Communitarianism as the social and legal theory behind the German ...

ARTICLE

Communitarianism as the social and legal theory behind the German Constitution Winfried Brugger*

1. Introduction Appeals to community in literature, politics, and science have recently grown stronger in Germany. Communities care for their members and support each other. Citizens are active in their communities and fight against racism and hatred. Community life promises integration, recognition, and emotional support. For Germans, such ideas are not taken for granted but rather, extraordinarily enough, have become taboo since World War II despite intensive community efforts during reconstruction. In any case, the theory of communitarianism has stood long in the shadow of other political theories, owing in part to the misuses that occurred in the name of the National Socialistic concepts of leader, race, people, and community. In more recent times, however, there has been a noticeable change of attitude on the part of various social groups, owing to the perception that the increasing globalization, commercialization and virtualization of all aspects of life must be effectively counterbalanced. Certainly, collective changes of attitude must be subject to discussion before they can be analyzed and conceptually developed. In the last twenty years, the communitarian movement in the United States has begun this process.1 Its chief supporters include Alasdair MacIntyre,2 Michael Sandel,3 Michael Walzer,4 * Chairman of the department of public law and legal philosophy at the University of Heidelberg, Germany. For their generous help with the translation from German, I would like to thank Eva Pils, University College London, and Mark Tracy, Heidelberg University. 1 The communitarian movement was largely a reaction to John Rawls’s work. See JOHN RAWLS, A THEORY OF JUSTICE (Belknap Press 1971). For representative essays on communitarianism, see THE ESSENTIAL COMMUNITARIAN READER (Amitzai Etzioni ed., Rowman & Littlefield 1998). 2

See ALASDAIR MACINTYRE, AFTER VIRTUE: A STUDY 1981).

IN

MORAL THEORY (Univ. of Notre Dame Press

3

See MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE (Cambridge Univ. Press 1982).

4

See MICHAEL WALZER, SPHERES OF JUSTICE: A DEFENSE OF PLURALISM AND EQUALITY (Basic Books 1983).

© Oxford University Press and New York University School of Law 2003, I.CON, Volume 2, Number 3, 2004, pp. 431–460

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Benjamin Barber,5 Robert Bellah,6 Amitai Etzioni,7 Charles Taylor,8 and Philip Selznick.9 Their themes have been taken up by commentators and have found their respective representatives and promulgators in Germany as well—first in the disciplines of politics, philosophy, and social science10 and then gradually in political and constitutional theory.11 With this, the way is paved to forge an interpretation of the Basic Law—Germany’s Constitution—in the light of this theory and in contrast to the previously predominant viewpoints of liberalism,

5

See BENJAMIN R. BARBER, STRONG DEMOCRACY: PARTICIPATORY POLITICS California Press 1984).

FOR A

NEW AGE (Univ. of

6 See HABITS OF THE HEART: INDIVIDUALISM AND COMMITMENT IN AMERICAN LIFE (Robert Neelly Bellah ed., Univ. of California Press 1985). 7

See AMITAI ETZIONI, THE SPIRIT OF COMMUNITY: RIGHTS, RESPONSIBILITIES AGENDA (Crown Publishers 1993).

AND THE

COMMUNITARIAN

8

See CHARLES TAYLOR, SOURCES OF THE SELF: THE MAKING OF THE MODERN IDENTITY (Harvard Univ. Press 1989).

9 See PHILIP SELZNICK, THE MORAL COMMONWEALTH: SOCIAL THEORY AND THE PROMISE OF COMMUNITY (Univ. of California Press 1992) [hereinafter COMMONWEALTH]; PHILIP SELZNICK, THE COMMUNITARIAN PERSUASION (Johns Hopkins Univ. Press 2002) [hereinafter PERSUASION]. 10

See, for instance, the following anthologies: KOMMUNITARISMUS IN DER DISKUSSION [COMMUNITARIANISM IN DISCUSSION] (Christel Zahlmann ed., Rotbuch Verlag 1992); KOMMUNITARISMUS [COMMUNITARIANISM] (Axel Honneth ed., Campus Fachbuch 2001); WALTER REESE-SCHAEFER, WAS IST KOMMUNITARISMUS? [WHAT IS COMMUNITARIANISM?] (Campus 1994); KLAUS BECKMANN ET AL., INDIVIDUUM VERSUS KOLLEKTIV: DER KOMMUNITARISMUS ALS ZAUBERFORMEL? [THE INDIVIDUAL VERSUS THE COLLECTIVE: COMMUNITARIANISM AS MAGIC FORMULA?] (2000). 11

See WALTER REESE-SCHAEFER, POLITISCHE THEORIE HEUTE [POLITICAL THEORY TODAY] ch. 3 (Oldenbourg 2000); Rainer Nickel, Gleichheit in der Differenz? Kommunitarismus und die Legitimation des Grundgesetzes [Equality in the Difference? Communitarianism and the Legitimation of the German Constitution], in LEGITIMATION DES GRUNDGESETZES AUS SICHT VON GESELLSCHAFTSTHEORIE UND RECHTSPHILOSOPHIE [LEGITIMATION OF THE GERMAN CONSTITUION FROM THE VIEWPOINT OF SOCIAL THEORY AND LEGAL PHILOSOPHY] 395 (Winfried Brugger ed., Nomos 1996); Winfried Brugger, Zum Verhältnis von Neutralitätsliberalismus und liberalem Kommunitarismus. Dargestellt am Streit über das Kreuz in der Schule [On the Relationship between Liberal Neutrality and Liberal Communitarianism. Portrayed in the Controversy of Crucifixes in the Classroom], in DER STREIT UM DAS KREUZ IN DER SCHULE. ZUR RELIGIÖSWELTANSCHAULICHEN NEUTRALITÄT DES STAATES [THE CONTROVERSY OVER CRUCIFIXES IN THE CLASSROOM. ON THE RELIGIOUS AND PHILOSOPHICAL NEUTRALITY OF THE STATE] 109 (Winfried Brugger & Stefan Huster eds., Nomos 1998) [hereinafter On the Relationship]; Winfried Brugger, Kommunitarismus als Verfassungstheorie des Grundgesetzes [Communitarianism as Constitutional Theory of the German Constitution], 123 ARCHIV DES ÖFFENTLICHEN RECHTS 337 (1998) [hereinafter Kommunitarismus]; WINFRIED BRUGGER, LIBERALISMUS, PLURALISMUS, KOMMUNITARIANISMUS [LIBERALISM, PLURALISM, COMMUNITARIANISM] 253 (Nomos 1999) [hereinafter LIBERALISMUS]; Ulrich R. Haltern Kommunitarismus und Grundgesetz [Communitarianism and the German Constitution], 83 KRITISCHE VIERTELJAHRESSCHRIFT FÜR GESETZGEBUNG UND RECHTSWISSENSCHAFT 153 (2000); Winfried Brugger, The Moral Commonwealth. Gesellschaft und Staat aus Sicht des Kommunitarismus [The Moral Commonwealth. Society and the State from the Perspective of Communitarianism], 84 KRITISCHE VIERTELJAHRESSCHRIFT FÜR GESETZGEBUNG UND RECHTSWISSENSCHAFT 149 (2001).

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social democracy, and Christian natural rights.12 Regardless of their distortions during the Third Reich, political theories with a strong connection to community have been an integral part of German tradition before and after Hitler.13 This essay is not concerned with a historical analysis of that tradition but rather offers a systematic reconstruction of the current discussion of communitarianism for the purpose of illuminating the meaning of the German Constitution. This reconstruction will provide a perspective on the German Constitution that has been somewhat neglected in recent decades. Concurrently, the focus on concrete constitutional problems can sharpen our understanding of the benefits and limitations of communitarian thought. In the next section, I will expound on some common features of communitarian theories before I distinguish the three main versions of communitarianism. This two-tiered approach is necessary because, like liberalism and socialism, communitarianism is a family of theories. Therefore, one must first identify common features before tackling key variations.

2. The three basic theses of communitarianism 2.1

Since communitarianism cannot be reduced to a single body of thought regarding community and is in fact a family of theories with several variations, one must first address the following questions: What do all people, individual people or groups of people have in common, or what unites them? Or, alternatively, what should be common among them, or what should unite them? If I focus on the character of each individual as a “person” and adduce legal rights from this—as purported by human rights doctrine—then the question of citizenship, class, race, or religion is irrelevant or at least subsidiary.14 12

See DONALD P. KOMMERS, THE CONSTITUTIONAL JURISPRUDENCE 31–32 (Duke Univ. Press, 2d ed. 1997). 13

OF THE

FEDERAL REPUBLIC

OF

GERMANY

See, e.g., G. W. F. HEGEL, GRUNDLINIEN DER PHILOSOPHIE DES RECHTS [ELEMENTS OF THE PHILOSOPHY OF RIGHT] (1821); FERDINAND TÖNNIES, GEMEINSCHAFT UND GESELLSCHAFT: GRUNDBEGRIFFE DER REINEN SOZIOLOGIE [COMMUNITY AND SOCIETY: BASIC CONCEPTS OF PURE SOCIOLOGY] (1887) (1979 reprint of the 8th ed., 1935); OTTO VON GIERKE, DAS WESEN DER MENSCHLICHEN VERBÄNDE [THE CHARACTER OF HUMAN ASSOCIATIONS] (1902) (reprint 1954); FRIEDRICH MEINECKE, WELTBÜRGERTUM UND NATIONALSTAAT: STUDIEN ZUR GENESIS DES DEUTSCHEN NATIONALSTAATES [WORLD CITIZENSHIP AND THE NATIONAL STATE: A STUDY AS TO THE GENESIS OF THE GERMAN NATIONAL STATE] (4th ed., 1924); THEODOR LITT, INDIVIDUUM UND GEMEINSCHAFT [INDIVIDUAL AND COMMUNITY] (2nd ed., 1926); EDUARD SPRANGER, LEBENSFORMEN, GEISTESWISSENSCHAFTLICHE PSYCHOLOGIE UND ETHIK DER PERSÖNLICHKEIT [WAYS OF LIFE, HUMANISTIC PSYCHOLOGY AND THE ETHIC OF THE PERSONALITY] (4th ed., 1924); HERMANN HELLER, STAATSLEHRE [STATE THEORY] 1934 (especially: 2. Abschnitt, III); RUDOLF SMEND, STAATSRECHTLICHE ABHANDLUNGEN [DISCOURSE OF STATE THEORY] (1955) (2nd ed., 1968) (see especially the articles on “Verfassung und Verfassungsrecht” and on “Integrationslehre”); ALEXANDER RÜSTOW, ORTSBESTIMMUNG DER GEGENWART [ORIENTATION OF THE PRESENT] (1957). 14

See, e.g., GG [Constitution] art. 3, § 3; art. 4, § 1 (F. R.G.).

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However, if I focus on citizenship as the criterion of community, then, according to the German Constitution, I can and must differentiate between Germans and non-Germans, and grant only the former the right of assembly and association, the right to unhindered movement within German borders, or the right to choose and practice a profession.15 If I use Christianity as the critical factor for determining community, then—by the logic of this argument— there must also be heathens to whom other rules may partly apply. The characteristic of any appeal to a commonality is that, depending on the criteria selected, lesser or greater differences occur between insiders and outsiders. The chosen reference group provides the determinative factor for selecting the “common” good. Internally, the common good is generalized among its members; externally, however, in relation to other communities that are structured differently, it is separate and thus particular. 2.2

Regardless of what factors are accentuated in a community, affiliation, membership in groups and the possibility of forming common bonds are constituent features of communitarianism. In the foreground is not the freedom from community and association but rather the freedom to associate in shared ways of life.16 Through self-determination in the community, communitarianism expects to maximize human fulfillment, in contrast with the Hegelian “abstract” freedom for everyone to do anything, which is in constant danger of becoming lost in nothingness or falling victim to totalitarian seductions.17 In this respect, communitarianism differs from the liberalism of the Enlightenment, and from the latter’s primary concern with emancipating the populace from economic, legal, and religious dependence and paternalism. “The goal of the Enlightenment was, and continues to be, the liberation of humans not only from oppression but also from imposed (legal and intellectual) dependence. . . . The limitations of enlightenment are revealed with the question, what is freedom directed toward?”18 Successful self-determination is not a matter of 15

Id. arts. 8, 9, 11, 12. See also id. art. 38 (in conjunction with §38 of the German Federal Election Law, available at http://www.iuscomp.org/gla/statutes/BWG.htm). All foreigners in these cases can invoke the general right to liberty as stipulated in article 2, § 1, which accords basic protection and requires the government to adequately justify a restraint of personal liberty. Id. art. 2, § 1.

16 Cf. Philip Selznick, The Idea of a Communitarian Morality, 75 CALIF. L. REV. 445, 454 (1987) (“A communitarian morality . . . is not at its core a philosophy of liberation. The central value is not freedom or independence but belonging”); ROBERT NISBET, COMMUNITY AND POWER 269 (Oxford Univ. Press 1962) (“Genuine freedom is not based upon the negative psychology of release. Its roots are in positive acts of dedication to ends and values. Freedom presupposes the autonomous existence of values that men wish to be free to follow and live up to”). 17

Concerning this negative freedom, see HEGEL, supra note 13, § 5. On the dangers posed by totalitarianism, see NISBET, supra note 16, at 255, 268.

18

Ernst-Wolfgang Böckenförde, Erfolge und Grenzen der Aufklärung [The Achievements and Limitations of Enlightenment], 8 UNIVERSITAS 720, 721 (1995).

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“freedom from,” but rather engagement in a discourse on where freedom comes from, what it is for, and what it should be directed toward. This is precisely what communitarianism does. 2.3

The previous remarks affirm that the basic tenets of communitarianism are aligned mainly with an anthropological and social theory approach. This approach describes the basis of human coexistence and the structures of societal organization and thus, in the liberal juxtaposition of state and society, is more closely allied with the pole of private communities and associations. While such an approach includes trade and competition, it does not reduce private associations to mechanisms of economic order; instead, it makes many other forms of civic engagement—from marriage and family to citizen activities in the private sector—the subject matter of discussion. Thus, communitarianism mediates between the individual, concerned only with him- or herself, and the centralized authority of the state. In short, communitarianism discusses the triadic relationship among the varying elements of society, reaching from private associations to the free marketplace and lastly to the state.19 This has important implications for jurists. Communitarian insights and recommendations do not automatically suggest that the state is authorized to enforce those insights and recommendations.20 Rather, society and state should be constituted in such a way as to respond to humans’ basic need to form communities. In order to do so, coercion may be occasionally applied, specifically to safeguard against violence between individuals and groups.21 Normally, however, the State’s focus is on facilitation, care, and coordination. In the words of Otto von Gierke, the task of the state order is essentially “to understand, organize, and forge the legal codes necessary for external and internal community life as an expression of the physical and mental unity of the societal organism.”22 The structures of community associations must thus be understood in terms of what they strive to achieve for their members and how they view their role with regard to their natural and social environment. The state should respect and protect these associations so that they can develop in the most unrestricted manner possible as well as coordinate and 19 Cf. WALTER REESE-SCHAEFER, ETZIONI ZUR EINFÜHRUNG 66 (2001); SELZNICK, PERSUASION, supra note 9, at XXI, 46, 63. 20

See Will Kymlicka, Community, in A COMPANION TO CONTEMPORARY POLITICAL PHILOSOPHY 366, 373 (Robert E. Goodin & Philip Pettit eds., Blackwell 1993).

21 22

Cf. GG, art. 8, § 1; GG art. 21, § 2.

Von Gierke, supra note 13, at 27. The concept of organism is used here, as well as in Gierke, by way of analogy. See also REESE-SCHÄFER, supra note 19, at 74 (“A community should rely on backing from the state for its protection only if four conditions are met: 1. There must be clear and present danger 2. There is no alternative to state involvement 3. State action must be as restrained as possible 4. Damaging side effects must be minimized”).

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distinguish themselves.23 This means that the principle of subsidiarity must also play an important role in communitarianism. It was in that spirit that the German Constitutional Court formulated a clear communitarian perspective on the concept of the human being. “The image of man in the Basic Law is not that of an isolated, sovereign individual; rather, the Basic Law has decided in favor of a relationship between the individual and community in the sense of a person’s dependence on and commitment to the community, without infringing upon a person’s individual value.”24

3. Conservative, liberal, and universalistic communitarianism By examining the authors who develop their theories in accordance with the main tenets of communitarianism, one may propose classifications of the variations among those theories.25 The most widespread variation, imported from the United States, distinguishes between substantive or conservative communitarianism on the one hand and democratic participatory-republican communitarianism on the other.26 The criterion for the distinction is circumscribed by substance and procedure. This is certainly one way of categorizing communitarianism. However, a more complex approach may more effectively reveal the differences among existing human associations. The conception proposed here works with a three-pronged distinction among substantive communitarian theories. Participatory rights are attached to each theory, but their extent may differ. Thus, substantive or conservative communitarianism will be distinguished from liberal communitarianism and also from universal or egalitarian communitarianism.27

23

A certain proximity to Niklas Luhmann’s system theory is obvious here. NIKLAS LUHMANN, DIE GESELLSCHAFT DER GESELLSCHAFT [THE SOCIETY OF SOCIETY] (Suhrkamp Verlag 1998). 24 4 BVerfGE 7, 15. This view continues to be applied by the courts. See 12 BVerfGE 45, 51; 28 BVerfGE 175, 189; 30 BVerfGE 1, 20; 30 BVerfGE 173, 193; 32 BVerfGE 98, 107; 33 BVerfGE 1, 10. See also KOMMERS, supra note 12, at 304–5, 312. On a systematic reconstruction of this conception of human nature, see BRUGGER, LIBERALISMUS, supra note 11, § 3. 25 See supra notes 2–13. On the precursors of modern comunitarianism, see Hauke Brunkhorst, Demokratie als Solidarität unter Fremden [Democracy as Solidarity among Strangers], 36 POLITIK UND ZEITGESCHICHTE 21 (1996). 26

See RAINER FORST, KONTEXTE DER GERECHTIGKEIT: POLITISCHE PHILOSOPHIE JENSEITS VON LIBERALISMUS UND KOMMUNITARISMUS [THE CONTEXT OF JUSTICE. POLITICAL PHILOSOPHY BEYOND LIBERALISM AND COMMUNITARIANISM] ch. 3.2 (Suhrkamp Verlag 1994) (with further references). Nickel, supra note 11 (following Forst). Applying the categories I have established here, Nickel comes close to egalitarian-universalistic communitarianism. 27

On this ideal-type distinction, see Brugger, On the Relationship, supra note 11; Brugger, Kommunitarismus, supra note 11.

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Because the distinctions hinge on the proper relationship between freedom of choice and various community obligations rather than on a categorical individual-versus-society conflict, one can view the three conceptions described above as variations of liberalism. In any case, conservative and liberal communitarianism are contemporary theories that take critical account of liberalism and/or certain variations of liberalism.28 Take, for instance, the triad of “Liberty, Equality and Fraternity” associated with the French Revolution. If one accepts that triad as key to understanding liberal theories,29 then the element of freedom refers to the discussion of whether, or under what conditions, communities promote or hinder the fulfillment of human selfdetermination. The element of equality is related to the question of which qualities particular individuals, groups, or even all humans share (or should share) or under what conditions a community is formed (or should be formed). The answers to these questions differ. One can, as a conservative communitarian, advocate a narrow, particularistic viewpoint with respect to the unifying factor; one can, as a universalist communitarian, offer a broad perspective, such as the basic interests of every human being; or one can, as liberal communitarian, propose a stance somewhere between these two poles. The third element, of fraternity or solidarity, could then be interpreted in a similar manner—with emphasis either on interactions in close proximity to one’s family members or on extension of solidarity to all human beings, or perhaps as a mediation between these two poles. Therefore, in an affirmative or critical sense, communitarian theories are intimately connected to liberal self-determination. In this broadly defined sense, communitarian theory would be strictly nonliberal only to the extent that it left no room for individual self-determination and constitutional rights, or regarded the self-determination of one group in a political context as a sufficient justification for suppressing or eliminating other groups.30 Modern conservative communitarianism should not be 28

See STEPHEN MULHALL & ADAM SWIFT, LIBERALS AND COMMUNITARIANS 155, 163 (Blackwell 1992); JOEL FEINBERG, HARMLESS WRONGDOING IV 82 (Oxford Univ. Press 1988). Otfried Höffe and Wolfgang Kersting each characterize communitarianism and liberalism as antipodes. OTFRIED HÖFFE, VERNUNFT UND RECHT: BAUSTEINE ZU EINEM INTERKULTURELLEN RECHTSDISKURS [REASON AND LAW: THE BUILDING BLOCKS FOR CONSTRUCTING INTER-CULTURAL LEGAL DISCOURSE] 164 (1996); WOLFGANG KERSTING, JOHN RAWLS ZUR EINFÜHRUNG [INTRODUCTION TO JOHN RAWLS] 185, 193 (1993). 29

Here, I follow Feinberg. See FEINBERG, supra note 28, at 82 (“The classical liberal ideals, perhaps partly because of their vagueness and flexibility, remain the most appealing part of traditional liberalism. These include not only liberté and egalité, but also . . . fraternité. It has been notoriously difficult for the liberal to reconcile liberty (and . . . autonomy) with equality, but here we will address the problem of reconciling autonomy with the cluster of values represented by “fraternity.” These values include group memberships and loyalties, cooperativeness, civic spirit, public participation, and piety in a broad sense”).

30 See CARL SCHMITT, DER BEGRIFF DES POLITISCHEN [THE CONCEPT OF THE POLITICAL] 26 (3rd ed. 1991) (articulating the friend-enemy antithesis). By definition, this is without doubt a preEnlightenment form of communitarian terminology, which is indeed anti-liberal. On Schmitt, see the analyses in 1 CAN. J.L. & JUR. 10 (1997).

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associated with those theories or practices. It is “liberal” in the weak sense of respecting individual choice to some extent, even though it places greater emphasis on the integrative force and influence of traditional, well-established forms of communal life. However, from the point of view of a strong libertarian theory, one may well designate such theories as non-liberal.31

4. Conservative communitarianism The first variant of communitarianism may be designated as conservative or substantive. It is based on the thesis that a political and legal order can only function on a long-term basis when a relative degree of homogeneity exists internally, guaranteeing loyalty, mutual understanding, and care among citizens. Externally, detachment and indifference in relation to other states and peoples are allowed or even promoted. What are those factors that produce loyalty, solidarity, and the feeling of belonging? One cannot give a detailed a priori account. It depends in part upon the circumstances. A classical formulation may be found in the writings of Ferdinand Tönnies, who in his 1887 book, Gemeinschaft und Gesellschaft (Community and Society), characterized the process of social cohesion as follows: “mutual understanding [in the community] is based on an intimate knowledge of each other, to the extent that such knowledge is conditioned upon and is promoted by a person’s immediate readiness to share in another person’s joys and sorrows. Its likelihood increases when a greater similarity of constitution and experiences exists or greater harmonization in temperament, character or way of thinking occurs between members.”32 Conservative substantive communitarianism places emphasis on greater homogeneity, or at least compatibility, among races, classes, religions, languages, and ways of life. Lucky is the state in which such conditions of homogeneity exist. The only difficulty is that in most modern states pluralism and multiculturalism reign supreme, and substantial conservative communitarianism is not equipped to deal with this phenomenon. One may perhaps grumble but, in the end, this will change nothing.

5. Universalistic-egalitarian communitarianism In contrast, the second, egalitarian or universalistic variant of communitarianism takes an entirely different approach. It emphasizes two universal 31

By speaking of “liberal communitarianism” in the narrower sense of the term, I follow the terminology of Philip Selznick, who speaks of “communitarian liberalism.” In addition to the reference in note 9, see also his essay with the same title in 34 DER STAAT 487 (1995). In substance, I also stand close to his conception. Amitai Etzioni also speaks of liberal communitarianism. See REESE-SCHÄFER, supra note 19, at 63, 67, 73, 99 (with further references). 32

See 1 TÖNNIES, supra note 13, § 9.

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postulates of equality that Ronald Dworkin captured in Taking Rights Seriously with the formula “equal concern and respect”33—that is to say, equal consideration of the basic needs and self-determination of all peoples as well as equal respect for the lifestyles of all individuals and groups. Thus, in this variant of communitarianism, features that distinguish people and groups from each other are immaterial, or at least secondary, in the organization of governmental rights and duties. Jürgen Habermas expressed this idea in the following manner: “only in the radical liberation of individual lives and particular lifestyles, can universalism be put to the test of creating equal respect for all and solidarity with everyone who carries a human face.”34 In this form of communitarianism, the very fact of being human, possessing such universal attributes as language and the faculty of reason, is the essential element connecting people; everything else takes second place and is morally suspect.35 Thus, this theory seems to opt, in effect, for a world-state where all people and groups would have true equal rights and enjoy universal equal opportunity. Since this is not likely to occur in the foreseeable future, universalistic communitarianism accepts the current regime of nation-states, but it does demand that the nation-states open themselves to regional as well as global legal organizations and accept many transnational obligations in support of such truly universalistic goals as food, shelter, and peace for every human being. Likewise, proposals to accord an unlimited fundamental right of asylum to all those who suffer political persecution or grave disadvantage, fit well with egalitarian communitarianism. Another example of egalitarian communitarianism would be to make no distinction between human rights and citizens’ rights, as is still the case in the German Constitution, or even to replace the current requirement of German citizenship for the exercise of voting rights with a loose stipulation that foreigners must have resided legally on German soil for a certain period in order to vote. Egalitarian universalistic communitarianism gravitates toward a pole opposite to that of conservative communitarianism. For the conservative communitarian, association through family or clan relationships is the primary principle of political organization, given the fact that states can only be organized by people who are emotionally and intellectually tied to each other. However, this overlooks the fact that political regimes, since the creation of the contemporary territorial 33

RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 183, 272, 292 (Harvard Univ. Press 1978).

34

Jürgen Habermas, Vom pragmatischen, ethischen und moralischen Gebrauch der Vernunft [On the Pragmatic, Ethical, and Moral Use of Reason], in ERLÄUTERUNGEN ZUR DISKURSETHIK [ELUCIDATIONS ON THE DISCOURSE ETHICS] 100, 116 (1991). 35

One could ask the question why authors such as Dworkin and Habermas are not addressed here as adherents of “liberalism,” which they are. Nonetheless, as noted with the arguments in section 2 and in the above text, they may also be designated as universalistic, egalitarian communitarians. Both authors choose the common and equal characteristics of all humans as the departure point for their theories of human rights and the just order.

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states, have not been based on family, clan, or tribal associations. The organizational principle of the state must be more abstract. It cannot be based— exclusively or even primarily—on a substantive correspondence of lifestyles. Universalistic egalitarian communitarianism attempts to remedy the weaknesses of conservative communitarianism but is then driven to excess and ends up throwing the baby out with the bathwater. In the organization of the state, it wishes to reject all features that distinguish individuals, groups, and cultures, based on the argument that the distribution of rights and duties should rest on the premise that everyone, worldwide, is a human being; all other criteria are regarded as suspect or even illegitimate.36 Instead of concentrating on the close, intimate perspective of a live group, egalitarian communitarianism is focused on the broad perspective of humankind in its entirety.

6. Liberal communitarianism 6.1

Liberal communitarianism attempts to avoid the exaggerations of the two variants of communitarianism described above and endeavors instead to extract and mediate the basic foundations of both viewpoints. This is done, first, at the level of social philosophy and, second, at the level of legal and constitutional organization. The core thesis of liberal communitarianism at the level of social philosophy is that a human being’s environment consists of several spheres of responsibility, or forms of association, reaching from the single individual and its near horizon (e.g., partner and family) to the far horizon of all human beings. Between these two poles, standing at the foreground of the conservative and universal communitarianism, there are a great number of alternative forms of community, ranging from fleeting ad hoc associations to more closely connected or even perennial organizations.37 For example, one may think of 36

In the table appended to this article, under no. 10, I speak of a “priority” given to the minority (in universalistic communitarianism) or the majority (in conservative communitarianism). The first theory variant mistrusts majority decisions or long-standing traditions while the second tends to trust them as being reasonable and just. For an American example of these presuppositions, see the dissenting opinion of the U.S. Supreme Court in Bowers v. Hardwick, 478 U.S. 186 (1986), and the majority opinion in Lawrence v. Texas, 123 S. Ct. 2472 (2003), which are shaped by universalistic communitarianism, whereas the ruling opinion in Bowers v. Hardwick and the dissenting opinion in Lawrence v. Texas adhere to conservative (or possibly liberal) communitarianism. See also ERHARD DENNINGER, MENSCHENRECHTE UND GRUNDGESETZ [HUMAN RIGHTS AND THE GERMAN CONSTITUTION] 39 (1994) (remarking that realization of justice requires the guarantee of rights for “for all types of minorities” including “homosexuals, transsexuals, people of small or large stature and all expressions of culture diversity (‘single parents,’ ‘permanent forms of partnership’) or local, cultural diversities” as well as “ethnic, cultural and linguistic minorities”). 37

These concepts have been adapted from MAX WEBER, GESAMMELTE AUFSÄTZE ZUR WISSENSCHAFTSLEHRE [COLLECTED ESSAYS ON THE THEORY OF SCIENCE] 451 (4th ed., 1973). Weber speaks

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contractual, professional, class, intellectual, gender, religious, or race relationships. At the political-legal level, for example, in Germany there exist local, state, and federal governments as well as the European Union and the international community. Each of these communities has its own ethos and its own standards for distributing advantages and disadvantages,38 as well as its own responsibilities or perhaps its own linguistic conventions and specific organizations.39 In other words, each of these communities has its own structures, objectives, morality, and justice, which transcend the antinomy of the near and far horizons as well as that of state and society. 6.2

If one wishes to describe the relationship among these diverse conceptions and spheres of morality and justice, the best image is one of concentric circles. Inside the innermost circle of the near horizon of family life, standards for what constitutes a good and responsible life are brought into focus. Then, in the course of growing up and growing out of the family circle, broader circles develop, which may lead to the wide circle of humankind as a whole. The notion of “circles” sometimes has a parochial, territorial connotation. However, the image allows for the abstract idea of being connected by special bonds, such as a shared language, religion, or profession, that create common identities and loyalties. It is important to note that responsibility in a smaller or special circle tends to be greater and more effective than in a larger, more general circle.40 For instance, as a German, one will render more support to one’s family than to coworkers or perhaps other Germans. Nonetheless, most Germans would be prepared to shoulder a greater financial burden for their fellow citizens in the former East Germany than, say, for Africans, Asians, or South Americans in times of difficulty. With respect to compulsory military service in the German Armed Forces, in accordance with the German Military Code (Soldatengesetz), soldiers pledge to “faithfully serve the Federal Republic of Germany and valiantly defend the rights and freedom of the German people.”41 This duty, which may well result in the loss of one’s life, would not, of “flüchtige Gelegenheitsvergesellschaftung” (fleeting chance associations) and “perennierende Gebilde” (perennial organizations). 38

This is the core thesis of Michael Walzer. See WALZER, supra note 4.

39

Here one can see the close proximity of communitarianism with system theory (see supra note 23) and the school of legal institutionalism. See Ota Weinberger, Neo-Institutionalism: My Views on the Philosophy of Law, in THE LAW IN PHILOSOPHICAL PERSPECTIVES: MY PHILOSOPHY OF LAW 253 (Luc J. Wintgens ed., Kluwer Academic Publishers 1999). 40 This is the reason why many jurists worldwide advocate on issues concerning their professional status, such as the independence of the judiciary, or why many women appeal for a global prohibition of genital mutilation as practiced in some cultures. 41

Soldatengesetz, § 9, §§ 2.

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without additional compelling arguments, extend to the rest of the world. This is the—often unmentioned—background to the current German discussion regarding replacement of the national conscription army with a professional volunteer force. It is politically and psychologically less difficult to send one’s soldiers to trouble spots in the world when your army is a volunteer army than to do so in the context of obligatory military service. 6.3

The following remarks provide an explanatory description regarding the manner in which most people understand their moral obligations—from the near to the far, or specific to general, spheres of life. For liberal communitarians, this progression is just and right. The relationships of give and take, and the nature and scope of one’s responsibilities to fellow human beings, as shown by developmental psychology, are first learned in the small circle of the parentchild interaction. Later, step by step, the spectrum of moral reflection is broadened to include larger groups and so-called conventional morality, defined as the predominant morals specific to a particular culture. Only in the last stage of moral reflection does a transcendence of conventional morality— to a morality of humankind—occur, actualized in an appeal to human rights.42 To avoid misunderstandings, it should be stated that this last stage is a necessary step from the point of view of liberal communitarianism. It is a step deserving of commitment and effort. However, it is also a precarious and conditional stage of perfection, which is only legitimate and attainable when one acknowledges and respects the preceding stages, with their close and specific responsibilities.43 It is a different process when one’s attention is devoted to the morality of humankind while more immediate responsibilities are disregarded. This position was expressed by Erhard Denninger who maintained, “solidarity knows no personal or conceptual boundaries. It applies world-wide and to the whole of mankind . . . ”44 It is no surprise that Denninger regards limited, graded responsibilities as stemming from “prejudices based on primitive ethnocentrism.”45 According to liberal communitarianism, the good life and

42

For an extensive discussion of this point, see SELZNICK, COMMONWEALTH, supra note 9, ch. 14. Selznick analyses the pertinent theories of Sigmund Freud, George Herbert Mead, and Jean Piaget regarding moral development. Id. ch. 6.

43

To put this in a systematic context, moral theories should offer an adequate response to all these evolutionary stages of moral development. They should not demand worldwide solidarity, thus concentrating on what is developmentally the last stage, which is in fact the least likely to be reached and an outgrowth of narrower bonds of solidarity, making it normatively the weakest level. 44

DENNINGER, supra note 36, at 46.

45

Id.

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an attractive social theory require a meaningful differentiation and mediation of community spheres while respecting varying moral obligations that cannot be reduced to a uniform morality of humankind.46

7. Communitarian constitutional theory: The German Constitution viewed in the light of liberal communitarianism 7.1

The spheres and graded intensities of moral responsibility and social organization building should be matched by a parallel legal and political order. Only in this manner can law and morality be joined together and support each other. Such a correspondence does, in principle, exist. In the realm of many nation-states, one can observe an internal differentiation among local, state and federal governments while externally a distinction occurs between the transnational associations to which the nation-state belongs—such as the European Union in the case of Germany—and the international community at large. These organizational forms of state and law represent the core of liberal communitarianism, namely, the conception of a social—and legal—environment extending from the near to the far horizon. This type of differentiation, however, is only successful when, at each of the levels, an important political identity is captured that, in the process of mutual coordination, is functionally effective and excludes political domination—namely, absolutism and tyranny. First, let us discuss the level of the nation-state, that is to say, the level of organization constituted by the German Constitution. The democratic nationstate formed under the rule-of-law principle is an indispensable intermediary that cannot be adequately addressed by the other versions of communitarianism, since they view the state either as a clan association or as a deficient worldstate and/or world organization. The level of the nation-state is important for another reason. The peoples of Europe, since the beginning of modern times, have organized themselves in large territorial states and have developed their own identities encompassing a common history with all its negative and positive experiences (previously one

46

See Brugger, On the Relationship, supra note 11, at 128 (with further references regarding the idea of spheres). Studies on social proximity and social distance provide a background for this idea. Cf. GORDON W. ALLPORT, THE NATURE OF PREJUDICE 38, 42 (Addison-Wesley Publishing Co. 1954) (“although we could not perceive our own in-groups excepting as they contrast to out-groups, still the in-groups are psychologically primary. We live in them, by them, and, sometimes, for them. Hostility toward out-groups helps strengthen our sense of belonging, but it is not required. . . . Thus while a certain amount of predilection is inevitable in all in-group memberships, the reciprocal attitude toward out-groups may range widely . . . [they] may be appreciated, tolerated, even liked for their diversity”). See also id. at 43 (“Can Humanity Constitute an In-group?”). See also SELZNICK, COMMONWEALTH, supra note 9, at 193, 387 (on the “primacy of the particular” and on “piety”).

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had spoken of the development of a national spirit or Volksgeist). Successful states are those that have brought about more positive than negative experiences or, as in the case of Germany in the twentieth century, have been able at least to learn from their moral and political failures over the last fifty years. Lastly, the nation-state is important because, at this level, a certain degree of clarity is generally evident as to who is responsible for which kind of decisions, and the legitimization chain between democratic input and political output can often be identified, whereas decision making in transnational bodies, especially in the European Union, often leaves the public behind a veil of ignorance. This is not to say that political and legal problems should be resolved solely at the national level, for that would constitute another kind of communal absolutism. The nation-state is rather an important sphere of political identitybuilding and an indispensable form of societal organization that takes into account internal divisions and yet remains externally open in relation to Europe—in the case of Germany—and the rest of the world. The German Constitution has accomplished this task.47 The Constitution distances itself from the concepts of closed sovereignty as promulgated by Carl Schmitt, who referred to the state as an “organized political unit territorially closed and impermeable to strangers” and emphasized moreover that “properties such as unity and impermeability flow from the essential character of the political unity.”48 This is neither the situation of modern states in general nor of the German Constitution in particular. The increasing permeability of nation-states is due to several factors. For instance, permeability is needed in order to forestall abuses of governmental power and prevent tyranny. It is required to enable effective completion of legitimate governmental tasks when the nation-state—due to the nature of the task—either is too strong or too weak to do so. However, differentiation may still be necessary in order to provide an adequate field of political decision-making authority for local, regional, national, or even transnational identities.49 In this respect, a closer look at the 47 In modern constitutions, three structural pillars may be distinguished: 1. state organization; 2. fundamental rights; 3. clauses enabling an opening up toward other states. See Winfried Brugger, Der moderne Verfassungsstaat aus Sicht der amerikanischen Verfassung und des Grundgesetzes [The Modern Constitutional State from the Perspective of the American and German Constitutions], 126 ARCHIV DES ÖFFENTLICHEN RECHTS 337, 356 (2001); WINFRIED BRUGGER, DEMOKRATIE, FREIHEIT, GLEICHHEIT: STUDIEN ZUM VERFASSUNGSRECHT DER USA [DEMOCRACY, LIBERTY, EQUALITY: STUDIES ON THE CONSTITUTIONAL LAW OF THE UNITED STATES] 69 (2002). 48

Cf. SCHMITT, supra note 30, at 47; CARL SCHMITT, VERFASSUNGSLEHRE [CONSTITUTIONAL THEORY] 49 (5th ed., 1970). On Schmitt, as a pre-modern authoritarian communitarian, see supra text accompanying footnote 30. 49 On these three criteria of the common good—preventing tyranny, fostering efficiency and differentiating multiple identities—see Winfried Brugger, European Integration and the Ideal of the Common Good, in DEFINING THE FIELD OF COMPARATIVE CONSTITUTIONAL LAW 93 (Vicki C. Jackson & Mark Tushnet eds., Praeger 2002).

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German Constitution50 reveals an internal differentiation of the individual federal states (Länder) as well as the right of self-administration at the level of the local governments (Gemeinden). A further separation of legislative, executive, and judicial authority is established not below, but rather within, the federal government. This internal separation is meant to prevent political tyranny by a centralized state as well as to allocate tasks among state organs in the interest of administrative efficiency. It also works to protect and promote collective identities as stipulated in article 29, section 1, subsections 1 and 2 of the German Constitution. According to this provision, the territory of the federation may be subdivided into states in such a manner as to “enable the federal state in respect to both its size and its ability to effectively fulfill its duties. In this context, ethnic affiliations, historical and cultural aspects as well as economic utility . . . shall be taken into account.”51 This particularly interesting yet long-neglected provision reflects the communitarian agenda of a productive connection between trade, state, and civil society as previously mentioned. 7.2

The opening and permeation of the German Constitution by transnational obligations takes place at three levels: through the integration of Germany into the European Union; its integration into the international community; and by the anchoring of human rights in the German Constitution.52 The previously mentioned three-pronged justification for transnationalism also explains the unification process of the European Union.53 The concepts of 50

For detailed expositions of these aspects of German law, see 1 HANDBUCH DES STAATSRECHTS DER BUNDESREPUBLIK DEUTSCHLAND [HANDBOOK OF CONSTITUTIONAL LAW OF THE FEDERAL REPUBLIC OF GERMANY] §§ 26, 94–107, 172–83 (Josef Isensee & Paul Kirchhof eds., 1987); 4 id. §§ 26, 94–107, 172–83 (1990); 7 id. §§ 26, 94–107, 172–83 (1992). A useful summary can be found in Stefan Hobe, Der kooperationsoffene Verfassungsstaat [The Constitutional State Open to Cooperation], 37 DER STAAT 521 (1998). 51

On the corresponding conception of internal separation of powers, see the German Constitutional Court’s decision 68 BVerfGE 1, 86 (separation of powers “serves the purpose of . . . distributing political power and political responsibility, as well as of controlling those in power; it also aims at political decisions being made in a right way, that is, by those organs that are best able to make them, on account of their organisation, composition, function and procedures. It is meant to have an overall effect of mitigating governmental power”). For a recent discussion of the role of article 29 of the German Basic Law, see PETER HÄBERLE, EUROPÄISCHE VERFASSUNGSLEHRE [EUROPEAN CONSTITUTIONAL THEORY] 38 (Nomos Verlagsgesellschaft 2001). 52 Although the German polity is bound by international law in many ways, the national political process remains the main legitimizing factor. This is emphasized even by authors who welcome the supranational integration process. See Hobe, supra note 50, sec. 4; JOST DELBRÜCK, DIE KONSTITUTION DES FRIEDENS ALS RECHTSORDNUNG [THE CONSTITUTION OF PEACE AS A LEGAL ORDER] 30, 198 (Duncker & Humblot 1996). 53

See ALBERT BLECKMANN, EUROPARECHT [EUROPEAN LAW] 26 (6th ed., 1997) (marginal notes). One may also count the European Convention on the Protection of Human Rights of 1950, which binds and unites the members of the European Council, as a legal instrument securing peace.

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reducing abuses of authority and securing permanent peace were prominent themes among the founding members during the planning of the European Economic Community (EEC), with a special emphasis given to integrating and binding the previous aggressor Germany into a European political structure. In addition, there was, and remains, a desire to create a more efficient economic organization among the members of the EEC—now EU—to increase welfare as well as to increase the capacity to deal with problems that transcended national boundaries (e.g., in the areas of infrastructure and environmental protection). In regard to the third leg of European integration, it was certainly a political goal to build an European identity as well. Without a doubt, there are individuals, constellations, and areas in which a “we-feeling” is already an unequivocal component of the European peoples’ mindset. However, it is not yet predictable when and how a European identity will replace national or regional identities.54 This explains the vague articulation of the ultimate goal of European integration, ranging from some type of “United States of Europe” to a loose confederation of states with divergent supreme competencies.55 In addition to accepting many legal responsibilities established by European and international law, a third transnational track exists that is directed both externally and internally. Many, if not all, of the fundamental rights of the German Constitution are also human rights, that is to say, not dependent on German citizenship. Any person residing on German soil can invoke such rights as freedom of speech and religious freedom, for example. On the other hand, one must also take into account the constitutional rights that are reserved to German citizens. Only citizens, for example, have the right to vote in federal and state elections. It is not necessarily true that foreigners living in Germany attach greater importance to freedom of speech and religious freedom. On the contrary, the right to vote may be even more important to them than freedom of speech or religion! The fact that the German Constitution deals with these rights differently is not acceptable to an egalitarian communitarian perspective. That perspective demands that all basic human needs be valued and satisfied equally, and identifies the opportunity to participate in collective

European Convention on the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221 (entered into force Sept. 3, 1953). 54

See Dieter Grimm, Braucht Europa eine Verfassung? [Does Europe Need a Constitution?], in INFORMATIONSGESELLSCHAFT UND RECHTSKULTUR IN EUROPA: INFORMATIONELLE UND POLITISCHE TEILHABE IN DER EUROPÄISCHEN UNION [THE CULTURE OF INFORMATION AND LAW IN EUROPE] 211 (Marie-Theres Tinnefeld et al. eds., 1995) and the commentary on that article by Jürgen Habermas, Eine Diskussionsbernerkung zu Dieter Grimm: Braucht Europa eine Verfassung? in id. at 231. 55 See. in this context, item 8 of the head note of the German Constitutional Court’s decision of Maastricht, 89 BVerfGE 155, 156 (“The Treaty of European Union constitutes a confederation of states (Staatenverbund) for the realization of an increasingly close union of the peoples of Europe, as they are individually organized in states”).

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decision-making that results in binding law as one of those basic needs. For the conservative or liberal communitarian, granting voting rights only to citizens is justified because the right to vote is essentially connected with the welfare and identity of one’s own country, as well as with loyalty to it. The same is true of compulsory military service and, in the extreme case, the sacrifice of one’s life, for the defense of one’s homeland (i.e., not the defense of all countries), even though such a sacrifice may stem from those abstract, universal values for which that country and its constitution stand.56 It makes sense, therefore, that such existential and loyalty-bound rights and duties as the right to vote and compulsory military service require more justification than what is based on individual needs. Exercise of the right to vote and other rights reserved to citizens is not, according to the conservative communitarian view, a requirement for fulfilling basic human needs. As the liberal communitarian view would have it, exercise of such rights is not solely a matter of fulfilling basic needs but arises to a large extent from a pre-existing close relationship with one’s country and its people. The right to political asylum is a peculiar device for the opening and permeation of the nation-state. This fundamental right as stipulated until 1993 in article 16, section 2, subsection 2 of the German Basic Law provided, “Those who are politically persecuted shall have a right to asylum.”57 In contrast to other countries receiving refugees, Germany made this provision without limitation. During the 1990s, this resulted in a continuous increase in the number of refugees who fled to Germany under the real or professed claim of politically motivated persecution. In 1992, the numbers reached half a million. For the supporters of universalistic communitarianism, an unlimited right to asylum is a vital condition for the legitimization of the nation-state. In the absence of a world-state able to secure conditions of freedom and human dignity for all, asylum is a second-best or—if difficulties cannot be surmounted in the refugees’ country of origin—a third-best, but nonetheless indispensable, option. Ultimately, the universalistic communitarian must also support the idea that an unlimited, or at least far-reaching, fundamental right to immigration also exists for all people fleeing poverty. It is difficult, if not impossible, to demonstrate a qualitative difference between a person suffering from starvation and a person facing political persecution. Conservative communitarians, however, do not consider only the human needs of refugees. They believe that maintaining and cherishing one’s own traditions and protecting the political and cultural values of one’s own country are 56

It is therefore not surprising that different assessments of the significance of patriotism constitute one of the major differences between conservative and liberal communitarians on the one hand and universalistic communitarians/liberals on the other. See SELZNICK, COMMONWEALTH, supra note 9, at 389 and the views proposed in Honneth, supra note 10, at 15, 69, 84, 92, 111, 116, 121, 199. 57

GG art. 16, § 2, §§ 2 (F.R.G.).

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valid competing concerns. It is important, in their view, to strike a balance between these objectives. According to conservative as well as liberal communitarians, the reasons why the refugee’s community of origin has not succeeded in creating economically and politically acceptable conditions may be also considered. Such aspects of political responsibility weigh more in the discussion than a country’s own responsibility to accept refugees, as long as that country has not actively contributed to the suffering or injustice of the refugee’s state of origin. This does not mean that these communitarians entirely refuse to assist asylum applicants and refugees from poverty. However, conservative communitarians would rather plead for a clear limitation of assistance and prefer, in German parlance, that an “institutional guarantee,” rather than a fundamental right to asylum, be anchored in the Constitution. Thus, governmental obligations would be further specified by statute, rather than by granting a fundamental right to every asylum seeker worldwide. Regarding the selection of refugees to be accepted as immigrants, they might also consider cultural compatibility in terms of language, religion, values. Thus, they would support introducing a worldwide system for the accommodation of refugees in the places, regions, and continents best suited to receive them. In contrast, liberal communitarians would support a regulation that balances the basic human need to live in safety and dignity against the social, economic, and cultural interests of the country accepting immigrants. Such a solution would reflect the consideration that there are legitimate interests on both sides. At any rate, according to this view, it would be unjust and inequitable if refugees were admitted into the country in such numbers that their support impinged upon the amount of support available to citizens.58 The appendage to the German Constitution in 1993 of article 16(a), requiring refugees to apply first for asylum at the point of entry (i.e., from one of the countries that geographically surround Germany), has effectively limited the right to political asylum and thus reflects the liberal-communitarian viewpoint of graded responsibility and spheres of accountability. This new provision no longer grants an unlimited right to asylum to every political refugee, but it stops short of reducing the right to asylum to a mere “institutional guarantee.” It is left to the political process to validate this regulation, limit it conservatively or perhaps extend it universally. 7.3 Formation of communities without reference to politics 7.3.1

Liberal communitarianism is based on the assumption that people normally need to form communities and to be integrated into such communities in order 58

For a more detailed exposition of this view, see Winfried Brugger, Für Schutz der Flüchtlinge— gegen das Grundrecht auf Asyl!” [For the Protection of Refugees—Against the Right to Asylum as a Constitutional Right!], 48 JURISTENZEITUNG 119 (1993); Winfried Brugger, Menschenrechte von Flüchtlingen aus universalistischer und kommunitaristischer Sicht [Human Rights of Refugees from the Perspective of Universalism and Communitarianism], 80 ARCHIV FÜR RECHTS- UND SOZIALPHILOSOPHIE 318 (1994). Both these essays also appear in BRUGGER, LIBERALISMUS, supra note 11, §§ 13, 14.

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to lead fulfilled lives. At the same time, this must not lead to subjection or suppression. It requires integration while respecting the integrity of the person.59 This has been expressly stated by the German Constitutional Court in its image-of-man formula, cited above.60 Because the desire to associate and to form closer communities is often exposed to internal and external pressures, there is an important reason to grant constitutional protection. Note, however, that such a guarantee protects different kinds of communities. The distinction between state (governmental organizations) and society (societal associations) is only a preliminary and imperfect distinction beyond which it is necessary to take into account the differences in character, quality, and density of specific types of communities.61 In this context, Max Weber spoke of community types ranging from fleeting ad hoc associations to perennial institutions.62 In systematic form, one can distinguish between associations formed by core participation and identity building on the one hand, and topic-specific engagements in the pursuit of diverse group interests on the other.63 These considerations are expressly reflected in the charter of fundamental rights as stipulated in the German Constitution. In addition to protecting institutions formed by long-standing traditions such as marriage and family (article 6) or religious and worldviews (Weltanschauungen, article 4), the Constitution also protects associations formed for indiscriminate and undefined purposes by granting the right to enter contracts (article 2, section 1), the right to assembly (article 8), and the right to form organizations (article 9, section 1).64 With each of these rights, one’s choice of associates and objectives is an expression of individual preference. One can form an association with one or with many, interact for reasons of economics or ideals, and interrelate in a trivial or weighty manner. In addition, the right to enter associations, as well as to exit from them, is also guaranteed in most circumstances.

59

This is one of the main theses of Philip Selznick. See, e.g., SELZNICK, PERSUASION, supra note 9, at 39 (“What we prize in community is not unity of any sort at any price, but unity that preserves the integrity of the parts”). 60

See supra note 24.

61

See GG arts. 2 and 3; PETER HÄBERLE, DIE WESENSGEHALTSGARANTIE DES ART. 19 ABS. 2 GG [THE GUARANTEE OF THE FUNDAMENTAL RIGHT OF ARTICLE 19, SECTION 2 OF THE BASIC LAW] 96 (3rd ed., 1993) (on the necessity of complementing a liberal theory of constitutional rights focused on restraining state power with an “institutional guarantee” that takes the present forms of community life and their own independent structures and norms into account: “All these norms are deprived of their nature if one attempts to force a one-dimensional state–individual scheme upon them.”).

62

See supra note 37.

63

Cf. SELZNICK, COMMONWEALTH, supra note 9, at 184.

64

GG art. 6, art. 4, art. 2 § 1, art. 8, art. 9 § 1 (F.R.G.).

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Doctrinally speaking, fundamental rights in general, and rights to form associations in particular, have a positive as well as a negative side.65 Thus, freedom of association, despite its strong communitarian underpinnings, is considered a “liberal” right. 7.3.2

The German Constitution guarantees unrestricted freedom of religion and world-views in article 4, sections 1 and 2: “Freedom of faith and of conscience, and the freedom to profess a religious or philosophical creed, shall be inviolable. The undisturbed practice of religion shall be guaranteed.”66 This expansive guarantee is explained by the fact that religious beliefs and other deep-seated worldviews often underpin the convictions upon which the morality of the citizenry is ultimately built, or should be built in order to prevent the secular state from losing its foundation of citizen support and civil engagement.67 This contribution, according to German jurisprudence, justifies governmental support for associations of belief. At the same time, however, the state must remain neutral in relation to religions and may not assume a proselytizing role. These two pillars—promotion on the one hand and neutrality and mediation on the other—came into direct conflict in the case of crucifixes in public classrooms. What is the position of communitarianism when the government of a state whose culture has been shaped by Christianity, such as Bavaria, provides for the open display of crucifixes in the classroom?68 Both German constitutional law and modern communitarianism69 answer the question of whether an administrative act ordering the display of crucifixes should be viewed as a violation of the neutrality obligation and the fundamental right not to be coerced into religious acts by determining whether the crucifix is used actively in classroom teaching70 or if it serves as 65 See, e.g., 50 BVerfGE 290, 353 (“With the right to form organizations and associations, article 9 of the Basic Law guarantees a constitutive principle of the democratic order and rule of law of the German Constitution—the principle of freely building social groups”). 66

GG art. 4 §§ 1, 2 (F.R.G.).

67

See Ernst-Wolfgang Böckenförde, Die Entstehung des Staates als Vorgang der Säkularisation [The Development of States as Process of Secularization], in RECHT, STAAT, FREIHEIT 92, 112 (2nd ed., 1992) (“the free, secularized state lives by virtue of conditions that it cannot provide itself. This is the great risk assumed for the sake of freedom”). 68

See 93 BVerfGE 1, 25. The majority decision of the Constitutional Court essentially takes the position of universalistic communitarianism, whereas the dissenting opinion implicitly represents liberal communitarianism. For a more detailed discussion, see Brugger, On the Relationship, supra note 11. 69 See Brugger, supra notes 11, 30 (proviso regarding pre-modern, totalitarian versions of communitarianism). 70

I am talking about teaching other than “religious instruction,” which, according to article 7, section 3 of the German Constitution, “shall form part of the regular curriculum in state schools,

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an object of religious worship. In either of those events, it would be judged by all forms of communitarianism as impermissible, due to the need for separation of society and state as well as the separation of church and state. If the crucifix does not figure as an active object of instruction, but instead serves primarily as a reminder of an important tradition that has shaped the country’s culture—perhaps giving only a faint indication of the state’s support of this tradition without discriminating against nonbelievers or believers in other religions or worldviews—then the latter case must be distinguished. Conservative communitarians would tend to regard the display of crucifixes as a desirable form of religious promotion, strengthening the community’s commitment to secular goals, such as solidarity and tolerance, which are embraced by “modern” Christianity. Liberal communitarians could also accept crucifixes in this example as legitimate and constitutional as long as the display clearly signified support for general values, such as solidarity, and did not amount, on closer examination, to a veiled instance of religious proselytizing. They would also regard it as politically and constitutionally acceptable to ban all religious symbols from schools or, alternatively, to introduce all religions’ respective symbols into the classroom. Universalistic communitarians would only accept the latter approach, holding that only a strict uniformity of treatment of all convictions is legitimate. They would view the selective promotion of one particular religion as paternalism and suppression.71 How would uniform support for all religions be judged? The requirement of religious neutrality in Germany does not stand in the way of state support for all religions. Does this however rule out selective support for particular religions? A good case can be made that it does, if one thinks and argues from the standpoint of Western experience. In the end, this depends to a significant extent on concrete developments and experiences that may not be divorced, according to the communitarian understanding, from the standards of legitimacy and acceptance.72 Imagine a polity that has been traditionally shaped by one religion and its values, and now—due to internal perceptual changes or perhaps a reaction to external pressures—decides to separate itself from this religion. One can assume that, from its internal perspective, it would defend as legitimate a legal order that respected all religions but did not equally promote all of them. Consider a homogeneously orthodox country,73 which is called upon to separate church and state but wishes to continue supporting its religious tradition. To the extent that the state respects all religions and the

with the exception of non-denominational schools . . .” See GG art. 7, § 3. If students gather for classes of religious instruction, no objections exist against publicly displaying the symbols of the respective religion. 71

See supra sections 3–6 (on the positive and negative assessment of long-standing traditions).

72

See supra section 6.3 (on the role of conventional morality).

73

As in the hypothetical case of Russia, excluding seventy years of communist rule.

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polity’s citizens are free to choose their own faith or worldview, it would not be illegitimate if the symbols of the traditional religion continued to be displayed in public schools, as long as these symbols were not actively implemented as objects of instruction for the purpose of converting those with other convictions.74 In these situations, one could not rule out understanding the constitutional clause of “Reverence of Christ” merely as an acknowledgement of a historically shaped value and a community good, provided that this did not spill over into proselytizing, conversion, or alienation of other viewpoints. For the conservative communitarian, these ways of providing special support to the traditional, predominant religion would be acceptable. Such selective promotion would be ruled out, however, within a Western framework of state legitimization shaped by neutrality and religious pluralism as well as by liberal communitarianism. But such a strict neutrality is only required vis-à-vis religions and world-views in the sense that they are sources, or organized systems in the case of churches, of fundamental convictions that can and should not be adjudicated or regulated by state authority. The state need not remain strictly neutral toward those aspects, values and symbols of religions or world-views that reach “above” or “beyond” the genuine core of belief. This is the case when the relevant religious element has become a part of the daily life of the entire culture and has thus acquired significance beyond the narrower dimension of a particular faith or sect. Such developments constitute secularization in the widest sense of the term. One may think, for example, of the state observance of Sundays and other religious holidays in countries with a predominantly Christian culture, the commencement of opening sessions of a parliament by a representative of a majority religion, the public display of nativity scenes during Christmas by municipal authorities, the imprints on state legal tender,75 or, perhaps, phrases in common usage that

74 This is how I interpret the following citation from Philip Selznick, Thinking about Community: Ten Theses, 32 SOCIETY 33, 35 (1995) (“If a broad majority makes moderate claims, for example, with respect to . . . endorsing religion, some deference to those claims is appropriate. Although minorities should not be asked to endure palpable harms, they should be willing to suffer—on some matters, at some times—a sense of exclusion and apartness”). 75 In all these instances, the U.S. Supreme Court did not find a violation of the strict separation of church and state. See McGowan v. Maryland, 366 U.S. 420 (1961); Lynch v. Donnelly, 465 U.S. 668 (1984). In Lynch, the Supreme Court refers to a great number of government-related utterances that confirm the significance of religious traditions in the United States: “examples of reference to our religious heritage are to be found in the statutorily prescribed national motto ‘In God We Trust,’ which Congress and the President mandated for our currency, and in the language ‘One Nation Under God,’ as part of our Pledge of Allegiance to the American flag. That pledge is recited by thousands of public school children—and adults—every year.” Lynch, 465 U.S. at 676. The Court also emphasized another line of tradition, namely, “the evidence of accommodation of all faiths and all forms of religious expression, and hostility toward none. Through this accommodation . . . governmental action has ‘follow[ed] the best of our traditions’ and ‘respected the religious nature of our people.’ ” Id. at 677–78.

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use the word “god.”76 One may also think of the aspects, symbols, and values of religions or worldviews that have become an important aspect of the collective moral consciousness and self-understanding of a particular community and thus have assumed the character of a “civil religion.”77 In such cases, a transcendence of “religion” in the narrow sense of this term has occurred.78 At the same time, there is still a nexus to the moral constitution of the political community. Think of appeals “to help the poor” or “to respect the dignity of every human being.” A political community may have a legitimate interest in not abandoning such a community-building nexus, but rather lending it support, given that the persuasive force of such constitutional values as human dignity, freedom and equality, tolerance and social responsibility tends to be contingent and precarious. In the framework of liberal communitarianism, the fields of church and state are divided but not strictly separated because one does not intend to divide or weaken the continuity and mutual support of morality, solidarity, and tolerance. In contrast, representatives of universalistic or egalitarian communitarianism would support a strict separation and therefore forbid the display by the state of symbols and messages having a mixed religious-secular character. 7.3.3

The protection of marriage and family in article 6, section 1, of the Basic Law is another particular example of association: “Marriage and family shall enjoy the special protection of the state.”79 The rationale for the protection of religious and worldviews also applies with respect to their fundamental rights. Social and civil engagement from polity members can be expected from those who, in the near horizon of family life, have already practiced and acquired the motivation for such engagements, or who draw motivation for them from beliefs that they consider binding on themselves. Therefore, the state has a particular interest in the institution of marriage and in the family. It is in this environment that most children are reared, and marriage purportedly provides the best conditions for a child to thrive. However, 76 Note that phrases such as Grüß Gott [a form of greeting used mainly in southern Germany] or Um Gottes willen [for God’s sake!] are also used in classrooms. 77

On this matter in greater detail, Hermann Lübbe, Zivilreligion und der “Kruzifix-Beschluß” des deutschen Bundesverfassungsgerichts [Civil Religion and the “Crucifix Decision” of the German Constitutional Court], in Brugger & Huster, supra note 11, at 237. 78 In precisely this vein, the German Constitutional Court up until now has confirmed the constitutionality of state “Christian Religious Schools” (Christliche Gemeinschaftsschule). It held that such schools are constitutional as long as they do not promote a particular religious message or discriminate against other religious convictions or worldviews. Such schools were set up in order to seek a positive way to connect to Christianity in the civic-religion sense of the term—as a religious belief whose core values have been secularized and have permeated the moral and legal constitution of the community as a whole. See 41 BVerfGE 29; 41 BVerfGE 65; 41 BVerfGE 88. In the crucifix decision, only a minority opinion followed this view.

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what should be understood by “marriage”? Does this refer only to the traditional form of permanent union between a man and a woman or does it apply also to the unions of two men, or two women? This is a matter of controversy in politics, law, and communitarian theory.80 Conservative communitarians regard the traditional and culturally predominant forms of union as singularly worthy of protection and state support. Other forms of unions may only be prohibited or criminalized, however, when they demonstrably cause or are likely to cause damage to society. Special protection is not accorded to alternative lifestyles. Universalistic communitarians take an entirely opposite view. According to this perspective, the free choice of partner and purpose for the union is a fundamental constitutional value. If the purpose of marriage is stipulated as a permanent union, then one’s choice of partner—including the choice as to gender—should remain free. Thus, institutionalizing same-sex marriages is desirable and should be legally possible. The liberal communitarian would attempt to find an acceptable middle way. This viewpoint would concede that permanent cohabitation and a rich and meaningful life can develop not only between between individuals of a different but also of the same gender. However, given the long and valued concept of marriage between a man and a woman, the traditional stamp of “marriage” should not be given to same-sex unions. Instead, this viewpoint regards it as preferable that the law grant the possibility of forming a legal union that is not recognized as “marriage” but is its functional equivalent. It was in this vein that the German Parliament created in 2001 the Legal Partnership Code (Lebenspartnerschaftsgesetz).81 7.3.4

What are the attitudes toward homosexuality that influence the background of these discussions? Here again there is a clear divergence among the various versions of communitarianism.82 Conservative communitarians would view 79

GG art. 6 § 1 (F.R.G.).

80

Cf. 43 BVerfGE 3058 (1993) on the one hand and the Frankfurt District Court’s decision on the other, in AG Frankfurt, 43 N.J.W. 940 (1993). 81 See Gesetz über die Eingetragene Lebenspartnerschaft [The Registered Life Partnership Act of February 16, 2001], I BUNDESGESETZBLATT 266. Many indicators point to a similar development in the United States after the Supreme Court decision of Lawrence, 123 S. Ct. 2472 (2003). See Same-sex “marriage” draws wide disapproval, WASH. TIMES, July 5, 2003 (“There’s some evidence that there may be less opposition to laws creating a ‘civil union,’ similar to the one created in Vermont three years ago that gives marriage-like rights to homosexual couples in Vermont”). Regarding this point, the advantage of liberal communitarianism is clear. Even if one is not a convinced supporter of this variant of communitarianism, but leans instead toward the conservative or universal viewpoint, one will often assume the stance of the liberal communitarian, which is often the most conducive to a temporary cease-fire. 82

See Ronald Dworkin, Liberal Community, Symposium: Law, Community, and Moral Reasoning, 77 CALIF. L. REV. 479 (1989); Philip Selznick, Dworkin’s Unfinished Task, Symposium: Law, Community,

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homosexuality as immoral or as a hindrance to the healthy development of sexuality and hence unworthy of state support. They would have to concede, however, that their perception is disputed in society and that societal damage can only occur indirectly when consenting adults—who, whether by nature or by choice, turn their sexual desires to persons of the same gender—are involved.83 The universal communitarian takes a different approach—the more choices, including sexual choices, the better.84 Traditional moral concepts concerning sexuality would be typically regarded as suspect, because they presumably suppress sexual minorities. Therefore, full recognition and protection of these minorities is warranted, extending from the right to marriage, the right to bear or adopt children, to the maximization of sexual freedom, including sadomasochism based on mutual consent. Following these lines of argument, the spectrum of legal reaction to homosexuality in Germany has noticeably evolved from criminal prohibition before 1969 to legal tolerance and now, to the present-day struggle for full social and legal recognition and even special state support.85 The latter was discussed during the latest reform of the German Constitution but was eventually rejected. Several German states have extended the anti-discrimination clauses of their constitutions to include sexual orientation. The liberal communitarian can live with the current version of the German Constitution—a criminal sanction against homosexuality would violate the general right to liberty as provided in article 2, section 1, on account of being disproportionate. Apart from that, it is left to the German parliament to strike an acceptable balance. It is important to distinguish between (1) criminal sanction/repression, (2) liberalization/limited tolerance, and (3) state aid/full recognition and/or tolerance.86 For any liberal commentator, criminalization is only legitimate when considerable, verifiable—perhaps even direct—damage occurs. In the case of homosexuality practiced on the basis of mutual consent, one can hardly speak of damage, and it therefore must be excluded from criminal sanction. and Moral Reasoning, 77 CALIF. L. REV. 505 (1989). The conceptual dividing line in this discussion is between liberals (equivalent to universal communitarians) and liberal communitarians. 83

Both these points reflect important aspects of self-determination and justice that force even conservative communitarians, as “weak liberals,” to strike a balance. See supra text accompanying footnotes 30 and 31. 84 Queer Theory, which advocates a particularly broad conception of sexual freedom in the United States, makes this obvious. It offers a philosophical foundation for constitutional provisions ruling out discrimination on account of “sexual orientation.” See F. Valdes, Coming Out and Stepping Up: Queer Legal Theory and Connectivity, 1 NAT’L J. SEXUAL ORIENTATION L. 3 (1993). 85

A detailed discussion is provided in JÖRG RISSE, DER VERFASSUNGSRECHTLICHE SCHUTZ HOMOSEXUALITÄT [CONSTITUTIONAL PROTECTION OF HOMOSEXUALITY] 25, 34 (1998).

DER

86 In American jurisprudence, these distinctions have been intensively and antagonistically discussed by the Supreme Court justices in Bowers v. Hardwick, 478 U.S. 186 (1986), Romer v. Evans, 517 U.S. 620 (1996), and Lawrence v. Texas, 123 S. Ct. 2472 (2003).

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Sadomasochism between consenting adults is a difficult, borderline case. The universalistic communitarian, who demands strict state neutrality in matters concerning private lifestyles, would adhere to the principle of legal exemption and—in order to remain consistent—would also demand full recognition by the law. The universalistic communitarians’ most important maxim in determining legal regulation is that “anything goes” as long as it occurs between consenting adults. The liberal communitarian, however, would view this as going too far. He or she would ask whether this form of self-determination falls within the framework of sexual practices that allow its participants to live, thrive, and develop. If not, then distinguishing between decriminalization and full legal recognition (for example when teachers address sexuality in public schools) would be justified.87 Another important matter of social and legal debate is the question of how homosexuality should be dealt with in schools. In this context, the liberal communitarian will at least advocate tolerance in order to balance out opposing views. As for the rights of homosexual couples to adopt children, it is difficult to find a middle position. If homosexuality is not regarded as immoral or harmful to society, then the usual criteria, stipulating protection and promotion of the child’s welfare, should apply. However, if homosexuality is deemed immoral or unhealthy, then the state is obligated to prevent such harm to the child’s welfare, on the assumption that homosexual couples encourage their children to emulate their lifestyle and that this actually leads to homosexuality.88 7.3.5

Suffice it to say, the discussion above demonstrates why conservative and some liberal communitarians are against anchoring “sexual orientation” in a constitutional antidiscrimination clause. Such a far-reaching guarantee of sexual choice would make it difficult or even impossible to legislate against the following: special state support for traditional marriages as opposed to samegender marriages; the principle of monogamy; state differentiation, especially in schools, between cautious tolerance and full approval of homosexual relationships; distancing of the state from extreme sexual practices. One more point should be mentioned. According to conservative, as well as liberal, communitarianism, and in contrast to universalistic communitarianism, the convictions of the majority, and traditions of long standing are not a priori morally and legally questionable or illegitimate expressions of an irrational prejudice toward the just and enlightened convictions of the minority.89

87

See Laskey, Jaggard and Brown v. The United Kingdom, Feb. 17, 1997, 1997-I REPORTS AND DECISIONS 120; Selznick, supra note 82, at 511 (on the restriction of the “anything goes” thesis). 88 89

This has been called into question by recent studies. See RISSE, supra note 85, at 21, 338.

This view is taken, however, by the Frankfurt District Court in its plea for giving same-sex marriage a status equal to that of traditional marriage. AG Frankfurt, 43 N.J.W. 940 (1993) (“It is . . .

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Whether any of these positions is correct must be clarified in social and political discourse in which, according to all three variants of communitarianism, the principles of democracy and fundamental rights must be guaranteed. Traditional notions of “good” and “just” deserve an increased level of respect under conservative communitarianism and at least a moderate level of respect among liberal communitarians. This by no means rules out the possibility of revising one’s views. Such revisions, moreover, can legitimately extend to universalistic preconceptions of rationality, reason, and justice. 7.4

Lastly, it is necessary to address the difference between neutral liberalism and liberal communitarianism. Liberal neutralism, as advocated by Immanuel Kant and John Rawls among others, differentiates strictly between standards of good living and standards of justice.90 The standards of proper living in present times are seen as irrevocably pluralistic and controversial, while the standards of justice and fairness are much less so. The latter should be amenable to objective solutions within the framework of proper procedures. John Rawls, for instance, proposes a neutral and objective resolution of normative claims by approaching them from behind a veil of ignorance, which thus guarantees the fairness of the decision-making process regarding the basic structures (i.e., the constitution) of a political community. Communitarians question whether a dramatic difference exists—as to the degree of consensus or dissension—between the standards of the good and those of the just, as claimed by neutral liberalism. In addition, communitarians consider not only justice but also, at least to some extent, the value of particular social formations to be amenable to discussion, debate and collective decision making. Neutral liberalism must relegate the formulation of what constitutes a fulfilled life (as in marriage and family) to the realm of the private sphere as soon as controversies arise and must likewise abandon collective support for disputed positions as provided, for example, in article 6, section 1 of the Basic Law: “Marriage and family shall enjoy the special protection of the state.”91 Liberal communitarians will take a different view, so long as one may plausibly

irrelevant that a large part of the population may reject marriage between persons of the same gender holding that to be morally objectionable. Such attitudes for which there is no rational foundation cannot stand in the way of concluding a marriage”). This statement reflects the ruling opinion in Lawrence, 123 S. Ct. 2472 (2003). 90

See Stefan Huster, Die religiös-weltanschauliche Neutralität des Staates: Das Kreuz in der Schule aus liberaler Sicht [The Religious Neutrality of the State: The Discussion of the Crucifix in the Schoolroom from a Liberal Perspective], in Brugger & Huster, supra note 11, at 69; Brugger, On the Relationship, supra note 11, at 109 (a critique of this idea). See also SELZNICK, COMMONWEALTH, supra note 9, at 380 (also in a critical vein). 91

GG art. 6 § 1 (F.R.G.).

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assume (regardless of whether everyone is convinced) that these ways of life provide—compared to other options—the best conditions for rearing children and teenagers to become stable, balanced adults.92 For neutral liberalism, this argument would already exceed the threshold of tolerable state repression. Liberal communitarians, in contrast, regard marriage and family as a way of life supported by “funded experience,”93 which is neither repressive nor oppressive because no one is coerced into participating in it, and dissolution of marriage is available through legalized divorce. One may also characterize the difference between neutral liberalism and liberal communitarianism as follows: liberal communitarianism represents a moderate form of perfectionism. A political community may promote and selectively support “tried and true” lifestyles, even though these may be opposed by some, as long as the basic requirements of liberalism are respected. This means that “enter” and “exit” options should be available in most associations, and that functionally equivalent forms of the tried-and-true lifestyles should be allowed by law, as is done in the German Life Partnership Code.94 Thus, one may decide to live in a ménage à trois, and be accorded the right to do so by the general liberty clause or the freedom of association clause in the German Constitution; however, a polity based on the concept of liberal communitarianism retains the right to prevent the marriage of three persons. The liberal neutralist will have difficulties with such a prohibition so long as the participants are consenting adults who want to form a “union” of whatever duration. However, it should be kept in mind that tradition alone is not determinative—human well-being must be the ultimate test. One cannot fully determine what is good for people generally in an individualistic and ad hoc manner, according to a “whatever-two-adults-consent-to-at-the-moment” theory. Perspectives on what constitutes the common good should consider the long-term conditions and consequences of individual and collective choices for the fabric and the quality of the polity’s social and political life.

92

COMMUNITARIAN READER, supra note 1, chs. 5, 6; SELZNICK, COMMONWEALTH, supra note 9, at 379; Brugger, On the Relationship, supra note 11, at 142.

93

On this formula, which originates in pragmatism, see SELZNICK, COMMONWEALTH, supra note 9, at 20, 22, 37, 40, 129, 289. 94 One may also read Selznick’s work as a commentary on the much quoted dictum by ErnstWolfgang Böckenförde that the liberal state exists by virtue of conditions that it cannot guarantee itself. See Böckenförde, supra note 67. “Cannot guarantee” does not rule out, but rather includes reflection and promotion of conditions that encourage civil support.

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Communitarianism as the social and legal theory Appendix: Three variants of communitarianism A. Substantive, conservative communitarianism

B. Liberal communitarianism

C. Egalitarianuniversalistic communitarianism

1. Anthropology, conception of human nature:

Individual needs strong roots in the community

Individual needs to live in multiple communities

Autonomous individual endowed with reason

2. Conception of freedom:

Freedom to lead a fulfilled life in one’s community

Freedom and fulfillment in one’s community

Fulfillment through option of freedom from one’s community

3. Importance of traditional lifestyles:

Constitutive role; community goals placed before self

Range from instrumental to constitutive

Primarily instrumental, free choice of lifestyle, self placed before community goals

4. Conception of morality

Priority of traditions, ethical practices, conventional morality

Mutual references between conventional and reflexive, critical morality

Priority of reflexive, critical morality over conventional morality

5. Justification of moral norms; principium diiudicationis

Recourse to “is” as the concrete substance of good and just; particular justification; internal perspective; may be only marginally generalized

Recourse from “is” to “should” through master ideals; particular and general justifications; from “inside” to “outside” arguments; graded responsibilities

Recourse to “should” through abstraction; proceduralization; discourse from “outside” to “inside”; extensive generalizations

6. Compliance with moral norms, principium executionis:

Individual is integrated and bound by existing relationships of solidarity

Immanence and transcendence of existing relationships of solidarity

Appeal to reason; all human beings are ends in themselves

7. Relationship between community and justice:

Community tends to replace or define justice

Community and justice must be balanced

Universal justice tends to displace or take priority over particular communities

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Appendix: continued A. Substantive, conservative communitarianism

B. Liberal communitarianism

C. Egalitarianuniversalistic communitarianism

8. Relationship between collective goals and individual rights:

Collective goals tend to have priority

Collective goals and individual rights must be balanced

Individual rights tend to have priority

9. Conception of the common good:

Traditional lifestyles primarily respected and promoted; constitutional rights to freedom and equality are secondary

Balance between the respect and promotion of particular lifestyles and constitutional rights to equality and freedom

Equal respect and promotion of all people and groups; neutrality toward particular lifestyles

10. Minority rights:

Priority placed on status of majority

Open and civilized struggle for recognition

Priority placed on on status of minority

11. Mutual responsibility among individuals:

Near horizon of morality takes precedence

Theory of responsibility spheres graded from near to far horizons of morality

Far horizon of morality takes precedence

12. Primary focal point of human beings:

Concrete personality

Concrete personality and abstract legal person

Abstract legal person

13. Political integration and stability achieved through:

Substantial consensus and/or participation in the democratic process

Participation in the democratic process and substantial consensus

Democratic participation and rights to freedom and equality