The upshot of these positions was that Christians in political offices should act as the phalanx or vanguard for the realization of (Christian) natural law. Divergent views among Christians could legitimately exist only on purely factual matters unaffected by natural law; only to this extent were compromises and coalitions with other political forces possible.
As time went on, I developed growing doubts about the sustainability of this concept for the realization of the civis simul et christianus, namely precisely with regard to the foundations and functional conditions of a democratically organized state. In the process, the concept of the commonweal, which is indigenous to both the Christian and the secular ordo, became the bridge concept for my reflections in order to reconcile them with the traditional Christian state doctrine and not simply set the latter aside. To my mind, if one understood this commonweal not as a normative-abstract ideal, but as something related to the reality of a democratic and liberal state, this raised two positions that Christians, too, should not only accept but actively and positively advocate.
The first is the possibility for Christians to place themselves fully into the democratic order, to work within its framework and under its conditions for the realization of the commonweal without a permanent reservation based on authoritative natural law. The second is the possibility to fully recognize the religious-ideological neutral state, which guarantees religious freedom as a basic right, without having the “Catholic state” in the back of one’s mind as the real goal. This amounted to turning one’s back on the position of Pius XII’s toleration address of 1953, which maintained that error as such had no “right to exist, engage in propaganda, and take action [against the truth]” not only morally, but also within the external sphere of the law, though special circumstances could justify(!) not interfering in this regard with prohibitions. By contrast, for me, especially in my capacity as a jurist, the right of the individual to religious freedom, independent of the content of faith, was obligatory. The step towards the acceptance of this right that Pope John XXIII made in his encyclical Pacem in terris (1963) was for me a stroke of liberation.
My early essays arose out of this context: “The Ethos of Modern Democracy and the Church” (1957), “German Catholicism in 1933” (1961/62), and “Religious Freedom as a Task of Christians” (1965). They were a reflection of the engagement with the prevailing Church teachings and at the same time an attempt to reorient this Church doctrine and practice through criticism from the inside, to change it from a personal struggle for Christian spirituality. The goal was to achieve credibility of the civis simul et christianus.
III. The Office of Constitutional Judge and Christian Spirituality
Now on to the real topic: the office of constitutional judge and Christian spirituality.
1. The starting point for me was that it is—and must be—part of Christian spirituality to take on such an office as intended in the constitution: as an office in a democratic and religiously and ideologically neutral state. It seems to me that it is a part of and an imperative especially of Christian conduct in the world to fully embrace this office, its task as well as its commitments.
This office is not one that is politically formative in an active and deliberate way, as is the case for members of parliament or the government. It is a judicial office: it is charged with preserving and guaranteeing the constitution in the way it is fixed as a legal system and articulated as to content. That means right away that it is not a sphere of activity in which one could act as an agent for the Catholic cause, as an advocate for the realization of a Christian natural law, or as a representative of the Church’s concerns. Precisely such an approach would invert the meaning and function of the office as envisaged by the constitution, for it demands strict independence also towards one’s own politically or religiously motivated views and priorities. What matters is the commitment solely to the constitution as the order created for and applicable to the political community.
This takes on special importance because of the power of interpretation that a constitutional court commands. Such a court is mandated to come up with the final, non-appealable and therefore authentic interpretation of the constitution. In the process it often confronts the task of defining in greater detail more or less open normative principles, many of which are contained in the constitution as a framework, not least in the fundamental rights. However, this kind of closer definition, which goes well beyond mere application or strict deduction, must not be used as a “loophole” for clandestinely smuggling certain positions into the constitution, positions that are not already contained in the constitution itself, its regulatory context, and its idea of order. When it does happen, the court engages in the articulation of (legal) policy, which is not its task but that of the legislature. No office in the democratic state is invested with as much trust as that of the constitutional judge; not only is it free from oversight, it is also exempt from justification and endowed with the authority of the “last word.”
How did my intention of immersing myself fully into this office and to internally accept its commitments and obligations find concrete expression?
- The judge’s oath that I swore at my appointment was the first and only oath of office I performed with a religious affirmation. A religious oath mobilizes the internal powers of commitment of someone who swears it consciously. I wanted to mobilize those powers on behalf of the obligation to this office.
- I told my party, the SPD [Social Democratic Party], that I would not exercise the rights of my party membership for the duration of my judicial office. This pronouncement arose from the fact that the party bylaws do not envisage putting membership on hold, which is what I considered the appropriate step.
- Finally, I terminated my work in the Executive Committee of German Catholics because the Executive Committee undertakes activities—legitimately so—in the pre-political realm and targeted at politics. [Editor’s note: The executive committee of German Catholics is elected by an assembly of Catholics representing the different groups and branches of lay German Catholicism. Its tasks include organizing the biennial Catholic Kirchentag (Church Day), discussing pending issues with the German Conference of Bishops, and representing lay Catholicism in public. Böckenförde served as an advisor to the committee for many years.]
