The conference poses the fundamental question of the legitimisation of law in society. It is about religious and secular justifications, about positive and super-positive law, about state and religion and finally also about the individual in the community. In short, it is about "everything that is law". If one poses the question of the legitimisation of law in this broad sense, then it concerns practically all humanities and social sciences, some of which had their say at this conference: cultural studies (Jan Assmann); theology (Hans-Georg Gradl); philosophy (Wilhelm Vossenkuhl); political science (Barbara Zehnpfennig). Other subjects could easily be added: sociology, psychology, economics and - if one thinks of work in the field of law and literature - then one can easily add philology and the fine arts.
The professional perspective adopted in this article is that of jurisprudence, more precisely that of international law and comparative constitutional law. It deals with the significance of law in the modern international order and its role in the organisation of binding public authority, both domestically and internationally. The relationship between the state and religious communities is also included, a field in which particular questions of the legitimisation of law arise: How far does the autonomy of religious communities extend in setting their own laws and where does state law set limits? Ecclesiastical labour law, with its special loyalty requirements and associated special termination options, provides clear examples of this. Precisely because of the interdisciplinary breadth of the topic, some preliminary conceptual considerations are first necessary, from which the legal perspective of this article on the topic arises.
Preliminary conceptual considerations
In order to gain a jurisprudential approach to the question of the legitimisation of law, it is first necessary to examine the terms used. This applies both to the relationship between law and justice and to the categorisation of society, religion and the state (or more generally: public authority).
Legislation vs. creation of law
The subtitle of the conference refers the question of legitimisation to "legislation". As the title of Jan Assmann's lecture shows, one can have different ideas of "law" from different disciplinary perspectives. The spectrum extends as far as the natural sciences and mathematics. As lawyers, especially if our background is in public law, when we think of "law" we first think of the parliamentary law, i.e. the law passed in the formal parliamentary procedure with the claim to be generally binding. However, in the breadth of all "what law is", the Parliament Act is only a small part of it. There are also numerous other forms of law: for example, contracts between private individuals (a tenancy agreement or employment contract are also "law"), administrative acts (e.g. a building permit or a naturalisation decision) or statutes as internal law of legal entities under public law (universities, municipalities). In international law, customary law (based on a general legal conviction of state practice) plays a major role. And last but not least, court judgements are also "law" in this broad sense.
It is obvious that the question of legitimisation for these very different forms of law cannot be answered uniformly. While contractually generated legal obligations can usually be legitimised via the consensus principle, i.e. the consent of the contracting parties, there is an increased need for legitimisation in hierarchical relationships in particular. And even there, there are differences, for example, between the employer's authority to issue instructions under private law in an employment relationship and the public law order of a police officer to vacate a certain place. The following considerations relate exclusively to legal relationships that fall under public law, i.e. legal relationships that involve the exercise of sovereign power. The understanding of law used here therefore goes beyond the narrower concept of law - at least from a jurisprudential point of view - but does not include "everything that is law", but only those parts of law that relate to the exercise of sovereign power, for example by themselves being an expression of the exercise of sovereign power or by serving to legally limit sovereign power.
Society - Religion - State - Sovereignty
A second preliminary conceptual remark concerns the categories of society, religion, state and sovereignty. It is obvious that different understandings and categorisations of terms are used depending on the subject-specific perspective and concrete question. The sociology of religion pursues different epistemological interests than the theory of the state, and from a theological, philosophical or political science perspective, other categorisations may prove to be meaningful and useful. It is therefore not possible here to make a "correct" categorisation and reject other categorisations as "incorrect".
However, it is important to disclose the premises of one's own perspective in order to avoid misunderstandings. The concretisation of "law" already refers to the exercise and limitation of sovereignty. It is therefore a question of norms with which a society establishes basic rules of coexistence with the claim of being binding and, if necessary, enforced. For a long time, this form of sovereignty was concentrated in the state, but is increasingly being exercised jointly by several states through international organisations founded by them. The most prominent example is certainly the European Union. It therefore makes sense to speak not only of the state and of state authority, but more generally of the exercise of sovereign power.
The associated claim to general binding force can only be realised if it encompasses all parts of society in the same way. This makes it necessary to understand religion not as a separate category alongside society (the subtitle of the conference could be interpreted in this direction), but to integrate it into a broadly understood concept of society. To put it bluntly: The claim to obedience of public authority also applies to religion and religious communities. Behind this is the secularisation of public authority, a central historical development, at least for Europe, which can be understood as a basic condition for the legitimation of democratic rule.
Secularisation of public authority as a basic condition for the legitimisation of democratic rule
Ernst-Wolfgang Böckenförde has described the emergence of the state as a process of secularisation in which the political order gradually detaches itself from its religious form. This process is not only formative for the legitimisation of public authority, but also for the relationship of public authority to religion. The term "religious constitutional law" is increasingly being used instead of "state-church law", which is strongly characterised by the idea of an institutional allocation of two public powers. This term is not only better suited to the changed religious environment in Germany due to the pluralisation of religious convictions (as of recently, less than 50% of the German population belong to one of the two Christian churches), but the concept behind it also makes it easier to deal with the embedding of the organisational dimension of religion in the general doctrine of fundamental rights.
Above all, this has repercussions for the understanding of the religious communities' right to self-determination, which on the one hand is protected by fundamental rights and therefore stands in the way of state intervention, but on the other hand is also subject to the usual balancing process in such cases in the event of a collision with conflicting individual fundamental rights. The fact that different weightings are possible here is illustrated by individual church labour law, on which different positions are currently being taken by the ECJ and the Federal Constitutional Court. The outcome of this dispute will largely depend on a constitutional complaint still pending in the "Egenberger" case (the proceedings are pending before the Second Senate of the Federal Constitutional Court under case number 2 BvR 934/19).
This also involves the question of how intensively the state courts are allowed to scrutinise decisions made by religious employers when weighing up their own self-image. The ECJ is calling for more intensive scrutiny here. For the Federal Constitutional Court, on the other hand, the religious communities' right to self-determination also leads to a reduction in the scope of control. Irrespective of this different weighting of the religious communities' right to self-determination, there is no doubt for both courts that the right to self-determination is exercised within the framework established by secular law. The ECJ would narrow this framework, the Federal Constitutional Court would widen it. However, both courts rightly leave no doubt as to its binding nature for religious communities.
In order to avoid misunderstandings about the concept of secularisation, the point of reference should be emphasised once again: What is meant is not a secularisation of society as a whole, in the sense that religion is generally losing importance in all areas of life. While such a secularisation of society as a whole is disputed with good reason in the social sciences, the constitutional perspective adopted here is based solely on the secularity of public authority. In modern, religiously pluralist democracy, this can be legitimised solely on secular grounds, i.e. as a "state without God" (Horst Dreier) or, in the extended terminology used here, as "public authority without God".
The constitutional functions and their bundling in the modern constitutional state
In legal terms, the constitution has emerged as a central instrument for legitimising rule. To this day, it is predominantly thought of in terms of the state, i.e. the public authority of a state is constituted in the act of constitution-making and is henceforth exercised according to the criteria laid down in the constitution. The constitution as a (mostly written) document thus bundles a number of functions that are central to the legitimisation of rule: By constituting an independent public authority, the constitution establishes rule (justification function); by creating organs and regulating their interaction, the constitution determines the exercise of rule (organisational function); and modern constitutions also contain important limits for the exercise of rule with constitutional requirements and the explicit anchoring of catalogues of fundamental rights, as well as the judicial enforceability of these limits (limitation function).
Constitutions also make a significant contribution to legitimising the exercise of power by linking law and politics, on the one hand by making binding decisions on certain issues at the constitutional level and thus removing them from the normal political process (and subjecting them to the increased requirements for constitutional change), but on the other hand by leaving scope for political decision-making beyond these areas, in which the outcome is not legally determined from the outset.
The peculiarity of the modern constitutional state as it emerged, especially in the period after the Second World War, initially in Western Europe and North America (and gradually also in other parts of the world), is that these functions were all bundled together in one political entity (the state) and by means of a single legal document (the constitution). Quite a few of the current challenges we face in legitimising public authority can be traced back to the fact that this bundling can no longer be maintained in the modern world. This is explained in more detail below.
Current challenges of legitimation I: Europeanisation and internationalisation of political decisions
The legitimisation structure just described is based on the concentration of sovereignty in the state. However, this has no longer been the case for some time. However, this monopoly position of the state is being called into question, particularly through European integration, but also generally through the expansion of cooperation in international organisations with their own decision-making powers. The European Union has the power to legislate (secondary legislation), in the case of regulations even with direct effect and binding force for natural and legal persons in the member states.
As there are only very few areas in which decisions in the EU can only be made unanimously, in most cases there is no veto position of an individual member state, i.e. a European legal act becomes binding in and for the member state even if its government has voted against it. In such cases, legitimisation via national chains of legitimation and responsibility becomes problematic.
In addition to these effects, which are brought about by binding legal structures (majority vote in conjunction with the binding secondary legislation adopted in this way), there are informal effects in which it is formally possible to prevent the adoption of binding legislation, but the political pressure towards a joint solution is so great that the formal veto position is not a serious option in fact or politically.
In these cases, there may ultimately be formal consent, but in terms of legitimisation, its effect remains rather weak because it is primarily based on external constraints, but can only be qualified as an autonomous decision to a very limited extent. Such constraints exist not only for small and politically less influential states, but even politically powerful states are repeatedly unable to escape them. Under such conditions, sole legitimisation via the linking of decisions back to the individual states and their consent to their own commitment becomes fragile.
For this reason, in its decisions on European integration, the Federal Constitutional Court emphasises the dual legitimacy of the European Union and the decisions it takes. In addition to the link to the Member States via their consent to the treaties as the primary legal basis of the Union and the - at least majority - consent to the individual secondary legislation, the Union itself has its own democratic legitimisation, which results from the direct elections to the European Parliament (Art. 14 para. 3 TEU) and its increased role in law-making (Art. 294 TFEU).
However, such independent parliamentary bodies beyond the state level only exist in comparatively few international organisations and the powers granted to these bodies are often relatively weak. For example, there is no parliamentary body at all in the United Nations and the Parliamentary Assembly of the Council of Europe mainly has an advisory role, even if it has succeeded in gradually expanding and strengthening its competences over time.
Against this general background of parliamentary legitimacy in international organisations, but also specifically with a view to binding majority decisions in the EU, the question arises as to whether there are possibilities to include the consent of other states and their democratic backing in the legitimacy considerations. However, this raises the even broader question of the association of persons behind a political entity.
In the traditional conception of the state, this question is supposedly answered simply. It is the people of the state who, through the constitution, establish a power that authorises them to make sovereign decisions, i.e. decisions that are binding for everyone. "The people of the state" - as the Federal Constitutional Court put it in a guiding principle to its 1990 decision on the right to vote for foreigners in Schleswig-Holstein - "from which the state authority in the Federal Republic of Germany emanates, is formed according to the Basic Law by the Germans, i.e. the German citizens and the persons equal to them according to Art. 116 Para. 1." Behind this formulation is a very clear idea of a demos, the German people, from which the exercise of a certain sovereign power, the German state power, can be democratically derived.
However, this legitimising context - the close link between state power and the people of the state - is also coming under increasing pressure, as can be seen in the current migration movements and their effects on the long-term composition of the population.
Current challenges of legitimisation II: Migration movements
The question of whether Germany is a country of immigration has long been the subject of vehement political debate. The dispute was and is only meaningful if concrete legal or political consequences could be drawn from the qualification. However, this is not the case. If we look at the population statistics, however, it cannot be seriously disputed that massive changes have taken place. As at 31 December 2021, the proportion of foreigners in the total population was 13.1%. Of these, just over 50% have lived in Germany for more than 8 years, 24.8% even for more than 25 years. The average length of stay is 15.6 years. These figures speak in favour of at least long-term, if not permanent, residence in Germany.
The population statistics attempt to visualise these demographic changes through the category "migration background". A person has a migration background "if they themselves or at least one of their parents do not have German citizenship by birth." The circle is therefore much broader than the proportion of foreigners and includes a migration experience in the parents' generation and also includes people who, due to naturalisation, would not be included in statistics based solely on nationality. This approach means that the group of people covered is even larger. According to this definition, around 26% of the German resident population had a migration background in 2019.
The democratic legitimisation of sovereign power continues to be based on nationality, at least from a legal perspective. Only German citizens are eligible to vote for the German Bundestag and in state parliamentary elections (e.g. Section 12 (1) BWahlG). In its rulings on voting rights for foreigners, the Federal Constitutional Court has also considered this requirement to be constitutionally binding. However, if one looks at the figures given above on the proportion of foreign nationals in the total population, a legitimisation dilemma becomes apparent: even people with foreign citizenship who have lived in the country for a long time are excluded from participating in elections, although they are subject to German state authority to a considerable extent.
Attempts to counteract this problem through more generous naturalisation rules have proven to be unsuccessful. Only a very small proportion of those eligible for naturalisation make use of this option. The naturalisation potential (this figure describes the proportion of those eligible for naturalisation who actually naturalise) has consistently been around 2.2% over the last ten years. In 2020, the figure was 2.15%. Even if this is ultimately a voluntary decision against naturalisation, the question arises as to whether it is also a voluntary decision against eligibility to vote, as the latter is only one of several factors that play a role in the decision for or against naturalisation.
Overall, there is much to suggest that the number of people who reside in Germany on a long-term or even permanent basis without having citizenship and thus the right to vote at federal and state level will continue to increase in the future. The more this is the case, the more urgent the legitimisation problem becomes. There will hardly be any quick and easy answers to this. However, from a socio-political and legal point of view, this does speak in favour of at least offering the affected group of people alternative opportunities for participation. For example, one could think of the municipal level, where there is already a right to vote for foreigners for EU citizens. Why should it not be possible to extend this to other people with foreign citizenship?
Current challenges to legitimisation III: Threats to the rule of law
The functions performed by constitutions include the containment and limitation of political power through fundamental rights and the safeguarding of basic constitutional principles such as the separation of powers, the independence of the judiciary and the rule of law. In the traditional model of concentrating all constitutional functions in the state, this task was performed exclusively by internal state structures and institutions, namely constitutional guarantees and their enforcement by a constitutional jurisdiction.
Important changes have also taken place here. International human rights protection in particular has led to international courts now making decisions that serve to limit political power in addition to state constitutional jurisdiction. This is particularly evident, for example, in the case law of the European Court of Human Rights on requirements for party bans. Irrespective of differences in the specific organisation of party law in the various member states of the ECHR, parties are always also associations within the meaning of freedom of association under Art. 11 ECHR.
Accordingly, bans on political parties fall within the scope of the Convention and the Court has now developed quite detailed case law on this issue, which also played a not insignificant role in the last German party ban proceedings against the NPD. If the Federal Constitutional Court had banned the NPD, then this ban decision would certainly have been challenged by the NPD before the European Court of Human Rights as a violation of the right to freedom of association under the ECHR. Of course, this does not mean that such a complaint would have been successful, but the example shows how far international human rights protection can extend into the domestic political sphere.
The effects of this dovetailing of international human rights protection and domestic policy are ambivalent: on the one hand, it is obvious that additional external control brings greater independence and thus creates or retains opportunities, particularly in the case of authoritarian domestic developments, which may already have been eliminated domestically. The current cases of imprisonment of journalists and members of the opposition in Turkey and Russia, for example, provide ample illustrative material for this.
On the other hand, the quasi-constitutional role in which a court such as the European Court of Human Rights is thus placed also makes it a political actor at the international and - at least to some extent - also at the domestic level. This raises the question of the legitimacy of the court in relation to the domestic political process, which may even be supported by broad majorities. This problem is currently arising in Poland, for example, where the judicial reform initiated there by the government and parliament since 2017 - which is highly problematic in terms of the rule of law - is gradually being brought before the European Court of Human Rights by way of individual complaints based on individual cases, particularly under Article 6 ECHR.
On the one hand, one can hope for clear words on the importance of the independence of the judiciary; on the other hand, the government will certainly counter these with the democratic legitimisation of the reform it has initiated.
There is a similar development at the Court of Justice of the European Union in Luxembourg, which is confronted with the same problem, albeit under slightly different procedural conditions. The independence of the judiciary in the Member States is of essential importance to the EU because the judiciary in the Member States forms a central part of the institutional structure for the application and enforcement of Union law. Large parts of European Union law are directly applicable at national level. Accordingly, it is first and foremost the local authorities and courts that are responsible for applying Union law.
If there are doubts about its interpretation, there is a referral procedure to the European Court of Justice (Art. 267 TFEU). The jurisdiction of the Member States is therefore part of legal protection in the EU. Accordingly, EU law requirements arising from the principle of the rule of law also extend to the jurisdiction of the Member States. In two landmark judgements, the Court of Justice has established that parts of the Polish judicial reform are incompatible with the rule of law requirements set out in Art. 2 TEU and has also ordered coercive measures to enforce these decisions in some cases.
Conclusion
The examples show the extent to which the limitation function of constitutions is now being supplemented and expanded at European level. This limiting function is institutionalised by the two European courts, the European Court of Human Rights, which decides on the basis of the ECHR, and the Court of Justice of the European Union, which is governed by European Union law. Both courts ultimately decide on the basis of common European standards of the rule of law. The Polish government's defence of the domestic democratic legitimacy of the judicial reform is an attempt to pit democracy against the rule of law.
However, this is precisely what must be avoided if the three central functions of law mentioned in the title (establishing power, exercising power and limiting power) are to be kept in an appropriate balance. This article has shown that the conditions for achieving such a balance have not become any easier. This is precisely the reason for the growing importance of (European and international) public law. The continuous work on this balance is its core task.
