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The Böckenförde Dictum, Aristotle’s Koinōnia, and the Debate on the Future of Europe - Discussed: Religion, Law, and Democracy: Selected Writings. By Ernst-Wolfgang Böckenförde. Edited by Mirjam Künkler and Tine Stein. Translated by Thomas Dunlap. Oxford: Oxford University Press, 2020. Pp. 480. $65.00 (cloth); Oxford Scholarship Online by subscription (digital). ISBN: 9780198818632. DOI: https://doi.org/10.1093/oso/9780198818632.001.0001.

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Discussed: Religion, Law, and Democracy: Selected Writings. By Ernst-Wolfgang Böckenförde. Edited by Mirjam Künkler and Tine Stein. Translated by Thomas Dunlap. Oxford: Oxford University Press, 2020. Pp. 480. $65.00 (cloth); Oxford Scholarship Online by subscription (digital). ISBN: 9780198818632. DOI: https://doi.org/10.1093/oso/9780198818632.001.0001.

Published online by Cambridge University Press:  28 September 2022

Philip McDonagh*
Affiliation:
Director, Centre for Religion, Human Values, and International Relations at Dublin City University
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Abstract

As a former diplomat currently engaged in praxis-oriented research and teaching, I examine Böckenförde’s importance in the broad context of the debate on the future of Europe. First, I trace some of Böckenförde’s specific thoughts on the development of the European Union, notably concerning trends that impact on the shared “sense of belonging” that underpins deliberative democracy. Second, accepting Böckenförde’s crucial distinction between the granular provisions of the law and an underlying ethos or sense of direction, I argue that the Böckenförde paradox is strongly supported at the roots of our culture by ancient Greek political thought, in ways that can help us develop our thinking in new directions—involving Aristotelian conceptions of orientation, community (koinōnia), and discernment. Finally, I address the challenges currently facing the European Union, taking as my point of departure President Emmanuel Macron’s evocation of the “contribution which a living Europe can bring to civilisation.” The political thought of Ernst-Wolfgang Böckenförde, illuminated by conceptions of orientation, community, and discernment, can help to prepare us for a future intercultural dialogue in the service of peace.

Type
Book Review Symposium: Ernst-Wolfgang Böckenförde, Religion, Law, and Democracy
Copyright
© The Author(s), 2022. Published by Cambridge University Press on behalf of the Center for the Study of Law and Religion at Emory University

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Introduction

Ernst-Wolfgang Böckenförde famously held that the liberal and secular state depends on conditions it cannot itself guarantee.Footnote 1 Chiefly, “every democracy can only be as good as the societal forces that sustain it, and religion can be a crucial resource in sustaining the ethos of the individual, as can be other sources of the self.”Footnote 2 This thesis is now widely known as the Böckenförde dictum or the Böckenförde paradox. Böckenförde’s thinking has contributed to new ways of envisaging the relationship between public authorities and faith communities. In the European Union, Article 17 of the Treaty on the Functioning of the European Union provides for a structured dialogue between the institutions of the European Union and churches, faith communities, and philosophical organizations.Footnote 3

Böckenförde’s vision of the respective spheres of responsibility of faith communities and public authorities has consequences for the self-understanding of faith communities as well as for public authorities. In his encyclical Spe Salvi, Pope Benedict ties the future of the Roman Catholic Church to its relevance in humanity’s hour of need.Footnote 4 The major occupational hazard of faith communities is to take for granted their current understanding of the world and positioning in society. The major occupational hazard of politics is losing touch with essential values that cannot be constituted by the process of politics itself. A structured dialogue of the kind envisaged in Article 17 of the treaty is to the benefit of both sides.

With this in view, the Centre for Religion, Human Values, and International Relations at Dublin City University, which I direct, works to support mutual literacy between public authorities and religious actors. On the one hand, political authority derives from the needs of our human nature, depends on the exercise of reason, and is subject to the principle of verification. In relation to political structures and processes, we are always entitled to ask whether they address the most consequential issues and whether they have the scale, expertise, and authority to effect solutions. On the other hand, to answer these questions we need a standpoint. The premise of our work at the center is precisely the distinction between the provisions of the law and an underlying ethos or sense of direction, where faith communities have a great deal to contribute. It is only the presence in society of this underlying sense of direction that enables us to interpret, question, and reform the granular details of the law in a consistent way. Faith communities can use the framework provided by Article 17 of the treaty to promote a greater understanding of the dialogical relationship between higher-level values and positive law.

In this essay, I do not attempt to refine Böckenförde’s thought on freedom of conscience and church/state relations, nor do I address his groundbreaking contributions in specific areas of jurisprudence. Instead, drawing on my perspective as a former diplomat currently engaged in praxis-oriented research and teaching, I examine Böckenförde’s importance in the broad context of the current debate on the future of Europe. In doing so, I trace some of Böckenförde’s specific thoughts on the development of the European Union, notably in two major articles of the late 1990s;Footnote 5 argue that the Böckenförde paradox as applied to the politics of European integration is strongly supported at the roots of our culture by ancient Greek political thought, in ways that can help us develop our thinking in new directions; and speak in concrete terns about some of the challenges currently facing the European Union.

Böckenförde on the European Union and Globalization

In the two essays mentioned above, Böckenförde offers a detailed examination of economic and social trends that undermine consciousness of commonality in the member states of the European Union and in the long run constitute a risk for the functioning of democracy. Böckenförde lays a careful foundation for his argument by exploring the meaning of democracy. Democracy “does not mean the absence of government, but the self-government of a people, constitutive participation, and a share in the decisions and measures to which each individual is subject.”Footnote 6 From this it follows that “democracy always refers to a particular group of people who are united into an entity.”Footnote 7 In practice, since the American and French revolutions, democracy is associated with statehood. States are “endowed with comprehensive decision-making authority, with overall authority and responsibility for the common good of the people bound into a unit within it.”Footnote 8 The separation of powers and the guarantee of fundamental rights do not call into question but rather support the close interrelationship of democracy and statehood.

Böckenförde’s thesis is that the form of political and social coexistence that we associate with democracy in the modern state is under threat from two historical trends, each of which reinforces the other. The arguments he advances refer to the particular circumstances of the European Union and its complex institutional balances in the aftermath of the 1992 Maastricht Treaty. In our contemporary age of populism, we can see that Böckenförde’s concerns are also applicable in other geographies.

The first unsettling trend is individualization, meaning the progressive freeing of individuals from the variety of social ties and mental dispositions that together create a “consciousness of togetherness and commonality.”Footnote 9 Böckenförde treads carefully here. A necessary (and in Böckenförde’s view clearly normatively desirable) consequence of democracy and individual rights is that they give rise to pluralism and diversity.Footnote 10 We can accept as public goods both a spiritual-ethical pluralism and the different patterns of life that will emerge within an open and constantly changing economy. At the same time, however, we need to protect a relative commonality or a shared sense of belongingFootnote 11 in order to preserve the space within which deliberative democracy is possible.Footnote 12 The factors that contribute to this binding power include a common religion, a shared sense of history, a living cultural heritage, a common discourse in the communications media, and the anchoring and integrating power of strong neighborhoods. All these factors, which depend in part on pre-rational sources and controls, are weakening in contemporary European society. We are witnessing a process of individualization that goes beyond the natural pluralism of a liberal social order.

In the 1990s, the end of the Cold War and the beginnings of globalization offered hope of a narrowing of the North/South and East/West divides of the postwar world.Footnote 13 Böckenförde’s thinking can be read as an early and far-sighted response to the inadequacy of the so-called Washington consensus of the 1990s. Böckenförde recognized that the idea of the single world promoted by many governments at that time involves complex forms of economic transnationalization. Economic transnationalization is an empirical reality. That does not make it inevitable, uniform in its consequences, or immune to change. Clearly, transnationalization can take a different direction if states assert their authority and seek ways to collaborate with other states to regulate world markets effectively. An obvious parallel here is with the welfare state. As the social or welfare state compensates for income inequality by taxation and other interventions, so now states acting together can pursue social objectives in the global economy, including a better distribution of benefits.

In the absence of a broader political context, economic globalization, so far from guaranteeing the universalization of Western liberal democracy, raises questions for the sustainability of a global order founded on liberal democracy within individual nation-states. In such domains as monetary policy, technological development, and the organization of food production, citizens feel powerless in the face of impersonal economic forces and “border-erasing international treaties.”Footnote 14 Of course, Böckenförde is not against open borders or the guaranteeing of open borders by treaty. The problem arises when states do not perceive their shared responsibility to analyze wider trends and adopt appropriate corrective measures in light of the full picture. At the present historical moment, there is no European dēmos, no deeply rooted sociocultural reality or relative commonality such as one would traditionally associate with dēmokratia, the exercise of power by the people. That said, Böckenförde is not at all a critic of European integration as a general goal. His concern is to underpin the process of integration by promoting the cultural conditions for democracy at the European level. This will be the prelude to constitutional reform. In Böckenförde’s perspective, the European Union should invest more in nurturing culture, languages, and traditions. The more we learn from one another, the more we will develop a European identity and sense of belonging, not as an alternative to national identities but as a complement. The logic of Böckenförde’s position is that the European Union finds itself in an awkward constitutional situation—neither a nation-state nor a federation. In addition, the present version of Europeanization interacts with a global society in which our sense of commonality or belonging is increasingly called into question. At face value, today’s governance of the European Union is based on an unstable equilibrium that for the sake of the future quality of our democracy needs careful analysis.

Today, we can distinguish at least four strands in Europeanization. The first strand derives from the visionaries of the post–World War II period who sought to reimagine the Westphalian system understood as a world order based only on the sovereign decisions of nation states. The development of new forms of sociopolitical organization such as the European Economic Community saw the fragmentation of responsibility for the common good as a means of promoting reconciliation and solidarity among nation states and preventing war in Europe. The power of the nation state was deliberately relativized. The novelty of the new structures was acknowledged and supported by a critical mass of citizens.

The second strand of Europeanization is less reassuring. It consists in the influence within the European Union of a globalist frame of mind favoring economies of scale within a single, all-engulfing international system in which the particularity of each people’s historical experience is overlooked, and human needs are satisfied only indirectly through the outworking of a narrowly interpreted liberal world order or market system. Under this worldview, substantive political questions relating to the terms of trade, access to finance, intellectual property, the movement of people, and many other aspects of production are rendered largely invisible in democratic discourse. This globalism leaves us underprepared for current challenges. In challenging the globalist ideology, we would do well to focus on its impact on third countries and its immediate implications for the democracy of the European Union.

The third strand in Europeanization is our growing awareness that the European Union acting together has enough weight, and the European Commission enough capacity, to become a global leader in regulating the abuses to which globalism in the above sense is exposed. The United Nations Millennium Development Goals, and subsequently the Sustainable Development Goals, acknowledge that the welfare of humanity cannot be entrusted merely to individual states acting on their own.Footnote 15 Rather, we need a collective effort and an agreed plan. Climate change has reinforced our awareness of this unavoidable political fact. To the degree that the European Union plays a key role in a just transition at the global level, we may succeed in reconnecting today’s Europeanization with the spirit of French foreign minister Robert Schuman and the other founding fathers. In that way we can create favorable conditions for clarifying the fragmentation of responsibility within our political structures and building a stronger sense of community both locally and internationally.

The fourth strand in Europeanization eludes our categories and is somewhat difficult to conceptualize within the framework of international law. I refer to the wholehearted embrace of economic sanctions as part of the so-called diplomatic toolbox. Techniques developed in the context of World War I and post–World War I blockades have been further refined since the 1990s. The subject is not easy, and there is much to be discussed, so I focus on just one point. To enforce a regime of sanctions requires knowledge that is not openly available. By definition, the pursuit of this knowledge enhances the role of intelligence gathering and espionage in governance. Very often the same intelligence-gathering agencies are engaged in surveillance of their own citizens and the vetting of public officials. In addition, the same or similar agencies are responsible for cybersecurity, an area in which offensive and defensive actions are often indistinguishable. Non-state actors are part of the cyber equation. Böckenförde’s insights regarding the fragmentation of responsibility for the common good should be applied with urgency and rigor to the rapidly growing sphere of espionage, which threatens to affect every aspect of economic life.

Böckenförde and the Greek Conception of Koinē Eirēnē (a Common Peace)

We can compare the Böckenförde paradox, which distinguishes ethos from law, to the kindred Greek understanding of a common peace, which to a significant degree is a cultural project depending on habits and assumptions as well as positive law. In the world of the Greek polis, the concept of a common peace, or koinē eirēnē, becomes a technical term for a peace that is applicable to all Greek states equally and allows them to remain autonomous. In our sources, the King’s Peace, or Peace of Antalcidas, of 387 BCE is the first instance in which the term koinē eirēnē is used to describe a real-life multilateral treaty. In this treaty, the role of the Persian ruler as guarantor of last resort (hence “the King’s Peace”) is an innovation that looks forward to Hellenistic and Roman peace projects. However, the concept of a common peace originates earlier, in fifth-century attempts to transform the Greek League against Persia into a lasting institution. Later, in the heyday of democracy, attempts are made to envisage a political alternative to the struggle between Athens and Sparta.Footnote 16 The question about peaceful alternatives to the Peloponnesian War overlaps in part with the question whether social organization is possible at a level higher than that of the polis. Athenian thinkers perceive an analogy between the transformation of social relations at Athens and a possible transformation at the level of interstate relations in the Aegean region.

In Thucydides, the classic statement about peace as a shared public good in interstate relations is the account of a conference at Gela in Sicily in 424 BCE, at which the citizen-states of the island rule out resolving their differences by war. The advocate of this rounded vision of peace, Hermocrates of Syracuse, does not use the precise term koinē eirēnē (common peace). But an adverb from the key adjective koinos occurs twice in his major speech.Footnote 17 Pericles had argued in the Funeral Oration that private interests and the common interest are correlative. Hermocrates transposes this idea to interstate relations: to protect the private interests of each state, it is necessary to secure the common interest of Sicily as a whole.

We know from ThucydidesFootnote 18 of an altar to Apollo outside the city of Naxos at which representatives of the Sicilian states made sacrifices as they departed on regular sacred missions to the shrine of Apollo at Delphi. Delphi was at the center of an amphictyony, a political arrangement designed to prevent or limit war. This model of political unification seemed relevant to the Greek states in Sicily. It was also relevant in a wider Greek context. The first article of the multilateral treaty of 421 by which an attempt was made to end the Peloponnesian War (the so-called Peace of Nikias) reads as follows: “Regarding our common (koinōn) holy places, anyone shall be allowed without fear to travel, sacrifice, consult an oracle, or represent their polis at a festival (theōrein).”Footnote 19

The next article of the treaty guarantees the political independence of Delphi. In other words, a common peace implies, in addition to precise treaty commitments, a pre-political commons or culture or community in which religion and festivals can play a defining role. “Wonders are many and none more wonderful than man,” proclaims the chorus in the central ode of the Antigone. This hymn to human potential and the accompanying dangers ends with an affirmation of the part played by something very like natural law: “When we respect the laws of the earth and the sanctity of oaths, the polis is exalted.”

Applying the criteria for a common peace to the dilemmas associated with Europeanization and globalization, we can readily recognize the importance of a global commons in which not everything is assimilated to one or other system of power. Should we weaponize every dimension of the economy in the service of an epochal struggle with the Other? Or should we instead direct the emerging conception of strategic autonomy for the European Union toward the vision of a common peace and of global citizenship wisely exercised? Perhaps our central objective should be a cross-cultural dialogue aimed at a prise de conscience regarding the concrete societal implications of full respect for the Universal Declaration of Human Rights: food security, support of families, access to housing and health care, an adequate standard of living, an understanding of agency that includes our duties to the community, and a social order and physical environment within which human rights can be enjoyed. Unless we act in this cosmopolitan perspective (to borrow another ancient Greek term), there is a risk that the European Union’s pursuit of strategic autonomy will contribute to a clash of civilizations, the polarization of international relations, and further versions of the globalist frame of mind described above. Such a trend would widen still further the gap between our political orthodoxies and the values by which we live our lives as citizens.

Böckenförde, Epieikeia, and “The Intimation of Noble and Divine Things”

My brief remarks on the Greek conception of koinē eirēnē lead me to a wider thesis. Böckenförde, throughout his work, returns to the roots of European political thought and jurisprudence. We see at once that he is part of a living Christian tradition. The premise of this second stage of my argument is that the Christian tradition itself is largely shaped by the encounter with Greek philosophy, beginning in Jewish circles in Alexandria in the third century BCE. We can deepen our understanding of the Böckenförde paradox by comparing it to Greek political ideas. In particular, Greek political thought can help us develop the Böckenförde paradox in new directions, concerning in particular: (1) the importance of methodology and orientation as political values; and (2) the importance of sharing or a common life as the compass that guides a political community.

Two broad currents of ancient political thought come together in support of the Böckenförde paradox. First, the jurisprudence of epieikeia (equity)Footnote 20 implies that the granular provisions of established law are an inadequate foundation for society, for several inescapable reasons. First, the law is incomplete. As stated by Pericles in the Funeral Oration and by Antigone in the Sophocles play, some of the most important limits on conduct are defined by “unwritten laws” (agrapta nomima). Second, lawgivers will not have reckoned with the precise circumstances of every case. Third, circumstances change. In times of political upheaval—stasis, or social disintegration, as I discuss below—a citizen’s obligations under the law can become unclear. Do we serve a revolutionary government or an occupying power? How do we define our obligations under rapidly changing international circumstances?

For Böckenförde, there is a considerable risk in allowing the state to prescribe our values. The policing of people’s opinions can lead to a narrowing of public discourse as well as to concrete abuses of human rights.Footnote 21 The jurisprudence of epieikeia, in support of Böckenförde, distinguishes between higher, personal values and the provisions of positive law. This opens up an important space within which the dēmos, the citizenry, as Böckenförde liked to point out, can work toward agreement on “the things that cannot be voted on.”Footnote 22

The second current of thought to which I draw attention is the Greek emphasis on the importance of discernment in each particular case. Aristotle affirms in Book 2 of the Nicomachean Ethics that moral choices belong in the realm of the particular (en tois kath’ hekasta) and require perception and discernment (en tēi aisthēsei hē krisis): “The agents themselves must in each case consider what is appropriate to the occasion, as happens also in the art of medicine or of navigation.”Footnote 23 We might compare Saint Paul’s Letter to the Philippians: epignōsis (higher-level knowledge) and aisthēsis (perception) enable us to “make moral distinctions” (dokimazein … ta diapheronta).Footnote 24 Using a metaphor from archery, Aristotle speaks of the political virtue that enables us to “hit on” the mean (aretē … stochastikē tou mesou), where the “mean” is the right option among alternatives.Footnote 25 In Book 10 of the Nicomachean Ethics , Aristotle pictures a political leader capable of connecting his intimation of “noble and divine things” with particular choices.Footnote 26 In other words, the criterion of evaluation for any specific choice is that it should fit within a worldview that is itself independent of day-to-day politics—or perhaps we should say, a worldview that is always in a dialogical relationship with politics. Following Aristotle on the subject of friendship as a political value,Footnote 27 we can visualize political life as the deliberation of travelling companions—a group that enjoys commonality, in Böckenförde’s sense—as they contemplate the next steps in a shared journey.

In this Greek perspective, I propose to derive not one but two affirmations from the Böckenförde paradox. The first affirmation, which is the platform for the second, is as follows:

That citizens have regard for one another and that nations trust one another is a pre-political state of affairs; it cannot be achieved by a constitutive choice within the political process. Therefore, freedom of choice and other liberal values should be supported by pre-political social virtues. Under twenty-first-century conditions, these virtues might include, for example, mercy, sharing, responsibility, restraint, hope, continuity of culture, and the ability to conduct a dialogue across cultures.

The second affirmation is as follows:

To mediate between our pre-political values and our policies, we should develop a form of historical literacy or imagination that illuminates how change happens, how deliberation can be structured, and how positive peace depends on the complex interactions of many variables.Footnote 28 We should understand the significance of the long term, of initiating processes, of sowing seeds (we should be gardeners, not mechanics, in the terms used by the US diplomat George Kennan). We should understand the importance of confidence-building measures that have demonstration value in the perspective of the future we are aiming toward. Above all, we should understand the social or structural dimension of evil as it spreads within a political setting.Footnote 29

We argue in our book On the Significance of Religion for Global Diplomacy Footnote 30 that faith communities and philosophical organizations can contribute to an important cultural transition at the global level in the course of which an increasingly effective orientation and methodology can help society to develop the imaginative resources that will enable concrete decisions over the coming decades. In a similar way, Böckenförde believed in the role of universities and civil society in creating the preconditions for change, such that “philosophical, political and social movements can strengthen the sense of commonality in the populace and the willingness, to not always look out for one’s own benefit only, but to act companionably and in solidarity with others.”Footnote 31

From Dialogue to Solidarity

In a key passage in Thucydides, a speaker whom we are invited to admire, Diodotus, affirms that dialogue is the proper form of politics because “It is senseless to believe it possible to deal with the uncertain future through any other medium than speech.”Footnote 32

A potential problem, of course, is that the mere fact of holding a debate is no guarantee of truthful discernment. A British classical scholar compares Herodotus’s account of the royal council at which Artabanos advises Xerxes against invading Greece to the assembly debate in Thucydides in which Nikias advises against invading Sicily.Footnote 33 In both cases—in the Persian autocracy and in the Athenian democracy—the appearance of disinterested deliberation is delusory. Xerxes only pretends to want advice. He makes his final decision on the basis of a dream. Nikias knows that to get a hearing for his doubts about the invasion he must accept the premise that the policy is acceptable and then exaggerate the practical difficulties. Other citizens are simply afraid to speak: “With this enthusiasm of the majority, the few that did not like it feared to appear unpatriotic by holding up their hands against it, and so kept quiet.”Footnote 34 Elsewhere, in his account of the civil war in Corcyra, Thucydides observes that in a too-much contested space, words lose their meaning or valency (axiōsis). For example, the terms equality and moderation as employed by democrats and oligarchs, respectively, function mainly as markers of a shifting identity: they come with too much energy and too little content.

How do we avoid deliberation that is merely the semblance of deliberation and a disconnect (as we might say today) between fundamental words and the world of politics? Thucydides presents sets of political speeches that invite comparisons between one situation and another. The overall conclusion is that commonality of meaning, if it is to be achieved, requires a discourse sustained through time by actors who remain in relationship to one another, even where they disagree. Here, Thucydides is in tune with modern sociology. The coordination of numerous actors across highly variable circumstances is said to require a shared social meaning. For example, the adaptations in lifestyle through which we respond to pandemics or the threat of climate change require the habitual assent of a great number of individuals. Thucydides’s insight is crystallized in the Aristotelian concept of koinōnia (a common life), as the basis of a political community.

From Stasis to Koinōnia

Böckenförde, in his concern with the ethical foundations of the state, embraces two ideas that seem to be in a certain tension. On the one hand, the state should not promote certain worldviews over others. On the other hand, political stability requires economic security for the citizens and cannot ignore equity, for example in relation to taxation.Footnote 35 Greek political thought suggests that economic security for all (euporia) entails, implicitly, a worldview. For Aristotle, to live together in one place to exchange goods or for the sake of physical protection does not bring about a political community.Footnote 36 Aristotle sees the polis as a koinōnia, a common life, in my translation, leading to friendship, philia, among the citizens. The detailed provisions of the law become less important as friendship takes root.Footnote 37 Friendship even leads to self-sacrificing actions that contradict self-interest as ordinarily understood. In the background is the Greek proverbial saying, “friends have all things in common.”

The development of koinōnia, a common life, is best understood as a deliberate response to stasis, social disintegration. In Greek history-writing and political philosophy, stasis becomes a specialized term referring to a negative dynamic in society—a form of political breakdown in which a previously peaceful community splits into factions and may disintegrate completely. Some modern translators render stasis as revolution. This is misleading. In ancient Greek citizen-states, a revolution, the destruction of one form of government and its replacement by another, often figures in the plans of one side or another during a period of civil conflict. But the phrase “a time of stasis” more typically signifies dysfunction and confusion. Sometimes, as Aristotle points out, the leaders on different sides are from the privileged classes and favor broadly similar constitutional outcomes. Thucydides identifies the tendency in stasis for actors to lose touch with the stated political values of their respective political families. The central point about stasis is that there is more than polarization at work. There is a dynamic, or a pathology, with many associated symptoms. In Plato’s Protagoras, the absence of self-restraint—a sense of shame and justice—within a population is compared to a public epidemic for which there is no single remedy.Footnote 38

Political philosophy in the western tradition is developed in ancient Athens precisely as a remedy for stasis. The Greek thinkers’ answers to stasis comes back in the first instance to the promotion of justice (dikē, to dikaion, the person who is dikaios). Justice implies a common criterion of evaluation from one legal judgment to another and from one political situation to another. The difficulty, as Socrates points out (notably in the Euthyphro), is that the word justice does not have a fixed meaning and may even be abused to provide cover for injustice. In this situation, a general orientation towards partnership and a shared life among citizens comes to be seen as the concrete form that justice must take. Koinōnia, a common life, becomes our compass. It functions, like the talisman of Gandhi (swaraj of the least powerful), as the touchstone of political progress, a common criterion of evaluation that securely links a variety of particular choices.

The last section of Plato’s Gorgias illustrates this trend of thinking. According to Socrates, the leaders of fifth century Athens were responsible for the spread of a new ethic of individual self-advancement. Athens acquired wealth and power, revenue and dockyards. But other values faded—restraint, justice, personal friendship, the habits needed for living a common life. This had consequences for the governability of Athens and the place of Athens in the society of states. When the polis is dominated by the spirit of the brigand, the alternative to competing for power is to focus initially on friendship within a limited circle. Socrates hopes to build a real community among a group of friends (koinēi askēsantes) in order to contribute indirectly and over the longer term to the welfare of Athens; the verb used, askēsantes, implies a disciplined community.Footnote 39

A sustained discourse including elements of solidarity is developed within this narrower koinōnia or community. As in the case of the juxtaposed speeches in Thucydides, to which I refer above, our being co-present to one another and in continuous conversation helps words to recover their valency. Actions of mutual solidarity shore up the space for dialogue, serving as a kind of collateral for verbal meanings. We are then ready to bring a tried and tested understanding of justice and community to the service of the polis as a whole. The philosophical schools that grew up in the century after Socrates—such as the Stoics, the Epicureans, and the Peripatetics—mostly reflect in one way or another the Socratic vision of a coherent community interacting with a less-than-coherent society. Translating koinōnia into today’s language, we can affirm, at a minimum, that (1) our agency as citizens depends to a greater or lesser degree on equality of condition; and (2) that spiritual-ethical pluralism should be accompanied by serious investment in social infrastructure and shared amenities.

Looking Ahead

On Europe Day 2022 (May 9), President Emmanuel Macron spoke of the “contribution which a living Europe can bring to civilisation.”Footnote 40 European Commission president Ursula von der Leyen stated in her September 2021 State of the Union address that young people must be able to shape Europe’s future and that for this to happen, the European Union “needs a soul and a vision they can connect to.”Footnote 41 But a “soul”—a unifying presence among all our scattered enterprisesFootnote 42 —cannot be generated by declarations. The Böckenförde paradox, distinguishing between the granular provisions of the law and higher-level values, suggests a way forward. The soul of Europe is to be discovered in the dialogical relationship between high-level values and practical politics. The question that then arises is how to highlight and encourage this dialogical relationship.

In the first instance, it should involve the conscious development of frameworks of engagement such as the dialogue envisaged under Article 17, Treaty on the Functioning of the European Union. The most consequential issues need to be addressed in the light of the most salient forms of knowledge.

Second, there needs to be a focus on culture and education. In the European classical world, an education in humanitas was considered the best preparation for public life. Humanitas, a term coined by Cicero, suggests both sympathy for all fellow human beings and openness towards every department of knowledge. Sympathy for all human beings runs counter to the idea of a polarized world in which some nations or systems of government are thought to possess a defining purity or goodness and others are looked down on. Openness to every department of knowledge implies a question about the organization of our knowledge. Is there a unifying purpose? How do we place our knowledge at the service of society and the discernment of the common good? In the Italian Renaissance, Petrarch’s discovery of Cicero is the beginning of a new way of understanding the social world. Knowledge is in dialogue with experience, crosses political frontiers, and gives us a standpoint from which to critique political conditions. We choose engagement and exploration in preference to a detached life of leisure. There is no dichotomy between the material and the spiritual—no inherent conflict between the products of culture and the insights of religion.

Third, in the study of history the most important lesson to be learned concerns the multi-layered complexity of historical causation. This insight—it can be regarded as a form of historical literacy—is closely linked to the given-ness of peace and reconciliation. In the words of Pope Benedict, “we can uncover the sources of creation and keep them unsullied.”Footnote 43 We do not control the future.

Searching for illuminating patterns in the flux of human events, Thucydides carefully locates the Peloponnesian War in space and time. The scene is the Greek world—Hellas—in the broad sense that includes citizen-states throughout the Mediterranean and on the coast of the Black Sea. As the conflict spreads, the context broadens; in particular, we hear more about Persia. In terms of timelines, Thucydides has three perspectives—the whole of known Greek history going back four hundred years, including the development of trade; the period of two generations separating the Peloponnesian War from the end of the Persian Wars; and the rush of events immediately preceding the war, in which emotion and anger (orgē) play a large part. For Thucydides, anger goes with a failure to consider evidence and is the opposite of political discernment (euboulia).Footnote 44 Once the conflict is underway, events follow no clear pattern: “war is a savage teacher.”Footnote 45

Historical literacy also compels us to recognize that constructive relationships rarely wholly vanish even in the midst of a crisis. In ancient Greece, a truce for the Olympic games was observed even in times of war. In July 2022, under the auspices of the United Nations, Russia and Ukraine signed an agreement on the export of grain. Other actors confirmed at the same time that they are not blocking Russian agricultural exports. Humanitarian corridors have been opened in the war in Ukraine, though not to a sufficient extent. Prisoners have been exchanged. It is broadly agreed among the parties that nuclear installations should be protected. Some categories of weapon have not been used. Against this background we can take seriously the assertion of Hölderlin in Hyperion: reconciliation can begin even in the midst of strife.

Finally, I suggest that returning to the roots of western political thought in fifth and fourth century BCE Athens can help us develop our thinking in new directions by bringing home to us the importance of orientation. A quick search on the Internet will locate a number of contemporary self-help books based on the navigational metaphor of finding our true north. Here is a possible definition: True north is your calling, your inner sense of what you should accomplish in your life. It is a combination of your values, your beliefs, and your purpose. It keeps you on a straight track. Greek political philosophy suggests that global politics has need of a “true north” that can only be the struggle for a civilization of koinōnia—of solidarity, sharing, stewardship of the planet, and swaraj for the most vulnerable. We need to reach for this true north palpably, in ways that people will find compelling in terms of their lived experience.

Having said all this, I affirm that President Macron’s central concepts—a living Europe, a global civilization—invite us to explore several complementary pathways to peace: (1) the recovery of our postwar European vision; (2) new forms of social solidarity; (3) new political structures on the continent of Europe complementary to the European Union; and (4) a values-led dialogue with other actors in global politics.

It hardly needs to be said that the foundational thinkers of today’s European Union understood that the values underpinning peace in Europe are rooted in our heritage and our humanity and are antecedent in time and in logic to the modern state, the Common Market, and the European Union. All took for granted the distinction that was subsequently articulated by Böckenförde.

I mention new forms of social solidarity as the second pathway. Once we begin to look beyond the granular provisions of the law toward higher values, we will look differently on the workings of the economy. What is described as an open market is very often the sphere of entrenched and nontransparent power relationships that work against citizens’ interests. The European Union is at the forefront, globally, of promoting a just transition in response to climate change, regulating online activities, strengthening consumer data protection, and countering the negative effects of economic transnationalization. The open question is whether there are additional areas, such as the arms trade, the financialization of housing and other social goods, cybersecurity, the development of new technologies, and the movement of people, where radical thinking is necessary. With the help of the relevant professions and academic experts, we can begin to examine the interaction of for-profit and not-for-profit factors within any economic setting. Even a rights-based approach to promoting social inclusion, with strong investment in public services and a minimum wage, may not fully capture the Aristotelian conception of community, equality of condition, and social friendship.

Irrespective of the course of the present war in Ukraine, all actors in the conflict have responsibilities towards the rest of the world. Principle IX of the Helsinki Final Act obliges participating states to develop their cooperation “in all fields … to improve the well-being of peoples,” taking into account “the interest of all in the narrowing of differences in the levels of economic development.”Footnote 46 This foundational principle brings the European and global agendas together. Consideration should be given to the role that Europe can play in inspiring regional peace initiatives in other parts of the world, such as East Asia and the Middle East. A Europe that inspires other regions will by definition be a Europe at peace, open to change, and capable of accommodating certain differences. In our book on global diplomacy, we argue that instead of equating Europe and European Union, we should promote a practical proposition: the continuing success of the European Union is an essential condition for a Europe at peace and for the progress of global diplomacy. Footnote 47

A values-led dialogue with other actors in global politics can begin by reflecting on the implications of Aristotelian koinōnia and the concrete societal implications of full respect for the Universal Declaration of Human Rights. Böckenförde wrote that for people to enjoy their rights, they must first be in a material condition to claim and use them. There is a read-across to the work of Amartya Sen on capabilities. Further, in a widely discussed essay, “Woran der Kapitalismus krankt,” published in the midst of the economic crisis in 2009, Böckenförde sets out the principle of solidarity as a foundational principle for social life, and reminds readers that solidarity played an important role in the thought of both Thomas Aquinas and Pope John Paul II.Footnote 48 Our dialogue with the “Other” will be easier if we take such ideas more fully into account and accept the following definition of democracy, offered by Pope Benedict XVI in 2006 (in my translation from the Italian): “Democracy will be fully implemented only when all individuals and all peoples have access to the primary goods of life, food, water, health care, education, work, and certainty of their rights, through an ordering of internal and international relations that guarantees everyone a chance to participate.”Footnote 49

Today’s observable uncertainty in the unfolding of history has profound ethical implications. It forces us to focus, first, on a general political orientation that is necessarily independent of any precise knowledge of the future; and second, on the discernment of next steps in an inevitably opaque situation. Steps we take now—in other words, human agency—can open a pathway to positive political changes that are not yet within reach. The political thought of Ernst-Wolfgang Böckenförde, illuminated by conceptions of orientation, community, and discernment, can help to prepare us for a future intercultural dialogue in the service of peace.

References

1 Böckenförde, Ernst-Wolfgang, “The Rise of the State as a Process of Secularization [1967],” in Religion, Law, and Democracy: Selected Writings, ed. Künkler, Mirjam and Stein, Tine, trans. Thomas Dunlap (Oxford: Oxford University Press, 2020), 154–67CrossRefGoogle Scholar, at 167. I am grateful to Dr. Künkler and Dr. Stein for reading earlier drafts of the present review and offering very helpful comments. I am also grateful for the pertinent suggestions of Silas Allard and Christy Green, editors at the Journal of Law and Religion.

2 Künkler, Mirjam and Stein, Tine, “Ernst-Wolfgang Böckenförde: Inner-Catholic Critic and Advocate of Open Neutrality,” Oxford Journal of Law and Religion 7, no. 1 (2018), 112 CrossRefGoogle Scholar, at 9.

3 Article 17 of the 1957 Treaty on the Functioning of the European Union, as amended in 2009.

4 Benedict XVI, Spe Salvi [Encyclical on Christian hope] (Nov. 30, 2007). See also McDonagh, Philip, “Uncovering the Sources of Creation: Pope Benedict the XVI on Hope,” Logos/A Journal of Catholic Thought and Culture 13, no. 4 (2010): 96120 CrossRefGoogle Scholar.

5 Böckenförde, Ernst-Wolfgang, “The Future of Political Autonomy/Democracy and Statehood in a Time of Globalization, Europeanization, and Individualization [1998],” in Constitutional and Political Theory: Selected Writings, ed. Künkler, Mirjam and Stein, Tine, trans. Dunlap, Thomas (Oxford: Oxford University Press, 2017), 325–42CrossRefGoogle Scholar; Ernst-Wolfgang Böckenförde, “Which Path Is Europe Taking [1997],” in Künkler and Stein, Constitutional and Political Theory, 343–67.

6 Böckenförde, “The Future of Political Autonomy,” 329.

7 Böckenförde, 329.

8 Böckenförde, 329.

9 Böckenförde, 330.

10 Böckenförde cites Dahrendorf, Ralf, “Freiheit und Soziale Bindungen. Anmerkungen zur Struktur einer Argumentation” [Freedom and social bonds: Notes on the structure of an argument], in Michalski, Krzysztof, ed., Die liberale Gesellschaft. Castelgandolfo-Gespräche 1992 [The liberal society. Castelgandolfo Talks 1992] (Stuttgart: Klett-Cotta, 1992)Google Scholar. Classicists might also turn to Thucydides 2.37 (the Funeral Oration) on the need for a margin of free choice in everyday life.

11 Künkler and Stein trace the development of Böckenförde’s thinking over time: “Earlier in his career, Böckenförde had, drawing on Hermann Heller, referred to this [commonality] as societal (or relative) homogeneity, but due to the multiple misunderstandings this created, later shifted to the terms ‘we- consciousness’ and ‘sense of belonging.’” Mirjam Künkler, “Freedom in Religion, Freedom in the State: Ernst-Wolfgang Böckenförde on Religion, Law, and Democracy,” in Künkler and Stein, Religion, Law, and Democracy, 1–45, at 34.

12 Böckenförde, “The Future of Political Autonomy,” 330.

13 Fukuyama, Francis, “The End of History?,” National Interest, no. 16 (1989): 318 Google Scholar.

14 Böckenförde, “The Future of Political Autonomy,” 335.

15 United Nations, “Do You Know All 17 SDGs?,” accessed August 15, 2022, https://sdgs.un.org/goals.

16 I am thinking here of the general conference proposed by Pericles (seemingly in the early 440s), as reported by Plutarch in his Life of Pericles. The Thirty Years’ Peace of 446/445 is also relevant.

17 Thucydides, 4.59–64. Unless otherwise noted, all translations are my own.

18 Thucydides, 6.3.

19 Thucydides, 5.18.

20 In the European Middle Ages, epieikeia is often rendered as epikeia.

21 Ernst-Wolfgang Böckenförde, “Critique of the Value-Based Grounding of Law,” in Künkler and Stein, Constitutional and Political Theory, 217–34.

22 Ernst-Wolfgang Böckenförde, “The Historical Evolution and Changes in the Meaning of the Constitution [1984],” in Künkler and Stein, Constitutional and Political Theory, 152–69, at 166.

23 Aristotle, Nicomachean Ethics, 2.2.4.

24 Philippians, 1.9–11.

25 Aristotle, Nicomachean Ethics, 2.6.

26 Aristotle, Nicomachean Ethics, 10.7.1.

27 Aristotle, Nicomachean Ethics, 8. See also my discussion of koinōnia below.

28 Killilea, Steve, “Peace and Systems Thinking,” in Peace in the Age of Chaos (Melbourne: Hardie Grant Books, 2020), 83106 Google Scholar.

29 As I discuss below in connection with stasis.

30 Philip McDonagh, et al., On the Significance of Religion for Global Diplomacy (Abingdon: Routledge 2021), https://doi.org/10.4324/9781003053842.

31 Ernst-Wolfgang Böckenförde, “Freiheit ist ansteckend [Freedom is contagious],” Die Tageszeitung, September 23, 2009, 4.

32 Thucydides, 3.41 (on the Mytilene debate).

33 Rood, Timothy, “Thucydides’ Persian Wars,” in Rusten, Jeffrey S., ed., Thucydides (Oxford: Oxford University Press, 2009), 148–75Google Scholar.

34 Thucydides, 6.24.

35 Mirjam Künkler and Tine Stein, “An Obituary for Ernst-Wolfgang Böckenförde (1930–2019),” I-CONnect (blog), May 11, 2019, http://www.iconnectblog.com/2019/05/an-obituary-for-ernst-wolfgang-bockenforde-(1930-2019).

36 Aristotle, Politics, 3.1280b13.

37 Aristotle, Nicomachean Ethics, 8.

38 Plato, Protagoras, 322D (the term in Greek is noson poleōs).

39 In lectures at the Collège de France from 1982 to 1984, Michel Foucault explored the work of classical philosophers. Foucault used the concept of askēsis (understood as care of the self), the practice of askēsis as a means of critiquing the sociopolitical order, and the link between ethical transformation and social transformation to show that philosophy as an activity can become a form of resistance against power structures based on individualization. See McGushin, Edward F., Foucault’s Askesis: An Introduction to the Philosophical Life (Evanston: Northwestern University Press, 2007)CrossRefGoogle Scholar. The Greek philosophical tradition emphasizes the social dimension of askēsis, including the relationship between functioning communities and the meaning of words.

40 “Déclaration de M. Emmanuel Macron, président de la République, sur la construction européenne et le conflit en Ukraine, à Strasbourg le 9 mai 2022 [Declaration of president M. Emmanuel Macron, president of the Republic, on the construction of Europe and the conflict in Ukraine, at Strasbourg on the 9 of May 2022],” Vie Publique, May 9, 2022, https://www.vie-publique.fr/discours/285102-emmanuel-macron-09052022-union-europeenne.

41 “2021 State of the Union Address by President von der Leyen,” European Commission, September 15, 2021, https://ec.europa.eu/commission/presscorner/detail/en/SPEECH_21_4701.

42 McDonagh, et al., On the Significance of Religion for Global Diplomacy, 23.

43 Benedict XVI, Spe Salvi, para. 35.

44 Thucydides, 3.42

45 Thucydides, 3.82

46 Conference on Security and Co-operation in Europe Final Act (Helsinki Final Act), August 1, 1975, pp. 7–8, at 7, https://www.osce.org/helsinki-final-act.

47 McDonagh, et al., On the Significance of Religion for Global Diplomacy, 116.

48 Böckenförde, Ernst-Wolfgang, “Woran der Kapitalismus krankt” [What ails capitalism], Süddeutsche Zeitung, April 24, 2009, reprinted in Böckenförde, Ernst-Wolfgang, Wissenschaft, Politik, Verfassungsgericht [Science, politics, constitutional court] (Berlin: Suhrkamp, 2011), 6471 Google Scholar.

49 Benedict XVI, “Address of His Holiness Benedict XVI to Members of the ‘Centesimus Annus’ Foundation” (Clementine Hall, Vatican City, May 19, 2006).