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Law: the Child and not the Father of Reality

Law is not a cultural construct that is legitimate in itself, that develops on the basis of immanent impulse – it always subsists functionally tied to an overall social reality and as its part

Last update: 2018-04-09 14:14:33


Review of Ernst-Wolfgang Böckenförde, Diritto e secolarizzazione. Dallo Stato moderno all’Europa unita, Editori Laterza, 2007



This volume brings together various essays to form a broad mosaic of the thought of the author which draws upon political theory, the philosophy of law, and the history of juridical culture and political institutions. An examination of this work permits an overall survey which, beginning with the question of the historicity of law and moving through a consideration of the birth of the state understood as a process of secularisation which, however, cannot be separated from a consideration of its relationship with religion, halts at the threshold of the prospects and challenges that a study of the contemporary European political situation sees on the horizon of the future.



The reflection of Böckenförde is rooted in this question of the historical idea of law which does not try so much to define the relationship between the science of law and its history as to define its origins and the reason for law itself. In this way, the author explores the historical idea of law advanced by Savigni, according to which the whole of the science of law can be reduced in substance to its history. The contents of the formulation of law can be known on the basis of its evolutionary history, through an observation of its progressive development. This retrieval and re-insertion of law into history, however, does not seems to explain the problem of the historicity of law, given that it is based on an anti-historical conception of law.



In contrary fashion, the thesis of Böckenförde is that ‘law is not a cultural construct that is legitimate in itself, that develops on the basis of immanent impulse – it always subsists functionally tied to an overall social reality and as its part’. Law, therefore, does not subsist in itself as an independent object, it does not receive its concrete form from the task – which is essential to it – of ordering in a determined way the relations of life between people and social co-operation within the domain of society. For this reason, it must of necessity be referred to the reality of the life that it must order and not only in a formal way, that is to say through its claim of validity and the possibility of being applied in a binding way, but also from the point of view of its objective contents.



At this point Böckenförde introduces a reflection of a prevalently political stamp, referred to the function of the state, to the contribution of religion in safeguarding the ethical rules of society, which leads him to formulate an ethical assessment of the future of the political autonomy of the European Union. The author states that law can support and protect in normative terms pre-existing rules of life an ethical attitudes, just as it can – up to a certain point – keep awake within society an ethical conscience, but it cannot create an absent ethical conscience with a normative arrangement or safeguard ethical rules of life that are breaking down. It is necessary for juridical norms to find in their recipients a foundation that supports them since they cannot rely exclusively on their co-activity.



If, as an alternative, one looked for a basis of homogeneity in the complex of existent beliefs about values, one would run the risk of opening up the field to subjectivism and positivism as regards assessments that claim objective validity and destroy freedom rather than acting as its foundation. Thus is raised the question of ‘unifying forces’, as Böckenförde calls them, when he states that the secularised liberal state ‘lives by assumptions which in itself it cannot guarantee’. It can exist only ‘if the freedom that it grants to its citizens is regulated beginning from within, from the moral substance of the individual, and from the homogeneity of society’. For Böckenförde, in conclusion, the modern state needs to live by these interior impulses and forces of unification mediated by the religious faith of its citizens, without for this reason defining itself as a ‘confessional state’.