The recent translation and edition of Ernst-Wolfgang Böckenförde’s work into English by Mirjam Künkler and Tine Stein represents an important impulse for the reception of a still marginal author in Anglo-Saxon constitutional theory. Böckenförde’s notable absence in the Anglo-Saxon debate so far has produced an artificial division between Anglo-Saxon and German constitutional theory. That division has weakened the understanding of important developments in Germany and obscured its connections with Anglo-American theory. The broad and competent translation of Böckenförde by Oxford University Press could now help to link German constitutional theory under the Grundgesetz to Anglo-Saxon constitutional theory, from which other legal traditions can draw important lessons.
Predictably, however, the risks of this new translation soon manifested, as evidenced by the discussion that originated following the translation of “The Constituent Power of the People: a liminal Concept of Constitutional Law.” Lars Vinx initiated the fire. In his opinion, Böckenförde defends, supposedly following a famous and infamous professor, a theory of strong popular constitutionalism – that is, a theory that considers that the decision of the people, in order to dictate a constitution, is a sufficient reason for its legitimacy. This means that “a constitution can take any content (…) as long as it is produced by an authentic constituent power.” The infamous professor who supposedly influenced Böckenförde in this regard is Carl Schmitt, famous as the “Kronjurist” (“Crown’s Jurist”) of the Third Reich. Critics consider Böckenförde as a Schmitt disciple and argue that Böckenförde’s theory is an “adaptation of Schmitt’s approach to constituent power.” The totalitarian resonances are immediate.
Yet, Böckenförde was not really a disciple of Carl Schmitt, and Böckenförde’s theory of constituent power of the people differs in several aspects from Schmitt’s. In particular, Böckenförde does not consider every decision of the people to be, by definition and mere will, just. Nor does he hold a concept of substantial homogeneity or of democracy as identity. That is, Böckenförde does not believe that certain natural characteristics – like race – are what constitute a people, independent of the political dimension. Böckenförde also does not reject pluralism – as does Schmitt when he argues for the exclusion and elimination of the heterogeneous – or political representation. Even a superficial reading of Böckenförde’s writings is enough to dissolve the false link with Schmitt.
Böckenförde relies on Schmitt for the purpose of considering that every democratic constitution needs to be understood as a decision under the control of the people. But Böckenförde, against Schmitt, believes that a constitution under the control of the people cannot take any arbitrary content: on the contrary, it must necessarily establish, in order not to commit a performative self-contradiction, the central elements of a stable and lasting democratic order based on the principle of popular sovereignty. Thus, the necessary parts for a democratic constitution are not only equal, collective will-formation procedures, but also fundamental rights of freedom. A democratic constitutional order essentially requires placing the constitution under the control of the people, that is, under the control of all its addressees – self-understood as free, equal and rational agents. But a democratic constitution does not imply a current and effective decision of the people, as in Schmitt.
To be sure: Böckenförde’s theory could suffer from inconveniences that lead to its rejection. It can even be considered anachronistic in a context of global constitutionalism. But it cannot be considered incorrect just because there is a false understanding of it as a continuation of Schmitt’s theory.
Böckenförde, in an interview conducted by Dieter Gosewinkel, explains that he met Schmitt when he was a student, impressed by Schmitt’s book Verfassungslehre. Their relationship was always informal, critical, collaborative and strictly academic. On the other hand, German constitutional theory under the Grundgesetz incorporated two theoretical schools of thought: one linked to the figure of Rudolph Smend and another to Carl Schmitt. Böckenförde belonged to this second group; in fact, he contributed with a liberal reading of Schmitt’s writings who was never able to rehabilitate himself after the war. In the face of the recent translation of Böckenförde’s texts, it is necessary that rough personal links and biases do not prevent reading his work under the principle of charity of interpretation. Translation is a dangerous task, also for the author translated. Böckenförde himself begins his explanation of Schmitt’s Der Begriff des Politischen exclaiming: “it should be discussed not the person, but the work, of Carl Schmitt.” Unfortunately, Böckenförde’s theory of the Constituent Power of the People does not seem to benefit from the same principle.
Diego Pardo-Álvarez’s article „Die Begrenzte Rezeption der Verfassungslehre Ernst-Wolfgang Böckenfördes in der spanischsprachigen Verfassungsdiskussion: eine analytische Bestandaufnahme“ will be published in: Mirjam Künkler and Tine Stein (eds.): Die Rezeption der Werke Ernst-Wolfgang Böckenfördes in international vergleichender Perspektive. Beihefte zu »Der Staat« (BH STAAT), Vol. 24 (forthcoming, 2020). Access will be available here.