to zoning plans, and, of course,
offering his own opinions. In short, Böckenförde lived ‘in the neighbourhood’.
To locals, he was the ‘Verfassungsrichter zum Anfassen’ (the constitutional
court judge at your fingertips). Living in the neighbourhood was one of his
ways of working on behalf of the ‘integration’ of society, one of the phenom-
ena he was fascinated by and grappled with most: how to create understanding
in society, relations, exchange, solidarity, cohesion, and in the end ‘agreement
on the things that cannot be voted upon’, a phrase coined by jurist Adolf Arndt
that Böckenförde cited frequently. After all, Böckenförde was deeply convinced
that democracy cannot survive unless the citizens of that democracy as a politi-
cal community work continuously towards agreement on those things that lie
beyond the ballot box.
Three years have passed since the publication of the first volume of English
translations of Böckenförde’s writings, containing many of his articles on legal
and constitutional issues. Just before the publication of the first volume, we
convened two international conferences whose contributions were later pub-
lished in three special journal issues: ‘The Secular State, Constitution, and
Democracy: Engaging with Böckenförde’ in Constellations: An International
Journal of Critical and Democratic Theory 25(2) (2018); ‘Böckenförde beyond
Germany’ in the German Law Journal 19(2) (2018); and ‘Böckenförde as an Inner-
Catholic Critic’, in the Oxford Journal of Law and Religion 7(1) (2018).
Many excellent scholars from the fields of law, political theory, and history
contributed to the conferences and to these later publications. The international
exchanges also elicited the insight that Böckenförde’s work enjoyed surprising
vi
vi • Preface
reception literatures in languages other than German. This led to a further con-
ference, convened in February 2019, on the reception of Böckenförde’s work in
Japan, Korea, Latin America, and Southern and Eastern Europe. Contributions
to this third conference were published as Beiheft Nr. 24, titled ‘Die Rezeption
der Werke Ernst- Wolfgang Böckenfördes in international vergleichender
Perspektive’, of the journal Der Staat, a journal Böckenförde had co-founded
in 1962.
As we prepared the publication of this volume, brilliant friends and col-
leagues once again provided immeasurable help with comments and advice.
They include David Abraham, Markus Böckenförde, Dieter Gosewinkel,
Michael J. Hollerich, Olivier Jouanjan, Oliver Lepsius, Reinhard Mehring, Ulrich
K. Preuß, and Julian Rivers. We are deeply grateful to them.
Ernst-Wolfgang Böckenförde shared his thoughts on the selection of arti-
cles for both volumes and until the end of 2018 was available to meet with us
and communicate in other ways whenever we sought clarification. We are very
grateful for those opportunities. In April 2017 we convened a launch of Volume
I for him at the University of Freiburg, an event which many of his former
colleagues at the university as well as other legal scholars and practitioners
attended, and which appeared to give him great pleasure.
Other launch events were held at New York University Law School, the
Humboldt University Berlin, Uppsala University, the University of Kiel, the
Institute for Human Sciences in Vienna, the London School of Economics and
Political Science, and at conferences of the German Studies Association and the
International Society for Public Law. We thank our colleagues who hosted these
events and discussed Böckenförde’s writings there, including Robert Alexy,
Andreas von Arnauld, Peter Carl Caldwell, Iain Cameron, Sabino Cassese, Max
Edling, Dieter Gosewinkel, Ludger Hagedorn, Michaela Hailbronner, Anna
Jonsson Cornell, Olivier Jouanjan, Mattias Kumm, Martin Loughlin, Aline-
Florence Manent, Johannes Masing, Ralph Michaels, Kai Möller, Christoph
Möllers, Jo Eric Khushal Murkens, Claus Offe, Julian Rivers, Mark Edward Ruff,
Sascha Somek, Guglielmo Verdirame, Rainer Wahl, and Christian Waldhoff.
As with Volume I, we have been fortunate to employ the services of Thomas
Dunlap for the translation. Due to the range of topics and multiple disciplinary
perspectives involved, the translation was a particularly challenging one. We
thank Thomas Dunlap for mastering this task so skilfully.
We thank Oxford University Press, especially Eve Ryle-Hodges and Imogen
Hill, for guiding this publication along with such generous dedication and sup-
port. We further thank Geisteswissenschaften International for partially fund-
ing the translations for this volume, and Verena Frick and Sven Altenburger,
both of the University of Göttingen, for their assistance in the preparation of
this volume.
Wherever it seemed necessary, we have inserted annotations (indented and
marked with Latin numerals) that include further explanations on the context
of German or European politics and history. A comprehensive list of Ernst-
Wolfgang Böckenförde’s publications is included in the appendix, as well as the
vii
Preface • vii
laudatio given by former Federal President Joachim Gauck on the occasion of
awarding Böckenförde the Grand Cross of Merit of the Federal Republic of
Germany.
As this project comes to an end, we marvel at the intellectual journey Ernst-
Wolfgang Böckenförde has moved us to undertake. It has been an honour and
inspiration, not only to work closely with his texts and to try to understand
better how he reconciled his identities as a social democrat, a political liberal,
and a Catholic reformer, but also to enter into conversation with so many of his
explicit and implicit interlocutors. These work in disciplines as diverse as legal
theory, legal history, constitutional law, legal education, social history, Catholic
theology, Catholic social thought, canon law, political theory, intellectual his-
tory, social policy, sociology, comparative politics, philosophy, legal ethics, and
diverse geographies. The conversations will continue as Böckenförde continues
to move his readers into profound intellectual engagement. We are grateful to
him, as we editors are to each other, for the exciting journey travelled together.
Mirjam Künkler and Tine Stein, December 2019.
viii
ix
Table of Contents
Translator’s Note  xi
by Thomas Dunlap
Freedom in Religion, Freedom in the State: Ernst-Wolfgang

Böckenförde on Religion, Law, and Democracy  1
by Mirjam Künkler
PART I: CATHOLIC CHURCH AND

POLITICAL ORDER
Böckenförde on the Relation of the Catholic Church and
Christians to Democracy and Authoritarianism  46
by Mirjam Künkler and Tine Stein
Chapter I. The Ethos of Modern Democracy and the Church [1957]  61

Chapter II. German Catholicism in 1933: A Critical Examination [1961]  77
Chapter III. Types of Christian Conduct in the World during the Nazi
Regime [1965/2004]  105
Chapter IV. Religious Freedom between the Conflicting Demands
of Church and State [1964–79]  115
PART II. STATE AND SECULARITY

Böckenförde on the Secular State and Secular Law  138
Chapter V. The Rise of the State as a Process of Secularization [1967]  152

Chapter VI. The Fundamental Right of Freedom of Conscience [1970]  168
Chapter VII. Remarks on the Relationship between State and Religion
in Hegel [1982]  199
Chapter VIII. The Secularized State: Its Character, Justification, and
Problems in the Twenty-first Century [2007]  220
x
x • Table of Contents
PART III. ON THE THEOLOGY OF LAW
AND POLITICAL THEORY
Böckenförde on the Relationship Between Theology, Law,
and Political Theory  238
Chapter IX. Political Theory and Political Theology: Comments on their

Reciprocal Relationship [1981]  248
Chapter X. Reflections on a Theology of Modern Secular Law [1999]  259
Chapter XI. A Christian in the Office of Constitutional Judge [1999]  280
Chapter XII. On the Authority of Papal Encyclicals: The Example of
Pronouncements on Religious Freedom [2006]  288
PART IV. BASIC NORMS AND THE PRINCIPLE

OF HUMAN DIGNITY
Böckenförde on the Right to Life, Human Dignity,
and its Meta-positive Foundations  308
Chapter XIII. Abolition of Section 218 of the Criminal Code? Reflections

on the Current Debate about the Prohibition of Abortion in
German Criminal Law [1971]  318
Chapter XIV. Human Dignity as a Normative Principle: Fundamental
Rights in the Bioethics Debate [2003]  339
Chapter XV. Will Human Dignity Remain Inviolable? [2004]  354
PART V. BÖCKENFÖRDE IN CONTEXT

Chapter XVI. Biographical Interview with Ernst-Wolfgang
Böckenförde [2011]  369
Appendix 1: List of Original Titles  395

Appendix 2: Ernst-Wolfgang Böckenförde: List of Publications  397
Appendix 3: Address given by Federal President Joachim Gauck on
the Occasion of Awarding the Grand Cross of the Order
of Merit of the Federal Republic of Germany to
Prof. Dr. Ernst-Wolfgang Böckenförde on 29 April 2016
at Schloss Bellevue  445
Index  449
xi
Translator’s Note
This project has been a team effort from beginning to end. Translating legal
German into English is a notoriously difficult task. I am grateful that I was able
to draw on some previous translations by J. A. Underwood. Mirjam Künkler and
Tine Stein read each chapter very carefully and made many crucial improve-
ments. I was very fortunate, indeed, to have had such conscientious and skilled
collaborators.
Thomas Dunlap, February 2018
xii
1
Freedom in Religion, Freedom in the State

Ernst-Wolfgang Böckenförde on Religion, Law,
and Democracy1
Mirjam Künkler
I. Introduction
The freedom of the individual can always only be defended as the freedom of
all. Thus argued Ernst-Wolfgang Böckenförde at the age of thirty-one, in an
article he himself later referred to as the article that most shaped his thinking.2
He wrote this apropos the Catholic Church’s approach to democracy in the
postwar years before Vatican II,3 which he regarded as driven by instrumentalist
considerations. The Church was willing to accept majority rule only as long as
the areas relevant to its own interests (education, value debates, the Church’s
status vis-à-vis the state) remained beyond the reach of majority rule. What is
more, it claimed religious freedom for itself, without being willing to grant the
same rights to other religions. Böckenförde had particular trouble understand-
ing such a position as a lawyer. How can one expect to enjoy a right that one is
not willing to grant to others, he asked.4
Freedom is a cornerstone in Böckenförde’s thinking, but what does it entail
precisely? For Böckenförde, it is first and foremost individual freedom, and it
must be protected against both state power and societal power. State power
must be limited by a democratic constitution with strongly enshrined personal
1
This chapter has benefited from numerous discussions with my friend and colleague Tine Stein, as well as
our past joint publications. I thank her as well as Peter C. Caldwell, Michael Hollerich, Otto Kallscheuer, and
Joachim Wieland for excellent comments.
2
Ernst-Wolfgang Böckenförde, ‘German Catholicism in 1933’, CrossCurrents 11 (1961), pp. 283–303, included
as Chapter II in this volume. See in this regard in particular his reflections on the article in ‘Vorbemerkung’,
in Ernst-Wolfgang Böckenförde, Kirche und christlicher Glaube in den Herausforderungen der Zeit, 2nd ed.
(Münster: LIT Publishing House, 2007), p. 114.
3
The Second Vatican Council (Vatican II) fundamentally redefined the Church’s doctrinal position in several
areas, notably regarding the issue of religious freedom. See more extensively note 120.
4
Ernst-Wolfgang Böckenförde, ‘Religionsfreiheit als Aufgabe der Christen [1965]’, in Böckenförde 2007
(note 2), pp. 197–212.
2
2 • Freedom in Religion, Freedom in the State

rights and liberties. ‘The law-based state [Rechtsstaat],’ Böckenförde writes, ‘is
aimed at the demarcation and restriction of state power in the interest of the
freedom of the individual.’5 As he outlined in his article ‘Securing Freedom
Against Societal Power’, it is also the state’s role to protect the individual against
the violation of his or her freedom by societal groups.
Based on this dual role assigned to the state, one might conclude then that
the state is the supreme guarantor of freedom for Böckenförde.
On the one hand, this is certainly the case, and Böckenförde is Hegelian in
regarding the liberal state, in particular the rule of law, as the necessary envir-
onment in which individual freedom can be enjoyed. This is so because only
thanks to a rule of law can individual freedom be guaranteed against encroach-
ment by others and state power itself. Moreover, the kind of freedom the liberal
state ensures is not merely freedom from oppression, but it must also include
the creation of possibilities in which the individual can pursue self-realization,
should he or she choose to do so.6
Böckenförde goes beyond Hegel when he argues that self-realization can
only be possible in a state where in the final analysis people are subject to the
rules they have had the possibility to generate and shape, that is, a liberal dem
ocracy. It is here that Böckenförde draws heavily on the legal scholar Herman
Heller.7 For the state emanates from the people and is first and foremost an ‘orga
nized unity of action and taking effect’ (organisierte Handlungs-und Wirkeinheit).
It provides the procedures and channels for social forces to determine policy.
Moreover, it is only through citizen participation and representation that the
state enjoys legitimacy.
Böckenförde is also a statist in his position on how to deal with the coun-
teracting forces of capitalism and democracy. In several writings, Böckenförde
emphasized that the guarantee of private property in the German Basic Law
had to be understood as balancing liberal guarantees on the one hand with
limits on those guarantees emanating from societal or public needs on the
other.8 A concept of the state according to which fundamental rights restrict
5
‘Der Rechtsstaat zielt stets auf die Begrenzung und Eingrenzung staatlicher Macht im Interesse der Freiheit
der Einzelnen’, in Ernst-Wolfgang Böckenförde, ‘Entstehung und Wandel des Rechtsstaatsbegriffs’, in
Horst Ehmke and Carlo Schmid (eds.), Festschrift für Adolf Arndt zum 65. Geburtstag (Hamburg: Europäische
Verlagsanstalt, 1969), pp. 53–76; published in English as ‘The Origin and Development of the Concept of
the Rechtsstaat’ in Ernst-Wolfgang Böckenförde, State, Society and Liberty: Studies in Political Theory and
Constitutional Law, transl. by Jim Underwood (New York: Berg Publishers, 1991), pp. 47–70.
6
Ernst-Wolfgang Böckenförde, ‘The State as an Ethical State’, included as Chapter III in volume I of this
edition, Ernst-Wolfgang Böckenförde, Constitutional and Political Theory: Selected Writings, ed. Mirjam Künkler
and Tine Stein (Oxford: Oxford University Press, 2017), pp. 86–107.
7
Hermann Heller, Gesammelte Werke, 2nd ed., vol. II. (Tübingen: Mohr Siebeck, 1992 [1928]). On the extent
to which Böckenförde’s concept of the state relies on Hermann Heller, see Mirjam Künkler and Tine Stein,
‘Böckenförde’s Political Theory of the State’, in volume I of this edition, pp. 38–53; and Olivier Jouanjan,
‘Between Carl Schmitt, the Catholic Church, and Hermann Heller: On the foundations of democratic theory
in the work of Ernst-Wolfgang Böckenförde’, Constellations: An International Journal of Critical and Democratic
Theory 45 (2) (2018), pp. 184–195.
8
‘Eigentum, Sozialbindung des Eigentums, Enteignung’, in Konrad Duden, Helmut R. Külz et al. (eds.),
Gerechtigkeit in der Industriegesellschaft. Rechtspolitischer Kongreß der SPD, Mai 1972 in Braunschweig.
3
Introduction • 3
state action, he wrote about the Basic Law, is at the same time constrained by a
concept of the state according to which constitutional principles entail the duty
to provide social services. Constitutionally guaranteed freedom could not be
enjoyed unless specific material needs were met first. If liberty were to be guar-
anteed to all rights holders, specific societal and legal framework conditions had
to be provided for, the most important of which was ‘the constant relativization
of societal inequality that arises continually from the exercise of liberty’. The
Basic Law in fact imposed a ‘social state as a binding constitutional principle on
par with that of the Rechtsstaat’,9 he argued.
On the other hand, Böckenförde is not exclusively a statist, and here again,
his position draws in part on Hegel. For the liberal state needs binding forces
that ‘hold it’. In Hegel, this is an abstract Geist—attitudes and dispositions that
support the liberal state. Böckenförde grounded these attitudes and dispositions
in societal forces and individuals. Like Hegel, he referred to this as an ‘ethos’
that needed to feed the commons. These binding forces needed to emanate
from the citizenry and the citizenry’s willingness to continually work with one
another to formulate and secure the public good. Thus, Böckenförde’s entire
state theory stands and falls with the ethos that emanates from society and that
is needed to sustain the state. As he formulated in his often-quoted dictum: ‘the
liberal, secularized state is sustained by conditions it cannot itself guarantee’.10
What are the sources of this social ethos, in Böckenförde’s eyes? Religion,
that is personal faith, can be an important source and it was certainly the major
source for his own motivation to take on public responsibility as a scholar,
judge, and public intellectual.11 But beside religion, ‘philosophical, political and
social movements can strengthen . . . the willingness to not always look out for
one’s own benefit only, but to act companionably and in solidarity with oth-
ers’.12 Moreover, and this is a crucial point that has been overlooked by some of
his readers, he insists that religion can be a source for a democratic ethos only if
it is placed in the service of the common good, not of particular religious goals,
and not of the interests of individual religious groups,13 a point taken up again
towards the end of this introduction.
Further, it is only in the secular state, wrote Böckenförde in 1957, that
Christianity can be ‘a religion of freedom’ (again implicitly referencing Hegel).14
Dokumentation, C. F. Müller (1972), pp. 215–231. This article was also included in his 1976 Suhrkamp compila-
tion but unfortunately was the only article not included when the collection was published in English in 1991.
9
‘Grundrechtstheorie und Grundrechtsinterpretation’, Neue Juristische Wochenschrift (1974), pp. 1529–1538;
published in English as ‘Fundamental Rights: Theory and Interpretation’, Chapter XI in volume I of this edi-
tion, p. 288. Emphasis in the original.
10
‘Die Entstehung des Staates als Vorgang der Säkularisation’, in s.ed., Säkularisation und Utopie. Ebracher
Studien. Ernst Forsthoff zum 65. Geburtstag, Stuttgart: Kohlhammer, 1967, pp. 75-94; included in this volume as
Chapter V, ‘The Rise of the State as a Process of Secularization’.
11
See his article ‘A Christian in the Office of Constitutional Judge’, Chapter XI in this volume.
12
Ernst-Wolfgang Böckenförde, ‘Freiheit ist ansteckend’. die tageszeitung, 23 September 2009, p. 4.
13
Böckenförde 1961 (note 2).
14
Ernst-Wolfgang Böckenförde, ‘Das Ethos der modernen Demokratie und die Kirche’, Hochland 50(1) (1957),
pp. 4–19, included as Chapter I in this volume.
4

At a time when official Catholicism still tried to assert its role as part of the
state (in many Latin American countries as well as of course Franco’s Spain),
Böckenförde rejected that argument. With his commitment to the secular state,
he stood apart from the mainstream in the Church at the time. Only in the secu-
lar state, according to Böckenförde, can citizens develop the free commitment
to act in accordance with their religious convictions and not because it is backed
by the punitive framework of the state. In other words, only the separation of
law and morality enables believers to act truly morally.
Following his personal motto ‘civis simul et christianus’ (a democratic citizen
while also a Christian), Böckenförde sought to shape public life as a Catholic
and he sought to contribute to the reform of Catholicism from his position as a
democratic citizen. Böckenförde remained an inner-Catholic critic throughout
his life. At the beginning of his career stands an analysis of Catholic complicity
in the rise of the Nazi state, and at the end of his career a public intervention on
the failure of the Church in dealing with cases of sexual abuse.15 In both cases,
he criticized the Church for prioritizing itself over concern for the people, and
for subordinating core Christian values to the raison d’être of the institution of
the Church.
Just before his passing, Böckenförde had decided that instead of flowers,
those wishing to mourn him should donate funds to Donum Vitae, an organi-
zation he had helped co-found that provided ethical counselling to women con-
sidering to undertake an abortion. The creation of Donum Vitae had caused a
serious conflict with the Vatican, which accuses the organization of indirectly
abetting the German state’s relatively permissive abortion regulations.16 Even
from beyond his grave, Böckenförde sought to represent a different kind of
Catholicism: one where respect for people’s individual conscience came first.
The collection presented here, the second of two volumes, brings together
Böckenförde’s essays on issues of religion, ethos, and the Catholic Church in
relation to law, democracy, and the state, while the first volume presented a
selection of his essays in constitutional and political thought. Volume II is orga
nized in four parts, containing three to four articles each and arranged in histori-
cally ascending manner: on the Catholic Church and Political Order (Part I), on
the State and Secularity (Part II), on the Theology of Law and Political Theory
(Part III), and on Basic Norms and the Principle of Human Dignity (Part IV). All
articles feature annotations by the editors, providing background information
on historical, cultural, and theoretical contexts. Each of the four parts is pre-
ceded by a short introduction by the editors that includes brief outlines of the
articles and the context in which they were written. The last chapter consists
15
Ernst-Wolfgang Böckenförde, ‘Das unselige Handeln nach Kirchenraison’, Süddeutsche Zeitung 29 April
2010. ‘The main concern is that the sanctity of the institution is not endangered –this maxim is the real scan-
dal and the reason for the crisis.’
16
According to a declaration by the German bishops of 20 June 2006, Church staff are prohibited from partic-
ipating in Donum Vitae, and all other Catholics involved in ecclesiastical councils, committees, associations,
and organizations are requested to renounce any senior cooperation with the association.
5
A Biographical Synopsis • 5
of excerpts of the biographical interview that historian and legal scholar Dieter
Gosewinkel conducted with Böckenförde in 2009/2010.17
Section II of this introductory chapter provides an abridged overview of
Böckenförde’s academic career and public engagement (a fuller version is con-
tained in the Introduction to Volume I). Section III offers an overview and perio-
dization of his academic writings in seven phases from 1957 to 2012. Section IV
presents some of his key writings and positions as an inner-Catholic critic, as
a theorist of the place of ethos in the public order, and as a thinker of ‘open
encompassing neutrality’ between religion and state. Section V offers a reflec-
tion on the cover images Böckenförde chose for the two volumes, before the
conclusion closes with brief remarks on Böckenförde’s view of religion in
democracy compared to other theorists of democracy and secularism.
II. A Biographical Synopsis

Böckenförde grew up in the Central German town of Kassel with seven sib-
lings. His father was a forester and his mother a housewife. Among the books
he said that formed him were Dante’s Divina Commedia and writings by the
Austrian novelist Adalbert Stifter and the German poet Reinhold Schneider (a
Catholic anti-war writer). Apart from that, his family’s library included works
of philosophy, economics, sociology, and law, and a subscription to the Catholic
intellectual monthly magazine Hochland.18
At the age of thirteen years he had a tram accident, as a result of which he
lost half his left leg. Partly as a consequence of this accident, his travel activities
were limited, and unlike some of his colleagues of similar academic stature,
such as Robert Alexy or Dieter Grimm, he did not spend long sojourns at for-
eign universities. His travels led him frequently to Austria, Italy, and Poland, but
seldom further afield, the only exception being trips to Pakistan and the USA,
and an extensive lecture tour to Japan which he undertook in 1996 after retiring
from the Federal Constitutional Court and the university.
Böckenförde’s studies were unusual in that he decided to pursue not only one,
but two university degrees, which he then also followed up with two doctoral
dissertations in two separate disciplines, law and history, followed by a habilita-
tion in law.19 In both doctoral dissertations he chose a conceptual perspective: In
the dissertation in law of 1956, he examined the public understanding of law,
17
The 170 page-long interview was published in ‘Biographisches Interview’, in Ernst-Wolfgang Böckenförde,
Wissenschaft, Politik, Verfassungsgericht. Aufsätze von Ernst-Wolfgang Böckenförde (Berlin: Suhrkamp, 2011), pp.
307–486. Selections are published here in Chapter XVI, as well as in Volume I.
18
Hochland was a Catholic cultural magazine that published contributions by authors regardless of their
denomination and was viewed with scepticism by the Catholic Church for its independence, critical spirit,
and anti-denominationalism.
19
For Böckenförde’s academic biography, see in more detail Mirjam Künkler and Tine Stein, ‘State,
Constitution and Law. Ernst-Wolfgang Böckenförde’s Political and Legal Thought in Context’, in volume I of
this edition, pp. 1–35.
6

tracing the differentiation between formal and substantive notions of law from
the nineteenth century to the Weimar Republic. Against the background of
conceptual history Böckenförde showed what the changing meaning of con-
cepts could reveal about changing power constellations, in this case the relation-
ship between monarchy and popular sovereignty.20 In his history dissertation
of 1960, Böckenförde examined the models of constitutionalism that emerged
over the course of the nineteenth century and how the concept of ‘constitution’
evolved from a mere juridical contract into a political category, transforming
the meaning of a political community which bound itself legally.21
How concepts of law changed meaning against the backdrop of evolv-
ing societal and respective power constellations remained a major theme in
Böckenförde’s work throughout his career.
After completing his habilitation22 in law in 1964 on ‘Organizational Power
in the Realm of Government. An Inquiry into the Public Law of the Federal
Republic of Germany’,23 Böckenförde was appointed professor of public law in
Heidelberg. He became dean of the faculty and in 1969 moved on to the newly
founded University of Bielefeld, and then later to Freiburg (1977–95), where he
remained until his retirement, exempt from professorial duties during his ten-
ure as constitutional judge (1983–1996). The denominations of these professor-
ships extended to the areas of Public Law, Constitutional History, Legal History,
and Philosophy of Law.
Two discussion circles brought the young Böckenförde into communica-
tion with some of the leading political thinkers in the early Federal Republic.
The first was the Collegium Philosophicum, convened by the philosopher and
Hegel expert Joachim Ritter.24 Ritter’s postwar work on Hegel had at its center
the problem of the place of the state after the age of democratic revolutions: it
20
He did so through the prism of the statutory basis requirement for encroachment (Gesetzesvorbehalt): the
idea that the executive may not encroach upon the citizens’ fundamental rights unless the legislature passes
a law permitting such encroachment. With the introduction of the legal concept of the statutory basis
requirement for encroachment, the balance between monarchy and popular sovereignty had shifted in favour
of the latter. Ernst-Wolfgang Böckenförde, Gesetz und gesetzgebende Gewalt. Von den Anfängen der deutschen
Staatsrechtslehre bis zur Höhe des staatsrechtlichen Positivismus (Berlin: Duncker & Humblot, 1958).
21
Ernst-Wolfgang Böckenförde, Die deutsche verfassungsgeschichtliche Forschung im 19. Jahrhundert. Zeitgebundene
Fragestellungen und Leitbilder (Berlin: Duncker & Humblot, 1961).
22
To become eligible for a professorship in Germany, it used to be the case that an applicant needed to have
a doctorate and a second major work, usually in the same field, i.e. the habilitation (combined with the venia
legendi, the authorization to teach the subject at university level). Nowadays a second book is widely regarded
as equivalent to the formal habilitation, although many scholars still seek the formal acquisition of a habilita-
tion as well. To have two doctorates like Böckenförde is rather unusual and testifies to his broad intellectual
interests.
23
Ernst-Wolfgang Böckenförde, Die Organisationsgewalt im Bereich der Regierung. Eine Untersuchung zum
Staatsrecht der Bundesrepublik Deutschland (Berlin: Duncker & Humblot, 1964).
24
Joachim Ritter, professor in Münster, was one of the most influential German philosophers of the post-
war period. He edited the 13-volume ‘Historisches Wörterbuch der Philosophie’, a standard work in the
discipline of philosophy. Böckenförde contributed three entries: ‘Normativismus’ in Historisches Wörterbuch
der Philosophie, ed. Joachim Ritter and Karlfried Gründer, vol. VI (Basel/Stuttgart: Schwabe, 1984), p. 931f.;
‘Ordnungsdenken, konkretes’, in ibid, pp. 1311–1313; and ‘Rechtsstaat’, in: Historisches Wörterbuch der Philosophie,
ed. Joachim Ritter and Karlfried Gründer, vol. VIII (Basel/Stuttgart: Schwabe, 1993), pp. 332–342.
7
posed the questions of how to combine an openness to the people’s will with
political order in the early, conservative and skeptical years of the Federal
Republic. While a graduate student in Münster, Böckenförde was invited to
join the Collegium. The introduction to Hegel, in particular Hegel’s idea of the
state, would profoundly shape Böckenförde’s subsequent intellectual develop-
ment. Beyond the philosophical formation, the Collegium Philosophicum also
had a lasting sociological impact: here Böckenförde met future colleagues, such
as philosopher Robert Spaemann, who would become occasional co-authors
and lifelong companions.
While Ritter's group focused on philosophical thinking, another circle influ-
enced Böckenförde’s development and career as a legal scholar by bringing
him into contact with leading legal thinkers, who were also concerned with
democracy and the state but more skeptical of democratic claims. This was the
‘Ebrach summer seminar’, a twoweek seminar convened every year by legal
scholar Ernst Forsthoff in Ebrach village in Upper Franconia.25 Here aspiring
legal scholars were invited to discuss their papers with established ones—and
Carl Schmitt was a regular participant. Böckenförde’s groundbreaking article
on ‘The Rise of the State as a Process of Secularization’ as well as Schmitt’s ‘The
Tyranny of Values’ go back to lectures given at Ebrach.26
Among the participants in Ebrach was also conceptual historian Reinhart
Koselleck, later Böckenförde’s colleague at the University of Heidelberg, where
the two taught a course in legal history together. Koselleck, too, was concerned
with the relationship between freedom, democracy, and the coercive force of
both state and society in his early work. Both later moved to the newly founded
University of Bielefeld, and Böckenförde contributed an article to Koselleck’s
opus magnum Geschichtliche Grundbegriffe (basic historical concepts), one of the
foundational works of conceptual history.27
These ideas about freedom and the state, the social prerequisites for democ-
racy, and even the underlying concern of the conservative liberal intellectuals
from the early republic about the limits to the state in a democracy provided
some of the key themes for Böckenförde’s entire intellectual life. Indeed,
Böckenförde actively embodied some of the problems that they brought up, such
25
Ernst Forsthoff (1902–1974) was a German scholar of constitutional and administrative law, teaching
over the course of his career at the universities of Frankfurt am Main, Hamburg, Königsberg, Vienna, and
Heidelberg. Like Carl Schmitt (Forsthoff ’s mentor) and many other German legal scholars, he welcomed
the Third Reich and worked on an ideological justification of the totalitarian state. But unlike many other
legal scholars, Forsthoff distanced himself from the regime still during the Nazi period and was banned from
teaching in 1942. Different from Carl Schmitt, he was ultimately permitted to resume teaching in the Federal
Republic and returned to his professorship at the University of Heidelberg in 1952. Forsthoff was a leading
drafter of the Constitution of Cyprus and served as the president of the Supreme Constitutional Court of
Cyprus from 1960 to 1963.
26
Sergius Buve (ed.), Säkularisation und Utopie; Ernst Forsthoff zum 65. Geburtstag (Stuttgart: Kohlhammer,
1967, Series: Ebracher Studien).
27
‘Organ, Organismus, Organisation, politischer Körper’ (sections VI–IX), in Geschichtliche Grundbegriffe.
Historisches Lexikon zur politisch-sozialen Sprache in Deutschland, vol. 4, ed. Otto Brunner, Werner Conze, and
Reinhart Koselleck (Stuttgart: Klett-Cotta, 1978), pp. 561–622.
8

as the relationship between a community of believers constituting only part of
society with the claim of the state to represent the entire society: the problem of
church and state in an inescapably pluralist democracy. Böckenförde was unu-
sual in that he combined normative orientations which at his time were associ-
ated with different sociopolitical communities in Germany.28 On the one hand,
he was a devout Catholic and active in the lay organizations of the Church.29
But while most Catholics until the late 1970s would have associated themselves
with the Christian Democrats (the party of the chancellors Konrad Adenauer,
Helmut Kohl, later Angela Merkel), Böckenförde joined the Social Democratic
Party in 1967 (the party of the chancellors Willy Brandt, Helmut Schmidt, and
later Gerhard Schröder). And while Böckenförde no doubt was a statist (like
Carl Schmitt), he combined this with a strong political liberal orientation. On
the one hand, he regarded the state as the guarantor of societal peace, but on
the other hand he was always apprehensive of state encroachment into citizens’
private lives. In the late 1970s, for example, when West Germany was shaken by
a number of murders, kidnappings, and assaults committed by leftist terrorists
(most notoriously, the Red Army Faction), he made a name for himself by writ-
ing extensively about the erosion of the rule of law that was justified with refer-
ence to the war against leftist terrorism.30 And elsewhere he commented ‘the
order of freedom must set itself apart from the order of unfreedom also—and
especially—by the methods of its defense’.31
On the constitutional court, where he served from 1983 to 1996 across the
great transformation of German reunification in 1990, Böckenförde contributed
to several groundbreaking decisions, including on asylum, abortion, nuclear
disarmament, conscientious objection to military service, taxation, and party
financing. With eleven dissenting opinions, he was one of the highest dissent-
ers in the court’s history.32 Extraordinarily, in two cases, his minority opinions
became the bases for later majority decisions.
28
For his profiles as a political liberal, a Catholic, and a social democrat, see Mirjam Künkler and Tine Stein,
‘State, Constitution and Law. Ernst-Wolfgang Böckenförde’s Political and Legal Thought in Context’, in vol-
ume I of this edition, pp. 1–35.
29
He was an advisor to the executive committee of German Catholics, the most important institution of lay
Catholicism in Germany. Its tasks include organizing the biennial Catholic Kirchentag (Church Day), discuss-
ing pending issues with the German conference of bishops, and representing lay Catholicism in public.
30
Ernst-Wolfgang Böckenförde, ‘The Repressed State of Emergency’, Chapter IV in volume I of this edition,
pp. 108–132. In this context, he also devised a possible constitutional amendment that would constitutionalize
an internal state of emergency (the Basic Law only recognizes a state of emergency necessitated by natural
disaster), arguing that this would better preserve the rule of law than the prevalent practice of dealing with
such emergencies through executive measures. See section III. 4. below and in more detail Mirjam Künkler
and Tine Stein, ‘Böckenförde’s Political Theory of the State,’ in volume I of this edition, pp. 38–53. His pro-
posal fell on deaf ears then, but the debate has been revived in 2020 in the context of the state’s dealing with
the Covid-19 crisis, which is overwhelmingly managed through executive measures without parliamentary
consultation, let alone authorization.
31
Böckenförde 2017 (1978) (note 6), p. 100.
32
In two of his dissenting opinions, his social democratic leanings come particularly to the fore. One was
his take on party financing, where he argued that a law that made donations to political parties deductible
for juridical persons, including corporations, violated the equality principle of the Basic Law’s Article 3, as
9
Böckenförde’s writings have received wide reception in the academic world.
Aside from four Festschrifts,33 several monographs34 and edited volumes35
have been published about his work. He has received numerous prizes and
awards, as well as five honorary doctorates, three in law and two in Catholic
theology.36 More than eighty of his articles have been translated into foreign
languages, and his work enjoys extensive reception literatures in Italy, Poland,
Japan, and Korea.37
would deductible donations by natural persons at a level exceeding the median income. 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 50% of net imputed earnings.
Although he strongly defended the right to property otherwise, Böckenförde did not subscribe to the view
of a constitutionally mandated upper limit on taxation. In his academic writings, Böckenförde explicitly and
implicitly lamented that Article 14 Section 2 of the Basic Law, according to which ‘property entails obligations;
its use shall also serve the public good’ did not find sufficient reflection in the public regulation of private
property. On this, see also section III.3 below.
33
The Festschrifts are Rolf Grawert (ed.), Offene Staatlichkeit: Festschrift für Ernst-Wolfgang Böckenförde zum
65. Geburtstag (Berlin: Duncker & Humblot), 1995; Rainer Wahl and Joachim Wieland (eds.), Das Recht des
Menschen in der Welt. Kolloquium aus Anlass des 70. Geburtstages von Ernst-Wolfgang Böckenförde (Berlin: Duncker
& Humblot), 2002; Christoph Enders and Johannes Masing (eds.), Freiheit des Subjekts und Organisation von
Herrschaft. Symposium zu Ehren von Ernst-Wolfgang Böckenförde anlässlich seines 75. Geburtstages (Der Staat,
Beiheft 17) (Berlin: Duncker & Humblot, 2006); Johannes Masing and Joachim Wieland (eds.), Menschenwürde –
Demokratie –Christliche Gerechtigkeit. Tagungsband zum Festlichen Kolloquium aus Anlass des 80. Geburtstags von
Ernst-Wolfgang Böckenförde (Berlin: Duncker & Humblot, 2011).
34
For the monographs, see Norbert Manterfeld, Die Grenzen der Verfassung: Möglichkeiten limitierender
Verfassungstheorie des Grundgesetzes am Beispiel E.-W. Böckenfördes (Berlin: Duncker & Humblot, 2000); Johanna
Falk, Freiheit als politisches Ziel. Grundmodelle liberalen Denkens bei Kant, Hayek und Böckenförde (Frankfurt
a.M.: Campus, 2006); Cosima Winifred Lambrecht, Das Staatsdenken von Ernst-Wolfgang Böckenförde: Analogien
und Diskrepanzen zu dem Werk ‘Der Begriff des Politischen’ von Carl Schmitt (Universitätsverlag Chemnitz, 2015);
and Jonas Pavelka, Bürger und Christ. Politische Ethik und christliches Menschenbild bei Ernst-Wolfgang Böckenförde
(Freiburg: Herder, 2015).
35
The edited volumes are Hermann-Josef Große Kracht and Klaus Große Kracht (eds.), Religion—Recht—
Republik. Studien zu Ernst-Wolfgang Böckenförde (Paderborn: Schöningh, 2014); and Reinhard Mehring and
Martin Otto (eds.), Voraussetzungen und Garantien des Staates. Ernst-Wolfgang Böckenfördes Staatsverständnis
(Nomos: Baden-Baden, 2014). Apart from numerous obituaries that were published following his passing in
February 2019, the Verfassungsblog in May 2019 convened a review with ten commentaries on Böckenförde’s
legacy.
36
Böckenförde received honorary doctorates from the Law Schools of the Universities of Basel (1987),
Bielefeld (1999), and Münster (2001), and from the Faculties of Catholic Theology of Bochum University (1999),
and Tübingen University (2005). In 1970 he became a member of the North-Rhine Westphalian Academy of
Sciences and in 1989 corresponding member of the Bavarian Academy of Sciences and Humanities. He has
received the Reuchlin Award of the City of Pforzheim for outstanding work in the humanities (1978), the
order of merit of the state of Baden-Württemberg (2003), the Guardini Award of the Catholic Academy
in Bavaria for work in the field of the philosophy of religion (2004), the Hannah-Arendt Prize for Political
Thought (2004), the Sigmund Freud Prize for scholarly prose (2012), and the Grand Cross of Merit (2016), one
of the highest tributes the Federal Republic of Germany can bestow on individuals for services to the nation.
Böckenförde was Knight Commander of the Pontifical Equestrian Order of St. Gregory appointed by John
Paul II (1999).
37
For an overview of the translations and their reception, see Mirjam Künkler and Tine Stein (eds.), Die
Rezeption der Werke Ernst-Wolfgang Böckenfördes in international vergleichender Perspektive, Beihefte zu »Der
Staat«, vol. XXIV (Berlin: Duncker & Humblot, 2020).
10
III. Böckenförde: Inner-C atholic Critic,

Constitutional Historian, Social Democrat,
Political Liberal, Constitutional Theorist
Böckenförde from the beginning pursued two different publication tracks, pub-
lishing his religion-and church-related articles mostly with the Freiburg-based
Herder publishing house, which specializes in religion and the humanities, and
his legal writings with Suhrkamp (after having published his two doctoral mono-
graphs and his habilitation with Duncker & Humblot, the publisher also of
Hans Kelsen, Carl Schmitt, and Rudolf Smend).
In 1973 and in 1976, just nine and twelve years respectively after he had become
full professor at the age of thirty-four, Böckenförde published two collections
of his most important essays. It was a rather early age to publish the first instal-
ment of one’s ‘canon’.38 The first collection brought together his essays on
religion and was published with Herder, the second collection his essays on
law, published with Suhrkamp. Between 1988 and 1991, while a judge on the
Federal Constitutional Court (1983–1996), Böckenförde published the second
instalment of his canon. The 1973 collection was extended into three volumes
published between 1988 and 1990, again with Herder,39 and the 1976 collection
was expanded to two volumes, both published with Suhrkamp in 1991.40 A third
instalment followed in 2004, when Böckenförde published a final collection of
his writings on religion with the LIT Publishing House (a second expanded
edition appeared in 2007),41 and another volume in political and constitutional
theory with Suhrkamp in 1999.42 His legal writings received a fourth acknowl-
edgement with a final Suhrkamp collection published in 2011, which also con-
tained an extensive biographical interview that historian and legal scholar
Dieter Gosewinkel had conducted with Böckenförde in 2009/2010.43
Throughout his career, then, Böckenförde distinguished between the reader-
ship he addressed in his persona as a Catholic and the readership he addressed
as a legal scholar, choosing for each audience the publishers and outlets that
would ensure the best possible positioning and dissemination of his arguments.
38
Kirchlicher Auftrag und politische Entscheidung (Freiburg: Rombach (Herder Verlag), 1973); and Staat,
Gesellschaft, Freiheit. Studien zur Staatstheorie und zum Verfassungsrecht (Frankfurt: Suhrkamp, 1976).
39
Schriften zu Staat, Gesellschaft, Kirche. Vol. 1: Der deutsche Katholizismus im Jahre 1933. Kirche und demokratisches
Ethos (Freiburg: Herder, 1988); Vol. 2: Kirchlicher Auftrag und politisches Handeln. Analyse und Orientierungen
(Freiburg: Herder, 1989); Vol. 3: Religionsfreiheit. Die Kirche in der modernen Welt (Freiburg: Herder, 1990).
40
Recht, Staat, Freiheit. Studien zur Rechtsphilosophie, Staatstheorie und Verfassungsgeschichte (Frankfurt: Suhrkamp,
1991). Staat, Verfassung, Demokratie. Studien zur Rechtsphilosophie, Staatstheorie und Verfassungsgeschichte (Frankfurt:
Suhrkamp, 1991).
41
Kirche und christlicher Glaube in den Herausforderungen der Zeit. Beiträge der politisch-theologischen Verfassungsgeschichte
1957–2002 (Münster: LIT Verlag, 2004), with a revised and expanded edition published in 2007.
42
Staat, Nation, Europa. Studien zur Staatslehre, Verfassungstheorie und Rechtsphilosophie (Frankfurt: Suhrkamp, 1999).
43
Wissenschaft, Politik, Verfassungsgericht. Aufsätze von Ernst-Wolfgang Böckenförde. Biographisches Interview von
Dieter Gosewinkel (Berlin: Suhrkamp, 2011).
11
Böckenförde: Catholic Reformer • 11

Taking a longitudinal view, Böckenförde’s academic work can be organized
roughly into seven broad phases, each with different thematic foci, and establish-
ing different components of his later reputation. There are certainly cross-cutting
themes and articles that thematically fall into a different phase, not least because
writing activity is also a function of publication requests. Nevertheless, a periodi-
zation does emerge, partly also coinciding with his changing institutional affilia-
tions. In Section IV below, the first phase will be elaborated in greater detail, as
nearly all the major elements in his thinking on the relationship between religion,
law, and democracy, and on Catholicism take form in this phase.44
1. On the Church’s need for internal reform

The first phase lasted from about 1956 to 1965. Böckenförde completed his doc-
torate in law in 1956, his doctorate in history in 1960, and his habilitation in 1964.
Also in 1964, he was appointed full professor of public law at the University of
Heidelberg where he stayed until 1969.
Strikingly, his published essays in this first phase do not connect directly to
his doctoral theses or his habilitation. Instead, they deal predominantly with the
Catholic Church and establish him as an inner-Catholic critic. The phase begins
with his article on ‘The Ethos of Modern Democracy and the Church’ pub-
lished in 1957 and ends with his commentary on the Declaration of Religious
Freedom, promulgated at the conclusion of the Second Vatican Council in 1965.
Years later, Böckenförde reflected on the fact that the writings in this period
were perceived by the Church as those of a dissenter, as even antagonistic to the
Church, when he had intended to write as a constructive voice for reform from
within.45 In the course of the 1970s, this perception changed and the scepticism
of his work gave way to appreciation, culminating in the late 1990s and 2000s to
his being awarded two honorary doctorates in Catholic theology. He also noted
years later that his writings in favour of personal freedom and against Catholic
natural law as a basis for state law earned him the reputation in Church circles
of being a ‘lefty’, a label to which he objected as reductionist.46
The major outlines of his views on the Catholic Church’s needs for internal
reform, his vision for its role in a democratic state, and his general model of
democratic religion–state relations all took form during this period and were
never fundamentally altered in his later work. Particular aspects would be deep-
ened, such as in his writings on the necessary distinction between state and
society in the early 1970s and the undesirability for societal institutions to aspire
44
Many of his writings from the fifth phase were included in volume I of this edition, as well as three from
the sixth phase, and two each from the third and fourth.
45
See ‘On the Authority of Papal Encyclicals: The Example of Pronouncements on Religious Freedom’,
published in English as Chapter XII in this volume.
46
See Böckenförde (note 17), pp. 396f.
12

to state-like institutional forms (as some in the ‘total democratization’ move-
ment of the 1970s demanded). He later elaborated in greater detail on the role
religions can exercise in democracy, but the basis for his work on religion–state
relations was laid in this first phase.
2. Historicizing the law and the state

The second phase lasted from about 1965 to 1970. It comprised his appointment
at the University of Heidelberg (1965–1969), where in 1967/1968 he also served as
dean of the law faculty. During this phase, most of Böckenförde’s articles were
concerned with the development of the concepts of law, rule of law, and constitu-
tionalism from the nineteenth into the twentieth century. Nearly all of the essays
written in this period are of a historical-conceptual nature.
In this period, Böckenförde returned to his two PhD dissertations, particu-
larly the one in history, which he now complemented with several shorter
studies of how legal concepts evolved and interacted with social reality in the
nineteenth century. In the 1965 article ‘The School of Historical Jurisprudence
and the Problem of the Historicity of Law’, written for the Festschrift for
Joachim Ritter, Böckenförde highlighted the fact that concepts of law were
always embedded in a particular context and thus in a particular legal culture.
In doing so, however, he rejected the approach of the School of Historical
Jurisprudence for reducing history to a space within which a natural develop-
ment of an ethnic or national ‘spirit’ [Volksgeist] unfolds. He connected this
‘organic’ notion of legal development with the organic state theories that
he criticized already in his 1961 article on the Catholic Church and the rise
of the Nazis. His belief that law could not function unless supported by an
underlying ethos willing to implement such law—a qualitatively different
approach to the foundations of law—was then further developed in his article
‘The Concept of Law in its Historical Evolution. Outline of a Problem’ of
1968.47 These essays shifted focus away from a ‘national spirit’ allegedly to
be found in law to the pluralistic views and political conflicts that developed
law. Böckenförde developed these ideas further in his studies of nineteenth-
century constitutionalism as an unstable balance of power between assembly
and monarch, in his essays ‘The German Type of Constitutional Monarchy
in the Nineteenth Century’ of 1967, and ‘Constitutional Problems and
Constitutional Development of the Nineteenth Century’ of 1971.48 Into this
47
‘Die Historische Rechtsschule und das Problem der Geschichtlichkeit des Rechts’, in Ernst-Wolfgang
Böckenförde and Joachim Ritter (eds.), Collegium Philosophicum. Studien. Joachim Ritter zum 60. Geburtstag
(Basel: Schwabe, 1965), pp. 9–36, published in English as ‘The School of Historical Jurisprudence and the
Problem of the Historicity of Law’ in Ernst-Wolfgang Böckenförde, State, Society and Liberty: Studies in
Political Theory and Constitutional Law (New York: Berg Publishers, 1991), pp. 1–25; ‘Der Rechtsbegriff in seiner
geschichtlichen Entwicklung. Aufriß eines Problems’, Archiv für Begriffsgeschichte 12 (1968), pp. 145–165.
48
‘Der deutsche Typ der konstitutionellen Monarchie im 19. Jahrhundert’, in Werner Conze (ed.), Beiträge
zur deutschen und belgischen Verfassungsgeschichte im 19. Jahrhundert (Stuttgart: Klett, 1967), pp. 70–92, published
in English as ‘The German Type of Constitutional Monarchy in the Nineteenth Century’ in Ernst-Wolfgang
Böckenförde (ed.), State, Society and Liberty: Studies in Political Theory and Constitutional Law (New York: Berg
13
Böckenförde: Legal Historian • 13

period also fall his articles ‘The Rise of the State as a Process of Secularization’,
first given as a talk in October 1964 and then published in the Festschrift for
Ernst Forsthoff in 1967; and ‘The Origin and Development of the Concept of
the Rechtsstaat’ published in the Festschrift for the Social Democratic politi-
cian and intellectual Adolf Arndt in 1969, which lays out the development of
the concept of the Rechtsstaat since Kant. Finally, in October 1969 he gave
his trendsetting talk on ‘The Fundamental Right of Freedom of Conscience’,
published the following year.49 The article, one of the most important of his
career, contains three themes he would later develop more fully, all of which
have become hallmarks of his thought.50
As Reinhard Mehring has commented, the disposition in favour of liberal
democracy that Böckenförde had outlined and proposed to Catholics in his
early writings from 1957 to 1965 was now becoming embedded in an emerg-
ing historical-constitutional theory.51 In this phase, Böckenförde intellectually
took up Carl Schmitt, and engages with the latter’s work, but from a very dif-
ferent normative starting point than Schmitt.52 Since 1957 Böckenförde had
developed a strong commitment to liberal democracy, partly fed by his reading
of the social democratic jurist Hermann Heller, the sociologist and economist
Lorenz von Stein, and his exchanges with Franz Schnabel, his doctoral advisor
in history, also a social democrat. Unlike Schmitt, Böckenförde had come to
embrace modernity for its achievements in bringing about the state as a struc-
ture capable of securing inner and outer peace (the state as a Friedenseinheit,
a peace-providing framework). As he wrote in his 1964 Ebrach talk, there was
no way back beyond the Declaration of the Rights of Man of 1789. He called
on the Catholic Church to come to terms with the breakthroughs of constitu-
tionalism, individual rights, and the secular nature of the modern state, and to
relinquish any absolute claims on the design of the public order. And he held
the Catholic Church to account for helping the Nazi seizure of power in 1933. By
the time Böckenförde set out to work on Schmittian themes in constitutional
and legal theory, he had become a committed democrat, calling on Catholics to
support democracy with all their resources by prioritizing the public good over
particular Catholic pursuits.
Publishers, 1991), pp. 87–114; ‘Verfassungsprobleme und Verfassungsbewegung des 19. Jahrhunderts. Ein
Überblick’, in Juristische Schulung (1971), pp. 560–566, published in English as ‘Constitutional Problems and
Constitutional Development of the Nineteenth Century’ in Ernst-Wolfgang Böckenförde (ed.), State, Society
and Liberty: Studies in Political Theory and Constitutional Law (Berg Publishers, 1991), pp. 71–86.
49
‘Die Entstehung des Staates als Vorgang der Säkularisation’, in Buve (note 26), pp. 75–94 published in
English as Chapter V in this volume; Böckenförde 1969 (note 10); ‘Das Grundrecht der Gewissensfreiheit’,
Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer 28 (1970), pp. 33–88, published in English as
Chapter VI in this volume.
50
See Mirjam Künkler and Tine Stein, ‘Böckenförde on the Secular State and Secular Law’ in this volume.
51
Reinhard Mehring, ‘Von der diktatorischen “Maßnahme” zur liberalen Freiheit. Ernst- Wolfgang
Böckenfördes dogmatischer Durchbruch in Heidelberg’, Juristen Zeitung 60 (2015), pp. 860–865.
52
In more detail, Mirjam Künkler and Tine Stein, ‘Carl Schmitt in Ernst- Wolfgang Böckenförde’s
Work: Carrying Weimar constitutional theory into the Bonn Republic’, Constellations: An International Journal
of Critical and Democratic Theory 25(2) (2018), pp. 225–241.
14

Inspired no doubt by his regular visits to Catholic student societies in the
German Democratic Republic (GDR), a second thematic focus emerged during
this period, one spawned by contemporaneous politics: the consolidation of the
partition of Germany and its consequences in domestic and international law.
In 1967, Böckenförde published his first monograph since his 1964 habilitation: a
short treatise on the concept of law in communism (Die Rechtsauffassung im
kommunistischen Staat), where he, after dissecting the meaning of constitutional
concepts of the GDR, analysed without reservation the political functionaliza-
tion of law and its complete subordination to the larger political goals of regime
consolidation and survival.53 In the book Böckenförde also took up the question
of the ‘German people’ as a legal concept, in particular whether there was con-
tinuity in the legal identity between the German Reich and Federal Republic
of Germany, and whether the Federal Republic of Germany exclusively repre-
sented all of Germany and all Germans in international law, a view promoted as
the ‘identity theory’.54 Here and in a separate article, Böckenförde vehemently
rejected the exclusive identity theory, and pleaded for a recognition of the GDR
by West Germany (as Chancellor Brandt did shortly later in 1969).55 Marking his
break with an older, conservative tradition, Böckenförde published his rejection
of the identity theory, a theory Carl Schmitt supported, in the Festschrift for
Schmitt in 1968 (‘The division of Germany and German citizenship’).56
It is also in this period that Böckenförde became a member of the Social
Democratic Party (SPD). Considering his deep anchoring in Catholicism, it was
unlikely that Böckenförde would find his way to the SPD, a party that, due to its
secularist position and as a political arm of the left-wing workers’ movement,
counted few Catholics in its ranks in the 1950s. But the SPD undertook a remark-
able transformation in 1959 when at its party convention in Bad Godesberg it
shed its identity as a ‘Weltanschauungspartei’, a party with a comprehensive
doctrine. This opened the way, Böckenförde reminisced later, to reconcile his
Catholic faith with membership in the party.57 In 1965, not yet a member, he was
53
Die Rechtsauffassung im kommunistischen Staat, 3rd ed. (Munich: Kösel, 1968, first published 1967).
54
Consequential with regard to the identity theory was also the 1968 ‘memorandum on Poland’ published by
the ‘Bensberger Kreis’, a group of Catholics, among them Böckenförde, who argued that a lasting European
peace arrangement could not be achieved without a reconciliation between (West) Germany and Poland and that
Germany should give up on all territorial claims towards Poland. The memorandum played an important role in
preparing the ‘Ostpolitik’ of Chancellor Willy Brandt, a groundbreaking reorientation in West German foreign pol-
icy towards rapprochement with the Eastern bloc. The official position of West Germany under Brandt became
that of a partial legal identity of the Federal Republic with the German Reich, a position Böckenförde supported.
55
As Mehring also reminds his readers, while on the Federal Constitutional Court, Böckenförde participated
in the Teso Decision of October 1987, which guaranteed one citizenship of all of Germany and endowed the
Federal Republic with the legitimacy to protect GDR citizens in third countries. This became relevant when
GDR citizens fled to West German embassies in Hungary, Poland, and Czechoslovakia in the summer of 1989
just before the Berlin wall came down. See Mehring (note 51).
56
‘Die Teilung Deutschlands und die deutsche Staatsangehörigkeit’, in Hans Barion et al. (eds.), Epirrhosis.
Festgabe für Carl Schmitt zum 80. Geburtstag. Vol. 2 (Berlin: Duncker & Humblot, 1968), pp. 423–463.
57
Böckenförde mentions how the persuasive argumentation of jurist Adolf Arndt, one of the driving forces
behind the SPD’s decision to abandon its ideological character, played a role in convincing Böckenförde to
join the party. See Böckenförde (note 17), p. 408f.
15
Böckenförde: Social Liberal • 15

invited to participate in the party’s first congress on legal politics in Heidelberg,
and two years after joining the party in 1967 became a member of its committee
on legal policies, occasionally also advising the SPD party executive.58
3. The social Liberal

Böckenförde’s discussion of the concept of law in communism can be seen
as the bridge leading over to the third phase of his intellectual development,
which was dedicated to writings on the relationship between rule of law and
economic inequality. It lasted from about 1971 to 1975 and coincided with his
time as professor at the University of Bielefeld from 1969 to 1976. In contrast to
the second phase in which Böckenförde produced groundbreaking historically
oriented articles, the early 1970s were characterized by dogmatic writings on
the relationship of the rule of law to the social state, and the interpretation of
fundamental rights in the Basic Law that follows from this.
Among the most important writings from this period is his ‘The Significance
of the Distinction between State and Society in the Democratic Welfare State
of Today’ of 1972.59 In a way, Böckenförde expanded on the historical article
‘Lorenz von Stein as Theorist of the Movement of State and Society towards
the Welfare State’, and laid out the dogmatic implications of the differentiation
between state and society,60 relying extensively also on Joachim Ritter’s work.61
For some theorists, like Rudolf Smend and his later followers in the Federal
Republic (many of them Social Democrats), the modern world involved the
end of a clear distinction between state and society as both were part of a pro-
cess of ‘integrating’ a political community. Against Smend's integration theory,
Böckenförde insisted, referencing Hermann Heller, that state and society must
be differentiated conceptually lest the grounds were laid for a possible encroach-
ment of the state into societal spheres that could in the final analysis escalate
into a new totalitarianism.62 This distinction allowed both the democratic state
58
See Böckenförde (note 17), pp. 409f.
59
Böckenförde extended this the following year to a short monograph titled Die verfassungstheoretische
Unterscheidung von Staat und Gesellschaft als Bedingung der individuellen Freiheit (Opladen: Westdeutscher
Verlag, 1973).
60
‘Lorenz von Stein als Theoretiker der Bewegung von Staat und Gesellschaft zum Sozialstaat’, in
Historisches Seminar der Universität Hamburg (ed.), Alteuropa und die moderne Gesellschaft. Festschrift für Otto
Brunner (Göttingen: Vandenhoeck & Ruprecht, 1963), pp. 248–277, published in English as ‘Lorenz von Stein
as Theorist of the Movement of State and Society towards the Welfare State’, in his State, Society, Liberty
(New York: Berg Publishers, 1991), pp. 115–145.
61
Compare Joachim Ritter, Hegel und die Französische Revolution (Köln-Opladen: Westdeutscher Verlag, 1957).
62
Böckenförde pointed out that the primary instruments of the rule of law state to ensure the well-being
of all citizens and preclude the escalation of economic inequality were taxation and the social responsibility
that comes with property. See Joachim Wieland, ‘Zum Sozialstaatsprinzip bei Ernst-Wolfgang Böckenförde’,
VerfassungsBlog, 8 May 2019, https://verfassungsblog.de/zum-sozialstaatsprinzip-bei-ernst-wolfgang-
boeckenfoerde/, DOI: https://doi.org/10.17176/20190517-144018-0. In Germany, the two relevant taxes were
property tax and inheritance tax, of which the state did not make sufficient use, however. Instead, it had over
time drastically increased the value added tax which disproportionately burdens the consumption of the less
16

and society to flourish, as in a liberal order both relied on one another: the legal
order, and the state more generally, could not survive unless supported by soci-
ety, and the flourishing of society in turn required rights and liberties that were
secured by state institutions.
Lorenz von Stein was also the key reference point in the articles he published
on the public use of private property and Article 14 Section 2 of the Basic Law,
according to which ‘property entails obligations. Its use shall also serve the
public good.’ In ‘Property, the Social Binding of Property, Expropriation,’ an
exposition of constitutional law from 1972,63 Böckenförde reminded munici-
palities that their organization of land must be oriented towards the public
good. Regarding the issue of expropriation, he demonstrated in detail that the
Parlamentarischer Rat when drafting Article 14 Section 3 of the Basic Law64
had intended not to require a full compensation for the market value, but
to take into account also the services the state provided through the provi-
sion of infrastructure and social insurances. In several writings, Böckenförde
emphasized that the guarantee of private property in the Basic Law had to be
understood as balancing between liberal guarantees and demands emanating
from societal or public needs.65 Implicitly taking a position in the Forsthoff–
Abendroth Controversy of the 1950s, in which Ernst Forsthoff argued that the
Basic Law prioritized the rule of law, while Wolfgang Abendroth66 argued that
it prioritized a social state, Böckenförde wrote that the Basic Law imposed
a ‘social state as a binding constitutional principle on par with that of the
Rechtsstaat’.67 Going beyond Abendroth, Böckenförde saw the social state not
only emanating as a necessary state function from Article 20 Section 1, but
even more so from Article 1 with the principle of human dignity, which the
state not only had to respect but also protect. The link for Böckenförde was
once again freedom:
well-off strata in society and thus cannot serve the purpose of redistribution. Additionally, the EU member
states’ competition regarding business tax (which the Court of Justice of the European Union (EUCJ) sup-
ports with its basic freedom jurisprudence) has led to lower levels of business taxes collected across the board,
thus further depriving states of the capability to make the kind of public sector investments that would lessen
the impact of economic inequality.
63
Böckenförde (note 8). This article was also included in his 1976 Suhrkamp compilation but unfortunately
the only article not included when the collection was published in English in 1991.
64
Article 14 Section 3 states: ‘expropriation shall only be permissible for the public good. It may only be
ordered by or pursuant to a law that determines the nature and extent of compensation. Such compensation
shall be determined by establishing an equitable balance between the public interest and the interests of those
affected. In case of dispute concerning the amount of compensation, recourse may be had to the ordinary
courts’.
‘Wider die Bauland-Spekulation. Vorschläge zu einer Reform des Bodennutzungsrechts’, Die Zeit 19 (12
65
May 1972), p. 54.

66
The controversy crystallized in an exchange between Schmitt’s disciple Ernst Forsthoff and Marxist legal
scholar Wolfgang Abendroth (under whose guidance Jürgen Habermas later wrote his habilitation). For
a summary of the controversy, see Michael Stolleis, Geschichte des öffentlichen Rechts in Deutschland, vol. IV
(Munich: C.H. Beck, 2011), pp. 281f.
67
Böckenförde (note 9).
17
Böckenförde: Social Liberal • 17

The state is now bound to intervene in the ‘free’ processes of society, to continuously
modify the social inequality to which society is forever giving rise, and even to exer-
cise (overall) control over the development and affluence of society as the (social)
foundation of liberty for all. The object of this is not, of course, to override the
liberty of the individual and of free society, but to underpin both freedoms socially
in the light of economic and social circumstances and trends—on the basis, that is to
say, of the state’s mission to support and guarantee the liberty of the individual and
a free society.68
Böckenförde believed that Lorenz von Stein had analysed the internally degen-
erative dynamics of capitalism like few others and demonstrated that, if left to its
own, capitalism through its necessary creation of inequality destroyed democracy
in the long term, unless regulated by the state and rechannelled into a social mar-
ket economy. Böckenförde also suggested that while Karl Marx’ proposals to solve
this predicament were unacceptable, his analysis was nevertheless accurate (and
largely congruent with von Stein’s).69
When asked in 2010 to reflect on his successes and failures, Böckenförde
replied that he regarded his lack of success in changing the discourse around the
Rechtsstaat-Sozialstaat debate as his greatest failure. The view that the enjoyment
of individuals’ rights depends on certain material conditions being met first, and
that the creation of these conditions falls into the competencies of the state, at least
the German state based on Article 14 of the Basic Law, had not sufficiently taken
hold, he regretted.70
Between 1973 and 1976 he wrote several articles that stressed how the
social state was ‘a binding constitutional principle on a par with that of the
Rechtsstaat’. He connected this idea with a theory of fundamental rights that
required action by the state.71 A concept of the state according to which funda-
mental rights restrict state action, he wrote, is at the same time constrained by
a concept of the state according to which normative principles included in the
constitution entail the duty to provide social services. ‘Freedom,’ Böckenförde
observed, ‘necessarily means the acceptance of social inequality.’ However, if
liberty is to be guaranteed for all, ‘specific societal and legal framework con-
ditions (including those of an institutional and societal-structural nature)’ are
required and ‘(t)he most important of these framework conditions is the con-
stant relativization of societal inequality that arises continually from the exercise of
68
Böckenförde (note 9). Extract from Chapter XI in volume I of this edition, p. 288.
69
Regarding Böckenförde’s reading of Marx, and the extent to which Böckenförde’s assessment of the social
state differed from Forsthoff ’s, see Peter C. Caldwell, ‘Capitalism’s Threat to Political Stability and Social
Policy as a Solution: Reflections on Ernst-Wolfgang Böckenförde’s Political Theory of the Welfare State’ in
Mirjam Künkler and Tine Stein (eds.), Understanding Böckenförde (forthcoming).
70
Böckenförde (note 17), p. 485. See here Chapter XVI, p. 393.
71
‘Die Methoden der Verfassungsinterpretation –Bestandsaufnahme und Kritik’, Neue Juristische Wochenschrift
29(46) (1976), pp. 2089–2099; ‘Die politische Funktion wirtschaftlich-sozialer Verbände und Interessenträger
in der sozialstaatlichen Demokratie. Ein Beitrag zum Problem der “Regierbarkeit”’, Der Staat 15 (1976), pp.
457–483.
18

liberty’.72 Although it is not the state’s responsibility to equalize individual dif-
ferences in human capacities and dispositions, there is solid normative ground,
Böckenförde suggested, for the argument that the state had to moderate the
social inequality arising from these differences.
The articles from the third phase show Böckenförde as a truly ‘social–liberal’
political thinker, since he did not relinquish liberty for equality or vice versa, but
argued for a strong state that was simultaneously responsible for and capable of
guaranteeing individual liberty while also compensating for social and economic
inequality.
4. The political Liberal

The fourth phase of Böckenförde’s work lasted from about 1976, when Böckenförde
joined the University of Freiburg, to 1981 and was defined by his work on state
theory and militant democracy. He left the imperative of the social state to one
side73 and dedicated himself to a new body of questions bearing on the rule of
law, namely what the core purpose of the state is and how the democratic state
ought to deal with those citizens who reject it. These questions emanated from the
political circumstances of the time, specifically the Grundwertedebatte (debate on
core values)74 and the rise of leftist militant groups, at the forefront the Red Army
Faction (RAF).
Partly as a response to the reforms in family law and criminal law under-
taken during the chancellorship of Willy Brandt (regarding, inter alia, divorce,
abortion, and homosexuality), certain commentators on the right diagnosed an
erosion of values (Werteverfall) in West German society. When Helmut Schmidt
became chancellor in 1974, the Catholic bishops in particular called on Schmidt
to show ‘moral leadership’ and re-orient the state’s purposes towards conveying
a unitary disposition (de facto of what they considered to be Christian values) to
the public. Böckenförde had been consulted by the chancellor on an appropriate
response to the Catholic Church and thus Böckenförde, together with the Jesuit
scholar Oswald von Nell-Breuning, came to draft the chancellor’s core speech on
72
Freiheitssicherung gegenüber gesellschaftlicher Macht’, in Diether Posser and Rudolf Wassermann
(eds.), Freiheit in der sozialen Demokratie. 4. Rechtspolitischer Kongreß der SPD vom 6. bis 8.6.1975 in Düsseldorf.
Dokumentation (Karlsruhe: C. F. Müller, 1975), pp. 69–76, published in English as ‘Protection of Liberty against
Societal Power: Outline of a Problem’, Chapter XII in volume I of this edition, p. 294. Emphasis in original.
73
Hermann-Josef Große Kracht speaks in this context even of ‘abgebrochene Auf brüche’, of aborted departures.
See his ‘Freiheitsrechtliche Kapitalismuskritik und der Etatismus der sozialen Demokratie. Ernst-Wolfgang
Böckenförde als Theoretiker des Sozialstaates im Kontext konservativen Staatsrechts, sozialdemokratischer
Politik und katholischer Soziallehre’, in Hermann-Josef Große Kracht and Klaus Große Kracht (eds.),
Religion—Recht—Republik. Studien zu Ernst-Wolfgang Böckenförde (Paderborn: Schöningh, 2014), pp. 91–120,
here p. 103.
74
The Grundwertedebatte took place in the context of debates over legal reform in particular of abortion and
divorce, but encompassed a far broader field of issues, all revolving around the core question: to what extent
should the state provide for a shared ethos in society, to what extent should its actions and policies aim to
represent a certain worldview?
19
Böckenförde: Political Liberal • 19

the matter, titled ‘Ethos and Law in State and Society’ (1976).75 In it, Chancellor
Schmidt rejected the idea that the state could, or should, beyond enforcing the
constitution, impose certain values from above. The state needed to be neutral
with regard to worldviews, he emphasized, and value debates should take place
within society. The speech caused much controversy, as conservatives accused
the chancellor of being too reserved, and as indirectly contributing to the public
erosion of values.
Böckenförde took up the question of the ethical state again in 1978, when he
asked whether the core functions of the state ought to go beyond providing for
security and liberty.76 While he rejected the Aristotelian expectation that the
public order must promote the good life (eudaemonia), he did argue that the
state ought to create conditions in which citizens have the opportunity for self-
realization, should they wish to pursue it. But the state could not identify with
particular worldviews without violating the very liberalism on which it was
founded. ‘Against the inappropriate attempt to seek the realization of intellec-
tual and moral content through the state in the demand for a uniform attitude,
one should recall that it was part of the intellectual-moral substance of the
modern state that it dispensed with making a uniform political disposition, a
uniform faith, or a uniform ideology its obligatory foundation—and in this very
way inscribing the subjectivity and distinctiveness of individuals into its law.’77
Along similar lines, he published an essay in the Frankfurter Allgemeine Zeitung a
few months later directed at the ‘Radicals Decree’,78 in which he insisted that a
truly liberal state could only prosecute citizens for violations of the law, but not
for their political inclinations and sympathies.79 This implied that a liberal state
could not demand from its citizens loyalty and fidelity of political conviction,
75
‘Ethos und Recht in Staat und Gesellschaft’, speech given by German Chancellor Helmut Schmidt at the
Catholic Academy on 23 May 1976. Böckenförde also drafted the Welcome Address of the Chancellor at the
Biennial Catholics Day in 1982.
76
See Der Staat als sittlicher Staat (Berlin: Duncker & Humblot, 1978), published in English as Chapter III
of volume I of this edition. He supplemented the article with other writings on his state theory during
this period: ‘Der vernünftige Staat –Aufgaben und Grenzen,’, Deutsches Allgemeines Sonntagsblatt 20, (14 May
1978), p. 10; ‘Der Staat als Organismus. Zur staatstheoretischen Diskussion in der Vormärzzeit,’, Neue Zürcher
Zeitung, 16/17 December 1978, p. 61, later expanded as ‘Der Staat als Organismus. Zur staatstheoretisch-
verfassungspolitischen Diskussion im frühen Konstitutionalismus,’ in Böckenförde (note 40), pp. 263–272; and
Böckenförde (note 27).
77
Chapter III of volume I of this edition, p. 101.
78
The ‘Radicals Decree’ (Radikalenerlass), issued by Chancellor Willy Brandt in 1972, made it impossible
for members and former members of the Communist Party and other political parties judged to be anti-
constitutional to become public servants. This affected professions across all social milieux, from university
professors and schoolteachers to caretakers in public buildings and bus drivers. The discriminatory regula-
tions remained in place until ten to fifteen years later when several federal states (Bundesländer) consecutively
loosened the impact of the secret service pre-employment screenings. It was in this context that German
intellectuals increasingly feared that the over-emphasis on security had done irreparable damage to the coun-
try’s once liberal democracy. The decree became a topic at the meeting of the SPD party executive the day
after Böckenförde’s 1978 speech, but this apparently did not change party policy at that time. See Böckenförde
(note 17), p. 429.
79
‘Verhaltensgewähr oder Gesinnungstreue? Sicherung der freiheitlichen Demokratie in den Formen
des Rechtsstaates’, Frankfurter Allgemeine Zeitung (8 December 1978), pp. 9–10. Böckenförde elaborated
20

and, to stay true to its liberalism, had to tolerate even those rejecting the liberal
democratic order.
Between 1978 and 1981, Böckenförde published a series of articles debating
appropriate state responses to the RAF and other violent groups that threat-
ened the state order at the time. State responses were governed by the 1968
Emergency Acts, a series of statutes approved in a heated debate just a decade
before. These acts, he argued, actually posed a greater threat to the rule of law.
Instead, he proposed anchoring a state of emergency in the Basic Law;80 con-
stitutional law, as opposed to mere statutory law, should determine the condi-
tions under which emergency action was permissible. In ‘The Repressed State
of Emergency’ (Chapter IV in volume I of this edition) Böckenförde laid out
how the Emergency Acts had given rise to questionable practices on the part
of the security services (installing eavesdropping devices that violated the con-
fidentiality of attorney–client privileges during the meetings between RAF pris-
oners and their lawyers, and wiretapping of the private apartment of a nuclear
physicist under suspicion of collaborating with terrorists). He expounded why a
constitutional provision for a tightly regulated state of emergency would be less
rights-eroding than the contemporaneous Emergency Acts, which he suggested
went further in providing a blanket authorization to state practices than even
the Enabling Act of 1933, which had granted Hitler almost unlimited power.
Böckenförde argued in favour of a constitutional amendment that would pro-
vide for the possibility of a declared state of emergency, and in 1981 he pub-
lished a blueprint of such clauses.81 His position did not prevail, partly because
many still viewed the emergency powers embodied in Article 48 of the Weimar
Constitution as having paved the way for the ascendance of the Nazi regime
while preserving constitutional continuity.82
The articles written in this phase, especially those on the state of emergency,
the radicals decree and on the rights of those citizens opposing liberal democ-
racy, manifest Böckenförde’s strongest stances in political liberalism. It is here
that he writes ‘The order of freedom must set itself apart from the order of
unfreedom also—and especially—by the methods of its defense’83 and in the
on his critique of the Radicals Decree in Ernst-Wolfgang Böckenförde, ‘Rechtsstaatliche politische

Selbstverteidigung als Problem’, in Friedrich-Ebert-Stiftung, Extremisten und öffentlicher Dienst (Baden-
Baden, 1981), pp. 9–33.
80
See Ernst-Wolfgang Böckenförde, ‘Der verdrängte Ausnahmezustand’, Neue Juristische Wochenschrift (1978),
pp. 1881–1890), included as Chapter IV in volume I of this edition, pp. 108–132.
81
Ernst-Wolfgang Böckenförde, ‘Ausnahmerecht und demokratischer Rechtsstaat’, in Hans-Jochen Vogel,
Helmut Simon, and Adalbert Podlech (eds.), Die Freiheit des Anderen. Festschrift für Martin Hirsch (Baden-
Baden: Nomos, 1981), pp. 259–272. For a counterargument, see Gertrude Lübbe-Wolff, ‘Rechtsstaat und
Ausnahmerecht. Zur Diskussion über die Reichweite des § 34 StGB und über die Notwendigkeit einer verfas-
sungsrechtlichen Regelung des Ausnahmezustandes’, Zeitschrift für Parlamentsfragen 11 (1980), pp. 110–125, and
Böckenförde’s rejoinder ‘Rechtsstaat und Ausnahmerecht. Eine Erwiderung’, Zeitschrift für Parlamentsfragen 4
(1980), pp. 591–595.
82
Compare also Böckenförde (note 17), p. 428.
83
‘The State as an Ethical State’, Chapter III, in volume I of this edition, p. 100.
21
Political Theology and Constitutional Dogmatics • 21

biographical interview with Dieter Gosewinkel, he notes ‘it is important that the
so-called enemies of freedom do not lose their rights. They must be restrained,
but must not be placed outside the guarantee of freedom.’84 Remarkably, none
of these articles were adopted in his canonical collections (mentioned at the
beginning of this Section III), even though Böckenförde considered ‘The State
as an Ethical State’ and ‘The Repressed State of Emergency’ among his most
important articles (both are included in volume I of this edition).85 Partly as
a result of their absence from the Suhrkamp compilations, it has only been
recently that the political Liberal in Böckenförde’s work has once again received
more attention in Germany.
5. Political theology and constitutional dogmatics

Böckenförde published on questions of religion and the Church throughout his
career, but in the early 1980s he again dedicated himself with more attention to
specifically religious topics. He published on the political theology of John Paul II
in 1980, on the Federal Constitutional Court decision regarding school prayer, and
on Bishops’ attempts to influence the electoral behaviour of believers.86 He also
published his widely cited articles on Carl Schmitt’s political theology and the rela-
tion between state and religion in Hegel.87 On these, see the introductions to Parts
II and III of this volume.
In December 1983 Böckenförde was appointed judge in the second senate
of the Federal Constitutional Court, where he continued to serve until the
summer of 1996. While he refrained from other public engagements at this
time, he continued to publish actively. His focus in this fifth phase became
the constitution. While on the court, he published half a dozen widely cited
articles on constitutionalism, many of which have been translated into several
foreign languages. He also wrote his most elaborate work on democratic the-
ory, ‘Democracy as a Constitutional Principle’, which built fundamentally on
the article that started his career, ‘The Ethos of Modern Democracy’.88 Many
84
See ‘Biographical Interview’, Chapter XVII in volume I of this edition, p. 386.
85
Mirjam Künkler, ‘Böckenförde and the State of Emergency’ in Mirjam Künkler and Tine Stein (eds.),
Understanding Böckenförde (forthcoming).
86
‘Das neue politische Engagement der Kirche. Zur ‘politischen Theologie’ Johannes Pauls II’, Stimmen der
Zeit issue 4 (1980), pp. 219–234; ‘Der “Wahlhirtenbrief ” 1980. Eine Anfrage an die deutschen Bischöfe’, (co-
authored with Franz Böckle, Bernhard Stöckle and Hans F. Zacher) Herder-Korrespondenz 34(11) (1980), pp.
570–573; and ‘Zum Ende des Schulgebetsstreits. Stellungnahme zum Beschluß des BVerfG vom 16.10.1978’, Die
Öffentliche Verwaltung 33 (1980), pp. 323–327.
87
‘Politische Theorie und politische Theologie. Bemerkungen zu ihrem gegenseitigen Verhältnis’, Revue euro-
péenne des sciences sociales 19(54/55) (1981), pp. 233–243. ‘Bemerkungen zum Verhältnis von Staat und Religion
bei Hegel’, Der Staat 21 (1982), pp. 481–503.
88
‘Demokratie als Verfassungsprinzip’, in Josef Isensee and Paul Kirchhof (eds.), Handbuch des Staatsrechts der
Bundesrepublik Deutschland. Vol. 1 Grundlagen von Staat und Verfassung (Heidelberg: C. F. Müller, 1987), pp. 887–
952. See also ‘Demokratische Willensbildung und Repräsentation’, in Josef Isensee and Paul Kirchhof (eds.),
Handbuch des Staatsrechts der Bundesrepublik Deutschland. Vol. 2 Demokratische Willensbildung. Die Staatsorgane
22

of the articles from this period are included in volume I of this edition and have
been discussed in detail there.89 Here three will be highlighted.
Among his most prominent from this period is his 1986 article on the
‘Constituent Power of the People’, which has been translated into seven lan-
guages.90 It particularly reverberated in work on democratic theory and con-
stitutional design. Building on Emmanuel Joseph Sieyès’ distinction between
pouvoir constituant and pouvoirs constitués, the core contribution of the article lay
in Böckenförde’s discussion of the relationship between the legitimacy of a con-
stitution and the democratic motivations of those involved in the constitution-
making process—what is sometimes referred to as the question of ‘ownership’
of the constitution by the people. Without the latter, Böckenförde suggested,
no constitution, however well designed, will have much of a chance of being
implemented. His Hegelian concern for the binding forces that ‘hold’ the state
once again came to the fore here. ‘(N)o supra-positive law and no idea of politi-
cal order becomes concretely effective unless a historical-political force appro-
priates them, presents them as its own beliefs and ideas, and acts on their behalf ’.
What is required of a pouvoir constituant is ‘a living awareness of justice, effica-
cious ideas of order, and a formative ethico-political will . . . in short, a ‘spirit’
that can and does take shape in institutions, regulations, and procedures. If that
is lacking, even the best-justified postulates cannot bring about the validity of
something that is not alive as a separate spirit in the people or the nation.’91
In ‘Democracy as a Constitutional Principle’, Böckenförde laid out his theory
of democracy in the modern state. In the end, he argued, all political decisions
must be traced back to the demos and must be legitimized by the democratic
citizenry. This ‘chain of legitimation’ back to a popular decision might be long,
des Bundes (Heidelberg: C. F. Müller, 1987), pp. 29–48. The article has been translated into Italian, Korean,
Portuguese, Spanish, and Arabic.
89
For individual articles and their translations, see the following footnotes. Apart from those discussed,
volume I of this edition includes from this fifth period also the following four articles: ‘Geschichtliche
Entwicklung und Bedeutungswandel der Verfassung’, in Arno Buschmann et al. (eds.), Festschrift für
Rudolf Gmür zum 70. Geburtstag am 28.7.1983 (Bielefeld: Gieseking, 1983), pp. 7–19), included as Chapter VI
(‘The Historical Evolution and Changes in the Meaning of the Constitution’). The article was translated
into Italian, Polish, Japanese, Korean, and English. Further, ‘Der Begriff des Politischen als Schlüssel zum
staatsrechtlichen Werk Carl Schmitts’, in Helmut Quaritsch (ed.), Complexio Oppositorum. Über Carl Schmitt.
Vorträge und Diskussionsbeiträge des 28. Sonderseminars 1986 der Hochschule für Verwaltungswissenschaften Speyer
(Berlin: Duncker & Humblot, 1988), pp. 283–299, published as Chapter II (‘The Concept of the Political: A Key
to Understanding Carl Schmitt’s Constitutional Theory’); ‘Grundrechte als Grundsatznormen. Zur gegen-
wärtigen Lage der Grundrechtsdogmatik’, Der Staat 1 (1990), pp. 1–31, published as Chapter X (‘Fundamental
Rights as Constitutional Principles: On the Current State of Interpreting Fundamental Rights’); and ‘Begriff
und Probleme des Verfassungsstaates’, in Rudolf Morsey, Helmut Quaritsch, and Heinrich Siedentopf (eds.),
Staat, Politik, Verwaltung in Europa. Gedächtnisschrift für Roman Schnur (Berlin: Duncker & Humblot, 1997), pp.
137–149, published as Chapter V (‘The Concept and Problems of the Constitutional State’).
90
Die verfassunggebende Gewalt des Volkes. Ein Grenzbegriff des Verfassungsrechts (Frankfurt: Metzner, 1986),
included as Chapter VII in volume I of this edition (‘The Constituent Power of the People: A Liminal Concept
of Constitutional Law’). The article was translated into Italian, French, Japanese, Korean, English, Spanish,
and Portuguese.
91
Chapter VII, ‘Constituent Power of the People’ in volume I of this edition, p. 184.
23
Political Theology and Constitutional Dogmatics • 23

but must not be interrupted in a democracy. The article was translated into
Italian, Spanish, Portuguese, Korean, and Arabic, and has been cited several
times by the Federal Constitutional Court, inter alia on the suffrage of foreign-
ers (BVerfGE 83, 37; 83; 60), on the laws regarding state organization (BVerfGE
93; 37; 107; 59), and it has shaped the court’s overall approach to the EU and EU
law (BVerfGE 89; 155; 123; 267).
Another key article of his was published a year later, on the ‘Critique of
the Value-Based Grounding of Law’.92 Taking a position contrary to post-
war West German constitutional jurisprudence, particularly the 1958 Lüth
decision, according to which values of the Basic Law radiate into all other
areas of law (including those governing relations between citizens, not only
between citizen and state), Böckenförde warned ‘[t]‌he value-based conception
of the constitution means a reach toward a new totality: the constitution is
no longer limited to its traditional subject matter, [instead] its value-creating
standardizations are universal and extend into all areas of social life. The con-
stitution encompasses the whole of society and—as a structure and system of
values—advances an absolute claim to validity, one that reaches into all areas
of the law.’93
Böckenförde explained that the attempt to ground law in values was per se
arational since there was no coherent and no non-ambivalent way of identifying
meta principles with which values could be placed into hierarchies. Discursive
mediation was impossible when values were appealed to, since appealing to
values was nothing other than grasping intuitive sentiments about a priori facts
of the ethical world. Modern societies were necessarily plural societies with
disagreement over values and over what values should be prioritized. Since a
rational method for introducing a hierarchical order of values was not in sight,
legal norms with their general claim to validity could not be based on values.
Separately, Böckenförde feared that a value-based jurisprudence opened the
gate for the positivization of the subjective opinions of judges and legal schol-
ars. Their views on the question of which values ought to be protected by the
law and which values ground legal norms would then be ranked higher than
others, which would ultimately result in nothing less than legal positivism by
today’s rating. If rights were to be seen as grounded in values, then the lack
of a rational method for defining the superiority of one value over another
would ultimately lead to decisions on competing rights based on wavering
consensuses defined by those who prevail in societal value debates.94 In sum,
one can say that while Böckenförde laid the groundwork for his constitutional
92
Chapter IX in volume I of this edition.
93
See Chapter VI in volume I, ‘The Historical Evolution and Changes in the Meaning of the Constitution’,
p. 167.
94
‘Zur Kritik der Wertbegründung des Rechts. Überlegungen zu einem Kapitel “Rechtsphilosophie”’, in
Reinhard Löw (ed.), OIKEIOSIS. Festschrift für Robert Spaemann (Weinheim: VCH Verlagsgemeinschaft, 1987),
pp. 1–21, published in English as ‘Critique of the Value-Based Grounding of Law’, Chapter IX in volume I of
this edition.
24

theory in his historical works of the 1960s, his constitutional dogmatics were
fully developed in the second half of the 1980s while he served on the Federal
Constitutional Court.
6. Europeanization and nationalism

After 1990, Böckenförde turned his gaze to topics of Europeanization and
nationalism.95 This work tied in with his regular participation in talks tak-
ing place in the papal summer residence at Castelgandolfo (south of Rome),
which were designed to facilitate exchanges on democracy and Europe’s future
among Catholics on both sides of the Iron Curtain. The talks were convened
by Krzysztof Michalski, the spiritus rector of the Vienna-based Institute for
Human Sciences (IWM).96 Böckenförde took part seven times,97 and it was to
no small extent due to these personal meetings that his writings began to be
translated extensively into Polish, his work falling onto fertile ground among
proponents of the ‘Open Church’ in Poland, which called on Church officials
to give up their siege mentality and enter into earnest discussions with others,
including Jews.98
95
Three essays on these topics are included in volume I: ‘Staatsbürgerschaft und Nationalitätskonzept’ in
Böckenförde (note 42), pp. 59–67, included as Chapter XIV (‘Citizenship and the Concept of Nationality’);
Welchen Weg geht Europa? (Munich: Carl Friedrich von Siemens-Stiftung, 1997), included as Chapter XVI
(‘Which Path is Europe Taking?’); and ‘Die Zukunft politischer Autonomie. Demokratie und Staatlichkeit
im Zeichen von Globalisierung, Europäisierung und Individualisierung’, in Martin Meyer and Georg Kohler
(eds.), Die Schweiz –für Europa? Über Kultur und Politik (Munich: Carl Hanser Verlag, 1998), pp. 63–90, included
as Chapter XV (‘The Future of Political Autonomy: Democracy and Statehood in a Time of Globalization,
Europeanization, and Individualization’). Other essays from this period are ‘Nationen und Nationalstaaten.
Die Ordnung Europas am Scheideweg’, in Hilmar Hoffmann and Dieter Kramer (eds.), Das verunsicherte
Europa. Römerberggespräche Frankfurt 1992 (Frankfurt: Anton Hain, 1992), pp. 77–88; ‘Die Nation –Identität in
Differenz’, in Krzysztof Michalski (ed.), Identität im Wandel. Castelgandolfo-Gespräche. Vol. 6 (Stuttgart: Klett-
Cotta, 1995), pp. 129–154; and ‘Europa und die Türkei. Die europäische Union am Scheideweg?’ Forum
Kommune 23(1) supplement (2005), pp. X–XI, XIII–XX.
96
Michalski built up a network of European intellectuals at the Vienna institute before and after the fall of
the Berlin Wall in 1989, including the priest and philosophy professor Józef Tischner from Kraków, an impor-
tant figure in Solidarnosc and a friend of Karol Wojtyla’s, later Pope John Paul II. It was also at the IWM, on
whose academic advisory board Böckenförde served for many years, that Böckenförde and Edward Shils led a
series of Jewish–Christian exchanges, which culminated in their jointly edited volume Jews and Christians in a
Pluralistic World (London: Weidenfeld & Nicolson, 1991).
97
Böckenförde’s lectures there included ‘The Image of Man from the Perspective of Today’s Legal Order’
(1983), ‘The Crisis of the Legal Order: The State of Emergency’ (1985), ‘The Social and Political Ideas of Order
of the French Revolution’ (1991), and ‘The Nation –Identity in Difference’ (1994). A participant reports from
the experience: ‘A federal constitutional judge of West German democracy held keynote speeches at the
papal court on questions of the regulatory policy of future Europe: the image of man in the legal system, the
concept of the nation, the regulatory ideas of the French Revolution and the state of emergency.’ See Otto
Kallscheuer, ‘Folgenlose Lektüre? Zur Böckenförde-Rezeption in Polen und Italien’, in Künkler and Stein
(note 37), pp. 85–93, here p. 86.
98
On the extensive reception of his work in Poland, see Joanna Byrska, ‘Die Rezeption des politischen und
konstitutionellen Denkens Ernst-Wolfgang Böckenfördes in Polen’, in Künkler and Stein, ibid., pp. 69–84.
25
Europeanization and Nationalism • 25

Böckenförde was a proponent of European integration, regarding it as
desirable first and foremost from a political point of view as a peace process.
But he formulated several cardinal warnings about the way the process was
being conducted.99 In retrospect, Böckenförde’s warnings appeared almost
prophetic. They chiefly concerned the issue of democracy internal to the
EU, the weakness of European cultural policy, the tensions arising from dis-
crepancies between European economic and fiscal policies, and the issue of
diverging views between EU member states as to the ultimate purposes of
integration.
Böckenförde defended the idea of a ‘multi-goal Europe’ at a time when
even uttering the possibility of a ‘multi-speed Europe’ was highly unpopular
among pro-European publics. Some saw in the idea an insult to the members
who had just joined, others suspected in the phrase the hidden desire among
the economically stronger countries to share only some privileges of EU mem-
bership with new candidates, but not all; in other words, to ‘cherry pick’. But
Böckenförde’s reasoning was rather different. Those advocating an ‘ever-closer
union’ (especially Germany and France at the time) would need to accept that
other member states, notably Britain, might never wish to pursue the same
political goals. Therefore, Böckenförde insisted, it did not help to simply aim at
a ‘multi-speed Europe’. One also needed to acknowledge the reality of multiple
goals among EU member states. One should therefore open different EU treaty
mechanisms to different audiences and drop the goal of an ever-closer union
for all members. For example, he proposed that Turkey might eventually join
the Euro group and thus the currency union, but stay out of the political union
of the EU.100 Britain on the other hand could be allowed to opt out of those
mechanisms aiming at a closer political union, while remaining economically
integrated.
Böckenförde also underlined the democracy-eroding forces emanating
from the lack of synchronicity between the political integration and the eco-
nomic integration following the Maastricht Treaty of 1992. While EU mem-
ber states were less and less capable of regulating their internal markets (as
this competency had shifted to the EU level), they remained nevertheless
responsible for labour market policy and distributive social policy in the eyes
of the national voter. A legitimacy deficit would arise: the member states
would still be seen as responsible for the common good of their citizens, but
national governments would no longer be sovereign to set up restraints for
99
For a summary of Böckenförde’s main positions regarding the European Union and the enlargement
process, see Mirjam Künkler and Tine Stein, ‘Ernst-Wolfgang Böckenförde, the European’, Verfassungsblog,
May 2019.
100
See his four articles, ‘Which Path is Europe Taking?’ (1997) (note 95); The Future of Political Autonomy:
Democracy and Statehood in a Time of Globalization, Europeanization, and Individualization (1998) (note 95);
Ernst-Wolfgang Böckenförde, ‘Conditions for European Solidarity’, in Krzysztof Michalski (ed.), What
Holds Europe Together? (Budapest: Central European University Press, 2005), pp. 30–41; and Ernst-Wolfgang
Böckenförde, ‘Nein zum Beitritt der Türkei’, Frankfurter Allgemeine Zeitung (10 December 2004), p. 1.
26

the common market. The Euro crises and the political crises ensuing in their
wake, especially in Greece, Portugal, and Italy, would prove Böckenförde’s
warnings true.
7. Constitutional courts, human dignity, and biotechnologies

After Böckenförde retired from the Federal Constitutional Court in Karlsruhe
in 1996, he continued to publish productively for almost another twenty years.
Whereas he had refrained from commenting on the court itself while in office,
he now published several articles on constitutional court jurisprudence. He
also took up his engagement as public intellectual again, writing and lecturing
on a range of hotly debated issues, from bioethical questions, abortion, pre-
implantation diagnosis and prenatal genetic testing in the light of human dig-
nity, to the broad field of politics and religion.
On constitutional courts and their jurisdiction, Böckenförde pointed out
that even though constitutional courts had been the rising stars of the post-war
period, on a comparative scale constitutional adjudication still had ‘far less back-
ing within the legal system itself than regular adjudication. [Since it is] active
at the level of the political system, it must make institutional provisions for the
recognition of its decisions, and it is highly dependent on their acceptance.’101
He explored in depth the tensions arising from the necessary lack of oversight
of constitutional court judges and compared various models in place in differ-
ent jurisdictions of recruitment and other mechanisms, such as term limits, to
somewhat manage the risks of constitutional court judges overstepping their
competencies. He also dedicated much space to discussing the relationship
between the constituent power of the people on the one hand and the final-
ity of constitutional court decisions on the other. In this context, Böckenförde
remarked, the Polish system post-1990 offered a noteworthy model, where in
the case of a constitutional court veto of legislation, the legislature had the
power to override the veto by a supermajority, thus engaging in constitutional
reform and acting as an ongoing constituent power. Whereas in the latter, the
constitution is the expression of popular sovereignty, in most other cases the
finality of constitutional court decisions is an expression of limits imposed on
popular sovereignty.
Even more so than constitutional courts, the topic of human dignity in
light of new biomedical developments became a focal point of Böckenförde’s
interests in the 2000s and 2010s. One of his articles became a cornerstone of
101
‘Die Überlastung des Bundesverfassungsgerichts’, Zeitschrift für Rechtspolitik 29 (1996), pp. 281–
284; ‘Zur Idee der Verfassungsgerichtsbarkeit im demokratischen Staat’, Justizblatt 50(10) (3 July 1996;
‘Verfassungsgerichtsbarkeit. Strukturfragen, Organisation, Legitimation’, Neue Juristische Wochenschrift 52(1)
(1999), pp. 9–17, published in volume I as Chapter VIII, ‘Constitutional Jurisdiction: Structure, Organization,
and Legitimation’.
27
Human Dignity and Biotechnologies • 27

the German bioethical debate, causing a heated exchange among legal schol-
ars and politicians alike. In his essay provocatively titled ‘Human Dignity was
Inviolable’, published in 2003 in the Frankfurter Allgemeine Zeitung,102 Böckenförde
criticized a new interpretation of Article 1 of the Basic Law that had been pub-
lished in one of the leading constitutional commentaries, the ‘Maunz-Dürig’.
Here legal scholar Matthias Herdegen laid the ground for an understanding
of human dignity as being very open to different interpretations, depending
on the specific circumstances of the case such as the stage of prenatal devel-
opment. Böckenförde regarded this opinion as not only shaking the constitu-
tional foundation of the Basic Law but as entirely relativizing any concept of
human dignity by effectively allowing humans to judge who is likely to live a
life worth living. Accordingly, Böckenförde argued here and in several follow-up
articles for a rather restrictive bioethical policy, including a prohibition on pre-
implantation genetic diagnosis.103
Into this period also fall his articles on how the secular state can be theologi-
cally justified, the relationship between religion and the state in the face of great
diversity in worldviews,104 his reflections on what it meant to be a Catholic in the
office of constitutional judge, and on the authority of papal encyclicals,105 all of
which are included in this volume.
Böckenförde also published two more monographs, the very substantial
History of the Philosophy of Law and the State from Antiquity to the Middle Ages
in 2002106 and, returning to his own profession, Of the Ethos of the Jurists in
2010.107
102
Ernst-Wolfgang Böckenförde ‘Die Würde des Menschen war unantastbar’, Frankfurter Allgemeine Zeitung
(3 September 2003), pp. 33–35. See also the longer version ‘Bleibt die Menschenwürde unantastbar?’ Blätter für
deutsche und internationale Politik 10 (2014), pp. 1216–1227, included in this volume as Chapter XV, ‘Will Human
Dignity Remain Inviolable?’
103
Chapter XIV, ‘Human Dignity as a Normative Principle: Fundamental Rights in the Bioethical
Debate’ [2003]. For one of his last articles regarding the prohibition of pre-implantation genetic
diagnostic testing, see Ernst-Wolfgang Böckenförde, ‘Einspruch im Namen der Menschenwürde’,
Frankfurter Allgemeine Zeitung (15 March 2011). Interestingly, at the height of the bioethical debate
between 1999 and 2003, Jürgen Habermas made a related intervention, arguing that the normative
self-understanding of humankind according to which humans are free and equal requires the idea that
all humans, including unborn life, should be seen and treated as those persons they will eventually
become. Jürgen Habermas, Die Zukunft der menschlichen Natur. Auf dem Weg zu einer liberalen Eugenik?
(Frankfurt am Main: Suhrkamp, 2001).
104
Chapter X, ‘Reflections on a Theology of Modern Secular Law [1999]’; Chapter VIII, ‘The Secularized
State: Its Character, Justification, and Problems in the Twenty-First Century [2007]’.
105
Chapter XI, ‘A Christian in the Office of Constitutional Judge [1999]’; Chapter XII, ‘On the Authority of
Papal Encyclicals: the Example of Pronouncements on Religious Freedom [2006]’.
106
Geschichte der Rechts-und Staatsphilosophie. Antike und Mittelalter (Tübingen: Mohr-Siebeck, 2002), pub-
lished in Portuguese as História da Filosofia do Direito e do Estado -Antiguidade e Idade Média, trans Adriana
Beckman Meirelles, (Porto Alegre: Sérgio Antonio Fabris Editor, 2012).
107
Ernst-Wolfgang Böckenförde, Vom Ethos der Juristen (Berlin: Duncker & Humblot, 2010), 2nd ed. with
corrections in 2011.
Another random document with
no related content on Scribd:
the preacher the congregation jumped up and ran out to see what was
toward, so that "there remained few or no people with the preacher."
"'Tis Master Francis Drake come home at last!" All Plymouth went
down to the water's edge to greet their special hero—Drake of Devon!
But Francis Drake had not arrived at a happy moment for himself. Alva
had been offering good terms, and the Queen was surrounded just then by
friends of Spain. Drake's position was one of danger; he might possibly be
given up to Philip as a mere pirate who had not the Queen's sanction. So he
took his ship round to Queenstown and hid in "Drake's Pool."
Time went on, and still politics made his life dangerous; so Drake with a
letter of introduction from Hawkins joined Essex in Ireland. It was a very
cruel and heartless war, even against women and children; and from what
we have seen of Drake's chivalry to women, it must have been most
loathsome to his great soul. However, when he returned to London things
had changed; this time the Queen was very angry with Philip, and she sent
Walsingham to seek out Drake. The Queen was very gracious, and said she
wanted Drake to help her against the King of Spain. How his heart must
have leapt up with a new hope; but the wind of policy veered again, and
nothing came of the interview at first. Still, it was something to have been
introduced to the Queen by Sir Christopher Hatton; and when that lady gave
Drake a sword and said, "We do account that he which striketh at thee,
Drake, striketh at us," he must have felt a proud man.
A man so frank and open as Francis Drake was, must have found it
difficult to follow the shifts and turns of policy. The Queen would not
openly give her sanction to a new expedition, but she secretly aided the
enterprise; and Sir John Hawkins and many others subscribed.
Drake was to sail in the Pelican, 100 tons; Captain Winter in the
Elizabeth, of 80. There were also the Marygold, the Loan, and the
Christopher, a pinnace, of 35 tons. The crews, officers and gentlemen,
amounted to some two hundred.
They sailed from Plymouth on the 15th of November 1577, but a

terrible storm off Falmouth obliged them to put back. They started afresh on
the 13th of December, and were to meet at Mogadore, on the coast of
Barbary. It seems that Burghley did not approve of Drake's bold venture,
and had sent Thomas Doughtie, with secret orders to do what he could to
limit the risks and scope of the expedition. Doughtie was a personal friend
of Drake, and it was some time before Sir Francis found out what Doughtie
was doing—such as tampering with the men and trying to lessen Drake's
influence. When they were near the equator, Drake, being very careful of
his men's health, let every man's blood with his own hands.
In February they made the coast of Brazil, without losing touch of one
another. Here they landed and saw "great store of large and mighty deer."
They also found places for drying the flesh of the nandu, or American
ostrich, whose thighs were as large as "reasonable legs of mutton." Further
south they stored seal-flesh, having slain over two hundred in the space of
an hour! The natives whom they saw were naked, saving only that they
wore the skin of some beast about their waist. They carried bows an ell
long, and two arrows, and were painted white on one side and black on the
other.
They were a tall, merry race; delighted in the sound of the trumpet, and
danced with the sailors. One of them, seeing the men take their morning
draught, took a glass of strong Canary wine and tossed it off; but it
immediately went to his head, and he fell on his back. However, the savage
took such a liking to the draught that he used to come down from the hills
every morning, bellowing "Wine! wine!"
A few days later there was a scuffle at Port Julian with the natives, and
Robert Winter was killed. But a greater tragedy was impending.
Sixty years before, Magellan had crushed a mutiny on this spot, and the
old fir-posts that formed the gallows still stood out on the windy headland.
For some months now Drake had been harassed by mutinous conduct,
and all the evidence pointed to his old friend Doughtie being at the bottom
of it. One day Drake, in a sudden burst of wrath, had ordered Doughtie to
be chained to the mast. Yet, as the ships rode south into the cold winds, the
crews murmured more savagely. Doughtie and his friends were
demoralising Captain John Winter's ship. Something must be done, and
done quickly, if the expedition was not to fail.
On the last day of June the crews were ordered ashore. There, hard by
Magellan's gallows, an English jury or court-martial, with Winter as
president, was set to try Doughtie for treason and mutiny. The court, after
much wrangling, found the prisoner "Not guilty." But Doughtie in the midst
of the trial had boasted that he had betrayed the Queen's secret to Burghley.
Thereat Drake took his men down to the shore and told them all how the
Queen's consent had been privately given, and how Doughtie had done his
best to overthrow their enterprise.
"They that think this man worthy of death," he shouted, "let them with
me hold up their hands." As he spoke almost every man's hand went up.
"Thomas Doughtie, seeing no remedy but patience for himself, desired

before his death to receive the communion, which he did at the hands of
Master Fletcher, our minister, and our general himself accompanied him in
that holy action." Then in quiet sort, after taking leave of all the company,
Doughtie laid his head on the block and ended his life. Then Drake
addressed his men. He forgave John Doughtie, but said all discords must
cease, and the gentleman must haul and draw with the mariner. From that
moment discipline was established, and there were no more quarrels.
The Pelican, the Elizabeth, and the Marygold, the only ships that
remained, now set sail, and on August 20, 1578, hove to before the Straits
of Magellan. It was here that Drake changed the name of his ship to the
Golden Hind, perhaps in compliment to his friend Sir Christopher Hatton,
who bore it in his arms.
So rapid was the passage through the Straits that in a fortnight they had
reached the Pacific. Drake's intention was to steer north and get out of the
nipping cold, but a gale from the north-east came on and lasted three weeks,
when the Marygold went down, and Winter, after waiting a month for
Drake within the Straits, went home. Drake in the Golden Hind was swept
south of Cape Horn, "where the Atlantic Ocean and the South Sea meet in a
large and free scope."
Drake went ashore, and leaning over a promontory, amused himself by
thinking that he had been further south than any man living.
After anchoring for some time in southern islands, Drake sailed north,
and finding an Indian pilot, steered for Valparaiso.
In the harbour lay a Spanish ship waiting for a wind to carry them to
Panama with their cargo of gold and wine of Chili. When the lazy crew saw
a sail appearing, they made ready to welcome the newcomers with a pipe of
wine, and beat a drum as a merry salute.
No foreign ship had ever been seen on those western coasts; they had no
thought of danger, when a boat drew alongside, and Thomas Moon
clambered up and shouted, "Abaxo perro!" ("Down! you dog!"), and began
to lay about him lustily.
The eight Spaniards and three negroes on board were soon safely
secured under hatches; then they rifled the little town, and took the prize out
to sea for more leisurely search: 1770 jars of Chili wine and 60,000 pieces
of gold and some pearls rewarded their efforts. Drake now wished to sack
Lima and find Winter. Meanwhile he tarried in a hidden bay for a month,
and refreshed his men in a delightful climate.
Then they proceeded slowly along the coast. One day while looking for
water they came upon a Spaniard lying asleep with thirteen bars of silver by
his side. "Excuse us, sir, but we could not really allow you to burden
yourself with all this." Several merry raids of this sort kept the men jolly
and in good temper. Leisurely though the Golden Hind was sailing
northwards, no news had come to Lima of the English rover being on the
sea.
A Portuguese piloted Drake into the harbour of Callao after nightfall,

"sailing in between all the ships that lay there, seventeen in number." These
they rifled, and heard that a ship, the Cacafuego, laden with silver, had just
sailed. As they were getting ready to follow, a ship from Panama entered
the harbour and anchored close by the Golden Hind. A custom-house boat
put off and hailed them, and a Spaniard was in the act of mounting the steps
when he saw a big gun mouthing at him. He was over the side in a moment
and in his boat crying the alarm! The Panama vessel cut her cable and put to
sea, but the Golden Hind followed in pursuit and soon caught her.
In the next few days, as they were following the Cacafuego, they made
a few prizes, which pleased the men vastly; and after crossing the line on
24th February, saw the Cacafuego about four leagues ahead of them.
The Spanish captain slowed down for a chat, as he supposed; but when
Drake hailed them to strike, they refused. "So with a great piece he shot her
mast overboard, and having wounded the master with an arrow, the ship
yielded."
Four days they lay beside her transferring the cargo—gold, silver, and
precious stones—so that the Golden Hind was now ballasted with silver.
The whole value was estimated at 360,000 pieces of gold. Drake gave
the captain a letter of safe conduct in case he should meet his other ships.
"Master Wynter, if it pleaseth God that you should chance to meet with
this ship of Señor Juan de Anton, I pray you use him well, according to my
word and promise given unto them; and if you want anything that is in this
ship, I pray you pay them double the value of it, which I will satisfy again;
command your men not to do her any hurt.... I desire you, for the passion of
Christ, if you fall into any danger, that you will not despair of God's mercy,
for He will defend you and preserve you from all danger, and bring us to
our desired haven: to whom be all honour, glory, and praise, for ever and
ever. Amen.—Your sorrowful captain, whose heart is heavy for you,
FRANCIS DRAKE."
We are told that Robin Hood liked to attend mass every morning, but
even he does not astonish us by his piety so much as this "great dragon" of
the seas. No doubt it was all genuine, and he believed he was only doing his
duty when he robbed King Philip's ships, and thereby weakened his power
for persecuting those who did not agree with him in his religious views.
"They that take the sword shall perish with the sword."
Francis Drake felt himself commissioned by a greater than Queen
Elizabeth. "I am the man I have promised to be, beseeching God, the
Saviour of all the world, to have us in His keeping "—so he writes in his
letter to Winter.
The question now before them was how to get home. The whole west
coast of America was now alarmed, and the Spaniards would stop him if he
tried to return by the Straits as he came. So Drake called the ship's company
together and took them into counsel. He desired to sail north and find a way
home by the North-west Passage; for he, too, was possessed by that
chimerical idea.
"All of us," writes one of his company, "willingly hearkened and

consented to our general's advice; which was, first, to seek out some
convenient place to trim our ship, and store ourselves with wood and water
and such provisions as we could get; thenceforward to hasten on our
intended journey for the discovery of the said passage, through which we
might with joy return to our longed homes."
On 16th March they made the coast of Nicaragua and effected some
captures. Swooping down upon the little port of Guatuleo, they found the
judges sitting in court, and as a merry change for them, the whole court,
judges and counsel and prisoners, were carried off to the Golden Hind,
where, amid hearty laughter, the chief judge was bidden to write an order
for all the inhabitants to leave the town for twenty-four hours. Then Drake
and his men went ashore and replenished their cupboards from the Spanish
storehouses. The next capture was a vessel containing two Chinese pilots,
who had all the secret charts for sailing across the Pacific.
We may well believe that Drake, as he pored over these in his little
cabin, may have thought to himself, "Why should not we go home that way,
and thus have sailed round the globe?"
On 3rd June they had reached latitude 42° N., and were feeling the cold
extremely. A storm was blowing as they reached Vancouver Island, and
here they turned back, and after turning south ten degrees put into a fair and
good bay, where the white cliffs reminded them of home, probably near San
Francisco.
The natives came round in their canoes, and one threw a small rush
basket full of tabah, or tobacco, into the ship's boat.
Tents were put up on the shore and fortified by stones, but the red folk
who assembled seemed to be worshipping the strangers as gods. Presents
were exchanged, but their women "tormented themselves lamentably,
tearing chest and bosom with their nails, and dashing themselves on the
ground till they were covered with blood." Drake at once ordered all his
crew to prayers. The natives seemed to half-understand the ceremony, and
chanted a solemn "Oh!" at every pause.
Next day the great chief came with his retinue in feathered cloaks and
painted faces. The red men sang and the women danced, until the chief
advanced and put his coronet on Drake's head. These people lived in
circular dens hollowed in the ground; they slept upon rushes round a central
fire. The men were nearly naked; the women wore a garment of bulrushes
round the waist and a deer-skin over the shoulders.
When at the end of July the Golden Hind weighed anchor, loud
lamentations went up and fires were lit on the hilltops as a last sacrifice to
the divine strangers. For sixty-eight days they sailed west and saw no land;
then they came to islands where the natives pilfered; then they made the
Philippines, and in November the Moluccas. Drake anchored at a small
island near Celebes, east of Borneo, and spent four weeks in cleaning and
repairing his ship. Here they saw bats as big as hens, and land-crabs, "very
good and restoring meat," which had a habit of climbing up into trees when
pursued.
As they sailed west they got entangled among islands and shoals, and on
the 9th of January 1579 they sailed full tilt upon a rocky shoal and stuck
fast.
Boats were got out to find a place for an anchor upon which they might
haul, but at the distance of a boat's length they found deep water and no
bottom. The ship remained on the shoal all that night. First they tried every
shift they could think of, but the treasure-laden vessel refused to budge.
Then Drake, seeing all was hopeless, and that not only the treasure, but all
their lives, were likely to be lost, summoned the men to prayers. In solemn
preparation for death they took the Sacrament together.
Then, when the ship seemed fast beyond their strength to move her,
Drake, with the same instinct that prompted Cromwell after him to say,
"Trust in God, but keep your powder dry," gave orders to throw overboard
eight guns.
They went splash into the six feet of water by the side, and the ship took
no notice at all; so Drake, with a sigh, cried, "Throw out three tons of
cloves—sugar—spices—anything;" till the sea was like a caudle all around.
And the Golden Hind still rested quietly on the shelving rock, with only six
feet of water on one side, whereas it needed thirteen to float her. The wind
blew freshly and kept her upright as the tide went down. The crew began to
look curiously at one another, and to wonder what would happen when all
their food was consumed.
At the lowest of the tide the wind suddenly fell, and the ship losing this
support, fell over sideways towards the deep water.
So they were to be drowned after all, for she must fill now.
No; there was a harsh scraping sound heard. Could it be possible? Yes;
her keel was slipping down the slope very gently and mercifully.
What a shout these sea-worn mariners raised; how they thanked God for
this salvation; for the relief had come at low tide, when all their efforts
seemed to be useless. Surely it was a miracle—an answer to their captain's
prayers. On reaching Java, Drake was informed that there were large ships
not far off—Portuguese settlements were rather too near to be safe; so he
steered for the Cape of Good Hope, which his men thought "a most stately
thing, and the fairest cape they had seen in the whole circumference of the
earth."
As the Golden Hind sailed along by Sierra Leone and towards Europe,
the great sea rover must have felt that the prayer he had breathed within the
mammoth tree on Darien six years before was at last fulfilled.
He had sailed the South Sea and crossed the Pacific and made the
compass of the round world in the Golden Hind within three years.
As they reckoned, when nearing Plymouth Sound, it was Monday,

September 25, 1580, but within an hour they learnt that they had arrived on
Sunday.
No one expected them; no one at first realised what vessel it was that
came silently to anchorage, heavy and slow from the barnacles and weeds;
for the news had come home that Drake had been hanged by the Spaniards.
But only in August last, Mendoza, the Spanish ambassador, had come to
Burghley with a wild tale sent him by the Viceroy of Mexico, that El
Draque had been ravaging the Pacific, and playing the pirate amongst King
Philip's ships. The Queen pretended she knew nothing about it, and pacified
the ambassador by seeming to agree with him that Drake was a very
naughty man indeed. So, when the Golden Hind dropped her anchor, a few
friends took boat and told her captain how things were going at Court.
Drake's blue eyes at first looked steely. Had he sailed round the world
and brought all this treasure home to be given over to Spain?
But a moment's thought brought a merry twinkle into those eyes, and he
gave a sharp order: "Up with the anchor, there! Warp her out behind St.
Nicholas Island!"
If he must be treated as a pirate, then they must catch him if they can.
"You will take my excuses to the Mayor, and tell him how gladly I would
land; but you have the plague, I hear, at Plymouth; our constitutions are
hardly strong enough to bear an attack of plague."
Meanwhile a messenger was sent by Drake post-haste to London, with

gifts for the Queen and Burghley; then a visit from Drake's wife and some
friends made the time pass pleasantly enough. Yet it was somewhat galling
to the brave adventurer to have to wait a week for tidings as to whether he
was to lose his head for piracy, or win a Queen's admiration for performing
a great feat of seamanship. At last a summons to Court was brought to
Plymouth. Drake, of course, obeyed the Queen's command, but he did not
venture to London alone. Many friends rode with him, and no doubt they
enjoyed themselves, as sailors will, on their long journey, especially when
they came to Sherborne Castle and Sir Walter Raleigh. A long train of pack-
horses followed, laden with delicate attentions for royal ladies. Just as he
was drawing near London, the news came that Philip had seized Portugal
and was posing as the master of the world. Still more startling news came
that a Spanish force had landed in Ireland. The Council were half disposed
to make peace on any terms, when Drake came stalking in amongst the
half-hearted courtiers.
The Queen saw him, heard the strange story of his madcap adventures,
caught the audacious spirit of her bravest seaman, and stood firm against
the timid proposers of peace. Besides, she was simply charmed by the
lovely presents he offered her, and sent Drake back to Plymouth with a
private letter under her sign-manual, ordering him to take ten thousand
pounds worth of bullion for himself. The rest was sent up to the Tower, after
the crew had received their share. Then Drake brought the Golden Hind
round and up the Thames for all the town to gape and wonder at, while the
crew swaggered about the streets of Deptford like little princes; and so the
news of the great treasure flew from city to hamlet, and from hill to vale,
increasing with the miles it posted.
The Queen ordered that Drake's ship should be drawn up in a little creek
near Deptford, and there should be kept as a memorial for ever.
Then, the more to honour her champion, she went on board and partook
of a grand banquet under an awning on the main deck. "Francis Drake,
kneel down." The sword was lightly placed on his shoulder, and he rose "Sir
Francis."
The Golden Hind remained at Deptford, as a show vessel that had been
round the world, until it dropped to pieces. From one of its planks a chair
was made and presented to the University of Oxford.
Thus the politics of England were influenced by a seaman—a hero who

knew not fear, and who dared to say what he thought, even though it was to
his Queen.
CHAPTER X
SIR FRANCIS DRAKE, THE QUEEN'S GREATEST

SEAMAN
When people saw the Queen pacing up and down the paths with Sir
Francis Drake in Greenwich Gardens, and heard her laugh heartily as she
stopped with her hand to her side, they knew he was entertaining her with
stories of his mad adventures in the Pacific, bracing her to resist Mendoza
and King Philip, and putting tough spokes in many of the wheels of his
Holiness the Pope.
Twice had Mendoza asked for an audience, but no, Elizabeth had no
wish to talk about returning all those pretty jewels and the muckle treasure,
now safely stored in the strong-rooms at the Tower.
The little stout seaman, with the crisp brown hair and high, broad
forehead, the small ears, and grey-blue eyes lit with merriment, and
sometimes with fiery wrath, seemed to have won for a time his Queen's full
confidence.
The palace servants stared with awe at the bronzed and bearded face,
and the loose seaman's shirt belted at the waist and the scarlet cap braided
with gold. For they recognised in the wearer a king of men—one who could
make a nation of traders into great conquerors, and who might, if only he
were allowed, convert a small island into a worldwide empire.
Drake was teaching the Queen and her ministers the uses of a strong
navy. Elizabeth had always been proud of her royal ships, but she was apt to
treat them like her best china, and liked to see them securely placed on
some high shelf, where they would not be broken. She had often written to
her captains and admirals to be prudent and take no risks—"Don't go too
near any batteries—don't let my ships catch fire—do be careful."
Now Drake was instructing her in the art and policy of taking risks. And
the Queen, as she looked down upon her jewelled dress, found merry Sir
Francis a very incarnate fiend to tempt her out of her devious ways of
caution and political jugglery—for a time, at least.
Now Terceira, one of the Azores, refused to recognise the Spanish

conquest, and Don Antonio, who had been hunted from the throne of
Portugal, was now in Paris and imploring help against Philip.
"Here, madam," we may fancy Drake saying, "is a splendid opening for
your honest seamen. Terceira lies on the direct road of the fleets coming
home both from the East and West Indies. Permit your humble servant to
seize this island as a base, and we will destroy the trade of Spain, and
thereby secure this island-realm from Spanish invasion."
Walsingham was on Drake's side. Hawkins and Drake were preparing

the fleet, courtiers and merchants were subscribing, and brave young
noblemen were offering to serve on board. Fenton and Yorke, Frobisher's
trusty lieutenants, had command of ships; Bingham, Carleill, and many
others were getting ready; Don Antonio had come over secretly; and all had
been arranged.
But the admirals waited in vain for the order to sail. Was the Queen
losing heart, fearing the perilous risk? trying to make terms with King
Philip instead of fighting him?
Drake began to swear very loud, especially when he received a scolding

letter from the Queen, because he had spent two thousand pounds more than
the estimate. Officers, having nothing to do, began to be quarrelsome; many
resigned their commissions; and at last the expedition was broken up.
The Queen was waiting until she could get France on her side. She
thought Drake's idea too risky, so she let him be chosen Mayor of
Plymouth, just to keep him busy with plans for defence.
Drake had a great sorrow this year, as well as a bitter disappointment,
for his wife fell ill and died. To add to his anxieties, King Philip had offered
forty thousand pounds reward to any who would kidnap and stab the British
corsair. John Doughtie, the brother of that Thomas whom Drake had tried
by court-martial for treason, was approached; and out of revenge, though
Drake had once forgiven him his share in the treason, John embraced the
opportunity to get rich and rid himself of an enemy.
Unfortunately for him John Doughtie could not help boasting of what he
was going to do. His arrest was obtained from the Council, and he spent the
remainder of his life in some discomfort and squalor in one of her Majesty's
prisons.
So the months went by, and Drake became member for Bossiney or
Tintagel, and made some fiery speeches at Westminster, where they began
to believe that an invasion was really possible—nay, if Drake thought so,
even probable.
In February 1585 he married Elizabeth Sydenham, a Somersetshire

heiress; but news came at the end of May that Philip had invited a fleet of
English corn-ships to relieve a famine in Spain, and then had seized the
ships.
This was too bad. This was to imitate Drake a little too closely.
Everybody, from the Queen to the newest cabin-boy, felt that such an
outrage must be severely dealt with.
By the end of July Sir Francis received letters of marque to release the
corn-ships, and hoisted his flag in the Elizabeth Bonaventure, with
Frobisher for his vice-admiral and Carleill as lieutenant-general with ten
companies of soldiers under his command. The squadron consisted of two
battleships and eighteen cruisers, with pinnaces and store-ships. There were
two thousand three hundred soldiers and sailors, and it was no easy matter
to get stores for so many. Before Drake could get away Sir Philip Sidney
came down to Plymouth with the intention of joining the expedition.
Drake remembered too well how unpleasant the presence of courtiers
had been on a former voyage, and he secretly sent off a messenger to Court,
asking if Sir Philip had the Queen's permission to join.
The Queen replied by ordering her naughty courtier back to Greenwich,

and Drake sailed for Finisterre, though still short of supplies.
Resolved to get water and provisions before he started on his long

voyage, he ran into Vigo Bay and anchored under the lee of the Bayona
Islands.
His officers were dismayed at their leader's effrontery. Does he wish to

let all Spain know what he is about to do?
But Drake knew that this very insolence would paralyse the hearts of
the foe. He ordered out the pinnaces and so frightened the governor that he
offered the English water and victuals; wine, fruit, and sweetmeats were
also sent, as if the Spaniards had been entertaining their best friends.
A three days' storm compelled the ships to go up above Vigo, and there
many caravels laden with goods were taken by Carleill.
On 8th October Drake sailed for the Canaries, while the Spanish Court
was buzzing with rumours, and the Marquis of Santa Cruz advised his
master that a fleet should sail out in pursuit of the English, before they
sacked Madeira, the Canaries, and the Cape de Verde Islands, or crossed the
Atlantic and did worse.
However, the Spaniards, as is their custom, took a long time to get

ready, and Drake passed by the Canaries and pounced upon Santiago, the
chief town of the Cape de Verde Islands, where William Hawkins had been
treacherously attacked some years before. They seized the town easily and
stayed there a fortnight, the inhabitants having fled inland, and much they
enjoyed the pleasant gardens and orchards. All might have gone well, and
no great damage done, had not some Spaniards seized and killed an English
boy and shamefully treated his body; for they found him lying dead, with
his head severed and his heart and bowels scattered about in savage manner.
This so enraged the men that they set fire to all the houses except the
hospital, and left in various places a paper declaring the reason why they
had so acted.
The English had not been many days at sea when a disease broke out,
and in a few days over two hundred men had died. A hot burning, and
continual agues seized the sick, followed by decay of their wits and strength
for a long time.
In some there appeared small spots as of the plague; but in eighteen

days they came to the island of Dominica, inhabited by savage people
whose naked skins were painted tawny red; strong, well-made fellows, who
very kindly helped to carry fresh water from the river to the boats. They
brought also, and exchanged for glass and beads, a great store of tobacco
and cassava bread, very white and savoury.
Thence the English went on to St. Christopher's, a desert island, where

they spent Christmas, refreshed the sick, and cleansed their ships.
Then they sailed for Hispaniola and the city of St. Domingo, the largest
Spanish city in the New World, founded by Columbus in 1496.
Drake learned from a frigate that it was a barred harbour commanded by

a strong castle, but that there was a landing-place two miles to the westward
of it.
About 150 horsemen opposed them, but the English ran in so fast that
the Spaniards had only time to fire one volley and flee. There was no gold
or silver, only copper money, but good store of fine clothes, wine and oil.
The native Indians had all been killed by the cruelty of the Spaniards, and
the work in the mines was stopped.
Drake ordered the troops to entrench themselves in the Plaza, or Square,

and to occupy the chief batteries; so he held the city for a month.
Two hundred and forty guns were taken and put on board the English
ships, and a ransom equal to fifty thousand pounds of our money was
exacted. A great fleet of Spanish ships was burnt, and hundreds of galley-
slaves were set free, to their surprise and delight.
Thence Drake sailed for Cartagena on the mainland, the harbour of

which he knew as well as any local pilot. The fleet entered about three in
the afternoon without meeting any resistance. In the evening Carleill landed
about three miles west of the town; the idea being that the land forces
should advance at midnight along the shore, while the fleet drew the
attention of the Spaniards by a false attack upon a fort in the inner haven.
Some hundred horsemen met the troops, but hastened back to give the
alarm. Then the soldiers under Carleill came to the neck of the peninsula on
which the town was built. On one side was the sea, on the other a lake
communicating with the harbour. The narrow roadway was fortified across
with a stone wall and ditch, and the usual passage was filled up with barrels
full of earth, behind which were placed six great guns, while two great
galleys had been moored with their prows to the shore, carrying eleven
guns, to flank the approach, and containing three hundred harquebusiers.
The barricade of barrels was defended by some three hundred musketeers
and pikemen.
The Spaniards fired in the dark down the causeway, but the English
were marching close to the water's edge on lower ground and got no hurt.
Then they clambered up the sides of the neck and assaulted the barricade.
"Down went the butts of earth, and pell-mell come our swords and pikes
together, after our shot had given their first volley, even at the enemy's
nose."
The English pikes were longer than those of the Spaniards, so the latter
soon gave way, and were followed with a rush into the town, where other
barricades erected at every street's end had to be carried with yell and blow.
The Spaniards had stationed Indian archers in corners of advantage,

"with arrows most villainously empoisoned." Some also were wounded in
the fort by small stakes having the point poisoned. But when the city was
taken divers courtesies passed between the two nations, and they met at
feasts, so that the Governor and Bishop came to visit Sir Francis on his
ship, finding him very merry and polite.
Cartagena yielded rich loot for the men, and for the merchants and
courtiers who had taken shares a ransom of 110,000 ducats came in as a
comfortable bonus.
By the end of April they were off Cuba and in want of water. After
search they found some rain-water newly fallen. Here, we are told, Sir
Francis set a good example to the men by working himself in his shirt
sleeves. We can see how conduct like this endeared him to his men; for they
said, "If the general can work with us in his shirt, we may well do our best."
"Throughout the expedition," says Gates, "he had everywhere shown so

vigilant care and foresight in the good ordering of his fleet, together with
such wonderful travail of body, that doubtless had he been the meanest
person, as he was the chiefest, he had deserved the first place of honour."
On reaching Florida they took Fort St. Augustine and a treasure-chest;

then they sailed north and sought Raleigh's colony in Virginia, whom they
brought home. "And thus, God be thanked, both they and wee in good
safetie arrived at Portsmouth the 2nd of July 1586, to the great glory of
God, and to no small honour to our Prince, our Countrey, and our selves."
Some seven hundred and fifty men were lost on the voyage, most of
them from the calenture or hot ague. Two hundred and forty guns of brass
and iron were taken and brought home.
Sir Francis wrote at once to Burghley reporting his return. He

apologised for having missed the Plate fleet by only twelve hours' sail
—"The reason best known to God;" but affirmed he and his fleet were
ready to sail again whithersoever the Queen might direct.
But the Faerie Queen was much harassed just now and affrighted; for
the Babington plot to assassinate her had just been revealed, and it was
known that Philip was making ready to spring upon England from Portugal
and the Netherlands. Mary Stuart was in prison, and France for her sake
was threatening war. So the Queen pretended to disavow the doings of Sir
Francis and his men. No peerage or pension for him now, lest Philip should
sail and invade her territory.
Drake understood the moods of his intriguing mistress, shrugged his
strong shoulders and played a match at bowls on the Hoe.
But, if England was backward in applauding the hero, his name and
exploits were being celebrated wherever the tyranny of Rome was feared or
hated.
The Reformation had been losing ground latterly, the Netherlands still
held out, but their strength of endurance was nearly spent.
Then came the startling news that the English Drake had again flouted
and crushed the maritime power of Spain. Not only had he weakened her
for actual warfare, but her prestige was shaken by his exploits, and the
banks of Seville and Venice were on the verge of ruin. Philip found himself
unable to raise a loan of half a million ducats.
The sinews of war were cracked by this sea-rover, who was raising the
hopes of Protestant Europe once more, and winning the clamorous applause
of the west country openly, and of Burghley in private.
"This Drake is a fearful man to the King of Spain!" he could not help
confessing, though he wondered if England would not be obliged to give
him up to the wrath of Philip. War was so expensive, to be sure! Then, to
the delight of Elizabeth and the consternation of all true Catholics, Philip
wrote and accepted the Queen's timorous excuses.
The King of Spain was not quite ready for war. Drake's condign
punishment must be deferred for a season; there was a time for all things.
Meanwhile Drake with Sir William Winter had been employed in getting
ships ready and watching the narrow seas.
As autumn waned and no Armada came, the Queen summoned the bold
sea-rover to Court, and once more she listened to his brave words, feeling
almost convinced that boldness in action was safer than a crooked
diplomacy.
Anyhow she sent Sir Francis over on a secret mission to the Low
Countries, where he was everywhere received almost with royal honours,
and had conferences with leaders in all the great Dutch cities.
But in November Leicester returned to England, a confession of failure,

and in January the fort of Zutphen was betrayed to the Spaniards.
Again the scene shifted and the characters changed; for when Drake
returned to England, Walsingham gave him the cheering news that the
Queen's eyes were at last opened. He had shown her a paper taken from the
Pope's closet which proved that all Philip's preparations in port and harbour
and storehouse were intended solely for her destruction and the religious
education of her heretic realm. Then she flashed out in patriotic spirit and
threw economy to the winds.
Sir Francis Drake was made her Majesty's Admiral-at-the-Seas, and

William Burrows, Comptroller of the Navy, esteemed to be the most
scientific sea officer in England, was selected as his Vice-Admiral.
The people cheered and sang and made ready to fight for hearth and
home. One favourite stanza was that which had been nailed to the sign of
the Queen's Head Tavern at Deptford—
"O Nature! to old England still

Continue these mistakes;
Still give us for our King such Queens,
And for our Dux such Drakes."
Drake's commission was to prevent the joining together of the King of

Spain's ships out of their several ports, to keep victuals from them and to
follow any ships that should sail towards England or Ireland.
On the 2nd of April Sir Francis Drake wrote to Walsingham to say all
was ready for starting. "I thank God I find no man but as all members of
one body, to stand for our gracious Queen and Country against Anti-Christ
and his members."
We always see that with Drake the motive for war was a religious
motive; it was to secure religious freedom of thought and put down the
Inquisition.
He ends thus: "The wind commands me away; our ship is under sail.
God grant we may so live in His fear, as the enemy may have cause to say
that God doth fight for her Majesty as well abroad as at home ... let me
beseech your Honour to pray unto God for us, that He will direct us the
right way."
Besides the Elizabeth Bonaventure, which Drake commanded, Captain

William Burrows as Vice-Admiral was in the Golden Lion, Fenner in the
Dreadnought, Bellingham in the Rainbow—these all Queen's ships.
The Merchant Royal was sent by the London citizens; the rest were
given by voluntary subscribers and private persons. There were twenty-
three sail in all, and the soldiers and sailors numbered 2648.
But while Drake was busy at Plymouth making ready for the voyage,
paid emissaries of Philip and those who hated Walsingham and the
Reformation were busy with the Queen, frightening her with threats of
foreign interference; so that she absolutely turned round again and issued an
order that all warlike operations were to be confined to the high seas.
Philip's ships being all snug in port, Drake's fleet would have nothing to do,
and no captures to win, if he merely sailed up and down the coast.
Swiftly rode the Queen's messenger, spurring from Surrey to

Hampshire, from Dorset to Devon, with many a change and relay of
smoking steeds.
The messenger knew well the purport of the fateful order: "You shall
forbear to enter forcibly into any of the said King's ports or havens, or to
offer violence to any of his towns or shipping within harbour, or to do any
act of hostility upon the land." The messenger and his armed escort had
been ordered to gallop in all haste, and they entered Plymouth and
dismounted before the Admiral of the Port. "In the Queen's name! a
despatch for Sir Francis Drake."

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PART I: CATHOLIC CHURCH AND

Chapter I. The Ethos of Modern Democracy and the Church [1957]  61

PART II. STATE AND SECULARITY

Chapter V. The Rise of the State as a Process of Secularization [1967]  152

Chapter IX. Political Theory and Political Theology: Comments on their

PART IV. BASIC NORMS AND THE PRINCIPLE

Chapter XIII. Abolition of Section 218 of the Criminal Code? Reflections

PART V. BÖCKENFÖRDE IN CONTEXT

Appendix 1: List of Original Titles  395

Freedom in Religion, Freedom in the State

2 • Freedom in Religion, Freedom in the State

4 • Freedom in Religion, Freedom in the State

II. ​A Biographical Synopsis

6 • Freedom in Religion, Freedom in the State

8 • Freedom in Religion, Freedom in the State

10 • Freedom in Religion, Freedom in the State

III. Böckenförde: Inner-​C atholic Critic,

Böckenförde: Catholic Reformer • 11

1. On the Church’s need for internal reform

12 • Freedom in Religion, Freedom in the State

2. Historicizing the law and the state

Böckenförde: Legal Historian • 13

14 • Freedom in Religion, Freedom in the State

Böckenförde: Social Liberal • 15

3. The social Liberal

16 • Freedom in Religion, Freedom in the State

May 1972), p. 54.

Böckenförde: Social Liberal • 17

18 • Freedom in Religion, Freedom in the State

4. The political Liberal

Böckenförde: Political Liberal • 19

20 • Freedom in Religion, Freedom in the State

on his critique of the Radicals Decree in Ernst-​Wolfgang Böckenförde, ‘Rechtsstaatliche politische

Political Theology and Constitutional Dogmatics • 21

5. Political theology and constitutional dogmatics

22 • Freedom in Religion, Freedom in the State

Political Theology and Constitutional Dogmatics • 23

24 • Freedom in Religion, Freedom in the State

6. Europeanization and nationalism

Ernst-Wolfgang Böckenförde passed away on 24 February 2019. Family, friends,

Freedom in Religion, Freedom in the State: Ernst-Wolfgang

Chapter I. The Ethos of Modern Democracy and the Church [1957]  61

Chapter V. The Rise of the State as a Process of Secularization [1967]  152

Appendix 1: List of Original Titles  395

II. A Biographical Synopsis

III. Böckenförde: Inner-C atholic Critic,

1. On the Church’s need for internal reform

2. Historicizing the law and the state

3. The social Liberal

4. The political Liberal

on his critique of the Radicals Decree in Ernst-Wolfgang Böckenförde, ‘Rechtsstaatliche politische

5. Political theology and constitutional dogmatics

6. Europeanization and nationalism

7. Constitutional courts, human dignity, and biotechnologies