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The democratic motivation. The modern secular state and its challenges through democracy in the view of Ernst Wolfgang Bockenforde.

Ernst Wolfgand Bockenforde, German jurist and philosopher, wrote extensively on the modern secular state and its challenges through democracy. The present paper explores his views in this matter, starting with the analysis of the representative democracy and of the roots of political culture in the evolution of state. Then it discusses the conclusion Bockenforde draws in this respect, namely that the free, secular state nourishes itself from some assumptions that cannot be guaranteed. The paper presents Bockenforde's view by exploring the connection between state and religion, starting with Hegel and all the way to present times. Both the problem starts from and the solution is based on this relationship, between state and religion.

The concept of democracy has a long history starting from the Antiquity up to nowadays, and because of the internal conceptual changes and the changes of the society itself, the debate on democracy is a challenging one. The opinion that the democracy is in a crisis is quite popular among contemporary philosophers, politicians and thinkers, but this sceptical vision has its opponents as well.

Ralf Dahrendorf--in his discussion with Antonio Polito regarding the issues of democracy in the European Union--defines democracy as an ensemble of institutions, which have as their objective the legitimation of the exercise of the political power. There are three fundamental questions related to this topic: 1. How is it possible to realise and to transpose in action the will and the aspiration of the nations?; 2. How can this process be modelled, how can an adequate debate be guaranteed in the Parliaments with clear conclusions (laws), or how can the political power be controlled with the help of a checks and balances system?; 3. How can the governments (power exercisers) be motivated to take initiatives, which establish actions, or how can changes be introduced in a society without using violence?

The answers of these questions offer a definition of this concept: (1.) Democracy is the voice of the people, that built institutions to control the power of the government, and in this way the demos give legitimacy to the democratic institutions; (2.) democracy is a civilised governmental form, because it constraints the personal power of the members of the government; (3.) democracy is a legislative norm, that makes possible the changes of government without violence. But it is valid only in the context of the traditional national state. (1)

This concept of democracy is confronted with different problems in the new context of the European Union, like the problems of realising the will and the aspiration of a nation, without the existence of a European demos, that can sustain the democracy. On the other hand, there are the problems of the absence of a European political classes and the nonchalance of the citizens regarding the actual problems of the European Union, which root in the problem of the change of the public sphere.

Jurgen Habermas treats this issue in his work "Strukturwandel der Offentlichkeit", and he claims that the fundament of the public sphere is the public discussion, which means that the citizens were actors of the process of finding solutions, and with this activity they have legitimated the solutions. With the changes of the social premises and with the evolution of ethnicity and sciences, the discussions are not public anymore (the people do not participate directly in them), these were realized between specialists, and the people confirm only the solutions without having the knowledge to understand the process of the solutions finding. (2) The nonchalance and the depolitisation of the citizens generated a disappointment regarding their hope in the capacities of the international community to structure the politics. (3)

Ernst Wolfgang Bockenforde (4) analyzing democracy, in "Demokratie und Reprasentation. Zur Kritik der heutigen Demokratiediskussion", (5) from a legislative point of view, concludes that both forms of democracy--direct and representative democracy--have different flaws, and that only the representative democracy can be realized. However, this form of democracy is a challenging form of state, too, and it needs an expanded basis of political culture. He looks for the roots of this basis of political culture in the evolution of state.

The evolution of the state as an occurrence of secularisation

When looking for the roots at the basis of the political culture, analyzing the structure and the history of the modern state, three fundamental questions are raised.

What is the source of the life of the state; where can be found the cohesive power that makes homogeneity and internally regulates the freedom, given the fact that the religion, as a cohesive power is no longer and cannot be essential for the state anymore?

Can morality have its ground and can it maintain itself with secular principle, belonging to the inner world of individuals, is it possible to have as a foundation a "natural moral"?

How long can the nations live belonging to and being under the jurisdiction of a state, only through the grant of freedoms, without a bond of unification? (6)

In order to answer these questions, Bockenforde follows the evolution of the state as an occurrence of the secularisation and he divides this historical process of secularisation in 3 phases; each of them has a contribution to the development of the state. First, there are two short definitions of the state and the process of secularisation. The Definition of the state: this notion describes a form of political order, developed in Europe between the 13th and the end of 18th-beginning of 19th century as a consequence of specific effects of the European history. The Definition of secularisation: the release of something, of a territory or an institution from the spiritual-ecclesiastic domination and control. (7)

The first scission of the unity of state and church, of the governmental and spiritual, of the political and religious began with the Investiture Controversy. (8) In this context, Pope Gregory VII asserted, in the "Dictatus Papae" (1075), that as the Roman church was founded by God alone, the papal power (the auctoritas of Pope Gelasius) was the sole universal power, and that the pope alone could appoint or depose churchmen or move them from see to see.

The second phase begun with the scission of the Christian religion, whose consequence was that the question of religion became a problem of politics, and so, on the way to civic tolerance, there were horrible denominational civil wars.

Living in the same period, Thomas Hobbes (9) contributed to the development of the concept of the state. In his "Elementa philosophica de cive", he considers that the fundament of the state was not deriving from the Christian faith, but from human needs and individual aims oriented reason. (10) This concept of the laic, utilitarian state and the recognition of his power do not exclude the faith; state and Christianity can continue to exist together. (11)

The second important element of this phase, mentioned by Bockenforde, as a continuity and realisation of the concept of state of Hobbes, was the French revolution, with the Declaration of Human and Civic Rights from 1789. As a result of this important moment of history, the state became a "corps social", it was changed to be a political governmental organisation for granting of natural rights and freedoms of the individuals. The free Individuals connected to the legitimacy of state, and this has the background individual considered as being human beings. With the Constitution of 1791, which mentions among the freedoms of individuals the right of religious freedom and the freedom of faith, the state became neutral in what religion was concerned.

Until the 19th century, religion remains the most vigorous power of coherence between the political order and the public life inside the state. However, in the 19th century (in the third phase), the secularisation brings with it the emancipation of the laic orders and the individuals, who believe in their own power and in their freedom. The emancipated individuals are in need of a new power of homogeneity, and they discover the idea of nation (which has its roots in the religion), which gives a more external-politically oriented homogeneity in the form of the national state. In the meantime, in Europe (and in other part of the word) the idea of nation and national state has lost its power of coherence. Thus, the up-to-date question of Bockenforde is: what is the cohesive power that makes homogeneity and regulates internally the freedom?

A possible answer for the cohesive power of the state would be the common values which, after 1945, were at the heart of the public debates. Bockenforde sees the problem of the common values in the implication of subjectivity and the positivism of everyday life values, which can became an objective value and endanger the freedom.

The German jurist draws the conclusion that the free, secular state nourishes itself from some assumptions that cannot be guaranteed. (12)

On one hand, the state of freedom can exist only if the regulations of the freedoms are coming from the inside, from the moral substance of the individuals, from the homogeneity of the society. On the other hand, the state cannot guarantee the regulating power with the instruments of constraints of law and authoritative rules, because in this case it acts against the personal freedoms. The key for this problem is the moral substance of the individuals.

Bockenforde offers a potential solution: for existing and maintaining itself, the state must use the bond strength and its inner impulses that are, basically, given to citizens by religion. Of course, he does not consider the revival of the "Christian state", he means more exactly the crucial changes in the approach of human beings, they have to realise that the secularity is not something against their faith, but a chance of freedom, which they obtain and realise as is their duty. (13)

In order to better understand the solution offered by Bockenforde it needed to clarify the role of religion in the modern, secularised state, as it admits the religion and guarantees its freedom as an individual freedom of the citizens; it depends neither on religion, nor on the policy of the connections of the state with it.

The relevant question on the role of religion in the state, raised by Bockenforde is: Is religion that power, which maintains or forms the state, through its citizens, or can the religion be replaced with something else or can it just be ignored? (14)

Hegel and Bockenforde's view on the relationship between state and religion

To be able to give an answer to the question above, it would be proper to see first the relationship between the state and religion. One of the classical philosophers, that analyses this relationship and who constitutes a fundamental reference concerning this topic is Hegel, as he explores it in depth. Bockenforde's solution is close to the Hegelian concept of state and gives a lot of attention to it, but it also adapts it in order to fit the present context.

According to Hegel, the notion of "state" is a philosophical concept. He means something more than a political organisation; it contains the whole community of a nation, the spiritual culture, education and knowledge, the public orders of life and the general public consciousness. On the one side, for him, the state is the reality of the concrete freedom in the sense that the state makes possible for the individuals to have and use their rights in a subjective way within families and within the system of the civil society. On the other side, it ties the subjectivity of individuals and the general common aspects of the community. (15)

Hegel's question is as follows: "What is the fundament of the state? Can it exist in itself or is it formed by a power/strength that has founded it and has been maintaining it?" He said, "the state is the world created from the spirit (Geist) for itself--to realise itself." He means by this that the reason can be realised in the state, and this reason is determinated by the spirit of God (gottlicher Gesit). He does not mean that the state is divine, but that it is the effect and affect of God (Wirken Gottes) upon history. (16)

In Hegel's view, state and religion are two different forms of reality and of the embodiment of the same substance, of the absolute, divine spirit.

Thus he defines the relationship between the state and religion as one of Parallelism. (17) State and religion have the same principle of community, they are only different forms of reality and of realisation of one substance, of the religious content (Inhalt). The state is oriented towards the outside and the religion towards the inside of individuals. (18)

The bridge, the common element of these two forms of reality and realisation of the divine truth (geoffenbarten gottlichen Wahrheit), are the acting humans.

Moreover, after the impact of the Reformation, religion (19) has changed and has moved towards subjectivity, in the inner life of the individuals. Therefore, the Truth lies in the inner sphere of individuals.

The answer to the question is that the state--as the organiser of the concrete freedom--is not a self-sustaining form. It has at its basis the community of citizens, whose source of power is religion, and the consciousness formed from religion. The empirical reality and the spiritual reality, like their respective forms--state and religion--are inseparably linked.

Regarding the changes of the state since the time of Hegel, Bockenforde concludes:

* In the nowadays state, the Generality of the state--the common sense, the cohesive power that bonds the citizens--is not formed by religion, but from political laic aims. These aims can coincide with the aims of religion because of the cultural roots and common traditions, but this is not a necessity.

* In what the Hegelian perspective on the relationship between the state and religion is concerned, Bockenforde states that the state of today is a "Verstandesstaat", a state of reason. He means that the subjective common sense--the common interests and needs--are organised/based on the recognition/acceptance of the subjectivity, but without authoritative (verbindliche) principles concerning the content of Subjectivity. The duty to find the content of Subjectivity belongs to the subjectivity itself. The bond and the obligingness (Verbundende und Verbindliche) of the common order is Plurality. The citizens have different content possibilities on offer, and they can choose one or neither of those.

* If the Hegelian view of the state is only a subjective hypothesis, and the state exists without a bonding content, it meant that there is a precarious situation. It can appeal on the formal subjective freedoms, but its spirituality is "in the air" (Hegel). Presently the state has its ground in the consensus of its citizens, that it is not a normative, an objective one--concerning the obligatory objective principles of state and citizens--, but it is a subjective one that has in the background some common views.

This consensus became objective in the form of values, that can serve the state as basis of values (Wertgrundlage). But the consensus has a certain fluidity, it depends on the spiritual fluctuations, on the changing of values (Wertewandel) and it can be a victim of theirs.

Contemporary challenges

In one of his articles, (20) Bockenforde characterises two different concepts of the neutrality of state regarding the relation between the state and the religion, more exactly, the relation between the containment of freedom and effectiveness of the religion from the state and its legal system. One of this is the distancing neutrality, which best example is the French laicite that recommits and retains the religion in the private and private-social sphere. The other concept, the open neutrality--existing already in Germany--offers the possibility for the religions to develop in the public sphere, (for example, schools) too. The two different concepts are relevant from the point of view of the legal order of the democratic state, considering the fact that the distancing neutrality configures the law as being pure laic. Religious aspects are irrelevant for the public and private sphere. On the contrary, the open neutrality tries to balance between the possibility of the citizens to have a religion-ordered life and the laic objectives of the state order.

For sure, the secular state will be based on and will be bound in the future to the lived culture (gelebte Kultur) as a power of social coherence. An important part of this culture roots in certain religious traditions and ways of behaviour, which today are part of the secular culture. Nowadays, societies tend to became more and more heterogenic from ethical, religious, cultural points of view, and in this context from the point of view of changes in the lived culture. Bockenforde asks himself if the state can offer anymore a religious freedom, equal status of religions and the neutrality towards religions without losing and dissolving its cultural basis.

Bockenforde admits the solution offered by Cardinal Ratzinger on this question, and both of them consider that with the grant of religious freedoms the state must preserve all its cultural roots, because this has marked its institutions and law, too, which are included parts of the state order. (21)

Michael Haus provides also a critique to Bockenforde's thesis. Haus argues that starting from Bockenforde's observation that the modern democratic state was created under the influence of the Christian religion, it does not necessarily follow that today's society is dependent on religion as a foundation. There are many arguments supporting the fact that the basic civic consensus could also rest on connecting similarities and common interests, interdependencies, dependencies, opportunities for cooperation, a common history or common historical Lernprozesse. (22)

According to Jurgen Habermas, this process of crystallising values belongs to society itself, as it is a process of auto-creation ("Selbstschopfungsprozess") and includes the values and practices (democratic virtues) that the free state needs to live and survive. (23) This process is part of the public discourse and of a "herrschaftsfreie Kommunikation" (dominance-free communication). On the other hand Habermas agrees with Bockenforde and notices the danger of a derailment of the modernization of society which tires the democratic bond within society and exhaust the kind of solidarity on which the democratic state, without being able to enforce law, is dependent. (24)

Bockenforde considers that the solution for these fundamental issues is the stability of an open secular order of freedoms (Freiheitsordnung). The law itself guarantees the most important part of it, being concerned with the freedom and the limit of freedom (freiheitsbezogene und freiheitsbegrenzende Gesetze). He emphasises two areas that are fundamental for supporting this law--the general scholar education, and the protection of the religious credo. All these remarks about the present state represent a challenge for democracy. For the education of moral individuals, both of them support equally the state. This is a great challenge for the religious and civic education, too, and their interaction is fruitful for the future as well.

Bibliography

1. Bockenforde, E. W. (2007), "Wie konnen die Religionen friedlich und frei beisammen leben? Uber den sakularen Staat, seine Neutralitat und die Probleme, mit denen er im 21. Jahrhundert konfrontiert ist", in Neue Zuricher Zeitung, nr.143, 23/24 Juni.

2. Bockenforde, E. W. (2006), Recht, Staat, Freiheit. Studien zur Rechtsphilosophie und Verfassungsgeschichte, Frankfurt am Main: Suhrkamp.

3. Bockenforde, E. W. (1983), Demokratie und Reprasentation. Zur Kritik der heutigen Demokratiediskussion, Hannover: Niedersachsische Landeszentrale fur Politische Bildung.

4. Dahrendorf, Ralf (2002), Die Krise der Demokratie. Ein Geschprach, Munchen: C.H. Beck.

5. Habermas, Jurgen (2005), "Fundamentele prepolitice ale statului de drept democratic", in Habermas, Jurgen/ Ratzinger, Joseph, Dialectica secularizarii, Cluj Napoca: Apostrof.

6. Haus, Michael (2003), "Ort und Funktion der Religion in der zeitgenossischen Demokratietheorie", in Michael Minkenberg (ed.), Politik und Religion, Wiesbaden: Westdeutscher Verlag.

7. Hegel, G.W.F. (1970), Grundlinien der Philosophie des Rechts, Frankfurt am Main: Suhrkamp Verlag.

8. Labuschagne, B.C. (2003), "Hegels Verstandnis des Verhaltnisses zwischen Staat und Religion" in A. Arndt, K. Bal, H. Ottmann (eds.), Glauben und Wissen. Hegel Jahrbuch, Berlin: Akademie Verlag.

9. Lutz, Bernd (2003), Metzler Philosophen Lexikon. Von der Vorsokratikern bis zu den Neuen Philosophen, Stuttgart: J.B. Metzler.

10. Marga, Andrei (2006), Filosofia lui Habermas, Iasi: Polirom.

11. Rod, Wolfgang (1996), Der Weg der Philosophie von den Anfangen bis ins 20. Jahrhundert, 2.band, Munchen: C. H. Beck.

12. *** Microsoft[R] Encarta[R] Enzyklopadie Professional 2003. [c] 1993-2002 Microsoft Corporation.

(1) Ralf Dahrendorf, Die Krise der Demokratie. Ein Geschprach, Munchen: C.H. Beck, 2002, pp. 8-10.

(2) Andrei Marga, Filosofia lui Habermas, Iafi: Polirom, 2006, pp. 110-114.

(3) Jurgen Habermas, "Fundamentele prepolitice ale statului de drept democratic", in Jurgen Habermas, Joseph Ratzinger, Dialectica secularizarii, Cluj Napoca: Apostrof, 2005, p. 90.

(4) Ernst Wolfgang Bockenforde (born in 19.09.1930) is a jurist, Professor of civil law, of History of constitution and law, and of Philosophy of law at The University Munster (19591964), Heidelberg (1964-1969), Bielefeld (1969-1977), Freiburg (since 1977). He was judge of the German federal constitutional court from 1983-1996. He is correspondent member of the Academy of Sciences of Bavaria, and of Rheinland-Westfalia.

(5) E. W. Bockenforde, Demokratie und Reprasentation. Zur Kritik der heutigen Demokratiediskussion, Hannover: Niedersachsische Landeszentrale fur Politische Bildung, 1983, pp. 7-33.

(6) "Woraus lebt der Staat, worin findet er die ihn tragende, homogenitatsverburgende Kraft und die inneren Regulierungskrafte der Freiheit, deren er bedarf, nachdem die Bindungskraft aus der Religion fur ihn nicht mehr essentiell ist und sein kann? Lasst sich Sittlichkeit innerweltlich sakular begrunden und erhalten, kann der Staat sich auf eine "naturliche Moral" erbauen?

Wieweit konnen staatlich geeinte Volker allein aus der Gewahrleistung der Freiheit des einzelnen leben ohne ein einigendes Band, das dieser Freiheit vorausliegt?" in E. W. Bockenforde, Recht, Staat, Freiheit. Studien zur Rechtsphilosophie und Verfassungsgeschichte, Frankfurt am Main: Suhrkamp, 2006, p. 111.

(7) Ibidem, p. 93..

(8) Also known as the lay investiture controversy (1075--1122) was the most significant conflict between secular and religious powers in medieval Europe. It began as a dispute in 1075 between the Holy Roman Emperor and the Gregorian Papacy concerning who would control appointments of church officials (investiture). This radical departure from the Early Medieval balance of power, among its other reforms, eliminated the practice of investiture, the divinely-appointed monarch's right to invest a prelate with the symbols of power, both secular and spiritual. (Microsoft[R] Encarta[R] Enzyklopadie Professional 2003. [c] 1993-2002 Microsoft Corporation.)

(9) Thomas Hobbes (1588-1679): when this project was realised, it consisted of three works: De Corpore, De Homine and De Cive. Because of the political turmoil in Hobbes's time, he set out to start with the work which would systematically come last: De Cive. This work comprises three parts: Libertas (liberty), Imperium (dominion), and Religio (religion). In the first part, he describes man's natural condition, dealing with the natural laws; in the second, the necessity of establishing a stable government is indicated. Finally, in the third part, the most important statements are backed up theologically. The book was published in Latin in 1642; a revised edition appeared in 1647. It was translated into English, entitled Philosophical Rudiments Concerning Government and Society (published in 1651). (Microsoft[R] Encarta[R] Enzyklopadie Professional 2003. [c] 1993-2002 Microsoft Corporation.)

(10) Wolfgang Rod, Der Weg der Philosophie von den Anfangen bis ins 20. Jahrhundert, 2. band, Munchen: C. H. Beck, 1996, p. 39.

(11) E. W. Bockenforde, Recht, Staat, Freiheit. Studien zur Rechtsphilosophie und Verfassungsgeschichte, Frankfurt am Main: Suhrkamp Verlag, 2006, pp. 106-107.

(12) "Der freiheitliche, sakularisierte Staat lebt von Voraussetzungen, die er selbst nicht garantieren kann." in E. W. Bockenforde, Recht, Staat, Freiheit. Studien zur Rechtsphilosophie und Verfassungsgeschichte, Frankfurt am Main: Suhrkamp Verlag, 2006, p. 112.

(13) Ibidem, p. 114.

(14) "Ist die Religion, wie man jahrhundertelang meinte, die eigentlich tragende und formende Kraft, die die Gesittung und Gesinnung verburgt, aus der der Staat in seinen Burgern lebt, oder ist sie als solche ersetzbar oder entbehrlich?" in E. W. Bockenforde, Recht, Staat, Freiheit. Studien zur Rechtsphilosophie und Verfassungsgeschichte, Frankfurt am Main: Suhrkamp Verlag, 2006, p. 116.

(15) G.W.F. Hegel, Grundlinien der Philosophie des Rechts, Frankfurt am Main: Suhrkamp Verlag, 1970, pp. 398-405.

(16) Ibidem, pp. 408-412.

(17) Ibidem, p. 425.

(18) B.C. Labuschagne, "Hegels Verstandnis des Verhaltnisses zwischen Staat und Religion" in A. Arndt, K. Bal, H. Ottmann (eds.), Glauben und Wissen. Hegel Jahrbuch, Berlin: Akademie Verlag, 2003, pp. 263-264.

(19) For Hegel this means the Christian religion.

(20) E. W. Bockenforde, "Wie konnen die Religionen friedlich und frei beisammen leben? Uber den sakularen Staat, seine Neutralitat und die Probleme, mit denen er im 21. Jahrhundert konfrontiert ist", in Neue Zuricher Zeitung, nr.143, 23/24 Juni, 2007.

(21) Joseph Ratzinger, "Ceea ce tine lumea laolalta. Fundamente prepolitice morale ale unui stat liberal" in Jurgen Habermas, Joseph Ratzinger, op.cit., pp. 101-115.

(22) Michael Haus, "Ort und Funktion der Religion in der zeitgenossischen Demokratietheorie" in Michael Minkenberg (ed.), Politik und Religion, Wiesbaden: Westdeutscher Verlag 2003, pp. 49-51.

(23) Jurgen Habermas, "Fundamentele prepolitice ale statului de drept democratic" in Jurgen Habermas, Joseph Ratzinger, op.cit., pp. 85-88.

(24) Ibidem, pp. 89-91.

Cristina Bojan *

* Bojan Cristina is Teaching Assistant at the Faculty of European Studies, Babef-Bolyai University, Cluj Napoca. She is also a PhD candidate in Philosophy of Higher Education. Email: bojanc@euro.ubbcluj.ro, bochristro@yahoo.com.
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