JUSTIFICACIÓN

There is generally little that unites the outlooks, philosophical or otherwise, of Jürgen Habermas and Carl Schmitt. Both, however, saw that in its first decade the

203 _{Dolf Sternberger, Verfassungspatriotismus, (Insel Verlag, 1990); Jürgen Habermas, The Postnational} Constellation: Political Essays, (John Wiley & Sons, 2015).

204 _{The meaning in German is better understood as ‘fundamental law’.} 205

See for example Schlink, pp. 210-11. 206 _{Collings, p. xvi.}

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Bundesverfassungsgericht had become too powerful.207 For Schmitt, the Court’s existence fractured the state’s ability to decide, while for Habermas its central role in politics impaired the ability of the people to deliberate.208 As Collings puts it, “Policy came from Bonn; values from Karlsruhe209; but what came from the people?”210 This, of course, was the problem. By the late 1950s, the Federal Republic had gained majority acceptance in Germany, aided in large part by spectacular economic growth and a sense of stability.211 However, the uninvited guest at the German dinner party remained the Nazi period and the willingness of so many Germans to support Hitler, actively or tacitly212. While the Basic Law derived its authority and legitimacy from the people213, incorporating their agency into the new body politic was effectively done, writes Möllers, by migrating the constitutional populism of the Reich President under the Weimar Republic to the BVerfG under the Basic Law.214 Meanwhile, the ability of Germany to maintain a liberal democracy and a sense of societal cohesion and identity purely on the basis of economic growth―and, implicitly, the liberal values being enunciated by the BVerfG,―was questioned from the left and right.

These questions revealed doubts as to whether the values of Germany’s Karlsruhe inspired constitutionalism―human dignity and democracy itself―were enough to keep liberal democracy alive in a country where democratic institutions had fared so dismally. Schmitt referred to the Court’s value order as a ‘tyranny of values’ and railed against it.215 For Schmitt (a Catholic), all significant political concepts were traceable to Christian theology or religious tradition, compared to which the insipid but still menacing Karlsruhe inspired objective value order was a poor substitute.216 Schmitt’s view was broadly shared by Adenauer’s Christian Democrats that “without

207 _{Ibid. p. 61.}

208 _Ibid. 209

The location of the Court. 210 _{Collings, p. 61.}

211 _{Ibid. p. 57.} 212

The German expression for those people (including bureaucrats and intellectuals) who allowed the Nazis to operate, even while not necessarily sharing their goals is Mitläufer (literally ‘the people who run with’).

213 _{Article 20(2)} 214

Christoph Möllers, ''We Are (Afraid of) The People':Constituent Power in German Constitutionalism', in The Paradox of Constitutionalism : Constituent Power and Constitutional Form, ed. by Martin Loughlin and Neil Walker (Oxford ; New York: Oxford University Press, 2007), p. 96.

215 _{Carl Schmitt, Die Tyrannei der Werte, (Duncker & Humblot, 2011).}

216 _{Peter E Gordon, 'Between Christian Democracy and Critical Theory: Habermas, Böckenförde, and The} Dialectics of Secularization in Postwar Germany', Social Research: An International Quarterly, 80, (2013), 180.

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the moral nourishment or value-orientations provided by Christianity, liberal democracy would suffer a normative deficit and might not long survive.”217

This emphasis on religion was on one level a concerted strategy on the part of Christian Democrats to exculpate themselves from the secular materialism of the Third Reich, and to blame the secular left (i.e. the Social Democrats) for facilitating the Nazis. On any objective level this was absurd as the Social Democrats had generally been among the most vociferous opponents of the Nazis. Despite the political motives and advantage the CDU gained by presenting itself as an alternative to National Socialist secularism, an identity crisis was undoubtedly brewing in the FRG, one which became an open wound after the 1960s with the public debate over how Germany came to terms with it Nazi past (“Die Vergangenheitsbewältigung”). Consequently, neither nationalism nor even a milder traditional patriotism were seen as viable sources of either constitutional values or societal cohesion in post-war Germany.

It was ironic, then, that it was the value-assertive doctrine of the priests of the BVerfG which has become such an unmistakable part of Germany’s post-1949 constitutional topography. In this respect, the Court’s role has been nothing less than defining the very telos of the Basic Law. This was not the BVerfG telling Germans what to believe. Rather, the impact of the BVerfG’s influence was seen, firstly, through its inculcation of the Basic Law’s emerging values and processes in political institutions, and, secondly, through a growing awareness on the part of ordinary Germans―particularly as a result of the constitutional complaint mechanism―that the Court was there to protect their fundamental and democratic rights. Writing in 1971, Wilhelm Geck argued that “the jurisprudence of the [Bundesverfassungsgericht] has, as we all know, fostered the development of true democratic understanding in the Federal Republic.”218

As we shall see in Chapter 7, the Court’s role in shaping Germans’ expectations and understandings of democracy has been repeatedly manifested through the constitutional complaints of citizens and political parties; this has been especially the case over the restrictions imposed by the statutory 5 percent hurdle for electoral success.

217

Ibid. p. 184.

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A further irony is that it was Ernst-Wolfgang Böckenförde, a political theorist219 and protégée of Schmitt, who became one of the Court’s most influential justices during the 1980s and 1990s. In 1964, Böckenförde gave a lecture, at the heart of which was the question of which values can bind and hold a state and society together in a secular age, and in the absence of the old certainty of religion or the homogeneity provided by nation.220 “Can the state be built on a ‘natural ethics’,” he asked, and, “how far can nations united in states live by the guaranteed provision of individual liberty alone, without a unifying bond antecedent to that liberty?”221 In the aftermath of the collapse of the Nazi secular state and in the first decades of the federal republic these questions were seen as existentially significant. After all, nothing in Germany’s three previous constitutions of 1849, 1871 and 1919 had done anything to entrench liberal values in German society and its state institutions. From the vantage point of the FRG’s first few decades, there was no axiomatic or logical reason why it should be ‘fourth time lucky’. When Böckenförde originally posed these questions in the 1960s, Western liberal democratic societies were again in a growing state of flux due to social changes and movements demanding civil rights and greater equality. These factors were also relevant in Germany, where student protests and the imminent change from the CDU government―which had led the country since the establishment of the FRG―to Willy Brandt’s Social Democrats, were cause for alarm in some quarters. Böckenförde feared that the reliance of the FRG since its establishment on the “moral values” of the Basic Law as a basis of shared convictions was replete with dangers, potentially opening the door “to subjectivism and positivism in current assessments of values that, each laying claim to objective validity, tend to destroy rather than foster liberty.”222 In times of changing values and a possibly dissolving social contract, can a normative constitution alone hold a society together? Böckenförde’s question is as pertinent to the context of Germany’s current debate over migration and the rise of right-wing populism across the West as it was to the social and political flux of the 1960s.

Böckenförde’s argument lies at the heart of the stability versus renewal dichotomy assessed thus far. Can the liberal democratic state successfully preserve its own existence on the basis of its constitutional values without indoctrinating those values in society, and thus, according to Böckenförde, sacrificing its fundamental liberal

219 _{Böckenförde was awarded the 2004 Hannah Arendt Prize for Political Thought.} 220 _{Böckenförde, pp. 44-45.}

221

Ibid. p. 44. 222 _{Ibid. p. 45.}

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character? Böckenförde’s ultimate point, building on Schmitt’s critique of values and around twenty years before he joined the Court, was both a question and a warning. I cite it at length because of its relevance to my central argument.

The question of bonding forces [in society] is posed afresh and reduced to its actual core: the liberal, secularised state is nourished by presuppositions that it cannot itself guarantee223. That is the great gamble it has made for liberty’s sake. On the one hand, it can only survive as a liberal state if the liberty it allows its citizens regulates itself from within on the basis of the moral substance of the individual and the homogeneity of society. On the other hand, it cannot attempt to guarantee those inner regulatory forces by its own efforts―that is to say, with the instruments of legal coercion and authoritative command―without abandoning its liberalness.224

Böckenförde then takes aim at the extent to which, in inculcating its value system, the state acting through the BVerfG had, at once, sacrificed some of the liberalness of the Federal Republic in the interests of its preservation, and eroded the wall between the public and private spheres essential to liberty.

The prescribed state ideology, the revival of the Aristotelian polis tradition, and the proclamation of an ‘objective system of values’ all do away with the very split out of which public liberty is constituted. There is no way back across the threshold of 1789 that does not destroy the state as the order of liberty.225

The ‘split’ of course, was that between state and society, between the public and the private, which the French Revolution and, indeed, the American Revolution, had ushered in. Despite being a student of Schmitt, Böckenförde is a Social Democrat by party affiliation. His ‘dilemma’ posed in 1964 and his later complaints about ossification among the established parties while he was on the Court can be seen not as an attack on the liberal values of the Basic Law, but as a warning that the inculcation of values, even liberal ones, can easily end up negating liberalism itself.

It is also undoubtedly the case that over forty years after Böckenförde penned his dilemma, that the values of the Basic Law have become a reliable moral anchor and identification point for German society as a whole. This may not be fully fledged Habermasian constitutional patriotism but it is not far off. This context of modern

223 _{Emphasis in original.}

224

Böckenförde, p. 45. 225 _Ibid.

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liberal Germany is the basis for the analysis of the European Parliament electoral threshold cases in Chapter 7. These cases effectively question whether threats to stability are still sufficient to justify restricting the popular sovereignty of certain German voters. However, a larger question posed by the cases is whether Germany’s liberal democracy is strong enough to sustain a normal polity again.