brugger, winfried - communitarianism as the social and legal theory behind the german constitution -...

Citation: 2 Int'l J. Const. L. 431 2004

Content downloaded/printed from HeinOnline (http://heinonline.org)Fri May 15 11:26:10 2015

-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License

-- The search text of this PDF is generated from uncorrected OCR text.

-- To obtain permission to use this article beyond the scope of your HeinOnline license, please use:

https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=1474-2640

ARTICLE

Communitarianism as the social andlegal theory behind the GermanConstitution

Winfried Brugger*

1. IntroductionAppeals to community in literature, politics, and science have recently grown,stronger in Germany. Communities care for their members and support eachother. Citizens are active in their communities and fight against racism andhatred. Community life promises integration, recognition, and emotionalsupport. For Germans, such ideas are not taken for granted but rather,extraordinarily enough, have become taboo since World War II despite inten-sive community efforts during reconstruction. In any case, the theory ofcommunitarianism has stood long in the shadow of other political theories,owing in part to the misuses that occurred in the name of the NationalSocialistic concepts of leader, race, people, and community. In more recent times,however, there has been a noticeable change of attitude on the part of varioussocial groups, owing to the perception that the increasing globalization,commercialization and virtualization of all aspects of life must be effectivelycounterbalanced.

Certainly, collective changes of attitude must be subject to discussion beforethey can be analyzed and conceptually developed. In the last twenty years, thecommunitarian movement in the United States has begun this process.1 Its chiefsupporters include Alasdair Macntyre,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 JusrICE (Belknap Press 1971). For representative essays on communitarianism, see TIESSENTL COMMUNITARAN READER (Amitzai Etzioni ed., Rowman & Littlefield 1998).

2 See ALASDAlR MAcINTYRE, AFrT ViRuE: A STUDY IN MORAL THEORY (Univ. of Notre Dame Press

1981).

3 See MICHAEL J. SANDEL, LISERALISM AND THE LIMITs OF Justice (Cambridge Univ. Press 1982).

4 See MICHAEL WALZER, SPHERES OF JUSTIcE: A DEFrNSE OF PLURALISM AND EQUALrrY (Basic Books 1983).

0 Oxford University Press and New York University School of Law 2003, 431ICON. Volume 2. Number 3. 2004. D. 431-460

W Brugger

Benjamin Barber,5 Robert Bellah,6 Amitai Etzioni,7 Charles Taylor,8 and PhilipSelznick. 9 Their themes have been taken up by commentators and have foundtheir respective representatives and promulgators in Germany as well-first inthe disciplines of politics, philosophy, and social science1° and then gradually inpolitical and constitutional theory." With this, the way is paved to forge aninterpretation of the Basic Law-Germany's Constitution-in the light of thistheory and in contrast to the previously predominant viewpoints of liberalism,

5 See BENIAMIN R. BARBER, STRONG DEMOCRACY: PARTICIPATORY POLITICS FOR A NEW AGE (Univ. of

California Press 1984).

6 See HABITS OF THE HEART: INDIVIDUALISM AND COMMITMENT IN AMERICAN LIFE (Robert Neelly Bellah ed.,

Univ. of California Press 1985).

7 See ArIT ETziONi, THE SPoRT OF COMMUNITY RIGHTS, RESPONSBILTIES AND THE COMMUNITARIAN

AGENDA (Crown Publishers 1993).8 See CHARLs TAYLOR, SOuRcEs OF THE SELF: THm MAKING OF THE MODERN IDENTITY (Harvard Univ. Press

1989).

9 See PHILIP SE N=cK, THE MORAL COMMONWEALTH: SOCIAL THEORY AND THE PROMISE OF COMMUNITY (Univ.

of California Press 1992) [hereinafter COMMONWEALTH]; PHILIP SELZNICK, THE COMMUNITARIANPERSUASION (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 KoLIEKTV: 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 GermanConstitution], in LEGITIMATION DES GRUNDGESETZES AUS SICHT VON GESELLSCHAFTSTHEORIE UND

REcHTSPIiLosopim [LEGITIMATION OF THE GERMAN CONSTnUON FROM THE VmvPOINrT OF SOCIAL THEORY AND

LEGAL PHiLOSOPHY] 395 (Winfried Brugger ed., Nomos 1996); Winfried Brugger, Zum Verhdltnisvon Neutralitdtsliberalismus und liberalem Kommunitarismus. Dargestelit am Streit Ober das Kreuz in der

Schule [On the Relationship between Liberal Neutrality and Liberal Communitarianism. Portrayed in theControversy of Crucifixes in the Classroom], in DER STRET UM DAS KREUZ IN DER SCHULE. ZUR RELIGI6S-WELTANSCHAULICHEN NEuTRALTAT DES STAATEs [THE CONTROVERSY OVER CRUCIFIXES IN THE CLASSROOM. ON

THE RELIGIOUS AND PHILOSOPHICAL NEUTRALITY OF THE STATE] 109 (Winfried Brugger & Stefan Hustereds., Nomos 1998) [hereinafter On the Relationship]; Wmfried Brugger, Kommunitarismus alsVerfassungstheorie des Grundgesetzes [Communitarianism as Constitutional Theory of the GermanConstitution], 123 ARcmv DES ,FFENTUCHEN REcH'S 337 (1998) [hereinafter Kommunitarismus];

WINFRiED BRUGGER, LIaERALISMUS, PLURALISMUS, KOMMUNITARIANISMUS [LIBERALISM, PLURALISM,

COMMUNITARIANiSM] 253 (Nomos 1999) [hereinafter LIBERALISMUS]; Ulrich R. HalternKommunitarismus und Grundgesetz [Communitarianism and the German Constitution], 83 KRrnTSCHEVimRTELinaESscHRur FOR GESUEBUNG UND REcHTSWiSSENSCa 153 (2000); Winfried Brugger. TheMoral Commonwealth. Gesellschaft und Staat aus Sicht des Kommunitarismus [The MoralCommonwealth. Society and the State from the Perspective of Communitarianism], 84 KRmSCHEVIRTIJAHRESSCHRIFT Ft GESETZGEBUNG OND REcHTswIssENscHAFr 149 (2001).

Communitarianism as the social and legal theory

social democracy, and Christian natural rights.' 2 Regardless of their distortionsduring the Third Reich, political theories with a strong connection to commu-nity 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 ratheroffers a systematic reconstruction of the current discussion of communitarian-ism for the purpose of illuminating the meaning of the German Constitution.This reconstruction will provide a perspective on the German Constitution thathas been somewhat neglected in recent decades. Concurrently, the focus on con-crete constitutional problems can sharpen our understanding of the benefitsand limitations of communitarian thought.

In the next section, I will expound on some common features of communi-tarian 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 identifycommon features before tackling key variations.

2. The three basic theses of communitarianism

2.1Since communitarianism cannot be reduced to a single body of thoughtregarding community and is in fact a family of theories with several variations,one must first address the following questions: What do all people, individualpeople or groups of people have in common, or what unites them? Or, alterna-tively, 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 legalrights from this-as purported by human rights doctrine-then the questionof citizenship, class, race, or religion is irrelevant or at least subsidiary.14

12 See DONALD P. KoMpmEs, THE CONSTMMONAL JURISPRUDENCE OF THE FEDERAL REPUBuC OF GERBtANY

31-32 (Duke Univ. Press, 2d ed. 1997).

13 See, e.g., G. W F. HEGEL, GRUNDUNIEN DER PHmOSOPHE DES REclrrs [ELEMENTS OF THE PHILOSOPHY OF

RIGHT] (1821); FERDINAND T6NNms, GQmENSCHAFr UND GESECHAFr: GRuNDBEGRIFFE DER REINEN

Soziowcm [COMMUNrrY AND SoClETY, BAsic CONCEPTS OF PURE SoCIOLoGY] (1887) (1979 reprint of the8th ed., 1935); Orro VON GIERKE, DAS WsEN DER M[ENSCHLCHEN VERBANDE [THE CHARACTER OF HuMAN

AsSOCATIONs] (1902) (reprint 1954); FRIEDucH IMEINECKE, WELTBORGERUM 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 Lnrr. INDIVIDUUM

UND GEMEINSCHAFr [NDIVIDuAL AND COMMUNITY] (2nd ed., 1926); EDUARD SPRANGER. LE NSFORMEN.GEISTESWISSENSCHAFTUCHE PSYCHOLoGIE UND ETHIK DER PERSONUCHKEIT [WAYS OF LiFE, HUMANSTIC

PSYCHOLOGY AND THE ETHIC OF THE PERSONALITY] (4th ed., 1924); HERmANN HELLER, SmATsHRE [STATE

THEORY] 1934 (especially: 2. Abschnitt. Ill); RUDOLF SMEND. STAATSRRECHTUCHE ABHANDLUNGEN

[DiscOURSE OF STATE THEoRY] (1955) (2nd ed.. 1968) (see especially the articles on "Verfassung und

Verfassungsrecht" and on "lntegrationslehre"); ALEXANDER ROsTOW. ORTSBESTIMMUNG DER GEGENWART

[ORIENTATION OF THE PRESENT] (19 5 7).

14See. e.g., GG [Constitution] art. 3. § 3: art. 4. § 1 (E R.G.).

W Brugger

However, if I focus on citizenship as the criterion of community, then, accordingto the German Constitution, I can and must differentiate between Germansand non-Germans, and grant only the former the right of assembly andassociation, the right to unhindered movement within German borders, or theright to choose and practice a profession. 15 If I use Christianity as the criticalfactor for determining community, then-by the logic of this argument-there must also be heathens to whom other rules may partly apply. The char-acteristic of any appeal to a commonality is that, depending on the criteriaselected, lesser or greater differences occur between insiders and outsiders. Thechosen 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 structureddifferently, it is separate and thus particular.

2.2Regardless of what factors are accentuated in a community, affiliation, member-ship in groups and the possibility of forming common bonds are constituent fea-tures of communitarianism. In the foreground is not the freedom from communityand association but rather the freedom to associate in shared ways of life.' 6

Through self-determination in the community, communitarianism expectsto maximize human fulfillment, in contrast with the Hegelian "abstract"freedom for everyone to do anything, which is in constant danger of becominglost in nothingness or falling victim to totalitarian seductions. 17 In this respect,communitarianism differs from the liberalism of the Enlightenment, and fromthe latter's primary concern with emancipating the populace from economic,legal, and religious dependence and paternalism. "The goal of theEnlightenment was, and continues to be, the liberation of humans not onlyfrom oppression but also from imposed (legal and intellectual) dependence....The limitations of enlightenment are revealed with the question, what isfreedom directed toward?"' 8 Successful self-determination is not a matter of

"I d. arts. 8.9. 11.12. See also id. art. 38 (in conjunction with §38 of the German Federal ElectionLaw, available at http:lwww.iuscomp.org/glalstatutes/BWG.htm). All foreigners in these casescan invoke the general right to liberty as stipulated in article 2, § 1. which accords basic protec-

tion and requires the government to adequately justify a restraint of personal liberty. Id. art. 2, § 1.

16Cf. Philip Selznick. The Idea of a Communitarian Morality, 75 CAuF. L. RE. 445, 454 (1987) ("Acommunitarian morality... is not at its core a philosophy of liberation. The central value is notfreedom or independence but belonging"): Roarer NmssET, COMMUNrrY Am PowER 269 (Oxford Univ.Press 1962) ("Genuine freedom is not based upon the negative psychology of release. Its roots arein positive acts of dedication to ends and values. Freedom presupposes the autonomous existenceof values that men wish to be free to follow and live up to").17 Concerning this negative freedom, see H EL, supra note 13. § 5. On the dangers posed by total-

itarianism, see Nsmr, supra note 16. at 255, 268.

'8 Ernst-Wolfgang B6ckenforde. Erfolge und Grenzen der Aufkkirung [The Achievements andLimitations of Enlightenment]. 8 UN vaRsrrAs 720, 721 (1995).


"freedom from," but rather engagement in a discourse on where freedomcomes from, what it is for, and what it should be directed toward. This isprecisely what communitarianism does.

2.3The previous remarks affirm that the basic tenets of communitarianism arealigned mainly with an anthropological and social theory approach. Thisapproach describes the basis of human coexistence and the structures ofsocietal 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 reduceprivate associations to mechanisms of economic order; instead, it makes manyother forms of civic engagement-from marriage and family to citizen activitiesin the private sector-the subject matter of discussion. Thus, communitarian-ism mediates between the individual, concerned only with him- or herself, andthe centralized authority of the state. In short, communitarianism discussesthe triadic relationship among the varying elements of society, reaching fromprivate associations to the free marketplace and lastly to the state.19

This has important implications for jurists. Communitarian insights andrecommendations do not automatically suggest that the state is authorizedto enforce those insights and recommendations. 20 Rather, society and stateshould be constituted in such a way as to respond to humans' basic need toform communities. In order to do so, coercion may be occasionally applied,specifically to safeguard against violence between individuals and groups.2 1

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 "tounderstand, organize, and forge the legal codes necessary for external andinternal community life as an expression of the physical and mental unity ofthe societal organism."22 The structures of community associations must thusbe understood in terms of what they strive to achieve for their members andhow they view their role with regard to their natural and social environment.The state should respect and protect these associations so that they candevelop in the most unrestricted manner possible as well as coordinate and

19 Cf. WALTER REEsE-SCHAEFER, EmoNI ZuR EmOUNG 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).2 1 Cf. GG, art. 8. § 1; GG art. 21, § 2.22 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 REpsE-ScHAPER, supra note 19, at 74 ('A community should rely on back-ing from the state for its protection only if four conditions are met: 1. There must be clear and pres-ent danger 2. There is no alternative to state involvement 3. State action must be as restrained aspossible 4. Damaging side effects must be minimized").

W Brugger

distinguish themselves. 23 This means that the principle of subsidiarity mustalso 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 universalisticcommunitarianism

By examining the authors who develop their theories in accordance with themain tenets of communitarianism, one may propose classifications of the

variations among those theories. 25 The most widespread variation, importedfrom the United States, distinguishes between substantive or conservativecommunitarianism on the one hand and democratic participatory-republican

communitarianism on the other.26 The criterion for the distinction is circum-

scribed by substance and procedure. This is certainly one way of categorizing

communitarianism. However, a more complex approach may more effectivelyreveal 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 andalso from universal or egalitarian communitarianism.2 7

2 3 A certain proximity to Nildas Luhmann's system theory is obvious here. NtKLAS LUHMANN, DIE

GKsascsLHAFr DER Gsascmn [THE SOCIETY OF SoCIETY] (Suhrkamp Verlag 1998).

244 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, LIBERAUSMUS. supra note 11, § 3.25 See supra notes 2-13. On the precursors of modern comunitarianism, see Hauke Brunkhorst,

Demokratie als Solidaritdt unter Fremden [Democracy as Solidarity among Strangers]. 36 POLmK UND

ZErrGrscmHr 21 (1996).26

See RAINER FORST, KoN7x'rE oER GEREnTGKErr: PoiaTIscHE PHIsoPHrE IEN ErI'rS 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.

270n this ideal-type distinction, see Brugger, On the Relationship, supra note 11; Brugger,

Kommunitarismus, supra note 11.


Because the distinctions hinge on the proper relationship between freedomof choice and various community obligations rather than on a categoricalindividual-versus-society conflict, one can view the three conceptionsdescribed above as variations of liberalism. In any case, conservative and liberalcommunitarianism are contemporary theories that take critical account ofliberalism and/or certain variations of liberalism.2" Take, for instance, thetriad of "Liberty, Equality and Fraternity" associated with the FrenchRevolution. 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 whatconditions, communities promote or hinder the fulfillment of human self-determination. The element of equality is related to the question of which qual-ities particular individuals, groups, or even all humans share (or should share)or under what conditions a community is formed (or should be formed). Theanswers to these questions differ. One can, as a conservative communitarian,advocate a narrow, particularistic viewpoint with respect to the unifyingfactor; one can, as a universalist communitarian, offer a broad perspective,such as the basic interests of every human being; or one can, as liberalcommunitarian, propose a stance somewhere between these two poles.

The third element, of fraternity or solidarity, could then be interpreted in a sim-ilar manner-with emphasis either on interactions in close proximity to one'sfamily members or on extension of solidarity to all human beings, or perhaps asa 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 non-liberal only to the extent that it left no room for individual self-determinationand constitutional rights, or regarded the self-determination of one group ina political context as a sufficient justification for suppressing or eliminatingother groups.30 Modern conservative communitarianism should not be

2 8 See STEPHEN MULHALL & AMm SwLr, LInoALs AND CommuwrrARuAr 155, 163 (Blackwell 1992);

JOEL FENBERG, HARMLESS WRONGDOING IV 82 (Oxford Univ. Press 1988). Otfried HMffe and WolfgangKersting each characterize communitarianism and liberalism as antipodes. OTluED HOna,VERNuNFr UND Rwirr: BAUSTENE zU wE INTEERKULTUREILEN RECHTDiSKURS [REASON AND LAw THE

BUILDING BLOCKS FOR CONSTRUCTING INTER-CuLTURAL LEGAL DISCOURSE] 164 (1996); WOLFGANGKERSTING, JoHN RAWlS ZUR rNFfHLuNG [INTRODUCTION TO JOHN RAWLS] 185, 193 (1993).

2 9 Here, I follow Feinberg. See FENERG, supra note 28, at 82 ("The classical liberal ideals, perhapspartly because of their vagueness and flexibility, remain the most appealing part of traditional

liberalism. These include not only liberti and egalitg, but also.. .fraterniti. It has been notoriouslydifficult for the liberal to reconcile liberty (and... autonomy) with equality, but here we willaddress the problem of reconciling autonomy with the cluster of values represented by "frater-nity." These values include group memberships and loyalties, cooperativeness, civic spirit, publicparticipation, and piety in a broad sense").

30See CARL SCuMr, DER BEGR F DEs PoumScHEN [THE CONCEPT oF THE POLUTCAL] 26 (3rd ed. 1991)(articulating the friend-enemy antithesis). By definition, this is without doubt a pre-Enlightenment form of communitarian terminology, which is indeed anti-liberal. On Schmitt, see

the analyses in 1 CAN. J.L. &JuR. 10 (1997).

W Brugger

associated with those theories or practices. It is "liberal" in the weak sense ofrespecting individual choice to some extent, even though it places greateremphasis on the integrative force and influence of traditional, well-establishedforms of communal life. However, from the point of view of a strong libertariantheory, one may well designate such theories as non-liberal.31

4. Conservative communitarianismThe first variant of communitarianism may be designated as conservative orsubstantive. It is based on the thesis that a political and legal order can only func-tion 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 areallowed or even promoted. What are those factors that produce loyalty, solidarity,and the feeling of belonging? One cannot give a detailed a priori account. Itdepends in part upon the circumstances. A classical formulation may be found inthe writings of Ferdinand Tbnnies, who in his 1887 book, Gemeinschaft undGeselschaft (Community and Society), characterized the process of social cohe-sion as follows: "mutual understanding [in the community] is based on an inti-mate knowledge of each other, to the extent that such knowledge is conditionedupon and is promoted by a person's immediate readiness to share in anotherperson's joys and sorrows. Its likelihood increases when a greater similarity ofconstitution and experiences exists or greater harmonization in temperament,character or way of thinking occurs between members."32

Conservative substantive communitarianism places emphasis on greaterhomogeneity, or at least compatibility, among races, classes, religions,languages, and ways of life. Lucky is the state in which such conditions ofhomogeneity exist. The only difficulty is that in most modern states pluralismand multiculturalism reign supreme, and substantial conservative communi-tarianism is not equipped to deal with this phenomenon. One may perhapsgrumble but, in the end, this will change nothing.

5. Universalistic-egalitarian communitarianismIn contrast, the second, egalitarian or universalistic variant of communitari-anism 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 ter-minology of Philip Selmick, who speaks of "communitarian liberalism." In addition to the refer-ence 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

REsE-sCHArm, supra note 19, at 63, 67, 73, 99 (with further references).

32 See 1 TONNis, supra note 13, § 9.


postulates of equality that Ronald Dworkin captured in Taking Rights Seriouslywith the formula "equal concern and respect" 33 -that is to say, equal consid-eration of the basic needs and self-determination of all peoples as well as equalrespect for the lifestyles of all individuals and groups. Thus, in this variant ofcommunitarianism, features that distinguish people and groups from eachother are immaterial, or at least secondary, in the organization of governmentalrights and duties. J~irgen Habermas expressed this idea in the followingmanner: "only in the radical liberation of individual lives and particularlifestyles, can universalism be put to the test of creating equal respect for alland solidarity with everyone who carries a human face." 34 In this form ofcommunitarianism, the very fact of being human, possessing such universalattributes as language and the faculty of reason, is the essential elementconnecting 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 andgroups would have true equal rights and enjoy universal equal opportunity.

Since this is not likely to occur in the foreseeable future, universalisticcommunitarianism accepts the current regime of nation-states, but it doesdemand that the nation-states open themselves to regional as well as globallegal organizations and accept many transnational obligations in support ofsuch truly universalistic goals as food, shelter, and peace for every humanbeing. Likewise, proposals to accord an unlimited fundamental right of asylumto all those who suffer political persecution or grave disadvantage, fit well withegalitarian communitarianism. Another example of egalitarian communitar-ianism 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 thecurrent requirement of German citizenship for the exercise of voting rightswith a loose stipulation that foreigners must have resided legally on Germansoil for a certain period in order to vote.

Egalitarian universalistic communitarianism gravitates toward a pole oppositeto that of conservative communitarianism. For the conservative communitarian,association through family or clan relationships is the primary principle ofpolitical organization, given the fact that states can only be organized by peoplewho are emotionally and intellectually tied to each other. However, this overlooksthe fact that political regimes, since the creation of the contemporary territorial

3 3 RONAO DWOmiUN, TAKING RiGnS SERIousLY 183, 272,292 (Harvard Univ. Press 1978).34 Jdirgen Habermas, Vom pragmatischen, ethischen und moralischen Gebrauch der Vernunft [On the

Pragmatic, Ethical, and Moral Use of Reason], in ERLAUTtrJNGEN zUR DISKUSETu [ELUCIDArMONS ON THEDISCOUaSE riUcs] 100, 116 (1991).

31 One could ask the question why authors such as Dworkin and Habermas are not addressed hereas 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.

W Brugger

states, have not been based on family, clan, or tribal associations. The organiza-tional 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 weaknessesof conservative communitarianism but is then driven to excess and ends upthrowing the baby out with the bathwater. In the organization of the state, itwishes to reject all features that distinguish individuals, groups, and cultures,based on the argument that the distribution of rights and duties should rest onthe premise that everyone, worldwide, is a human being; all other criteria areregarded as suspect or even illegitimate. 6 Instead of concentrating on the close,intimate perspective of a live group, egalitarian communitarianism is focused onthe broad perspective of humankind in its entirety.

6. Liberal communitarianism6.1Liberal communitarianism attempts to avoid the exaggerations of the twovariants of communitarianism described above and endeavors instead toextract 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 con-stitutional organization.

The core thesis of liberal communitarianism at the level of social philosophyis that a human being's environment consists of several spheres of responsibility,or forms of association, reaching from the single individual and its nearhorizon (e.g., partner and family) to the far horizon of all human beings.Between these two poles, standing at the foreground of the conservative anduniversal communitarianism, there are a great number of alternative formsof community, ranging from fleeting ad hoc associations to more closelyconnected or even perennial organizations.3 7 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, seethe dissenting opinion of the U.S. Supreme Court in Bowers v. Hardwick, 478 U.S. 186 (1986), andthe majority opinion in Lawrence v. Texas, 123 S. Ct. 2472 (2003), which are shaped by universal-

istic communitarianism, whereas the ruling opinion in Bowers v. Hardwick and the dissenting opin-ion in Lawrence v. Texas adhere to conservative (or possibly liberal) communitarianism. See also

ERHARD DFNaER, MEsscHaRmr uIND GRuNDGESLrz [HuMAN RIGHTS AND THE GER AN CONSTITUTION]

39 (1994) (remarking that realization of justice requires the guarantee of rights for "for all typesof minorities" including "homosexuals, transsexuals, people of small or large stature and allexpressions of culture diversity ('single parents,' 'permanent forms of partnership') or local,

cultural diversities" as well as "ethnic, cultural and linguistic minorities").

37These concepts have been adapted from MAX WEBER, GESAMMELTE AUFsATzE ZURWiSSENScHAFrsLEHRE [CoLCrm ESSAYS ON THE THORY OF ScIENcE] 451 (4th ed., 1973). Weber speaks


contractual, professional, class, intellectual, gender, religious, or race relation-ships. At the political-legal level, for example, in Germany there exist local,state, and federal governments as well as the European Union and theinternational community.

Each of these communities has its own ethos and its own standards fordistributing advantages and disadvantages, 38 as well as its own responsibilitiesor perhaps its own linguistic conventions and specific organizations. 39 In otherwords, each of these communities has its own structures, objectives, morality,and justice, which transcend the antinomy of the near and far horizons as wellas that of state and society.

6.2If one wishes to describe the relationship among these diverse conceptions andspheres of morality and justice, the best image is one of concentric circles.Inside the innermost circle of the near horizon of family life, standards forwhat constitutes a good and responsible life are brought into focus. Then, inthe course of growing up and growing out of the family circle, broader circlesdevelop, which may lead to the wide circle of humankind as a whole. Thenotion of "circles" sometimes has a parochial, territorial connotation.However, the image allows for the abstract idea of being connected by specialbonds, such as a shared language, religion, or profession, that create commonidentities and loyalties. It is important to note that responsibility in a smalleror special circle tends to be greater and more effective than in a larger, moregeneral circle.40 For instance, as a German, one will render more support toone's family than to coworkers or perhaps other Germans. Nonetheless, mostGermans would be prepared to shoulder a greater financial burden for theirfellow citizens in the former East Germany than, say, for Africans, Asians, orSouth Americans in times of difficulty. With respect to compulsory militaryservice in the German Armed Forces, in accordance with the German MilitaryCode (Soldatengesetz), soldiers pledge to "faithfully serve the Federal Republic ofGermany and valiantly defend the rights and freedom of the Germanpeople." 41 This duty, which may well result in the loss of one's life, would not,

of "fliichtige Gelegenheitsvergesellschaftung" (fleeting chance associations) and "perennierendeGebilde" (perennial organizations).

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

19 Here one can see the close proximity of communitarianism with system theory (see supra note23) and the school of legal institutionalism. See Ota Weinberger. Neo-Institutionalism: My Views onthe Philosophy of Law. in THE LAw IN PHILOSOPHICAL PERSPECTIVES: MY PHILOSOPHY OF LAW 253 (Luc I.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 prohi-

bition of genital mutilation as practiced in some cultures.41Soldatengesetz, § 9, §§ 2.

W Brugger

without additional compelling arguments, extend to the rest of the world. Thisis the-often unmentioned-background to the current German discussionregarding replacement of the national conscription army with a professionalvolunteer force. It is politically and psychologically less difficult to send one'ssoldiers to trouble spots in the world when your army is a volunteer army thanto do so in the context of obligatory military service.

6.3The following remarks provide an explanatory description regarding the man-ner in which most people understand their moral obligations-from the nearto the far, or specific to general, spheres of life. For liberal communitarians, thisprogression is just and right. The relationships of give and take, and the natureand scope of one's responsibilities to fellow human beings, as shown bydevelopmental psychology, are first learned in the small circle of the parent-child interaction. Later, step by step, the spectrum of moral reflection isbroadened to include larger groups and so-called conventional morality,defined as the predominant morals specific to a particular culture. Only in thelast stage of moral reflection does a transcendence of conventional morality--to a morality of humankind-occur, actualized in an appeal to humanrights.4 2 To avoid misunderstandings, it should be stated that this last stage isa necessary step from the point of view of liberal communitarianism. It is astep deserving of commitment and effort. However, it is also a precarious andconditional stage of perfection, which is only legitimate and attainable whenone acknowledges and respects the preceding stages, with their close andspecific responsibilities.

43

It is a different process when one's attention is devoted to the morality ofhumankind while more immediate responsibilities are disregarded. Thisposition was expressed by Erhard Denninger who maintained, "solidarityknows no personal or conceptual boundaries. It applies world-wide and to thewhole of mankind..." It is no surprise that Denninger regards limited,graded responsibilities as stemming from "prejudices based on primitiveethnocentrism." 45 According to liberal communitarianism, the good life and

42 For an extensive discussion of this point, see StzNcIK, ComoNw&mTH, supra note 9, ch. 14.Selznick analyses the pertinent theories of Sigmund Freud, George Herbert Mead, and jean Piagetregarding 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 worldwidesolidarity, thus concentrating on what is developmentally the last stage, which is in fact the leastlikely to be reached and an outgrowth of narrower bonds of solidarity, making it normatively the

weakest level.

4DNNiNG R, supra note 36, at 46.45 ld.


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.4 6

7. Communitarian constitutional theory: The GermanConstitution viewed in the light of liberalcommunitarianism7.1The 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. Sucha 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 transnationalassociations 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 communit-

arianism, namely, the conception of a social-and legal-environment

extending from the near to the far horizon. This type of differentiation, how-ever, 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 nation-

state 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 world-state 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 ALLPoir, THE NATURE OF PREpmuicE 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,

CommoNwELTH. supra note 9, at 193, 387 (on the "primacy of the particular" and on "piety").

W Brugger

had spoken of the development of a national spirit or Volksgeist). Successfulstates are those that have brought about more positive than negative experi-ences or, as in the case of Germany in the twentieth century, have been able atleast 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 ofclarity is generally evident as to who is responsible for which kind of decisions,and the legitimization chain between democratic input and political output canoften be identified, whereas decision making in transnational bodies, especiallyin 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 solelyat the national level, for that would constitute another kind of communalabsolutism. The nation-state is rather an important sphere of political identity-building and an indispensable form of societal organization that takes intoaccount internal divisions and yet remains externally open in relation toEurope-in the case of Germany-and the rest of the world. The GermanConstitution has accomplished this task.4 7

The Constitution distances itself from the concepts of closed sovereigntyas promulgated by Carl Schmitt, who referred to the state as an "organized

political unit territorially closed and impermeable to strangers" and emphasizedmoreover that "properties such as unity and impermeability flow from theessential character of the political unity. '48 This is neither the situation ofmodern states in general nor of the German Constitution in particular.

The increasing permeability of nation-states is due to several factors. Forinstance, permeability is needed in order to forestall abuses of governmentalpower and prevent tyranny. It is required to enable effective completion oflegitimate governmental tasks when the nation-state--due to the nature ofthe task-either is too strong or too weak to do so.

However, differentiation may still be necessary in order to provide anadequate 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 [TheModern Constitutional State from the Perspective of the American and German Constitutions], 126

ARcmv DES OFFwrucHEN REcHrs 337, 356 (2001); WINFRIED BRUGGER, DEMOKRATIE, FREIHErr,Gmmr. SruDiEN zuM VERFASSuNGSREcHT Dail USA [DEMocIcy, LIEITy, EouvaLI. STUDIES ON THECONSTTUTIONAL LAW OF THE UNrITE STATES] 69 (2002).48 Cf. ScHseIr, supra note 30, at 47; CARL ScHrmr, VERFASSUNGSLEHRE [CONSTruTONAL THEORY] 49

(5th ed., 1970). On Schmitt, as a pre-modern authoritarian communitarian, see supra text accom-

panying 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 DaINING THE FED OF COMPARATIVE CONSTITUTIONAL LAw 93 (Vicki C. Jackson & MarkTushnet eds.. Praeger 2002).


German Constitution5 0 reveals an internal differentiation of the individual fed-eral states (Ldnder) as well as the right of self-administration at the level of thelocal governments (Gemeinden). A further separation of legislative, executive,and judicial authority is established not below, but rather within, the federalgovernment. This internal separation is meant to prevent political tyranny by acentralized state as well as to allocate tasks among state organs in the interestof administrative efficiency. It also works to protect and promote collective iden-tities as stipulated in article 29, section 1, subsections 1 and 2 of the GermanConstitution. According to this provision, the territory of the federation maybe subdivided into states in such a manner as to "enable the federal state inrespect 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-neglectedprovision reflects the communitarian agenda of a productive connectionbetween trade, state, and civil society as previously mentioned.

7.2The opening and permeation of the German Constitution by transnationalobligations takes place at three levels: through the integration of Germanyinto 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 transnationalismalso explains the unification process of the European Union. 53 The concepts of

s°For detailed expositions of these aspects of German law, see 1 HANDBUCH DES STAATTsR S DERBUNDESREPUBLiK DEtrrsa-iAND [HANDBOOK OF CONSTITUTONAL 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. Derkooperationsoffene erfassungsstaat [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 ableto make them, on account of their organisation, composition, function and procedures. It is meantto have an overall effect of mitigating governmental power"). For a recent discussion of the role ofarticle 29 of the German Basic Law, see PETER HABERLE, EuRoPAiscHE VERFASSUNGSLEHRE [EUROPEANCONSTrTUTIONAL 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 thesupranational integration process. See Hobe, supra note 50, sec. 4; JOST DELR0CK, DiE KoNsTrIJTIoNDES FRiIEENS AIS 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. whichbinds and unites the members of the European Council, as a legal instrument securing peace.

W Brugger

reducing abuses of authority and securing permanent peace were prominentthemes among the founding members during the planning of the EuropeanEconomic Community (EEC), with a special emphasis given to integrating andbinding the previous aggressor Germany into a European political structure.In addition, there was, and remains, a desire to create a more efficienteconomic organization among the members of the EEC-now EU-to increasewelfare as well as to increase the capacity to deal with problems thattranscended national boundaries (e.g., in the areas of infrastructure andenvironmental protection). In regard to the third leg of European integration,it was certainly a political goal to build an European identity as well. Withouta 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 willreplace national or regional identities.5 4 This explains the vague articulationof the ultimate goal of European integration, ranging from some type of"United States of Europe" to a loose confederation of states with divergentsupreme competencies.

5 5

In addition to accepting many legal responsibilities established by Europeanand international law, a third transnational track exists that is directed bothexternally and internally. Many, if not all, of the fundamental rights of theGerman Constitution are also human rights, that is to say, not dependent onGerman citizenship. Any person residing on German soil can invoke suchrights as freedom of speech and religious freedom, for example.

On the other hand, one must also take into account the constitutional rightsthat are reserved to German citizens. Only citizens, for example, have the rightto vote in federal and state elections. It is not necessarily true that foreigners liv-ing in Germany attach greater importance to freedom of speech and religiousfreedom. On the contrary, the right to vote may be even more important to themthan freedom of speech or religion! The fact that the German Constitution dealswith these rights differently is not acceptable to an egalitarian communitarianperspective. That perspective demands that all basic human needs be valued andsatisfied 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?], inINFORMATIONSGEsELISCHAFT LIND RBarnCxKruiR IN EUROPA: INFORMATIONEuE UND POLITISCHE TEInABE IN

DER EuRoPAIscHEN UNION [THE CULTURE OF INFORMATION AND LAW IN EUROPE] 211 (Marie-TheresTinnefeld et al. eds., 1995) and the commentary on that article by Jiurgen Habermas, EineDlskussionsbernerkang 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 ofMaastricht, 89 BVerfGE 155, 156 ("The Treaty of European Union constitutes a confederation ofstates (Staatenverbund) for the realization of an increasingly close union of the peoples of Europe.

as they are individually organized in states").


decision-making that results in binding law as one of those basic needs. For theconservative or liberal communitarian, granting voting rights only to citizens isjustified because the right to vote is essentially connected with the welfare andidentity of one's own country, as well as with loyalty to it. The same is true ofcompulsory 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), eventhough such a sacrifice may stem from those abstract, universal values forwhich that country and its constitution stand. 56

It makes sense, therefore, that such existential and loyalty-bound rights andduties as the right to vote and compulsory military service require more justi-fication than what is based on individual needs. Exercise of the right to voteand other rights reserved to citizens is not, according to the conservativecommunitarian view, a requirement for fulfilling basic human needs. As theliberal communitarian view would have it, exercise of such rights is not solelya matter of fulfilling basic needs but arises to a large extent from a pre-existingclose relationship with one's country and its people.

The right to political asylum is a peculiar device for the opening and perme-ation of the nation-state. This fundamental right as stipulated until 1993 inarticle 16, section 2, subsection 2 of the German Basic Law provided, "Thosewho are politically persecuted shall have a right to asylum."57 In contrast toother countries receiving refugees, Germany made this provision withoutlimitation. During the 1990s, this resulted in a continuous increase in thenumber of refugees who fled to Germany under the real or professed claim ofpolitically motivated persecution. In 1992, the numbers reached half a million.

For the supporters of universalistic communitarianism, an unlimited rightto asylum is a vital condition for the legitimization of the nation-state. In theabsence of a world-state able to secure conditions of freedom and humandignity for all, asylum is a second-best or-if difficulties cannot be surmountedin the refugees' country of origin-a third-best, but nonetheless indispensable,option. Ultimately, the universalistic communitarian must also support theidea that an unlimited, or at least far-reaching, fundamental right to immi-gration also exists for all people fleeing poverty. It is difficult, if not impossible,to demonstrate a qualitative difference between a person suffering fromstarvation and a person facing political persecution.

Conservative communitarians, however, do not consider only the humanneeds of refugees. They believe that maintaining and cherishing one's own tradi-tions 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 consti-

tute one of the major differences between conservative and liberal communitarians on the one

hand and universalistic communitarians/liberals on the other. See SuzNIcK, COMMONWEALTH, supra

note 9, at 389 and the views proposed in Honneth, supra note 10, at 15, 69, 84, 92, 111, 116,

121, 199.57GG art. 16, § 2, §§ 2 (ER.G.).

W Brugger

valid competing concerns. It is important, in their view, to strike a balancebetween these objectives. According to conservative as well as liberal commu-nitarians, the reasons why the refugee's community of origin has notsucceeded in creating economically and politically acceptable conditions maybe also considered. Such aspects of political responsibility weigh more in thediscussion than a country's own responsibility to accept refugees, as long asthat country has not actively contributed to the suffering or injustice ofthe refugee's state of origin. This does not mean that these communitariansentirely refuse to assist asylum applicants and refugees from poverty. However,conservative communitarians would rather plead for a clear limitation of assis-tance and prefer, in German parlance, that an "institutional guarantee," ratherthan a fundamental right to asylum, be anchored in the Constitution. Thus,governmental obligations would be further specified by statute, rather than bygranting a fundamental right to every asylum seeker worldwide. Regardingthe selection of refugees to be accepted as immigrants, they might also considercultural compatibility in terms of language, religion, values. Thus, they wouldsupport introducing a worldwide system for the accommodation of refugees inthe places, regions, and continents best suited to receive them.

In contrast, liberal communitarians would support a regulation that balancesthe basic human need to live in safety and dignity against the social, economic,and cultural interests of the country accepting immigrants. Such a solutionwould 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 refugeeswere admitted into the country in such numbers that their support impingedupon the amount of support available to citizens.5 ' The appendage to theGerman Constitution in 1993 of article 16(a), requiring refugees to apply firstfor asylum at the point of entry (i.e., from one of the countries that geographi-cally surround Germany), has effectively limited the right to political asylum andthus reflects the liberal-communitarian viewpoint of graded responsibility andspheres of accountability. This new provision no longer grants an unlimitedright to asylum to every political refugee, but it stops short of reducing the rightto asylum to a mere "institutional guarantee." It is left to the political process tovalidate this regulation, limit it conservatively or perhaps extend it universally.

7.3 Formation of communities without reference to politics7.3.1Liberal communitarianism is based on the assumption that people normallyneed to form communities and to be integrated into such communities in order

58 For a more detailed exposition of this view, see Winfried Brugger, Fur Schutz der Flijchtlinge-

gegen das Grundrecht auf Asyl!" [For the Protection of Refugees-Against the Right to Asylum as aConstitutional Right!], 48 JuRIisTENZETG 119 (1993); Winfried Brugger, Menschenrechte vonFl chtlingen aus universalistischer und kommunitaristischer Sicht [Human Rights of Refugees from the

Perspective of Universalism and Communitarianism], 80 ARcHIv FOR Rscrrs- uND SoZIALPHILOSoPmnE

318 (1994). Both these essays also appear in BRUGGER, LBELmSms, supra note 11, §§ 13, 14.


to lead fulfilled lives. At the same time, this must not lead to subjection orsuppression. It requires integration while respecting the integrity of theperson.5 9 This has been expressly stated by the German ConstitutionalCourt in its image-of-man formula, cited above. 60 Because the desire toassociate and to form closer communities is often exposed to internal andexternal pressures, there is an important reason to grant constitutionalprotection. Note, however, that such a guarantee protects different kinds ofcommunities. The distinction between state (governmental organizations) andsociety (societal associations) is only a preliminary and imperfect distinctionbeyond which it is necessary to take into account the differences in character,quality, and density of specific types of communities. 6 1 In this context, MaxWeber spoke of community types ranging from fleeting ad hoc associationsto perennial institutions.62 In systematic form, one can distinguish betweenassociations formed by core participation and identity building on the onehand, and topic-specific engagements in the pursuit of diverse group interestson the other.63

These considerations are expressly reflected in the charter of fundamentalrights as stipulated in the German Constitution. In addition to protectinginstitutions formed by long-standing traditions such as marriage and family(article 6) or religious and worldviews (Weltanschauungen, article 4), theConstitution also protects associations formed for indiscriminate and undefinedpurposes by granting the right to enter contracts (article 2, section 1), the rightto assembly (article 8), and the right to form organizations (article 9, section 1)."

With each of these rights, one's choice of associates and objectives is an expres-*sion of individual preference. One can form an association with one or withmany, interact for reasons of economics or ideals, and interrelate in a trivial orweighty manner. In addition, the right to enter associations, as well as to exitfrom them, is also guaranteed in most circumstances.

59 This is one of the main theses of Philip Selznick. See, e.g., SEzNICK, PERSUASION, supra note 9. at39 ("What we prize in community is not unity of any sort at any price, but unity that preservesthe integrity of the parts").60See supra note 24.

6 1 See GG arts. 2 and 3; PETR HABERLE, DE WESENSGEHALTSGARA TIE DEs ART. 19 ABs. 2 GG

[THE GUARANTEE OF THE FuNDAMENAL RiGHr oF ARCLE 19. SwnON 2 OF THE BASIc LAW] 96 (3rd ed.,1993) (on the necessity of complementing a liberal theory of constitutional rights focused onrestraining 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 normsare deprived of their nature if one attempts to force a one-dimensional state-individual schemeupon them.").62 See supra note 3 7.

6 3 Cf. SzNICK. COMMONWEALTH, supra note 9, at 184.

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

W Brugger

Doctrinally speaking, fundamental rights in general, and rights to formassociations in particular, have a positive as well as a negative side. 65 Thus,freedom of association, despite its strong communitarian underpinnings, isconsidered a "liberal" right.

7.3.2The German Constitution guarantees unrestricted freedom of religion andworld-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 expansiveguarantee is explained by the fact that religious beliefs and other deep-seatedworldviews often underpin the convictions upon which the morality of the citi-zenry is ultimately built, or should be built in order to prevent the secular statefrom losing its foundation of citizen support and civil engagement. 67 This con-tribution, according to German jurisprudence, justifies governmental supportfor associations of belief. At the same time, however, the state must remainneutral in relation to religions and may not assume a proselytizing role. Thesetwo pillars-promotion on the one hand and neutrality and mediation on theother-came into direct conflict in the case of crucifixes in public classrooms.What is the position of communitarianism when the government of a statewhose culture has been shaped by Christianity, such as Bavaria, provides for theopen display of crucifixes in the classroom? 68

Both German constitutional law and modern communitarianism 69 answerthe question of whether an administrative act ordering the display of cruci-fixes should be viewed as a violation of the neutrality obligation and thefundamental right not to be coerced into religious acts by determiningwhether the crucifix is used actively in classroom teaching 70 or if it serves as

6 1 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 theGerman Constitution-the principle of freely building social groups").6 GG art. 4 §§ 1,2 (F.R.G.).

6 7 See Ernst-Wolfgang Bockenflrde, Die Entstehung des Staates als Vorgang der Sdkularisation [The

Development of States as Process of Secularization], in REcfr. STAAT, FRE [HIT 92. 112 (2nd ed., 1992)("the free, secularized state lives by virtue of conditions that it cannot provide itself. This is thegreat risk assumed for the sake of freedom").6 8 See 93 BVerfGE 1, 25. The majority decision of the Constitutional Court essentially takes the

position of universalistic communitarianism, whereas the dissenting opinion implicitly representsliberal 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).

701 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.


an object of religious worship. In either of those events, it would be judged byall forms of communitarianism as impermissible, due to the need for separationof society and state as well as the separation of church and state. If the crucifixdoes not figure as an active object of instruction, but instead serves primarilyas a reminder of an important tradition that has shaped the country'sculture-perhaps giving only a faint indication of the state's support of thistradition without discriminating against nonbelievers or believers in otherreligions or worldviews-then the latter case must be distinguished.

Conservative communitarians would tend to regard the display of crucifixesas a desirable form of religious promotion, strengthening the community'scommitment to secular goals, such as solidarity and tolerance, which areembraced by "modern" Christianity. Liberal communitarians could also acceptcrucifixes in this example as legitimate and constitutional as long as thedisplay clearly signified support for general values, such as solidarity, and didnot amount, on closer examination, to a veiled instance of religious proselytiz-ing. They would also regard it as politically and constitutionally acceptable toban all religious symbols from schools or, alternatively, to introduce allreligions' respective symbols into the classroom. Universalistic communitari-ans would only accept the latter approach, holding that only a strict unifor-mity of treatment of all convictions is legitimate. They would view the selectivepromotion of one particular religion as paternalism and suppression. 71

How would uniform support for all religions be judged? The requirement ofreligious neutrality in Germany does not stand in the way of state supportfor all religions. Does this however rule out selective support for particularreligions? A good case can be made that it does, if one thinks and argues fromthe standpoint of Western experience. In the end, this depends to a significantextent on concrete developments and experiences that may not be divorced,according to the communitarian understanding, from the standards of legiti-macy and acceptance. 72 Imagine a polity that has been traditionally shaped byone religion and its values, and now-due to internal perceptual changes orperhaps a reaction to external pressures-decides to separate itself from thisreligion. One can assume that, from its internal perspective, it would defend aslegitimate a legal order that respected all religions but did not equally promoteall of them. Consider a homogeneously orthodox country,73 which is calledupon to separate church and state but wishes to continue supporting itsreligious 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 forclasses of religious instruction, no objections exist against publicly displaying the symbols of therespective 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.

W Brugger

polity's citizens are free to choose their own faith or worldview, it would not beillegitimate if the symbols of the traditional religion continued to be displayedin public schools, as long as these symbols were not actively implemented asobjects of instruction for the purpose of converting those with other con-victions. 74 In these situations, one could not rule out understanding theconstitutional clause of "Reverence of Christ" merely as an acknowledgementof a historically shaped value and a community good, provided that this didnot spill over into proselytizing, conversion, or alienation of other viewpoints.For the conservative communitarian, these ways of providing special supportto the traditional, predominant religion would be acceptable.

Such selective promotion would be ruled out, however, within a Westernframework of state legitimization shaped by neutrality and religious pluralismas well as by liberal communitarianism. But such a strict neutrality is onlyrequired vis-&-vis religions and world-views in the sense that they are sources,or organized systems in the case of churches, of fundamental convictions thatcan and should not be adjudicated or regulated by state authority. The state neednot remain strictly neutral toward those aspects, values and symbols of religionsor 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 ofthe daily life of the entire culture and has thus acquired significance beyondthe narrower dimension of a particular faith or sect. Such developmentsconstitute secularization in the widest sense of the term. One may think, forexample, of the state observance of Sundays and other religious holidaysin countries with a predominantly Christian culture, the commencement ofopening sessions of a parliament by a representative of a majority religion, thepublic 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 Sociary 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 isrecited 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 accommo-

dation... governmental action has 'follow[ed] the best of our traditions' and 'respected the

religious nature of our people.'" Id. at 677-78.


use the word "god." 76 One may also think of the aspects, symbols, and valuesof religions or worldviews that have become an important aspect of thecollective moral consciousness and self-understanding of a particular commu-nity 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.7 8

At the same time, there is still a nexus to the moral constitution of the politicalcommunity. Think of appeals "to help the poor" or "to respect the dignity ofevery human being." A political community may have a legitimate interestin not abandoning such a community-building nexus, but rather lending itsupport, given that the persuasive force of such constitutional values ashuman dignity, freedom and equality, tolerance and social responsibility tendsto be contingent and precarious. In the framework of liberal communitarianism,the fields of church and state are divided but not strictly separated becauseone does not intend to divide or weaken the continuity and mutual support ofmorality, solidarity, and tolerance. In contrast, representatives of universalisticor egalitarian communitarianism would support a strict separation and there-fore forbid the display by the state of symbols and messages having a mixedreligious-secular character.

7.3.3The protection of marriage and family in article 6, section 1, of the Basic Lawis another particular example of association: "Marriage and family shall enjoythe special protection of the state."79 The rationale for the protection ofreligious and worldviews also applies with respect to their fundamental rights.Social and civil engagement from polity members can be expected from thosewho, in the near horizon of family life, have already practiced and acquiredthe motivation for such engagements, or who draw motivation for them frombeliefs that they consider binding on themselves.

Therefore, the state has a particular interest in the institution of marriageand in the family. It is in this environment that most children are reared, andmarriage purportedly provides the best conditions for a child to thrive. However,

76 Note that phrases such as Grf Gott [a form of greeting used mainly in southern Germany] or

Urn Gottes willen [for God's sake!] are also used in classrooms.77 On this matter in greater detail, Hermann Liubbe, Zivilreligion und der "Kruzifix-Beschlufl" desdeutschen Bundesverfassungsgerichts [Civil Religion and the "Crucifix Decision" of the GermanConstitutional Court], in Brugger & Huster, supra note 11, at 237.78 In precisely this vein, the German Constitutional Court up until now has confirmed the consti-

tutionality of state "Christian Religious Schools" (Christliche Gemeinschaftsschule). It held that suchschools are constitutional as long as they do not promote a particular religious message ordiscriminate against other religious convictions or worldviews. Such schools were set up in orderto seek a positive way to connect to Christianity in the civic-religion sense of the term--as areligious belief whose core values have been secularized and have permeated the moral and legalconstitution of the community as a whole. See 41 BVerfGE 29; 41 BVerfGE 65; 41 BVerfGE 88. Inthe crucifix decision, only a minority opinion followed this view.

W Brugger

what should be understood by "marriage"? Does this refer only to the traditionalform of permanent union between a man and a woman or does it apply also tothe unions of two men, or two women? This is a matter of controversy in poli-tics, law, and communitarian theory.80 Conservative communitarians regardthe traditional and culturally predominant forms of union as singularly worthyof protection and state support. Other forms of unions may only be prohibitedor criminalized, however, when they demonstrably cause or are likely to causedamage to society. Special protection is not accorded to alternative lifestyles.

Universalistic communitarians take an entirely opposite view. According tothis perspective, the free choice of partner and purpose for the union is afundamental constitutional value. If the purpose of marriage is stipulated asa permanent union, then one's choice of partner-including the choice as togender-should remain free. Thus, institutionalizing same-sex marriages isdesirable and should be legally possible.

The liberal communitarian would attempt to find an acceptable middleway. This viewpoint would concede that permanent cohabitation and a richand meaningful life can develop not only between between individuals of adifferent but also of the same gender. However, given the long and valuedconcept 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 legalunion that is not recognized as "marriage" but is its functional equivalent. Itwas in this vein that the German Parliament created in 2001 the LegalPartnership Code (Lebenspartnerschaftsgesetz).8 1

7.3.4What are the attitudes toward homosexuality that influence the background ofthese discussions? Here again there is a clear divergence among the variousversions of communitarianism. 82 Conservative communitarians would view

79 GG art. 6 § 1 (F.R.G.).8 0 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 iber die Eingetragene Lebenspartnerschaft [The Registered Life Partnership Act of February

16, 20011, 1 BUNDESGEsuirABATr 266. Many indicators point to a similar development in the UnitedStates after the Supreme Court decision of Lawrence, 123 S. Ct. 2472 (2003). See Same-sex "mar-riage" draws wide disapproval, WAsH. Tus, July 5, 2003 ("There's some evidence that there may beless opposition to laws creating a 'civil union,' similar to the one created in Vermont three yearsago that gives marriage-like rights to homosexual couples in Vermont"). Regarding this point, theadvantage of liberal communitarianism is clear. Even if one is not a convinced supporter of thisvariant 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 conduciveto a temporary cease-fire.82 See Ronald Dworkin, Liberal Community, Symposium: Law, Community, and Moral Reasoning, 77

CAUF. L. Ray. 479 (1989); Philip Selznick, Dworkin's Unfinished Task, Symposium: Law, Community,


homosexuality as immoral or as a hindrance to the healthy development ofsexuality and hence unworthy of state support. They would have to concede,however, that their perception is disputed in society and that societal damage canonly occur indirectly when consenting adults-who, whether by nature or bychoice, turn their sexual desires to persons of the same gender-are involved.8 3

The universal communitarian takes a different approach-the morechoices, including sexual choices, the better.8 4 Traditional moral conceptsconcerning sexuality would be typically regarded as suspect, because theypresumably suppress sexual minorities. Therefore, full recognition and protec-tion of these minorities is warranted, extending from the right to marriage, theright to bear or adopt children, to the maximization of sexual freedom, includ-ing sadomasochism based on mutual consent.

Following these lines of argument, the spectrum of legal reaction to homo-sexuality in Germany has noticeably evolved from criminal prohibition before1969 to legal tolerance and now, to the present-day struggle for full socialand legal recognition and even special state support.85 The latter was discussedduring the latest reform of the German Constitution but was eventuallyrejected. Several German states have extended the anti-discrimination clausesof their constitutions to include sexual orientation.

The liberal communitarian can live with the current version of the GermanConstitution-a criminal sanction against homosexuality would violate thegeneral right to liberty as provided in article 2, section 1, on account of beingdisproportionate. Apart from that, it is left to the German parliament to strikean acceptable balance. It is important to distinguish between (1) criminalsanction/repression, (2) liberalization/limited tolerance, and (3) stateaid/full recognition and/or tolerance.8 6 For any liberal commentator, crimi-nalization is only legitimate when considerable, verifiable-perhaps evendirect-damage occurs. In the case of homosexuality practiced on the basis ofmutual consent, one can hardly speak of damage, and it therefore must beexcluded from criminal sanction.

and Moral Reasoning, 77 CALIF. L. REv. 505 (1989). The conceptual dividing line in this discussionis between liberals (equivalent to universal communitarians) and liberal communitarians.

81Both 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.

81 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 E Valdes, Coming Out and Stepping Up:Queer Legal Theory and Connectivity, 1 NAT'L J. SEXUAL ORIENTATION L. 3 (1993).

SS A detailed discussion is provided in JORG RISSE, DER VERFASSUNGSRECHTLICHE SCHU' DER

HoMosExuALirAT [CONSTrru'noNAL PROTECTION OF HOMosEXUALITY] 25, 34 (1998).

86In 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).

W Brugger

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 legalexemption and-in order to remain consistent-would also demand full recog-nition by the law. The universalistic communitarians' most important maxim

in determining legal regulation is that "anything goes" as long as it occursbetween consenting adults. The liberal communitarian, however, would viewthis as going too far. He or she would ask whether this form of self-determinationfalls within the framework of sexual practices that allow its participants to live,thrive, and develop. If not, then distinguishing between decriminalizationand full legal recognition (for example when teachers address sexuality in pub-lic schools) would be justified.8 7

Another important matter of social and legal debate is the question of howhomosexuality should be dealt with in schools. In this context, the liberal com-

munitarian will at least advocate tolerance in order to balance out opposingviews. As for the rights of homosexual couples to adopt children, it is difficult tofind a middle position. If homosexuality is not regarded as immoral or harmfulto society, then the usual criteria, stipulating protection and promotion of thechild's welfare, should apply. However, if homosexuality is deemed immoral orunhealthy, then the state is obligated to prevent such harm to the child'swelfare, on the assumption that homosexual couples encourage their childrento emulate their lifestyle and that this actually leads to homosexuality.88

7.3.5Suffice it to say, the discussion above demonstrates why conservative andsome liberal communitarians are against anchoring "sexual orientation" ina constitutional antidiscrimination clause. Such a far-reaching guarantee ofsexual choice would make it difficult or even impossible to legislate against thefollowing: special state support for traditional marriages as opposed to same-gender marriages; the principle of monogamy; state differentiation, especiallyin schools, between cautious tolerance and full approval of homosexualrelationships; distancing of the state from extreme sexual practices.

One more point should be mentioned. According to conservative, as well asliberal, communitarianism, and in contrast to universalistic communitarianism,the convictions of the majority, and traditions of long standing are not a priorimorally and legally questionable or illegitimate expressions of an irrationalprejudice toward the just and enlightened convictions of the minority.89

8 7 See Laskey, Jaggard and Brown v. The United Kingdom, Feb. 17, 1997, 1997-I R,'ogRs ANDDEcsioNs 120: Selznick, supra note 82, at 511 (on the restriction of the "anything goes" thesis).88 This has been called into question by recent studies. See RIssE., supra note 85, at 21, 338.

89 This view is taken, however, by the Frankfurt District Court in its plea for giving same-sex mar-

riage a status equal to that of traditional marriage. AG Frankfurt, 43 N.J.W 940 (1993) ("It is...


Whether any of these positions is correct must be clarified in social andpolitical discourse in which, according to all three variants of communitari-anism, the principles of democracy and fundamental rights must be guaranteed.Traditional notions of "good" and "just" deserve an increased level of respectunder conservative communitarianism and at least a moderate level of respectamong liberal communitarians. This by no means rules out the possibility ofrevising one's views. Such revisions, moreover, can legitimately extend touniversalistic preconceptions of rationality, reason, and justice.

7.4Lastly, it is necessary to address the difference between neutral liberalism andliberal communitarianism. Liberal neutralism, as advocated by ImmanuelKant and John Rawls among others, differentiates strictly between standardsof good living and standards of justice.90 The standards of proper living inpresent times are seen as irrevocably pluralistic and controversial, whilethe standards of justice and fairness are much less so. The latter should beamenable to objective solutions within the framework of proper procedures.John Rawls, for instance, proposes a neutral and objective resolutionof normative claims by approaching them from behind a veil of ignorance,which thus guarantees the fairness of the decision-making process regardingthe basic structures (i.e., the constitution) of a political community.Communitarians question whether a dramatic difference exists-as to thedegree of consensus or dissension-between the standards of the good andthose of the just, as claimed by neutral liberalism. In addition, communitari-ans consider not only justice but also, at least to some extent, the value ofparticular social formations to be amenable to discussion, debate and collectivedecision making.

Neutral liberalism must relegate the formulation of what constitutes afulfilled life (as in marriage and family) to the realm of the private sphere assoon as controversies arise and must likewise abandon collective support fordisputed positions as provided, for example, in article 6, section 1 of the BasicLaw: "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 samegender holding that to be morally objectionable. Such attitudes for which there is no rational foun-dation cannot stand in the way of concluding a marriage"). This statement reflects the rulingopinion In Lawrence, 123 S. Ct. 2472 (2003).

90 See Stefan Huster, Die religids-weltanschauliche NeutralitAt des Staates: Das Kreuz In der Schule aus

liberaler Sicht [The Religious Neutrality of the State: The Discussion of the Crucifix in the Schoolroomfrom 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 SEaZNcK, COMMONWEALTH, supra note 9, at 380(also in a critical vein).

9'GG art. 6 § 1 (F.R.G.).

W Brugger

assume (regardless of whether everyone is convinced) that these ways of lifeprovide-compared to other options-the best conditions for rearing childrenand teenagers to become stable, balanced adults.92 For neutral liberalism, thisargument would already exceed the threshold of tolerable state repression.Liberal communitarians, in contrast, regard marriage and family as a wayof life supported by "funded experience,"9 3 which is neither repressive noroppressive because no one is coerced into participating in it, and dissolution ofmarriage is available through legalized divorce.

One may also characterize the difference between neutral liberalism andliberal communitarianism as follows: liberal communitarianism representsa moderate form of perfectionism. A political community may promoteand selectively support "tried and true" lifestyles, even though these may beopposed by some, as long as the basic requirements of liberalism are respected.This means that "enter" and "exit" options should be available in mostassociations, and that functionally equivalent forms of the tried-and-truelifestyles should be allowed by law, as is done in the German Life PartnershipCode.94 Thus, one may decide to live in a mdnage d trois, and be accorded theright to do so by the general liberty clause or the freedom of association clausein the German Constitution; however, a polity based on the concept of liberalcommunitarianism retains the right to prevent the marriage of three persons.The liberal neutralist will have difficulties with such a prohibition so long asthe participants are consenting adults who want to form a "union" of what-ever duration. However, it should be kept in mind that tradition alone is notdeterminative-human well-being must be the ultimate test. One cannot fullydetermine what is good for people generally in an individualistic and ad hocmanner, according to a "whatever-two-adults-consent-to-at-the-moment"theory. Perspectives on what constitutes the common good should considerthe long-term conditions and consequences of individual and collectivechoices for the fabric and the quality of the polity's social and political life.

92 COMMUNrIARIAN READER, supra note 1, chs. 5, 6; SuEzNIcK, COMMONWEALTH, supra note 9, at 379;

Brugger, On the Relationship, supra note 11, at 142.93 On this formula, which originates in pragmatism, see SazNICK. CoNmowEALTH. 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 Ernst-

Wolfgang Bockenforde that the liberal state exists by virtue of conditions that it cannot guarantee

itself. See Bockenforde. supra note 67. "Cannot guarantee" does not rule out, but rather includes

reflection and promotion of conditions that encourage civil support.


Appendix: Three variants of communitarianism

A. Substantive, B. Liberal C. Egalitarian-conservative communitarianism universalisticcommunitarianism communitarianism

1. Anthropology, Individual needs Individual needs Autonomousconception of strong roots in to live in multiple individualhuman nature: the community communities endowed

with reason

2. Conception of Freedom to lead a Freedom and Fulfillmentfreedom: fulfilled life in fulfillment in one's through option

one's community community of freedom fromone's community

3. Importance of Constitutive role; Range from Primarilytraditional community goals instrumental to instrumental,lifestyles: placed before self constitutive free choice of

lifestyle, selfplaced beforecommunity goals

4. Conception of Priority of Mutual references Priority ofmorality traditions, between conven- reflexive, critical

ethical practices, tional and morality overconventional reflexive, conventionalmorality critical morality morality

5. Justification of Recourse to "is" Recourse from Recourse tomoral norms; as the concrete "is" to "should" "should" throughprincipium substance of through master abstraction;diiudicationis good and just; ideals; particular proceduralization;

particular and general discourse fromjustification; justifications; "outside" tointernal from "inside" to "inside"; extensiveperspective; "outside" generalizationsmay be only arguments;marginally gradedgeneralized responsibilities

6. Compliance Individual is Immanence and Appeal to reason;with moral integrated and transcendence of all human beingsnorms, principium bound by existing existing are ends inexecutionis: relationships of relationships themselves

solidarity of solidarity

7. Relationship Community Community and Universal justicebetween tends to replace justice must be tends to displacecommunity or define justice balanced or take priorityand justice: over particular

communities

W Brugger

Appendix: continued

A. Substantive, B. Liberal C. Egalitarian-conservative communitarianism universalisticcommunitarianism communitarianism

8. Relationship Collective goals Collective goals Individual rightsbetween tend to have and individual tend to havecollective goals priority rights must priorityand individual be balancedrights:

9. Conception Traditional Balance between Equal respect andof the common lifestyles the respect and promotion of allgood: primarily promotion of people and groups;

respected particular neutrality towardand promoted; lifestyles and particular lifestylesconstitutional constitutionalrights to freedom rights to equalityand equality and freedomare secondary

10. Minority Priority placed on Open and Priority placed onrights: status of civilized struggle on status of

majority for recognition minority

11. Mutual Near horizon of Theory of Far horizon ofresponsibility morality takes responsibility morality takesamong precedence spheres graded precedenceindividuals: from near to far

horizons ofmorality

12. Primary Concrete Concrete Abstract legalfocal point of personality personality and personhuman beings: abstract legal

person

13. Political Substantial Participation in Democraticintegration consensus and/or the democratic participation andand stability participation process and rights to freedomachieved in the substantial and equalitythrough: democratic consensus

process

brugger, winfried - communitarianism as the social and legal theory behind the german constitution -...

Documents