This introduction lays out the rationale behind the special issue examining Böckenförde's concepts and arguments in light of contemporary crises of democracy. Considering the enormous challenges facing democracies today, how should one judge Böckenförde's optimistic view of the regulatory capabilities of the state? Is it irrelevant, given the de facto power of both supra- and non-state actors? Or does Böckenförde's view still possess explanatory value, as the state remains the most important political unit? The article consists of two parts. First, Böckenförde will be introduced as a thinker whose work centred on questions of statism, liberalism and secularism. He paid special attention to the relation between politics and religion in contexts of democratic statehood. In addition to his interest in these themes, his understanding of the constitution and constitutional interpretation will be sketched. Second, we will introduce the three topoi on which the articles of this special issue focus: Böckenförde's insistence that the state of exception ought to be constitutionalised by exploring the relevance of this proposition in four different jurisdictions; whether his model of democratic secularism as open encompassing neutrality can serve as a useful starting point to manage religious and social diversity; the future of Europe. Against this backdrop, the conclusion then aims to connect Böckenförde's ideas on relative homogeneity with the contemporary crises of democracy.

This Article explores Ernst-Wolfgang Böckenförde's views about constitutional judging in a democracy. It offers three ideal types of constitutional judging, each drawn from the extra-judicial writings of prominent constitutional judges who represent it. The three types are: (1) the prophet, who views the constitution as visionary and value-laden, and who entertains an expansive view of the judge's role in giving voice and validity to that vision and those values; (2) the essayist, who shares the prophet's sense of the vast scope and myriad resources of constitutional judging, but who, lacking the prophet's confidence in getting such bewilderingly difficult questions right, approaches constitutional judging cautiously, skeptically, and deferentially; and (3) the executor, who views constitutional judging as the effort to discern the constitution's concrete, limited content, and to enforce that content unflinchingly. Böckenförde, the Article argues, was an executor—one who shared many interpretive commitments with the two most prominent executors in the American constitutional tradition: Hugo Black and, especially, the late Antonin Scalia.

The Constitution of India envisages three types of emergencies: A national emergency; a state emergency (in the federal setup, regions are called states in India, and the central government has the power to impose an emergency if there is a breakdown of law and order in that state); and a financial emergency. The problem the State faces is how it can respond effectively to exceptional situations without casting its adherence to the rule of law into question.“ Ernst-Wolfgang Böckenförde offers a set of solutions within a model structure anchored in constitutional laws. The model structure, which applies at the federal level, advocates a separation between the authorizing agency—the political wing—and the implementation agency, as well as creating a distinction between a ”law“ and a ”measure,“ and between a most extreme and a merely difficult situation. By focusing on the actions of the higher judiciary in India, this Article tests whether the safeguards in Böckenförde's model structure function at the sub-national state level in a very different geography and context. The results highlight the concern that the dynamics of democracy and the reality of how political power is garnered in a federal Westminster style framework effectively stymie the procedural innovations introduced by Böckenförde's model by creating conditions, not for fair play, but for subverting the spirit of the law. Even the procedures outlined by Böckenförde—such as an emphasis on making the agent who holds the emergency powers a political, and not merely an administrative organization—accentuates, rather than mitigates, this problem.

Within Scandinavia, Sweden stands out for not having gone to war in over 200 years. Its neighboring states—Finland, Denmark, and Norway—have not been as fortunate. Their respective constitutions each provide insight into their different experiences. The Swedish Constitution remains silent on emergency situations that do not rise to the predefined level of “war.” The Finnish constitution differs from the Swedish in that it allows for time-limited restrictions to protect fundamental rights and freedoms during a state of emergency, aggression, or any other situation that poses a severe threat to the nation, if stipulated by law and in congruence with international obligations of Finland. Importantly, when and how a government can declare a state of emergency is a question of ordinary law, rather than a constitutional one. This Article offers a comparative constitutional law analysis of the relative constitutional silence in Sweden and Finland as concerns emergency powers. The analysis takes as its starting point Böckenförde's The Repressed State of Emergency: The Exercise of State Authority in Extraordinary Circumstances.

In this article, I present some aspects of the debate on the state of emergency that ensued in France after the terrorist attack at the Bataclan on November 13, 2015. The proposal by President Hollande to constitutionalize emergency provisions triggered the debate. I will also discuss why that attempt failed. In agreement with what Ernst-Wolfgang Böckenförde wrote in his article “The Repressed State of Emergency: The Exercise of State Authority in Extraordinary Circumstances,” I intend to show that constitutionalizing emergency measures—rather than presenting a threat to the Rechtsstaat—may be the best way to protect it. In the absence of a constitutionalized definition of competence and limits of such an exceptional power, the government can act without limits as to the exceptional measures that it may want to take.

Over the course of the last three years, British Government counter-terrorism policy has shifted significantly to embrace “counter-extremism.” This is justified not only in terms of addressing the underlying causes of terrorism, but also in its own right as addressing the “harm” of extremism. These proposals raise fundamental questions about the limits of religious and other civil liberties. However, the problem of extremism is not new. The German public intellectual and constitutional lawyer Ernst-Wolfgang Böckenförde reflected extensively on the same problem in the context of German responses to left-wing radicalism in the mid-1970s. His work touched on both concrete legal problems as well as fundamental philosophical assumptions about the nature, characteristics, and limits of the liberal democratic constitutional state. In this article, I seek to retrieve his ideas and arguments for the current British context. I argue that the current discourse of extremism and fundamental British values risks being used as a vehicle for promoting a “progressive” public ideology of individual self-creation. This fails to take moral and religious diversity seriously, and its implementation betrays the foundations of the liberal democratic constitution. It provides striking confirmation of Böckenförde's thesis that the liberal state is perennially prone to a totalitarian tendency to seek to generate its own distinctive ethical community. As Böckenförde recognized, what is needed instead is the recovery of a thin common morality of civic loyalty as shown pre-eminently in obedience to law.

In Europe, issues concerning religious freedom are hotly debated. Many courts had to consider cases concerning infringement of religious freedom. This Article will focus on three examples: Headscarves, burqas, and crucifixes. Often, the interests of members of minority religions have lost in European courts and European constitutional courts. This is particularly true considering the decisions of the European Court of Human Rights. The European Court of Human Rights upheld bans on headscarves for students in universities and public secondary schools, as well as for teachers in public schools. The Court also accepted bans on full-body veils worn in public areas. Finally, mandatory crucifixes in public schools have been deemed to conform to the standards set by the European Convention on Human Rights. In all of these cases, the European Court of Human Rights has not adequately construed religious freedom as a strong right.

This is where the work of Ernst-Wolfgang Böckenförde comes in. Böckenförde has thoroughly discussed the proper role of religion in a democratic society. Coming from a theoretical starting point, he developed an understanding of religious freedom as a strong right. He also explained why State neutrality should be understood in terms of open neutrality. Both perspectives help to more fully explain the scope of religious freedom.

When France and Belgium banned face veils in 2010 and 2011, they were the first European countries to do so in a comprehensive matter. Now Austria has its own ban, Denmark is on track to have one too, and several other countries are toying with the idea. Such bans are often considered incompatible with the rights of veil wearers (especially Muslim women). Less prominent is the question whether such bans are incompatible with the modern state.

Such a critique can be grounded on the work of the leading German constitutional law scholar Ernst-Wolfgang Böckenförde and his famous dictum, according to which “[t]he liberal, secularized state draws its life from preconditions it cannot itself guarantee.” For Böckenförde, this means that headscarves, a different type of veil, cannot be banned—not because this would violate a woman's rights, but because it would undermine the very character of the state itself.

The article transposes this argument from the German discourse over headscarves to the European discourse over face veils. It demonstrates the potential of Böckenförde's dictum for the face veil debate, but also its limitations.

Critics of the Turkish interpretation of secularism, laiklik, describe it as authoritarian and repressive. Indeed, rather than establish state neutrality toward religion, laiklik historically entailed state control of Islam, the religion of the vast majority of the Turkish population, and the exclusion of religion from the public sphere in an effort to control religious belief and identity. Many, including leaders in the ruling AKP, assert, though, that recent reforms herald a move away from this model of control toward a secularism defined by state neutrality toward religion. To determine whether this transformation is actually occurring, I evaluate, based on Turkish language sources, the recent reforms under the AKP using the framework of the secularized state described by the German legal scholar Ernst-Wolfgang Böckenförde. Because of its significant role in implementing Turkish policies toward religion, I evaluate these reforms by analyzing developments in the programming and messaging of the Directorate of Religious Affairs (Diyanet) under the AKP. I find little evidence that laiklik is transitioning to a state neutrality toward religion. Rather, the AKP has coupled a greater presence of religion in the public sphere with expanding state authority in religious programming and messaging. Although these reforms reflect a transformation in Turkish nation-building policies, they maintain the state control of religion that separates laiklik from neutral secularism.

In his lecture on The Repressed State of Emergency, Ernst-Wolfgang Böckenförde argues for the constitutional possibility of a partial superimposition of certain laws in times of emergency. Repressing the state of emergency would ultimately lead to greater and more permanent damage to the rule of law and liberal rights. This warning bears some similarities to Giorgio Agamben's analysis of the emergence of a permanent state of emergency, which loses the feature of exceptionality by becoming “the dominant paradigm of government in contemporary politics.” Agamben thus proposes a shift from structure to practice, which focuses on the features of emergency politics instead of states of exceptions. The European Union's recent financial crisis is a promising object of research in this regard. After a brief discussion of Böckenförde's illuminating lecture on the repressed state of emergency, this Article will analyze a comment written by Böckenförde at the beginning of the Euro crisis. While this comment has sometimes been interpreted as an unconditional defense of unlawful emergency measures, a closer look at this statement reveals a much more nuanced argumentation. Böckenförde concurs with other legal scholars—such as Paul Kirchhof—in emphasizing the danger of an erosion of the rule of law through illegal measures. Böckenförde's intervention, however, leaves room for interpretation that this emergency action could—in principle and under specific circumstances—nevertheless be legitimate, although he was critical towards the handling of the crisis. On a more general level, this Article will discuss if the suspension of law can ever save the legal order it disregards. Next, the legality of EU crisis management—which has not been judged unanimously—will be scrutinized. At least, the circumvention and adaptation of EU primary law involved in this management has crucially changed the law of “normal affairs.” Finally, this Article will argue that the managerial style of emergency politics challenges the EU's project of “integration through law,” hollows out democratic procedures, and enforces, with its one-sided austerity policy, a form of economic integration that bears strong traces of an “authoritarian constitutionalism.”

It has become a standard critique of European integration that the upward transfer of sovereignty in market-related matters leads to the fragmentation of statehood between the supranational, European level and the largely incapacitated nation-states that retain jurisdiction over social and distributive policies. My article takes up this critique in the elaborate version of one of Germany's leading post-war constitutional theorists, Ernst-Wolfgang Böckenförde, whose approach has been influential in how German constitutionalism relates to the project of European unification. In this account, vertical integration uses law to sever economics from democratic politics, fragments the concern for the common good of citizens and undermines the unity of statehood. I contrast this account to instances of horizontal fragmentation of statehood, such as those underway in member-states such as Hungary or Poland where the nation state's constitutional structures are coming undone at the hands of authoritarian populists. The European Union's role of defending the rule of law within its constitutive states seeks to restore their normative integrity and, as such, is best understood as a role of vertical de-fragmentation of political and constitutional transformations at the domestic level. The question if statehood can be established at the European level gains greater urgency and complexity in light of these developments.

Ernst-Wolfgang Böckenförde is one of the most eminent German constitutional theorists of the twentieth century. The following article connects with two themes that reappear in Böckenförde's writings. The first theme, which Böckenförde actually borrowed from Hermann Heller, is that democracy presupposes “relative homogeneity.” The second theme is that there would not be any principal objection against Europe growing into a nation state.