The arguments summarized below are drawn from the author’s article “Public Law and the Limits of Philosophy: German Idealism and the Religious Constitution,” forthcoming in Critical Inquiry.
It is a widely held view that the juridical and political management of religion should be grounded in fundamental normative truth. Catholic communitarian and natural law doctrines are among the more evidently sectarian variants of this view, teaching that society should be understood as an association governed by the natural law goods that it must realize as virtues, and that law and state should govern in accordance with the values embedded in community or society. Less evidently sectarian are those variants teaching that law and politics should be grounded in the free choices of rational individuals, whether this be understood in terms of the Lockean state acting as a trustee for individual rights, Immanuel Kant’s conception of public law as the exercise of power required to realize the a priori principle of individual right, or the latter-day improvisations on Kant found in John Rawls and Jürgen Habermas. Catholic commentary has rightly pointed to the Protestant character of these individualist-rationalist doctrines, although without first removing the sectarian beam from its own eye.
On these views the juridical and political management of religion—with regard to such things as mutual toleration, religious pluralism, the treatment of religious minorities and majorities, the presence of religion in the “public square”—should be grounded in these normative truths because society itself is ordered by them, and law and politics are the executive arm of moral society. Protestant rationalists thus argue that toleration can be grounded in a democratically empowered recognition of the free individual pursuit of rational religious truth. Catholic communitarians teach that religious pluralism can be secured through a “politics of recognition”—a process of mutual interpretation in which each religious community recognizes the goods or values “embedded” in the life-rituals of the others. It is important to take seriously, however, the charge that each of these positions rightly levels against the other: namely, that their respective central concepts—free individual reason, embedded community values—are disguised religious teachings. For this transforms the claim that the juridical and political management of religion should be grounded in such normative concepts into a demand that it should be controlled by one or other of the sectarian religions.
In suspending the competing truths advanced as normative theological and philosophical foundations for the juridical management of religion, the preceding remarks adopt a standpoint derived from the history and present form of the German religious constitution. The striking thing about this constitution is that it has made the constitutional regulation of the public confessional religions contingent on suspending the question of theological or metaphysical truth. To grasp this remarkable state of affairs it is necessary to observe that rather than arising from rationalist or communitarian philosophies, the German religious constitution emerged from a series of piecemeal innovations in the instruments and institutions of imperial public law, negotiated by the juridical representatives of warring Catholic and Protestant estates, whose driving concern was to ensure the survival of their own religion by establishing conditions for the political coexistence of the two confessions within the German Empire.
When it first emerged with the Religious Peace of Augsburg in 1555, the religious constitution was thus not the product of agreement between rational individuals, or of a politics of mutual recognition between different virtuous communities. Rather it was forged as a political compromise between two irresolvably antagonistic confessional blocs, taking shape as a series of measures internal to imperial public law: the establishment of parity of legal treatment for the two confessions in the imperial high courts; equal access to imperial juridical and political offices; the de facto acceptance of permanent religious division; and (most significantly for these remarks) suspension of the question of religious truth in the treaty negotiations and the constitutional enactments that followed. The (Westphalian) Treaty of Osnabrück of 1648 altered these arrangements in several important regards: by recognizing three imperial religions (Lutheranism, Catholicism, Calvinism); by mandating this recognition within territorial states not just (as previously) at the imperial level; and by establishing the instrument of the Normaljahr—the standard or normative year—according to which the distribution of religious properties, populations, and jurisdictions nominally holding at a particular year (1624) would be used as the status quo ante, and as the norm for judging religious disputes before the high courts. At the same time, Osnabrück maintained the crucial and consequential double-sided architecture of the Augsburg constitution: namely, a pluralist and relativist (and in this limited sense “secular”) public law framework acting as the carapace for a plurality of rival absolute religions.
This constitutional order opened a profound fissure in German political and religious culture. It meant that the public law jurists responsible for adjudicating religious conflict were required to view religions as equally legitimate civil associations regardless of their truth claims, while confessional theologians and metaphysicians continued to treat (their) religion as the one true means of communicating with God and achieving salvation. In effect the constitutional order separated the historical existence of the confessions from their theological or metaphysical truth. Crucially, this was not in order to debunk or secularize the confessions, but to ensure their continued existence, and to allow each to determine its absolute truths unmolested by the others. As a result, this Janus-faced constitutional order became almost unintelligible to the theologians and metaphysicians that it sheltered under its canopy. For it was central to their understanding that historical existence manifested divine truth, or that it unfolded in accordance with transcendental reason, which meant that an historical constitution lacking such normative foundations could only be regarded as illegitimate and pro-tem. This partitioning of the juridical intelligibility of the religious constitution from theological and metaphysical truth meant that the more brilliant the philosophical light shone on the constitution, the less visible it became.
When Kantianism made its splash in the subculture of Protestant academic rationalism, it introduced two doctrines that were alien and inimical to the religious constitution and indeed to the entire history of German public law constitutional thought: first, that a constitutional order should be normatively grounded in the rational agreement of the individuals to whom it applied; and second, that morality and religion should be grounded in a true principle or “moral law,” internal to individuals as rational beings as the basis of their moral willing, and accessible to pure philosophical reflection. According to Kant this meant that the German religious constitution was doubly illegitimate: in part because it was not grounded in the proto-democratic rational willing of citizens, and in part because in entrenching an array of merely “statutory” or “empirical” religions it impeded the free individual pursuit of moral truth which would necessarily see these religions supplanted by Kantian moral philosophy.
No less inimical to the German constitutional order, however, were the doctrines of Kant’s Catholic opponents. For they declared that, as the form in which natural goods are realized as virtues, community or society is governed by natural law, thereby making the legitimacy of positive constitutional law conditional on it enacting Catholic natural law norms.
As we have observed, however, the grounding of the religious constitution had nothing to do with agreement among rational individuals. Neither did the compromise between the warring confessional blocs on which the constitution was grounded have anything to do with their mutual recognition as virtuous communities, since it was mutual fear and wars of attrition that had driven them to accept the public law instruments and norms on which constitutional religious pluralism was based. In fact, the normative disposition of the constitution arose from the juridical arrangements through which it had been negotiated: centrally from the Normaljahr, or normative year, whose distribution of religious properties, populations, jurisdictions, and incomes provided the norms for settling religious disputes in the high courts throughout the eighteenth century. Far from recovering its actual normative order, those theologians and philosophers who have declared that the legitimacy of the religious constitution depends upon the rational will of self-governing individuals or, alternatively, on its recognition of virtue-creating communities, are doing something else entirely: they are seeking to undermine its historical legitimacy through the supremacist assertion of sectarian metaphysical truths that have been suspended at the constitutional level in order to secure their social and academic coexistence.
Demands that the German religious constitution should be grounded in one of the rival normative truths that it houses are both unavoidable and threatening. They are unavoidable because the whole effect of the Janus-faced relativistic (“secular”) constitution was not to secularize religion and society but in fact to ensure the survival of rival absolute religions in perpetuity. As a result, these religions and their philosophical descendants must perpetually challenge the legitimacy of the relativistic constitution on the basis of absolute metaphysical truths whose social teaching it secures. But these demands are threatening to the pluralistic constitutional order because in viewing it through the lens of one of the religious or metaphysical cultures that it “fails” to realize, sectarian theologians and philosophers have been tempted to seek to overturn the order by allying themselves with anti-constitutional political parties promising to provide a true normative foundation for the constitution.
This is what occurred in the lead-up to the 1848 National Assembly when, in the wake of Napoleon’s dissolution of the empire, and the ensuing period of constitutional fluidity, rival philosophical-political parties—Christian theocrats, Kantian secularist democrats, left-Hegelian advocates for the de-estrangement of religion, right-Hegelian apologists for an ethical state—engaged in fierce sectarian combat to ensure that their particular philosophy would finally provide the constitution with the foundational truth that it lacked as a mere modus vivendi. When, as a result of political stalemate and disintegration, the double-sided relativistic constitution was reinstated in 1849, this was much to the relief of many Jewish intellectuals, who feared a democratic republic grounded in a unifying truth—just as Prussian Catholics had feared Protestant rationalism in the 1790s—and looked fondly on imperial multi-confessionalism. Needless to say, the reinstatement of the pluralistic constitution was conditioned not by the discovery of its true normative foundations but by suspending the fractious pursuit of them, as would be the case in 1871, 1919, and 1949, when the constitution was serially re-established following its interruption due to political turbulence, war, and military conquest.
In the German context, to teach that the religious constitution lacks legitimacy in the absence of true normative foundations—whether these be provided by the agreement of rational beings or the recognition of virtue-realizing communities—is already to have adopted an anti-constitutional posture. Nonetheless, the freedom of philosophical and ideological associations to espouse such teachings was recognized in Article 137 of the 1919 Weimar constitution. What was recognized there, however, was not an “inalienable” right grounded in the freedom of reason and expression, but a conditional corporate freedom based on the constitutional treatment of the confessional religions. Members of associations dedicated to advancing a particular philosophical or ideological Weltanschauung were thus free to determine their own teachings and affairs under a pluralistic constitution, but only insofar as they did not seek to overturn the constitution or infringe the rights of other associations—including the confessional religions—to maintain themselves.
In the 1790s when Kant began to teach that individual reason would lead to the displacement of confessional religion by moral philosophy, and that a constitution standing in the way of this would be illegitimate, the Prussian government declared him in breach of his constitutional duties as a public servant in an institution playing a role in the training of Lutheran pastors for East Prussia. Similarly, in 2008, after a professor in the Göttingen Protestant theology faculty, Gerd Lüdemann, was forcibly transferred to a humanities research center—as a result of the fact that he had begun to teach that the incarnation and the resurrection were only estranged expressions of human psychological need—the German Constitutional Court upheld his transfer, declaring that the constitutional right of the Lutheran Church to maintain itself outweighed his individual rights to freedom of expression and teaching. In these two cases, in defending a constitution whose suspension of absolute truth is the condition of protecting a plurality of such truths, the judicial authorities drew the line beyond which teaching the truth breaches the constitution.
At least with regard to the German context, it might be hoped that those who think that a secular constitution has excluded religions from the “public square” could come to understand a fundamental historical-juridical state of affairs: namely, that this constitution was dedicated to ensuring the permanent presence of confessional religions and philosophical associations in the public square. The condition was that the square itself not be grounded in the theological and philosophical truths being contested within it. But such a hope cannot but be vain, for the reasons outlined.