The first letter is still approximate. Ernst-Wolfgang Böckenförde and his older brother Werner politely ask if they can “visit the honored professor in Plettenberg during these semester breaks” – after reading his “Constitutional Teaching” there were still questions. But the very next letter already hints at a spiritual and political agreement: One particularly asks which guidelines “can be derived from the sometimes contradictory basic political decisions of the Bonn Basic Law”. Behind the constitution and its norms there is a “concrete order” that you first have to understand if you want to interpret the constitution’s articles – Plettenberg should have liked that immediately.
With these two pieces of news from 1953, the correspondence published by Reinhard Mehring between the intellectual and later Federal Constitutional Judge Ernst-Wolfgang Böckenförde and the constitutional lawyer and former “Crown Lawyer of the Third Reich” Carl Schmitt opens up an insight into an intensive friendly relationship that lasted until his death Schmitts 1985 does not tear off. The bond between the two was already known. It was frankly confirmed by Böckenförde, who died three years ago, in numerous dedications, writings and interviews. But how exactly did you have to imagine the handling? As a mutual intellectual debate? As a teacher-student relationship? As a mere adoption of individual terms? This careful edition of the letters now reveals a rhetorical unanimity that is both astonishing and, in view of someone who has defended the legitimacy of the Federal Republic like no other, also in need of explanation.
One notices how early Böckenförde’s later positions are indicated – and how closely they are coordinated with Schmitt
After the two letters from the Böckenförde brothers, the meeting in Plettenberg takes place. The interpretation of the relationship with Schmitt is subject to the proviso that most of the thoughts were certainly exchanged personally – there are sometimes hints of this in the correspondence, but most of it remains in the “silence of the Sauerland”. Ernst-Wolfgang Böckenförde later thanks Schmitt for suggestions on the problem of expropriation in the social constitutional state, and soon invites Schmitt to a lecture on this topic in front of law students in Münster, Schmitt, who in the course of denazification had every chance of regaining a chair lost, also likes to hold. The slightest hint of professional criticism – a legal-historical source from the 17th century speaks of “politics”, where according to Schmitt “police” should actually be – is countered by the young Böckenförde in the same letter with a long slating of a new constitutional publication using the principles the teacher’s. A reassurance to somehow be on the same side.
One notices how early Böckenförde’s later positions are indicated – and how closely they are coordinated with Schmitt. In 1972 Böckenförde will emphasize the “distinction between state and society as a condition of individual freedom”, taking into account extensive welfare state activity is not only possible but also promotes freedom. In 1957 he reported to Schmitt his thoughts on how “easily” a welfare state “can turn into a total state in the sense of Hitler” if this distinction is ignored. The idea is the same, even if compared to Schmitt the connotation remains pessimistic. Böckenförde’s qualifying work, in particular his first legal dissertation, but also the second historical one in Munich and the habilitation thesis, it is now apparent, were written in close collaboration with Schmitt. Questions, methodology, source selection, structure and even individual chapters were tested extensively in the Plettenberg laboratory, both in writing and in person.
What kind of faculty is expressed here? Böckenförde’s actual academic teachers are different: he did his doctorate and learned his legal and historical tools from Hans Julius Wolff in Münster and Franz Schnabel in Munich – what then tied him to Schmitt? In the correspondence, the reader repeatedly encounters carefully interspersed remarks that promise an answer to this question. For example, a letter from Böckenförde from May 1955: First there is a short presentation – then a culture-critical note: “But the discussion of such fundamental questions is no longer popular today, perhaps because one does not like to analyze the shaky ground on which one stands oneself.” Or a letter from April 1958: “You have to be careful, especially when you’re young, that you don’t fall into any trend and get sucked into it and then lose sight of the hard realities.”
The “all-knowing old man” from Plettenberg is Böckenförde’s ticket to a superior observer position
Over the past three decades, a number of sarcastic formulations have been made about “certain gentlemen” and “our lawyers who are suffocating in the “divisional work of science and expert opinion” – in complete contrast to those few “who really have a hand in the course of time” and lonely are in front of sheer others who “can’t keep up with what’s happening”. This shows that the connection between Böckenförde and Schmitt does not lie on the level of mere personal friendship or scientific inspiration, and certainly not on the level of common political attitudes. The “all-knowing Old man” from Plettenberg is Böckenförde’s ticket to a superior intellectual observer position from which the course of the world can be understood and commented on in a way that remains closed to average academics and the general public.
This explains why there are hardly any major differences between the two correspondents – not even where Böckenförde obviously takes a different intellectual and political path: In 1958 Böckenförde reported to the theorist of the authoritarian state and the Führer-democracy about the idea of ”whether not individualistic democracy and welfare state are the necessary end stages of those principles from which this state itself has grown and was founded”. A year later he enthusiastically tells Schmitt about the divisive philosophy of his second secret academic teacher, the Münster philosopher Joachim Ritter, who can think in “concrete orders” and still affirm human rights: “Prof. Ritter described the modern state as an opportunity!” Mind you: For Schmitt, “division” was the fundamental evil of modernity, which he blamed on the Jews in a number of anti-Semitic passages. These blatant differences hardly leave any deep traces in the friendly, formal back and forth of the correspondence.
Instead – in addition to a number of literature references and mailings – common assurances about the importance of world events dominate: about the correct position of Lorenz von Stein in liberalism of the 19th century, about Adenauer’s 1957 election campaign, the French constitutional crisis – “now we have ‘state of emergency and civil war’ in France” – up to the student revolts of 1968, which finally prompted Böckenförde to change from Heidelberg to a chair in Bielefeld. Schmitt, who feels constantly being persecuted and suspected by others, is consistently pessimistic, sometimes even apologizing: “Your plan to write a book ‘Institutions des Staatsrechts der FRG’ is very risky. Industrial society has no institutions; the apocryphal ones Remnants of earlier institutions, from which this ‘state’ still lives, are publicly disavowed and desecrated.” Böckenförde adopts the culture-critical tone compared to Schmitt, but repeatedly hints at cautious optimism: “Or can one see the situation differently and perhaps more hopefully?”
“Your attitude towards the Jews is, if I may say so, still a mystery to me”
Seen in this light, the exchange of letters is enormously worth reading, as the two lonely observers of world history repeatedly produce insights that are also enlightening in retrospect. Not to mention brilliant aphoristic formulations – “Bonn is not Weimar. Bonn is perhaps not even Bonn. In any case, you have to go to Karlsruhe to know what Bonn is”.
The exchange of letters is also worth reading with regard to what it does not contain. Böckenförde only addresses Schmitt’s anti-Semitism directly once: “If I may say so, your attitude towards the Jews is still a mystery to me; but it’s not up to me to ask you any questions about it.” The happily late-born, who later interpreted “the persecution of the German Jews as treason against the public,” contented himself with this comment. He later explained to the public that he would not have been entitled to make Schmitt a “subsequent tribunal procedure”. The focus on what is decisive in “historical reality” helps to eliminate even the smallest demands for justification from the outset: Schmitt sends an essay from 1936 with the note that “statements that are tied to the time do not need to prevent you from extracting the essential constitutional history from them”. Here, too, National Socialist passages are explicitly meant. Böckenförde apparently follows the reading instructions.
The relationship between Schmitt and Böckenförde continued to move within these coordinates, even after Böckenförde was a student. Even after he had long since become a full professor in Heidelberg, the asymmetry in the form of address between “dear, dear professor” (who no longer had a chair at all) and “dear Ernst-Wolfgang” remained. The quantitative high point of the correspondence was passed in the 1970s – Böckenförde was extensively involved in the academic system, later became a federal constitutional judge, Schmitt was approaching his 80th birthday, could hardly travel or make phone calls, the letters were becoming more and more erratic.
If you work your way through the extensive material, you can roughly see how important Schmitt’s refuge outside the critically eyed academic and journalistic world was for Böckenförde – despite the fundamental encouragement with which he publicly met the Federal Republic. Perhaps in this distanced attitude of mind, which from there also allowed affirmation, to look for the common ground that connected the theorist of free, modern democracy with the “enemy of the rule of law” to the last and inseparable.