Ernst-Wolfgang Böckenförde on Law, Religion, and Democratic Models of Secularism

The chapter reviews aspects of the work of one of Germany’s foremost legal scholars in the post-war era: Ernst-Wolfgang Bockenforde (1930–2019), who served as professor of law and as judge on Germany’s Federal Constitutional Court. He contributed like few others to discussions about the central normative frameworks of post-war German constitutional democracy, the relations between state and society, and the role of religion in democracy. Unlike Jurgen Habermas, he did not believe that participation in shared democratic processes was sufficient to create cohesion and a “we-consciousness” among the citizenry. Instead, he insisted that society had to also continuously work towards creating and sustaining a shared democratic culture so that agreement could be reached on the things that lie beyond the ballot box. The chapter reviews Bockenforde’s democratic theory, which evolved significantly out of his criticism of the Catholic Church’s views on democracy prior to the Second Vatican Council (1962–1965). It also compares his views on democratic models of secularism with those of Indian theorist Rajeev Bhargava’s to suggest that, in the final analysis, differences between the two thinkers stem to no small extent from the fact that Bockenforde, unlike Bhargava, is a theorist of freedom more than belonging.