The Continuation in Constitutional Law - Order of Values, the Social State, Böckenförde
This text is a preview of History of the Reception of Hegel, volume II, to be published in 2026 by Reflexivity Press.
The Ritter school is the philosophical shape of conservative modernity. But it has a legal parallel that had greater practical effect and is usually missing from accounts of the reception of Hegel: the continuation of Weimar constitutional theory into the Federal Republic. What Volume I described as the constellation of Kelsen, Smend, and Heller becomes, after 1949, positive constitutional law—for the economic and state side of this same postwar order see Logik der Eroberung, Band 2, Kapitel 14—and this in both lines that were grounded there in Hegel. That the two heirs contradict one another belongs to the finding and becomes visible at the end of this section.[1]
Smend’s Legacy: the Objective Order of Values
Rudolf Smend continued to teach in Göttingen after 1945, and his theory of integration became effective through his students. It finds its institutional expression in 1958 in the Lüth judgment of the Federal Constitutional Court: fundamental rights are not merely rights of defense of the individual against the state, but at the same time an objective order of values that radiates into all areas of law.
This is Smend’s thesis in juridical form—and thus also Hegel’s. For the claim is that a constitution does not merely distribute competencies but represents a community in what it holds to be binding. Whoever disputes this must read fundamental rights as mere limits on state action; whoever accepts it reads them as the expression of an ethical life (Sittlichkeit). The critique of this—from Kelsen’s heirs and from the liberal tradition—has since held that this introduces an indeterminate concept of value into the constitution, one that allows courts to present political decisions as legal cognition.
Heller’s Legacy: the Social Rule of Law
The second line is less conspicuous and more consequential. Hermann Heller had coined, in 1930, the concept of the social rule of law (sozialer Rechtsstaat), against the idea that a state could be a state of law while leaving economic power untouched. It has stood since 1949 in Articles 20 and 28 of the Basic Law (Germany’s constitution).
For the reception of Hegel, this is the more interesting point. Hegel had shown that civil society does not generate the universal out of itself and that the state must answer for this; but he had left open how far this answering must reach. Heller draws the consequence that Hegel did not draw—that it must reach into the property order itself—and this consequence has become constitutional law. Whether it is redeemed is another question; that it stands in the text as a claim is owed to a line that runs from Hegel through Heller.
Böckenförde: the Presuppositions the State Cannot Guarantee
The sharpest formulation of the problem comes from Ernst-Wolfgang Böckenförde (1930-2019), constitutional theorist and later judge at the Federal Constitutional Court. His sentence from the essay “Die Entstehung des Staates als Vorgang der Säkularisation” (1967) is the most-quoted formula of German postwar state theory:
The liberal, secularized state lives on presuppositions that it cannot itself guarantee. This is the great gamble it has entered into, for the sake of freedom.[2]
The context in which this sentence stands is almost always omitted when it is quoted, and it is the real substance. Böckenförde reconstructs the emergence of the state from two stages of secularization: the Investiture Controversy, in which the separation of the spiritual and the temporal arises in the first place, and the confessional civil wars, in which politics places itself above the warring religious parties. The modern state thus becomes possible by excluding the question of truth from its tasks—among the French Politiques sharpened into the statement that the question of truth “could and should not be decided” by the state.
From this follows the dilemma, and Böckenförde carries it through two-sidedly. The liberal state can only exist “if the freedom it grants its citizens is regulated from within, from the moral substance of the individual and the homogeneity of society.” But it cannot itself guarantee these inner regulating forces—“that is, by means of legal coercion and authoritative command—without abandoning its liberal character and falling back, on a secularized level, into that claim to totality out of which it emerged during the confessional civil wars.” And there is no way back: “There is no path back across the threshold of 1789 without destroying the state as the order of freedom.”
A correction to this section’s account is necessary here. Böckenförde is not the heir of the Smendian line but its critic. He explicitly names the three ways out that were attempted after 1945 as failures: “The decreed state ideology just as much as the revival of the Aristotelian tradition of the polis or the proclamation of an ‘objective system of values’ abolish precisely that division from which state freedom constitutes itself.” Recourse to values is “a highly meager and also dangerous substitute; it opens the field to the subjectivism and positivism of the values of the day, which—each for itself claiming objective validity—destroy freedom rather than found it.”[3]
Thus the two lines coming out of Weimar stand opposed to one another within the Federal Republic: Smend’s order of values as an attempt to anchor substance in the constitutional text—and Böckenförde’s objection that precisely this attempt endangers the freedom whose foundation it is supposed to secure.
The Explicit Reference to Hegel
For the history of reception, it is decisive how the essay ends. Böckenförde explicitly invokes Hegel twice. First for the interpretation of the process of secularization itself: “None other than Hegel interpreted the movement of secularization in European modernity, seen in Christian terms, positively—not as a negation, but as the realization of the content of revelation.” And then in the closing sentence, which returns the question to Hegel:
Thus one would have to ask once more—with Hegel—whether even the secularized worldly state must not ultimately live from those inner impulses and binding forces that the religious faith of its citizens conveys.
The corresponding note refers to § 552 of the Encyclopedia and judges: the problem of the relationship between state and religion is discussed there “at a height of intellectual reflection that has not since been reached again.”[4]
This is no ornamental reference. Böckenförde poses Hegel’s question in post-metaphysical form. Hegel had defined the state as the actuality of the ethical idea, presupposing that it produces, along with itself, the substance from which it lives. Böckenförde disputes this—and thereby does not set himself against Hegel, but describes the situation that arises when Hegel’s presupposition falls away. Ethical life is then a resource the state consumes rather than generates.
It is also notable whom the essay follows. The first note names, alongside Otto Brunner, Hermann Heller’s Staatslehre; the note on the problem of division names Joachim Ritter’s Hegel und die Französische Revolution.[5] Böckenförde thus explicitly stands in both lines this chapter treats—the Ritterian and the constitutional-legal—and joins them into a single question.
The Systematic Significance
This line deserves to be recorded in the history of reception for two reasons.
First, it is the reception of Hegel that has had practical effect. The order of values and the social rule of law are not interpretations but legal norms according to which decisions are made—a reception of Hegel without bearing that name.
Second, it formulates a question that the philosophical reception of the postwar period bypasses. Ritter and his school defend institutions as compensation for the division of modernity. Böckenförde asks what these institutions live on—and answers that they cannot produce it themselves. This is the more uncomfortable version of the same insight, and it remains unanswered to this day.
On the Weimar starting situation see The Weimar Theory of Constitutional Law - Hegel in Legal Guise. On the afterlife of Smend cf. BVerfGE 7, 198 (Lüth judgment, 1958); on the incorporation of the social rule of law, Art. 20(1) and Art. 28(1) of the Basic Law. ↩︎
Ernst-Wolfgang Böckenförde: “Die Entstehung des Staates als Vorgang der Säkularisation,” first in: Säkularisation und Utopie. Ebracher Studien. Ernst Forsthoff zum 65. Geburtstag, Stuttgart: Kohlhammer, 1967, pp. 75-94; here quoted from the reprint in: idem: Staat, Gesellschaft, Freiheit. Studien zur Staatstheorie und zum Verfassungsrecht, Frankfurt/M.: Suhrkamp, 1976, pp. 42-64, the dictum at p. 60. Again in: idem: Recht, Staat, Freiheit, Frankfurt/M.: Suhrkamp, 1991. ↩︎
Ibid., pp. 60 and 59. Note 49 there refers, for the critique of values, to Carl Schmitt: “Die Tyrannei der Werte,” in: Säkularisation und Utopie, op. cit., p. 37 ff. ↩︎
Ibid., p. 61 and note 50. The Hegel passages: Elements of the Philosophy of Right, § 185, and Encyclopedia of the Philosophical Sciences (1830), § 552. ↩︎
Ibid., note 1 (Hermann Heller: Staatslehre, Leiden 1934, p. 125 ff.) and note 49 (Joachim Ritter: Hegel und die Französische Revolution, Cologne/Opladen 1957). On Ritter see Chapter 3.1 of this account. ↩︎