Communitarianism As The Social and Legal Theory Behind The German Constitution - Winfried Brugger

ARTICLE
Communitarianism as the social and

legal theory behind the German
Constitution
Winfried Brugger*
1. Introduction
Appeals to community in literature, politics, and science have recently grown
stronger in Germany. Communities care for their members and support each
other. Citizens are active in their communities and fight against racism and
hatred. Community life promises integration, recognition, and emotional
support. For Germans, such ideas are not taken for granted but rather,
extraordinarily enough, have become taboo since World War II despite inten-
sive community efforts during reconstruction. In any case, the theory of
communitarianism has stood long in the shadow of other political theories,
owing in part to the misuses that occurred in the name of the National
Socialistic concepts of leader, race, people, and community. In more recent times,
however, there has been a noticeable change of attitude on the part of various
social groups, owing to the perception that the increasing globalization,
commercialization and virtualization of all aspects of life must be effectively
counterbalanced.
Certainly, collective changes of attitude must be subject to discussion before
they can be analyzed and conceptually developed. In the last twenty years, the
communitarian movement in the United States has begun this process.1 Its chief
supporters include Alasdair MacIntyre,2 Michael Sandel,3 Michael Walzer,4
* Chairman of the department of public law and legal philosophy at the University of Heidelberg, Germany.
For their generous help with the translation from German, I would like to thank Eva Pils, University College
London, and Mark Tracy, Heidelberg University.
1
The communitarian movement was largely a reaction to John Rawls’s work. See JOHN RAWLS, A
THEORY OF JUSTICE (Belknap Press 1971). For representative essays on communitarianism, see THE
ESSENTIAL COMMUNITARIAN READER (Amitzai Etzioni ed., Rowman & Littlefield 1998).
2
See ALASDAIR MACINTYRE, AFTER VIRTUE: A STUDY IN MORAL THEORY (Univ. of Notre Dame Press
1981).
3
See MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE (Cambridge Univ. Press 1982).
4
See MICHAEL WALZER, SPHERES OF JUSTICE: A DEFENSE OF PLURALISM AND EQUALITY (Basic Books 1983).
© Oxford University Press and New York University School of Law 2003, 431
I.CON, Volume 2, Number 3, 2004, pp. 431–460
432 W. Brugger
Benjamin Barber,5 Robert Bellah,6 Amitai Etzioni,7 Charles Taylor,8 and Philip
Selznick.9 Their themes have been taken up by commentators and have found
their respective representatives and promulgators in Germany as well—first in
the disciplines of politics, philosophy, and social science10 and then gradually in
political and constitutional theory.11 With this, the way is paved to forge an
interpretation of the Basic Law—Germany’s Constitution—in the light of this
theory and in contrast to the previously predominant viewpoints of liberalism,
5
See BENJAMIN R. BARBER, STRONG DEMOCRACY: PARTICIPATORY POLITICS FOR A NEW AGE (Univ. of
California Press 1984).
6
See HABITS OF THE HEART: INDIVIDUALISM AND COMMITMENT IN AMERICAN LIFE (Robert Neelly Bellah ed.,
Univ. of California Press 1985).
7
See AMITAI ETZIONI, THE SPIRIT OF COMMUNITY: RIGHTS, RESPONSIBILITIES AND THE COMMUNITARIAN
AGENDA (Crown Publishers 1993).
8
See CHARLES TAYLOR, SOURCES OF THE SELF: THE MAKING OF THE MODERN IDENTITY (Harvard Univ. Press
1989).
9
See PHILIP SELZNICK, THE MORAL COMMONWEALTH: SOCIAL THEORY AND THE PROMISE OF COMMUNITY (Univ.
of California Press 1992) [hereinafter COMMONWEALTH]; PHILIP SELZNICK, THE COMMUNITARIAN
PERSUASION (Johns Hopkins Univ. Press 2002) [hereinafter PERSUASION].
10
See, for instance, the following anthologies: KOMMUNITARISMUS IN DER DISKUSSION
[COMMUNITARIANISM IN DISCUSSION] (Christel Zahlmann ed., Rotbuch Verlag 1992); KOMMUNITARISMUS
[COMMUNITARIANISM] (Axel Honneth ed., Campus Fachbuch 2001); WALTER REESE-SCHAEFER, WAS IST
KOMMUNITARISMUS? [WHAT IS COMMUNITARIANISM?] (Campus 1994); KLAUS BECKMANN ET AL.,
INDIVIDUUM VERSUS KOLLEKTIV: DER KOMMUNITARISMUS ALS ZAUBERFORMEL? [THE INDIVIDUAL VERSUS THE
COLLECTIVE: COMMUNITARIANISM AS MAGIC FORMULA?] (2000).
11
See WALTER REESE-SCHAEFER, POLITISCHE THEORIE HEUTE [POLITICAL THEORY TODAY] ch. 3 (Oldenbourg
2000); Rainer Nickel, Gleichheit in der Differenz? Kommunitarismus und die Legitimation des
Grundgesetzes [Equality in the Difference? Communitarianism and the Legitimation of the German
Constitution], in LEGITIMATION DES GRUNDGESETZES AUS SICHT VON GESELLSCHAFTSTHEORIE UND
RECHTSPHILOSOPHIE [LEGITIMATION OF THE GERMAN CONSTITUION FROM THE VIEWPOINT OF SOCIAL THEORY AND
LEGAL PHILOSOPHY] 395 (Winfried Brugger ed., Nomos 1996); Winfried Brugger, Zum Verhältnis
von Neutralitätsliberalismus und liberalem Kommunitarismus. Dargestellt am Streit über das Kreuz in der
Schule [On the Relationship between Liberal Neutrality and Liberal Communitarianism. Portrayed in the
Controversy of Crucifixes in the Classroom], in DER STREIT UM DAS KREUZ IN DER SCHULE. ZUR RELIGIÖS-
WELTANSCHAULICHEN NEUTRALITÄT DES STAATES [THE CONTROVERSY OVER CRUCIFIXES IN THE CLASSROOM. ON
THE RELIGIOUS AND PHILOSOPHICAL NEUTRALITY OF THE STATE] 109 (Winfried Brugger & Stefan Huster
eds., Nomos 1998) [hereinafter On the Relationship]; Winfried Brugger, Kommunitarismus als
Verfassungstheorie des Grundgesetzes [Communitarianism as Constitutional Theory of the German
Constitution], 123 ARCHIV DES ÖFFENTLICHEN RECHTS 337 (1998) [hereinafter Kommunitarismus];
WINFRIED BRUGGER, LIBERALISMUS, PLURALISMUS, KOMMUNITARIANISMUS [LIBERALISM, PLURALISM,
COMMUNITARIANISM] 253 (Nomos 1999) [hereinafter LIBERALISMUS]; Ulrich R. Haltern
Kommunitarismus und Grundgesetz [Communitarianism and the German Constitution], 83 KRITISCHE
VIERTELJAHRESSCHRIFT FÜR GESETZGEBUNG UND RECHTSWISSENSCHAFT 153 (2000); Winfried Brugger, The
Moral Commonwealth. Gesellschaft und Staat aus Sicht des Kommunitarismus [The Moral
Commonwealth. Society and the State from the Perspective of Communitarianism], 84 KRITISCHE
VIERTELJAHRESSCHRIFT FÜR GESETZGEBUNG UND RECHTSWISSENSCHAFT 149 (2001).
Communitarianism as the social and legal theory 433
social democracy, and Christian natural rights.12 Regardless of their distortions

during the Third Reich, political theories with a strong connection to commu-
nity have been an integral part of German tradition before and after Hitler.13
This essay is not concerned with a historical analysis of that tradition but rather
offers a systematic reconstruction of the current discussion of communitarian-
ism for the purpose of illuminating the meaning of the German Constitution.
This reconstruction will provide a perspective on the German Constitution that
has been somewhat neglected in recent decades. Concurrently, the focus on con-
crete constitutional problems can sharpen our understanding of the benefits
and limitations of communitarian thought.
In the next section, I will expound on some common features of communi-
tarian theories before I distinguish the three main versions of communitarianism.
This two-tiered approach is necessary because, like liberalism and socialism,
communitarianism is a family of theories. Therefore, one must first identify
common features before tackling key variations.
2. The three basic theses of communitarianism

2.1
Since communitarianism cannot be reduced to a single body of thought
regarding community and is in fact a family of theories with several variations,
one must first address the following questions: What do all people, individual
people or groups of people have in common, or what unites them? Or, alterna-
tively, what should be common among them, or what should unite them?
If I focus on the character of each individual as a “person” and adduce legal
rights from this—as purported by human rights doctrine—then the question
of citizenship, class, race, or religion is irrelevant or at least subsidiary.14
12
See DONALD P. KOMMERS, THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY
31–32 (Duke Univ. Press, 2d ed. 1997).
13
See, e.g., G. W. F. HEGEL, GRUNDLINIEN DER PHILOSOPHIE DES RECHTS [ELEMENTS OF THE PHILOSOPHY OF
RIGHT] (1821); FERDINAND TÖNNIES, GEMEINSCHAFT UND GESELLSCHAFT: GRUNDBEGRIFFE DER REINEN
SOZIOLOGIE [COMMUNITY AND SOCIETY: BASIC CONCEPTS OF PURE SOCIOLOGY] (1887) (1979 reprint of the
8th ed., 1935); OTTO VON GIERKE, DAS WESEN DER MENSCHLICHEN VERBÄNDE [THE CHARACTER OF HUMAN
ASSOCIATIONS] (1902) (reprint 1954); FRIEDRICH MEINECKE, WELTBÜRGERTUM UND NATIONALSTAAT:
STUDIEN ZUR GENESIS DES DEUTSCHEN NATIONALSTAATES [WORLD CITIZENSHIP AND THE NATIONAL STATE:
A STUDY AS TO THE GENESIS OF THE GERMAN NATIONAL STATE] (4th ed., 1924); THEODOR LITT, INDIVIDUUM
UND GEMEINSCHAFT [INDIVIDUAL AND COMMUNITY] (2nd ed., 1926); EDUARD SPRANGER, LEBENSFORMEN,
GEISTESWISSENSCHAFTLICHE PSYCHOLOGIE UND ETHIK DER PERSÖNLICHKEIT [WAYS OF LIFE, HUMANISTIC
PSYCHOLOGY AND THE ETHIC OF THE PERSONALITY] (4th ed., 1924); HERMANN HELLER, STAATSLEHRE [STATE
THEORY] 1934 (especially: 2. Abschnitt, III); RUDOLF SMEND, STAATSRECHTLICHE ABHANDLUNGEN
[DISCOURSE OF STATE THEORY] (1955) (2nd ed., 1968) (see especially the articles on “Verfassung und
Verfassungsrecht” and on “Integrationslehre”); ALEXANDER RÜSTOW, ORTSBESTIMMUNG DER GEGENWART
[ORIENTATION OF THE PRESENT] (1957).
14
See, e.g., GG [Constitution] art. 3, § 3; art. 4, § 1 (F. R.G.).
434 W. Brugger
However, if I focus on citizenship as the criterion of community, then, according

to the German Constitution, I can and must differentiate between Germans
and non-Germans, and grant only the former the right of assembly and
association, the right to unhindered movement within German borders, or the
right to choose and practice a profession.15 If I use Christianity as the critical
factor for determining community, then—by the logic of this argument—
there must also be heathens to whom other rules may partly apply. The char-
acteristic of any appeal to a commonality is that, depending on the criteria
selected, lesser or greater differences occur between insiders and outsiders. The
chosen reference group provides the determinative factor for selecting the
“common” good. Internally, the common good is generalized among its members;
externally, however, in relation to other communities that are structured
differently, it is separate and thus particular.
2.2
Regardless of what factors are accentuated in a community, affiliation, member-
ship in groups and the possibility of forming common bonds are constituent fea-
tures of communitarianism. In the foreground is not the freedom from community
and association but rather the freedom to associate in shared ways of life.16
Through self-determination in the community, communitarianism expects
to maximize human fulfillment, in contrast with the Hegelian “abstract”
freedom for everyone to do anything, which is in constant danger of becoming
lost in nothingness or falling victim to totalitarian seductions.17 In this respect,
communitarianism differs from the liberalism of the Enlightenment, and from
the latter’s primary concern with emancipating the populace from economic,
legal, and religious dependence and paternalism. “The goal of the
Enlightenment was, and continues to be, the liberation of humans not only
from oppression but also from imposed (legal and intellectual) dependence. . . .
The limitations of enlightenment are revealed with the question, what is
freedom directed toward?”18 Successful self-determination is not a matter of
15
Id. arts. 8, 9, 11, 12. See also id. art. 38 (in conjunction with §38 of the German Federal Election
Law, available at http://www.iuscomp.org/gla/statutes/BWG.htm). All foreigners in these cases
can invoke the general right to liberty as stipulated in article 2, § 1, which accords basic protec-
tion and requires the government to adequately justify a restraint of personal liberty. Id. art. 2, § 1.
16
Cf. Philip Selznick, The Idea of a Communitarian Morality, 75 CALIF. L. REV. 445, 454 (1987) (“A
communitarian morality . . . is not at its core a philosophy of liberation. The central value is not
freedom or independence but belonging”); ROBERT NISBET, COMMUNITY AND POWER 269 (Oxford Univ.
Press 1962) (“Genuine freedom is not based upon the negative psychology of release. Its roots are
in positive acts of dedication to ends and values. Freedom presupposes the autonomous existence
of values that men wish to be free to follow and live up to”).
17
Concerning this negative freedom, see HEGEL, supra note 13, § 5. On the dangers posed by total-
itarianism, see NISBET, supra note 16, at 255, 268.
18
Ernst-Wolfgang Böckenförde, Erfolge und Grenzen der Aufklärung [The Achievements and
Limitations of Enlightenment], 8 UNIVERSITAS 720, 721 (1995).
“freedom from,” but rather engagement in a discourse on where freedom

comes from, what it is for, and what it should be directed toward. This is
precisely what communitarianism does.
2.3
The previous remarks affirm that the basic tenets of communitarianism are
aligned mainly with an anthropological and social theory approach. This
approach describes the basis of human coexistence and the structures of
societal organization and thus, in the liberal juxtaposition of state and society,
is more closely allied with the pole of private communities and associations.
While such an approach includes trade and competition, it does not reduce
private associations to mechanisms of economic order; instead, it makes many
other forms of civic engagement—from marriage and family to citizen activities
in the private sector—the subject matter of discussion. Thus, communitarian-
ism mediates between the individual, concerned only with him- or herself, and
the centralized authority of the state. In short, communitarianism discusses
the triadic relationship among the varying elements of society, reaching from
private associations to the free marketplace and lastly to the state.19
This has important implications for jurists. Communitarian insights and
recommendations do not automatically suggest that the state is authorized
to enforce those insights and recommendations.20 Rather, society and state
should be constituted in such a way as to respond to humans’ basic need to
form communities. In order to do so, coercion may be occasionally applied,
specifically to safeguard against violence between individuals and groups.21
Normally, however, the State’s focus is on facilitation, care, and coordination.
In the words of Otto von Gierke, the task of the state order is essentially “to
understand, organize, and forge the legal codes necessary for external and
internal community life as an expression of the physical and mental unity of
the societal organism.”22 The structures of community associations must thus
be understood in terms of what they strive to achieve for their members and
how they view their role with regard to their natural and social environment.
The state should respect and protect these associations so that they can
develop in the most unrestricted manner possible as well as coordinate and
19
Cf. WALTER REESE-SCHAEFER, ETZIONI ZUR EINFÜHRUNG 66 (2001); SELZNICK, PERSUASION, supra note 9,
at XXI, 46, 63.
20
See Will Kymlicka, Community, in A COMPANION TO CONTEMPORARY POLITICAL PHILOSOPHY 366, 373
(Robert E. Goodin & Philip Pettit eds., Blackwell 1993).
21
Cf. GG, art. 8, § 1; GG art. 21, § 2.
22
Von Gierke, supra note 13, at 27. The concept of organism is used here, as well as in Gierke, by
way of analogy. See also REESE-SCHÄFER, supra note 19, at 74 (“A community should rely on back-
ing from the state for its protection only if four conditions are met: 1. There must be clear and pres-
ent danger 2. There is no alternative to state involvement 3. State action must be as restrained as
possible 4. Damaging side effects must be minimized”).
436 W. Brugger
distinguish themselves.23 This means that the principle of subsidiarity must

also play an important role in communitarianism.
It was in that spirit that the German Constitutional Court formulated a clear
communitarian perspective on the concept of the human being. “The image of
man in the Basic Law is not that of an isolated, sovereign individual; rather,
the Basic Law has decided in favor of a relationship between the individual and
community in the sense of a person’s dependence on and commitment to the
community, without infringing upon a person’s individual value.”24
3. Conservative, liberal, and universalistic

communitarianism
By examining the authors who develop their theories in accordance with the
main tenets of communitarianism, one may propose classifications of the
variations among those theories.25 The most widespread variation, imported
from the United States, distinguishes between substantive or conservative
communitarianism on the one hand and democratic participatory-republican
communitarianism on the other.26 The criterion for the distinction is circum-
scribed by substance and procedure. This is certainly one way of categorizing
communitarianism. However, a more complex approach may more effectively
reveal the differences among existing human associations.
The conception proposed here works with a three-pronged distinction
among substantive communitarian theories. Participatory rights are attached
to each theory, but their extent may differ. Thus, substantive or conservative
communitarianism will be distinguished from liberal communitarianism and
also from universal or egalitarian communitarianism.27
23
A certain proximity to Niklas Luhmann’s system theory is obvious here. NIKLAS LUHMANN, DIE
GESELLSCHAFT DER GESELLSCHAFT [THE SOCIETY OF SOCIETY] (Suhrkamp Verlag 1998).
24
4 BVerfGE 7, 15. This view continues to be applied by the courts. See 12 BVerfGE 45, 51; 28
BVerfGE 175, 189; 30 BVerfGE 1, 20; 30 BVerfGE 173, 193; 32 BVerfGE 98, 107; 33 BVerfGE 1,
10. See also KOMMERS, supra note 12, at 304–5, 312. On a systematic reconstruction of this
conception of human nature, see BRUGGER, LIBERALISMUS, supra note 11, § 3.
25
See supra notes 2–13. On the precursors of modern comunitarianism, see Hauke Brunkhorst,
Demokratie als Solidarität unter Fremden [Democracy as Solidarity among Strangers], 36 POLITIK UND
ZEITGESCHICHTE 21 (1996).
26
See RAINER FORST, KONTEXTE DER GERECHTIGKEIT: POLITISCHE PHILOSOPHIE JENSEITS VON LIBERALISMUS UND
KOMMUNITARISMUS [THE CONTEXT OF JUSTICE. POLITICAL PHILOSOPHY BEYOND LIBERALISM AND
COMMUNITARIANISM] ch. 3.2 (Suhrkamp Verlag 1994) (with further references). Nickel, supra note
11 (following Forst). Applying the categories I have established here, Nickel comes close to
egalitarian-universalistic communitarianism.
27
On this ideal-type distinction, see Brugger, On the Relationship, supra note 11; Brugger,
Kommunitarismus, supra note 11.
Because the distinctions hinge on the proper relationship between freedom

of choice and various community obligations rather than on a categorical
individual-versus-society conflict, one can view the three conceptions
described above as variations of liberalism. In any case, conservative and liberal
communitarianism are contemporary theories that take critical account of
liberalism and/or certain variations of liberalism.28 Take, for instance, the
triad of “Liberty, Equality and Fraternity” associated with the French
Revolution. If one accepts that triad as key to understanding liberal theories,29
then the element of freedom refers to the discussion of whether, or under what
conditions, communities promote or hinder the fulfillment of human self-
determination. The element of equality is related to the question of which qual-
ities particular individuals, groups, or even all humans share (or should share)
or under what conditions a community is formed (or should be formed). The
answers to these questions differ. One can, as a conservative communitarian,
advocate a narrow, particularistic viewpoint with respect to the unifying
factor; one can, as a universalist communitarian, offer a broad perspective,
such as the basic interests of every human being; or one can, as liberal
communitarian, propose a stance somewhere between these two poles.
The third element, of fraternity or solidarity, could then be interpreted in a sim-
ilar manner—with emphasis either on interactions in close proximity to one’s
family members or on extension of solidarity to all human beings, or perhaps as
a mediation between these two poles. Therefore, in an affirmative or critical sense,
communitarian theories are intimately connected to liberal self-determination.
In this broadly defined sense, communitarian theory would be strictly non-
liberal only to the extent that it left no room for individual self-determination
and constitutional rights, or regarded the self-determination of one group in
a political context as a sufficient justification for suppressing or eliminating
other groups.30 Modern conservative communitarianism should not be
28
See STEPHEN MULHALL & ADAM SWIFT, LIBERALS AND COMMUNITARIANS 155, 163 (Blackwell 1992);
JOEL FEINBERG, HARMLESS WRONGDOING IV 82 (Oxford Univ. Press 1988). Otfried Höffe and Wolfgang
Kersting each characterize communitarianism and liberalism as antipodes. OTFRIED HÖFFE,
VERNUNFT UND RECHT: BAUSTEINE ZU EINEM INTERKULTURELLEN RECHTSDISKURS [REASON AND LAW: THE
BUILDING BLOCKS FOR CONSTRUCTING INTER-CULTURAL LEGAL DISCOURSE] 164 (1996); WOLFGANG
KERSTING, JOHN RAWLS ZUR EINFÜHRUNG [INTRODUCTION TO JOHN RAWLS] 185, 193 (1993).
29
Here, I follow Feinberg. See FEINBERG, supra note 28, at 82 (“The classical liberal ideals, perhaps
partly because of their vagueness and flexibility, remain the most appealing part of traditional
liberalism. These include not only liberté and egalité, but also . . . fraternité. It has been notoriously
difficult for the liberal to reconcile liberty (and . . . autonomy) with equality, but here we will
address the problem of reconciling autonomy with the cluster of values represented by “frater-
nity.” These values include group memberships and loyalties, cooperativeness, civic spirit, public
participation, and piety in a broad sense”).
30
See CARL SCHMITT, DER BEGRIFF DES POLITISCHEN [THE CONCEPT OF THE POLITICAL] 26 (3rd ed. 1991)
(articulating the friend-enemy antithesis). By definition, this is without doubt a pre-
Enlightenment form of communitarian terminology, which is indeed anti-liberal. On Schmitt, see
the analyses in 1 CAN. J.L. & JUR. 10 (1997).
438 W. Brugger
associated with those theories or practices. It is “liberal” in the weak sense of

respecting individual choice to some extent, even though it places greater
emphasis on the integrative force and influence of traditional, well-established
forms of communal life. However, from the point of view of a strong libertarian
theory, one may well designate such theories as non-liberal.31
4. Conservative communitarianism
The first variant of communitarianism may be designated as conservative or
substantive. It is based on the thesis that a political and legal order can only func-
tion on a long-term basis when a relative degree of homogeneity exists internally,
guaranteeing loyalty, mutual understanding, and care among citizens.
Externally, detachment and indifference in relation to other states and peoples are
allowed or even promoted. What are those factors that produce loyalty, solidarity,
and the feeling of belonging? One cannot give a detailed a priori account. It
depends in part upon the circumstances. A classical formulation may be found in
the writings of Ferdinand Tönnies, who in his 1887 book, Gemeinschaft und
Gesellschaft (Community and Society), characterized the process of social cohe-
sion as follows: “mutual understanding [in the community] is based on an inti-
mate knowledge of each other, to the extent that such knowledge is conditioned
upon and is promoted by a person’s immediate readiness to share in another
person’s joys and sorrows. Its likelihood increases when a greater similarity of
constitution and experiences exists or greater harmonization in temperament,
character or way of thinking occurs between members.”32
Conservative substantive communitarianism places emphasis on greater
homogeneity, or at least compatibility, among races, classes, religions,
languages, and ways of life. Lucky is the state in which such conditions of
homogeneity exist. The only difficulty is that in most modern states pluralism
and multiculturalism reign supreme, and substantial conservative communi-
tarianism is not equipped to deal with this phenomenon. One may perhaps
grumble but, in the end, this will change nothing.
5. Universalistic-egalitarian communitarianism
In contrast, the second, egalitarian or universalistic variant of communitari-
anism takes an entirely different approach. It emphasizes two universal
31
By speaking of “liberal communitarianism” in the narrower sense of the term, I follow the ter-
minology of Philip Selznick, who speaks of “communitarian liberalism.” In addition to the refer-
ence in note 9, see also his essay with the same title in 34 DER STAAT 487 (1995). In substance, I
also stand close to his conception. Amitai Etzioni also speaks of liberal communitarianism. See
REESE-SCHÄFER, supra note 19, at 63, 67, 73, 99 (with further references).
32
See 1 TÖNNIES, supra note 13, § 9.
postulates of equality that Ronald Dworkin captured in Taking Rights Seriously

with the formula “equal concern and respect”33—that is to say, equal consid-
eration of the basic needs and self-determination of all peoples as well as equal
respect for the lifestyles of all individuals and groups. Thus, in this variant of
communitarianism, features that distinguish people and groups from each
other are immaterial, or at least secondary, in the organization of governmental
rights and duties. Jürgen Habermas expressed this idea in the following
manner: “only in the radical liberation of individual lives and particular
lifestyles, can universalism be put to the test of creating equal respect for all
and solidarity with everyone who carries a human face.”34 In this form of
communitarianism, the very fact of being human, possessing such universal
attributes as language and the faculty of reason, is the essential element
connecting people; everything else takes second place and is morally suspect.35
Thus, this theory seems to opt, in effect, for a world-state where all people and
groups would have true equal rights and enjoy universal equal opportunity.
Since this is not likely to occur in the foreseeable future, universalistic
communitarianism accepts the current regime of nation-states, but it does
demand that the nation-states open themselves to regional as well as global
legal organizations and accept many transnational obligations in support of
such truly universalistic goals as food, shelter, and peace for every human
being. Likewise, proposals to accord an unlimited fundamental right of asylum
to all those who suffer political persecution or grave disadvantage, fit well with
egalitarian communitarianism. Another example of egalitarian communitar-
ianism would be to make no distinction between human rights and citizens’
rights, as is still the case in the German Constitution, or even to replace the
current requirement of German citizenship for the exercise of voting rights
with a loose stipulation that foreigners must have resided legally on German
soil for a certain period in order to vote.
Egalitarian universalistic communitarianism gravitates toward a pole opposite
to that of conservative communitarianism. For the conservative communitarian,
association through family or clan relationships is the primary principle of
political organization, given the fact that states can only be organized by people
who are emotionally and intellectually tied to each other. However, this overlooks
the fact that political regimes, since the creation of the contemporary territorial
33
RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 183, 272, 292 (Harvard Univ. Press 1978).
34
Jürgen Habermas, Vom pragmatischen, ethischen und moralischen Gebrauch der Vernunft [On the
Pragmatic, Ethical, and Moral Use of Reason], in ERLÄUTERUNGEN ZUR DISKURSETHIK [ELUCIDATIONS ON THE
DISCOURSE ETHICS] 100, 116 (1991).
35
One could ask the question why authors such as Dworkin and Habermas are not addressed here
as adherents of “liberalism,” which they are. Nonetheless, as noted with the arguments in section 2
and in the above text, they may also be designated as universalistic, egalitarian communitarians.
Both authors choose the common and equal characteristics of all humans as the departure point
for their theories of human rights and the just order.
440 W. Brugger
states, have not been based on family, clan, or tribal associations. The organiza-
tional principle of the state must be more abstract. It cannot be based—
exclusively or even primarily—on a substantive correspondence of lifestyles.
Universalistic egalitarian communitarianism attempts to remedy the weaknesses
of conservative communitarianism but is then driven to excess and ends up
throwing the baby out with the bathwater. In the organization of the state, it
wishes to reject all features that distinguish individuals, groups, and cultures,
based on the argument that the distribution of rights and duties should rest on
the premise that everyone, worldwide, is a human being; all other criteria are
regarded as suspect or even illegitimate.36 Instead of concentrating on the close,
intimate perspective of a live group, egalitarian communitarianism is focused on
the broad perspective of humankind in its entirety.
6. Liberal communitarianism
6.1
Liberal communitarianism attempts to avoid the exaggerations of the two
variants of communitarianism described above and endeavors instead to
extract and mediate the basic foundations of both viewpoints. This is done,
first, at the level of social philosophy and, second, at the level of legal and con-
stitutional organization.
The core thesis of liberal communitarianism at the level of social philosophy
is that a human being’s environment consists of several spheres of responsibility,
or forms of association, reaching from the single individual and its near
horizon (e.g., partner and family) to the far horizon of all human beings.
Between these two poles, standing at the foreground of the conservative and
universal communitarianism, there are a great number of alternative forms
of community, ranging from fleeting ad hoc associations to more closely
connected or even perennial organizations.37 For example, one may think of
36
In the table appended to this article, under no. 10, I speak of a “priority” given to the minority
(in universalistic communitarianism) or the majority (in conservative communitarianism). The
first theory variant mistrusts majority decisions or long-standing traditions while the second tends
to trust them as being reasonable and just. For an American example of these presuppositions, see
the dissenting opinion of the U.S. Supreme Court in Bowers v. Hardwick, 478 U.S. 186 (1986), and
the majority opinion in Lawrence v. Texas, 123 S. Ct. 2472 (2003), which are shaped by universal-
istic communitarianism, whereas the ruling opinion in Bowers v. Hardwick and the dissenting opin-
ion in Lawrence v. Texas adhere to conservative (or possibly liberal) communitarianism. See also
ERHARD DENNINGER, MENSCHENRECHTE UND GRUNDGESETZ [HUMAN RIGHTS AND THE GERMAN CONSTITUTION]
39 (1994) (remarking that realization of justice requires the guarantee of rights for “for all types
of minorities” including “homosexuals, transsexuals, people of small or large stature and all
expressions of culture diversity (‘single parents,’ ‘permanent forms of partnership’) or local,
cultural diversities” as well as “ethnic, cultural and linguistic minorities”).
37
These concepts have been adapted from MAX WEBER, GESAMMELTE AUFSÄTZE ZUR
WISSENSCHAFTSLEHRE [COLLECTED ESSAYS ON THE THEORY OF SCIENCE] 451 (4th ed., 1973). Weber speaks
contractual, professional, class, intellectual, gender, religious, or race relation-

ships. At the political-legal level, for example, in Germany there exist local,
state, and federal governments as well as the European Union and the
international community.
Each of these communities has its own ethos and its own standards for
distributing advantages and disadvantages,38 as well as its own responsibilities
or perhaps its own linguistic conventions and specific organizations.39 In other
words, each of these communities has its own structures, objectives, morality,
and justice, which transcend the antinomy of the near and far horizons as well
as that of state and society.
6.2
If one wishes to describe the relationship among these diverse conceptions and
spheres of morality and justice, the best image is one of concentric circles.
Inside the innermost circle of the near horizon of family life, standards for
what constitutes a good and responsible life are brought into focus. Then, in
the course of growing up and growing out of the family circle, broader circles
develop, which may lead to the wide circle of humankind as a whole. The
notion of “circles” sometimes has a parochial, territorial connotation.
However, the image allows for the abstract idea of being connected by special
bonds, such as a shared language, religion, or profession, that create common
identities and loyalties. It is important to note that responsibility in a smaller
or special circle tends to be greater and more effective than in a larger, more
general circle.40 For instance, as a German, one will render more support to
one’s family than to coworkers or perhaps other Germans. Nonetheless, most
Germans would be prepared to shoulder a greater financial burden for their
fellow citizens in the former East Germany than, say, for Africans, Asians, or
South Americans in times of difficulty. With respect to compulsory military
service in the German Armed Forces, in accordance with the German Military
Code (Soldatengesetz), soldiers pledge to “faithfully serve the Federal Republic of
Germany and valiantly defend the rights and freedom of the German
people.”41 This duty, which may well result in the loss of one’s life, would not,
of “flüchtige Gelegenheitsvergesellschaftung” (fleeting chance associations) and “perennierende

Gebilde” (perennial organizations).
38
This is the core thesis of Michael Walzer. See WALZER, supra note 4.
39
Here one can see the close proximity of communitarianism with system theory (see supra note
23) and the school of legal institutionalism. See Ota Weinberger, Neo-Institutionalism: My Views on
the Philosophy of Law, in THE LAW IN PHILOSOPHICAL PERSPECTIVES: MY PHILOSOPHY OF LAW 253 (Luc J.
Wintgens ed., Kluwer Academic Publishers 1999).
40
This is the reason why many jurists worldwide advocate on issues concerning their professional
status, such as the independence of the judiciary, or why many women appeal for a global prohi-
bition of genital mutilation as practiced in some cultures.
41
Soldatengesetz, § 9, §§ 2.
442 W. Brugger
without additional compelling arguments, extend to the rest of the world. This
is the—often unmentioned—background to the current German discussion
regarding replacement of the national conscription army with a professional
volunteer force. It is politically and psychologically less difficult to send one’s
soldiers to trouble spots in the world when your army is a volunteer army than
to do so in the context of obligatory military service.
6.3
The following remarks provide an explanatory description regarding the man-
ner in which most people understand their moral obligations—from the near
to the far, or specific to general, spheres of life. For liberal communitarians, this
progression is just and right. The relationships of give and take, and the nature
and scope of one’s responsibilities to fellow human beings, as shown by
developmental psychology, are first learned in the small circle of the parent-
child interaction. Later, step by step, the spectrum of moral reflection is
broadened to include larger groups and so-called conventional morality,
defined as the predominant morals specific to a particular culture. Only in the
last stage of moral reflection does a transcendence of conventional morality—
to a morality of humankind—occur, actualized in an appeal to human
rights.42 To avoid misunderstandings, it should be stated that this last stage is
a necessary step from the point of view of liberal communitarianism. It is a
step deserving of commitment and effort. However, it is also a precarious and
conditional stage of perfection, which is only legitimate and attainable when
one acknowledges and respects the preceding stages, with their close and
specific responsibilities.43
It is a different process when one’s attention is devoted to the morality of
humankind while more immediate responsibilities are disregarded. This
position was expressed by Erhard Denninger who maintained, “solidarity
knows no personal or conceptual boundaries. It applies world-wide and to the
whole of mankind . . . ”44 It is no surprise that Denninger regards limited,
graded responsibilities as stemming from “prejudices based on primitive
ethnocentrism.”45 According to liberal communitarianism, the good life and
42
For an extensive discussion of this point, see SELZNICK, COMMONWEALTH, supra note 9, ch. 14.
Selznick analyses the pertinent theories of Sigmund Freud, George Herbert Mead, and Jean Piaget
regarding moral development. Id. ch. 6.
43
To put this in a systematic context, moral theories should offer an adequate response to all
these evolutionary stages of moral development. They should not demand worldwide
solidarity, thus concentrating on what is developmentally the last stage, which is in fact the least
likely to be reached and an outgrowth of narrower bonds of solidarity, making it normatively the
weakest level.
44
DENNINGER, supra note 36, at 46.
45
Id.
an attractive social theory require a meaningful differentiation and mediation

of community spheres while respecting varying moral obligations that cannot
be reduced to a uniform morality of humankind.46
7. Communitarian constitutional theory: The German

Constitution viewed in the light of liberal
communitarianism
7.1
The spheres and graded intensities of moral responsibility and social organization
building should be matched by a parallel legal and political order. Only in this
manner can law and morality be joined together and support each other. Such
a correspondence does, in principle, exist. In the realm of many nation-states,
one can observe an internal differentiation among local, state and federal
governments while externally a distinction occurs between the transnational
associations to which the nation-state belongs—such as the European Union
in the case of Germany—and the international community at large. These
organizational forms of state and law represent the core of liberal communit-
arianism, namely, the conception of a social—and legal—environment
extending from the near to the far horizon. This type of differentiation, how-
ever, is only successful when, at each of the levels, an important political identity
is captured that, in the process of mutual coordination, is functionally effective
and excludes political domination—namely, absolutism and tyranny.
First, let us discuss the level of the nation-state, that is to say, the level of
organization constituted by the German Constitution. The democratic nation-
state formed under the rule-of-law principle is an indispensable intermediary
that cannot be adequately addressed by the other versions of communitarianism,
since they view the state either as a clan association or as a deficient world-
state and/or world organization.
The level of the nation-state is important for another reason. The peoples of
Europe, since the beginning of modern times, have organized themselves in
large territorial states and have developed their own identities encompassing a
common history with all its negative and positive experiences (previously one
46
See Brugger, On the Relationship, supra note 11, at 128 (with further references regarding the idea
of spheres). Studies on social proximity and social distance provide a background for this idea.
Cf. GORDON W. ALLPORT, THE NATURE OF PREJUDICE 38, 42 (Addison-Wesley Publishing Co. 1954)
(“although we could not perceive our own in-groups excepting as they contrast to out-groups, still
the in-groups are psychologically primary. We live in them, by them, and, sometimes, for them.
Hostility toward out-groups helps strengthen our sense of belonging, but it is not required. . . . Thus
while a certain amount of predilection is inevitable in all in-group memberships, the reciprocal
attitude toward out-groups may range widely . . . [they] may be appreciated, tolerated, even liked for
their diversity”). See also id. at 43 (“Can Humanity Constitute an In-group?”). See also SELZNICK,
COMMONWEALTH, supra note 9, at 193, 387 (on the “primacy of the particular” and on “piety”).
444 W. Brugger
had spoken of the development of a national spirit or Volksgeist). Successful

states are those that have brought about more positive than negative experi-
ences or, as in the case of Germany in the twentieth century, have been able at
least to learn from their moral and political failures over the last fifty years.
Lastly, the nation-state is important because, at this level, a certain degree of
clarity is generally evident as to who is responsible for which kind of decisions,
and the legitimization chain between democratic input and political output can
often be identified, whereas decision making in transnational bodies, especially
in the European Union, often leaves the public behind a veil of ignorance.
This is not to say that political and legal problems should be resolved solely
at the national level, for that would constitute another kind of communal
absolutism. The nation-state is rather an important sphere of political identity-
building and an indispensable form of societal organization that takes into
account internal divisions and yet remains externally open in relation to
Europe—in the case of Germany—and the rest of the world. The German
Constitution has accomplished this task.47
The Constitution distances itself from the concepts of closed sovereignty
as promulgated by Carl Schmitt, who referred to the state as an “organized
political unit territorially closed and impermeable to strangers” and emphasized
moreover that “properties such as unity and impermeability flow from the
essential character of the political unity.”48 This is neither the situation of
modern states in general nor of the German Constitution in particular.
The increasing permeability of nation-states is due to several factors. For
instance, permeability is needed in order to forestall abuses of governmental
power and prevent tyranny. It is required to enable effective completion of
legitimate governmental tasks when the nation-state—due to the nature of
the task—either is too strong or too weak to do so.
However, differentiation may still be necessary in order to provide an
adequate field of political decision-making authority for local, regional,
national, or even transnational identities.49 In this respect, a closer look at the
47
In modern constitutions, three structural pillars may be distinguished: 1. state organization; 2.
fundamental rights; 3. clauses enabling an opening up toward other states. See Winfried Brugger,
Der moderne Verfassungsstaat aus Sicht der amerikanischen Verfassung und des Grundgesetzes [The
Modern Constitutional State from the Perspective of the American and German Constitutions], 126
ARCHIV DES ÖFFENTLICHEN RECHTS 337, 356 (2001); WINFRIED BRUGGER, DEMOKRATIE, FREIHEIT,
GLEICHHEIT: STUDIEN ZUM VERFASSUNGSRECHT DER USA [DEMOCRACY, LIBERTY, EQUALITY: STUDIES ON THE
CONSTITUTIONAL LAW OF THE UNITED STATES] 69 (2002).
48
Cf. SCHMITT, supra note 30, at 47; CARL SCHMITT, VERFASSUNGSLEHRE [CONSTITUTIONAL THEORY] 49
(5th ed., 1970). On Schmitt, as a pre-modern authoritarian communitarian, see supra text accom-
panying footnote 30.
49
On these three criteria of the common good—preventing tyranny, fostering efficiency and
differentiating multiple identities—see Winfried Brugger, European Integration and the Ideal of the
Common Good, in DEFINING THE FIELD OF COMPARATIVE CONSTITUTIONAL LAW 93 (Vicki C. Jackson & Mark
Tushnet eds., Praeger 2002).
German Constitution50 reveals an internal differentiation of the individual fed-

eral states (Länder) as well as the right of self-administration at the level of the
local governments (Gemeinden). A further separation of legislative, executive,
and judicial authority is established not below, but rather within, the federal
government. This internal separation is meant to prevent political tyranny by a
centralized state as well as to allocate tasks among state organs in the interest
of administrative efficiency. It also works to protect and promote collective iden-
tities as stipulated in article 29, section 1, subsections 1 and 2 of the German
Constitution. According to this provision, the territory of the federation may
be subdivided into states in such a manner as to “enable the federal state in
respect to both its size and its ability to effectively fulfill its duties. In this context,
ethnic affiliations, historical and cultural aspects as well as economic utility . . .
shall be taken into account.”51 This particularly interesting yet long-neglected
provision reflects the communitarian agenda of a productive connection
between trade, state, and civil society as previously mentioned.
7.2
The opening and permeation of the German Constitution by transnational
obligations takes place at three levels: through the integration of Germany
into the European Union; its integration into the international community;
and by the anchoring of human rights in the German Constitution.52
The previously mentioned three-pronged justification for transnationalism
also explains the unification process of the European Union.53 The concepts of
50
For detailed expositions of these aspects of German law, see 1 HANDBUCH DES STAATSRECHTS DER
BUNDESREPUBLIK DEUTSCHLAND [HANDBOOK OF CONSTITUTIONAL LAW OF THE FEDERAL REPUBLIC OF GERMANY]
§§ 26, 94–107, 172–83 (Josef Isensee & Paul Kirchhof eds., 1987); 4 id. §§ 26, 94–107, 172–83
(1990); 7 id. §§ 26, 94–107, 172–83 (1992). A useful summary can be found in Stefan Hobe, Der
kooperationsoffene Verfassungsstaat [The Constitutional State Open to Cooperation], 37 DER STAAT 521
(1998).
51
On the corresponding conception of internal separation of powers, see the German
Constitutional Court’s decision 68 BVerfGE 1, 86 (separation of powers “serves the purpose of . . .
distributing political power and political responsibility, as well as of controlling those in power; it
also aims at political decisions being made in a right way, that is, by those organs that are best able
to make them, on account of their organisation, composition, function and procedures. It is meant
to have an overall effect of mitigating governmental power”). For a recent discussion of the role of
article 29 of the German Basic Law, see PETER HÄBERLE, EUROPÄISCHE VERFASSUNGSLEHRE [EUROPEAN
CONSTITUTIONAL THEORY] 38 (Nomos Verlagsgesellschaft 2001).
52
Although the German polity is bound by international law in many ways, the national political
process remains the main legitimizing factor. This is emphasized even by authors who welcome the
supranational integration process. See Hobe, supra note 50, sec. 4; JOST DELBRÜCK, DIE KONSTITUTION
DES FRIEDENS ALS RECHTSORDNUNG [THE CONSTITUTION OF PEACE AS A LEGAL ORDER] 30, 198 (Duncker &
Humblot 1996).
53
See ALBERT BLECKMANN, EUROPARECHT [EUROPEAN LAW] 26 (6th ed., 1997) (marginal notes). One
may also count the European Convention on the Protection of Human Rights of 1950, which
binds and unites the members of the European Council, as a legal instrument securing peace.
446 W. Brugger
reducing abuses of authority and securing permanent peace were prominent

themes among the founding members during the planning of the European
Economic Community (EEC), with a special emphasis given to integrating and
binding the previous aggressor Germany into a European political structure.
In addition, there was, and remains, a desire to create a more efficient
economic organization among the members of the EEC—now EU—to increase
welfare as well as to increase the capacity to deal with problems that
transcended national boundaries (e.g., in the areas of infrastructure and
environmental protection). In regard to the third leg of European integration,
it was certainly a political goal to build an European identity as well. Without
a doubt, there are individuals, constellations, and areas in which a “we-feeling”
is already an unequivocal component of the European peoples’ mindset.
However, it is not yet predictable when and how a European identity will
replace national or regional identities.54 This explains the vague articulation
of the ultimate goal of European integration, ranging from some type of
“United States of Europe” to a loose confederation of states with divergent
supreme competencies.55
In addition to accepting many legal responsibilities established by European
and international law, a third transnational track exists that is directed both
externally and internally. Many, if not all, of the fundamental rights of the
German Constitution are also human rights, that is to say, not dependent on
German citizenship. Any person residing on German soil can invoke such
rights as freedom of speech and religious freedom, for example.
On the other hand, one must also take into account the constitutional rights
that are reserved to German citizens. Only citizens, for example, have the right
to vote in federal and state elections. It is not necessarily true that foreigners liv-
ing in Germany attach greater importance to freedom of speech and religious
freedom. On the contrary, the right to vote may be even more important to them
than freedom of speech or religion! The fact that the German Constitution deals
with these rights differently is not acceptable to an egalitarian communitarian
perspective. That perspective demands that all basic human needs be valued and
satisfied equally, and identifies the opportunity to participate in collective
European Convention on the Protection of Human Rights and Fundamental Freedoms, Nov. 4,
1950, 213 U.N.T.S. 221 (entered into force Sept. 3, 1953).
54
See Dieter Grimm, Braucht Europa eine Verfassung? [Does Europe Need a Constitution?], in
INFORMATIONSGESELLSCHAFT UND RECHTSKULTUR IN EUROPA: INFORMATIONELLE UND POLITISCHE TEILHABE IN
DER EUROPÄISCHEN UNION [THE CULTURE OF INFORMATION AND LAW IN EUROPE] 211 (Marie-Theres
Tinnefeld et al. eds., 1995) and the commentary on that article by Jürgen Habermas, Eine
Diskussionsbernerkung zu Dieter Grimm: Braucht Europa eine Verfassung? in id. at 231.
55
See. in this context, item 8 of the head note of the German Constitutional Court’s decision of
Maastricht, 89 BVerfGE 155, 156 (“The Treaty of European Union constitutes a confederation of
states (Staatenverbund) for the realization of an increasingly close union of the peoples of Europe,
as they are individually organized in states”).
decision-making that results in binding law as one of those basic needs. For the
conservative or liberal communitarian, granting voting rights only to citizens is
justified because the right to vote is essentially connected with the welfare and
identity of one’s own country, as well as with loyalty to it. The same is true of
compulsory military service and, in the extreme case, the sacrifice of one’s life,
for the defense of one’s homeland (i.e., not the defense of all countries), even
though such a sacrifice may stem from those abstract, universal values for
which that country and its constitution stand.56
It makes sense, therefore, that such existential and loyalty-bound rights and
duties as the right to vote and compulsory military service require more justi-
fication than what is based on individual needs. Exercise of the right to vote
and other rights reserved to citizens is not, according to the conservative
communitarian view, a requirement for fulfilling basic human needs. As the
liberal communitarian view would have it, exercise of such rights is not solely
a matter of fulfilling basic needs but arises to a large extent from a pre-existing
close relationship with one’s country and its people.
The right to political asylum is a peculiar device for the opening and perme-
ation of the nation-state. This fundamental right as stipulated until 1993 in
article 16, section 2, subsection 2 of the German Basic Law provided, “Those
who are politically persecuted shall have a right to asylum.”57 In contrast to
other countries receiving refugees, Germany made this provision without
limitation. During the 1990s, this resulted in a continuous increase in the
number of refugees who fled to Germany under the real or professed claim of
politically motivated persecution. In 1992, the numbers reached half a million.
For the supporters of universalistic communitarianism, an unlimited right
to asylum is a vital condition for the legitimization of the nation-state. In the
absence of a world-state able to secure conditions of freedom and human
dignity for all, asylum is a second-best or—if difficulties cannot be surmounted
in the refugees’ country of origin—a third-best, but nonetheless indispensable,
option. Ultimately, the universalistic communitarian must also support the
idea that an unlimited, or at least far-reaching, fundamental right to immi-
gration also exists for all people fleeing poverty. It is difficult, if not impossible,
to demonstrate a qualitative difference between a person suffering from
starvation and a person facing political persecution.
Conservative communitarians, however, do not consider only the human
needs of refugees. They believe that maintaining and cherishing one’s own tradi-
tions and protecting the political and cultural values of one’s own country are
56
It is therefore not surprising that different assessments of the significance of patriotism consti-
tute one of the major differences between conservative and liberal communitarians on the one
hand and universalistic communitarians/liberals on the other. See SELZNICK, COMMONWEALTH, supra
note 9, at 389 and the views proposed in Honneth, supra note 10, at 15, 69, 84, 92, 111, 116,
121, 199.
57
GG art. 16, § 2, §§ 2 (F.R.G.).
448 W. Brugger
valid competing concerns. It is important, in their view, to strike a balance

between these objectives. According to conservative as well as liberal commu-
nitarians, the reasons why the refugee’s community of origin has not
succeeded in creating economically and politically acceptable conditions may
be also considered. Such aspects of political responsibility weigh more in the
discussion than a country’s own responsibility to accept refugees, as long as
that country has not actively contributed to the suffering or injustice of
the refugee’s state of origin. This does not mean that these communitarians
entirely refuse to assist asylum applicants and refugees from poverty. However,
conservative communitarians would rather plead for a clear limitation of assis-
tance and prefer, in German parlance, that an “institutional guarantee,” rather
than a fundamental right to asylum, be anchored in the Constitution. Thus,
governmental obligations would be further specified by statute, rather than by
granting a fundamental right to every asylum seeker worldwide. Regarding
the selection of refugees to be accepted as immigrants, they might also consider
cultural compatibility in terms of language, religion, values. Thus, they would
support introducing a worldwide system for the accommodation of refugees in
the places, regions, and continents best suited to receive them.
In contrast, liberal communitarians would support a regulation that balances
the basic human need to live in safety and dignity against the social, economic,
and cultural interests of the country accepting immigrants. Such a solution
would reflect the consideration that there are legitimate interests on both sides.
At any rate, according to this view, it would be unjust and inequitable if refugees
were admitted into the country in such numbers that their support impinged
upon the amount of support available to citizens.58 The appendage to the
German Constitution in 1993 of article 16(a), requiring refugees to apply first
for asylum at the point of entry (i.e., from one of the countries that geographi-
cally surround Germany), has effectively limited the right to political asylum and
thus reflects the liberal-communitarian viewpoint of graded responsibility and
spheres of accountability. This new provision no longer grants an unlimited
right to asylum to every political refugee, but it stops short of reducing the right
to asylum to a mere “institutional guarantee.” It is left to the political process to
validate this regulation, limit it conservatively or perhaps extend it universally.
7.3 Formation of communities without reference to politics

7.3.1
Liberal communitarianism is based on the assumption that people normally
need to form communities and to be integrated into such communities in order
58
For a more detailed exposition of this view, see Winfried Brugger, Für Schutz der Flüchtlinge—
gegen das Grundrecht auf Asyl!” [For the Protection of Refugees—Against the Right to Asylum as a
Constitutional Right!], 48 JURISTENZEITUNG 119 (1993); Winfried Brugger, Menschenrechte von
Flüchtlingen aus universalistischer und kommunitaristischer Sicht [Human Rights of Refugees from the
Perspective of Universalism and Communitarianism], 80 ARCHIV FÜR RECHTS- UND SOZIALPHILOSOPHIE
318 (1994). Both these essays also appear in BRUGGER, LIBERALISMUS, supra note 11, §§ 13, 14.
to lead fulfilled lives. At the same time, this must not lead to subjection or
suppression. It requires integration while respecting the integrity of the
person.59 This has been expressly stated by the German Constitutional
Court in its image-of-man formula, cited above.60 Because the desire to
associate and to form closer communities is often exposed to internal and
external pressures, there is an important reason to grant constitutional
protection. Note, however, that such a guarantee protects different kinds of
communities. The distinction between state (governmental organizations) and
society (societal associations) is only a preliminary and imperfect distinction
beyond which it is necessary to take into account the differences in character,
quality, and density of specific types of communities.61 In this context, Max
Weber spoke of community types ranging from fleeting ad hoc associations
to perennial institutions.62 In systematic form, one can distinguish between
associations formed by core participation and identity building on the one
hand, and topic-specific engagements in the pursuit of diverse group interests
on the other.63
These considerations are expressly reflected in the charter of fundamental
rights as stipulated in the German Constitution. In addition to protecting
institutions formed by long-standing traditions such as marriage and family
(article 6) or religious and worldviews (Weltanschauungen, article 4), the
Constitution also protects associations formed for indiscriminate and undefined
purposes by granting the right to enter contracts (article 2, section 1), the right
to assembly (article 8), and the right to form organizations (article 9, section 1).64
With each of these rights, one’s choice of associates and objectives is an expres-
sion of individual preference. One can form an association with one or with
many, interact for reasons of economics or ideals, and interrelate in a trivial or
weighty manner. In addition, the right to enter associations, as well as to exit
from them, is also guaranteed in most circumstances.
59
This is one of the main theses of Philip Selznick. See, e.g., SELZNICK, PERSUASION, supra note 9, at
39 (“What we prize in community is not unity of any sort at any price, but unity that preserves
the integrity of the parts”).
60
See supra note 24.
61
See GG arts. 2 and 3; PETER HÄBERLE, DIE WESENSGEHALTSGARANTIE DES ART. 19 ABS. 2 GG
[THE GUARANTEE OF THE FUNDAMENTAL RIGHT OF ARTICLE 19, SECTION 2 OF THE BASIC LAW] 96 (3rd ed.,
1993) (on the necessity of complementing a liberal theory of constitutional rights focused on
restraining state power with an “institutional guarantee” that takes the present forms of
community life and their own independent structures and norms into account: “All these norms
are deprived of their nature if one attempts to force a one-dimensional state–individual scheme
upon them.”).
62
See supra note 37.
63
Cf. SELZNICK, COMMONWEALTH, supra note 9, at 184.
64
GG art. 6, art. 4, art. 2 § 1, art. 8, art. 9 § 1 (F.R.G.).
450 W. Brugger
Doctrinally speaking, fundamental rights in general, and rights to form

associations in particular, have a positive as well as a negative side.65 Thus,
freedom of association, despite its strong communitarian underpinnings, is
considered a “liberal” right.
7.3.2
The German Constitution guarantees unrestricted freedom of religion and
world-views in article 4, sections 1 and 2: “Freedom of faith and of conscience,
and the freedom to profess a religious or philosophical creed, shall be inviolable.
The undisturbed practice of religion shall be guaranteed.”66 This expansive
guarantee is explained by the fact that religious beliefs and other deep-seated
worldviews often underpin the convictions upon which the morality of the citi-
zenry is ultimately built, or should be built in order to prevent the secular state
from losing its foundation of citizen support and civil engagement.67 This con-
tribution, according to German jurisprudence, justifies governmental support
for associations of belief. At the same time, however, the state must remain
neutral in relation to religions and may not assume a proselytizing role. These
two pillars—promotion on the one hand and neutrality and mediation on the
other—came into direct conflict in the case of crucifixes in public classrooms.
What is the position of communitarianism when the government of a state
whose culture has been shaped by Christianity, such as Bavaria, provides for the
open display of crucifixes in the classroom?68
Both German constitutional law and modern communitarianism69 answer
the question of whether an administrative act ordering the display of cruci-
fixes should be viewed as a violation of the neutrality obligation and the
fundamental right not to be coerced into religious acts by determining
whether the crucifix is used actively in classroom teaching70 or if it serves as
65
See, e.g., 50 BVerfGE 290, 353 (“With the right to form organizations and associations, article 9
of the Basic Law guarantees a constitutive principle of the democratic order and rule of law of the
German Constitution—the principle of freely building social groups”).
66
GG art. 4 §§ 1, 2 (F.R.G.).
67
See Ernst-Wolfgang Böckenförde, Die Entstehung des Staates als Vorgang der Säkularisation [The
Development of States as Process of Secularization], in RECHT, STAAT, FREIHEIT 92, 112 (2nd ed., 1992)
(“the free, secularized state lives by virtue of conditions that it cannot provide itself. This is the
great risk assumed for the sake of freedom”).
68
See 93 BVerfGE 1, 25. The majority decision of the Constitutional Court essentially takes the
position of universalistic communitarianism, whereas the dissenting opinion implicitly represents
liberal communitarianism. For a more detailed discussion, see Brugger, On the Relationship, supra
note 11.
69
See Brugger, supra notes 11, 30 (proviso regarding pre-modern, totalitarian versions of
communitarianism).
70
I am talking about teaching other than “religious instruction,” which, according to article 7,
section 3 of the German Constitution, “shall form part of the regular curriculum in state schools,
an object of religious worship. In either of those events, it would be judged by

all forms of communitarianism as impermissible, due to the need for separation
of society and state as well as the separation of church and state. If the crucifix
does not figure as an active object of instruction, but instead serves primarily
as a reminder of an important tradition that has shaped the country’s
culture—perhaps giving only a faint indication of the state’s support of this
tradition without discriminating against nonbelievers or believers in other
religions or worldviews—then the latter case must be distinguished.
Conservative communitarians would tend to regard the display of crucifixes
as a desirable form of religious promotion, strengthening the community’s
commitment to secular goals, such as solidarity and tolerance, which are
embraced by “modern” Christianity. Liberal communitarians could also accept
crucifixes in this example as legitimate and constitutional as long as the
display clearly signified support for general values, such as solidarity, and did
not amount, on closer examination, to a veiled instance of religious proselytiz-
ing. They would also regard it as politically and constitutionally acceptable to
ban all religious symbols from schools or, alternatively, to introduce all
religions’ respective symbols into the classroom. Universalistic communitari-
ans would only accept the latter approach, holding that only a strict unifor-
mity of treatment of all convictions is legitimate. They would view the selective
promotion of one particular religion as paternalism and suppression.71
How would uniform support for all religions be judged? The requirement of
religious neutrality in Germany does not stand in the way of state support
for all religions. Does this however rule out selective support for particular
religions? A good case can be made that it does, if one thinks and argues from
the standpoint of Western experience. In the end, this depends to a significant
extent on concrete developments and experiences that may not be divorced,
according to the communitarian understanding, from the standards of legiti-
macy and acceptance.72 Imagine a polity that has been traditionally shaped by
one religion and its values, and now—due to internal perceptual changes or
perhaps a reaction to external pressures—decides to separate itself from this
religion. One can assume that, from its internal perspective, it would defend as
legitimate a legal order that respected all religions but did not equally promote
all of them. Consider a homogeneously orthodox country,73 which is called
upon to separate church and state but wishes to continue supporting its
religious tradition. To the extent that the state respects all religions and the
with the exception of non-denominational schools . . .” See GG art. 7, § 3. If students gather for
classes of religious instruction, no objections exist against publicly displaying the symbols of the
respective religion.
71
See supra sections 3–6 (on the positive and negative assessment of long-standing traditions).
72
See supra section 6.3 (on the role of conventional morality).
73
As in the hypothetical case of Russia, excluding seventy years of communist rule.
452 W. Brugger
polity’s citizens are free to choose their own faith or worldview, it would not be
illegitimate if the symbols of the traditional religion continued to be displayed
in public schools, as long as these symbols were not actively implemented as
objects of instruction for the purpose of converting those with other con-
victions.74 In these situations, one could not rule out understanding the
constitutional clause of “Reverence of Christ” merely as an acknowledgement
of a historically shaped value and a community good, provided that this did
not spill over into proselytizing, conversion, or alienation of other viewpoints.
For the conservative communitarian, these ways of providing special support
to the traditional, predominant religion would be acceptable.
Such selective promotion would be ruled out, however, within a Western
framework of state legitimization shaped by neutrality and religious pluralism
as well as by liberal communitarianism. But such a strict neutrality is only
required vis-à-vis religions and world-views in the sense that they are sources,
or organized systems in the case of churches, of fundamental convictions that
can and should not be adjudicated or regulated by state authority. The state need
not remain strictly neutral toward those aspects, values and symbols of religions
or world-views that reach “above” or “beyond” the genuine core of belief.
This is the case when the relevant religious element has become a part of
the daily life of the entire culture and has thus acquired significance beyond
the narrower dimension of a particular faith or sect. Such developments
constitute secularization in the widest sense of the term. One may think, for
example, of the state observance of Sundays and other religious holidays
in countries with a predominantly Christian culture, the commencement of
opening sessions of a parliament by a representative of a majority religion, the
public display of nativity scenes during Christmas by municipal authorities,
the imprints on state legal tender,75 or, perhaps, phrases in common usage that
74
This is how I interpret the following citation from Philip Selznick, Thinking about Community: Ten
Theses, 32 SOCIETY 33, 35 (1995) (“If a broad majority makes moderate claims, for example, with
respect to . . . endorsing religion, some deference to those claims is appropriate. Although minorities
should not be asked to endure palpable harms, they should be willing to suffer—on some matters,
at some times—a sense of exclusion and apartness”).
75
In all these instances, the U.S. Supreme Court did not find a violation of the strict separation of
church and state. See McGowan v. Maryland, 366 U.S. 420 (1961); Lynch v. Donnelly, 465 U.S.
668 (1984). In Lynch, the Supreme Court refers to a great number of government-related
utterances that confirm the significance of religious traditions in the United States: “examples of
reference to our religious heritage are to be found in the statutorily prescribed national motto ‘In
God We Trust,’ which Congress and the President mandated for our currency, and in the language
‘One Nation Under God,’ as part of our Pledge of Allegiance to the American flag. That pledge is
recited by thousands of public school children—and adults—every year.” Lynch, 465 U.S. at 676.
The Court also emphasized another line of tradition, namely, “the evidence of accommodation of
all faiths and all forms of religious expression, and hostility toward none. Through this accommo-
dation . . . governmental action has ‘follow[ed] the best of our traditions’ and ‘respected the
religious nature of our people.’ ” Id. at 677–78.
use the word “god.”76 One may also think of the aspects, symbols, and values
of religions or worldviews that have become an important aspect of the
collective moral consciousness and self-understanding of a particular commu-
nity and thus have assumed the character of a “civil religion.”77 In such cases,
a transcendence of “religion” in the narrow sense of this term has occurred.78
At the same time, there is still a nexus to the moral constitution of the political
community. Think of appeals “to help the poor” or “to respect the dignity of
every human being.” A political community may have a legitimate interest
in not abandoning such a community-building nexus, but rather lending it
support, given that the persuasive force of such constitutional values as
human dignity, freedom and equality, tolerance and social responsibility tends
to be contingent and precarious. In the framework of liberal communitarianism,
the fields of church and state are divided but not strictly separated because
one does not intend to divide or weaken the continuity and mutual support of
morality, solidarity, and tolerance. In contrast, representatives of universalistic
or egalitarian communitarianism would support a strict separation and there-
fore forbid the display by the state of symbols and messages having a mixed
religious-secular character.
7.3.3
The protection of marriage and family in article 6, section 1, of the Basic Law
is another particular example of association: “Marriage and family shall enjoy
the special protection of the state.”79 The rationale for the protection of
religious and worldviews also applies with respect to their fundamental rights.
Social and civil engagement from polity members can be expected from those
who, in the near horizon of family life, have already practiced and acquired
the motivation for such engagements, or who draw motivation for them from
beliefs that they consider binding on themselves.
Therefore, the state has a particular interest in the institution of marriage
and in the family. It is in this environment that most children are reared, and
marriage purportedly provides the best conditions for a child to thrive. However,
76
Note that phrases such as Grüß Gott [a form of greeting used mainly in southern Germany] or
Um Gottes willen [for God’s sake!] are also used in classrooms.
77
On this matter in greater detail, Hermann Lübbe, Zivilreligion und der “Kruzifix-Beschluß” des
deutschen Bundesverfassungsgerichts [Civil Religion and the “Crucifix Decision” of the German
Constitutional Court], in Brugger & Huster, supra note 11, at 237.
78
In precisely this vein, the German Constitutional Court up until now has confirmed the consti-
tutionality of state “Christian Religious Schools” (Christliche Gemeinschaftsschule). It held that such
schools are constitutional as long as they do not promote a particular religious message or
discriminate against other religious convictions or worldviews. Such schools were set up in order
to seek a positive way to connect to Christianity in the civic-religion sense of the term—as a
religious belief whose core values have been secularized and have permeated the moral and legal
constitution of the community as a whole. See 41 BVerfGE 29; 41 BVerfGE 65; 41 BVerfGE 88. In
the crucifix decision, only a minority opinion followed this view.
454 W. Brugger
what should be understood by “marriage”? Does this refer only to the traditional
form of permanent union between a man and a woman or does it apply also to
the unions of two men, or two women? This is a matter of controversy in poli-
tics, law, and communitarian theory.80 Conservative communitarians regard
the traditional and culturally predominant forms of union as singularly worthy
of protection and state support. Other forms of unions may only be prohibited
or criminalized, however, when they demonstrably cause or are likely to cause
damage to society. Special protection is not accorded to alternative lifestyles.
Universalistic communitarians take an entirely opposite view. According to
this perspective, the free choice of partner and purpose for the union is a
fundamental constitutional value. If the purpose of marriage is stipulated as
a permanent union, then one’s choice of partner—including the choice as to
gender—should remain free. Thus, institutionalizing same-sex marriages is
desirable and should be legally possible.
The liberal communitarian would attempt to find an acceptable middle
way. This viewpoint would concede that permanent cohabitation and a rich
and meaningful life can develop not only between between individuals of a
different but also of the same gender. However, given the long and valued
concept of marriage between a man and a woman, the traditional stamp of
“marriage” should not be given to same-sex unions. Instead, this viewpoint
regards it as preferable that the law grant the possibility of forming a legal
union that is not recognized as “marriage” but is its functional equivalent. It
was in this vein that the German Parliament created in 2001 the Legal
Partnership Code (Lebenspartnerschaftsgesetz).81
7.3.4
What are the attitudes toward homosexuality that influence the background of
these discussions? Here again there is a clear divergence among the various
versions of communitarianism.82 Conservative communitarians would view
79
GG art. 6 § 1 (F.R.G.).
80
Cf. 43 BVerfGE 3058 (1993) on the one hand and the Frankfurt District Court’s decision on the
other, in AG Frankfurt, 43 N.J.W. 940 (1993).
81
See Gesetz über die Eingetragene Lebenspartnerschaft [The Registered Life Partnership Act of February
16, 2001], I BUNDESGESETZBLATT 266. Many indicators point to a similar development in the United
States after the Supreme Court decision of Lawrence, 123 S. Ct. 2472 (2003). See Same-sex “mar-
riage” draws wide disapproval, WASH. TIMES, July 5, 2003 (“There’s some evidence that there may be
less opposition to laws creating a ‘civil union,’ similar to the one created in Vermont three years
ago that gives marriage-like rights to homosexual couples in Vermont”). Regarding this point, the
advantage of liberal communitarianism is clear. Even if one is not a convinced supporter of this
variant of communitarianism, but leans instead toward the conservative or universal viewpoint,
one will often assume the stance of the liberal communitarian, which is often the most conducive
to a temporary cease-fire.
82
See Ronald Dworkin, Liberal Community, Symposium: Law, Community, and Moral Reasoning, 77
CALIF. L. REV. 479 (1989); Philip Selznick, Dworkin’s Unfinished Task, Symposium: Law, Community,
homosexuality as immoral or as a hindrance to the healthy development of

sexuality and hence unworthy of state support. They would have to concede,
however, that their perception is disputed in society and that societal damage can
only occur indirectly when consenting adults—who, whether by nature or by
choice, turn their sexual desires to persons of the same gender—are involved.83
The universal communitarian takes a different approach—the more
choices, including sexual choices, the better.84 Traditional moral concepts
concerning sexuality would be typically regarded as suspect, because they
presumably suppress sexual minorities. Therefore, full recognition and protec-
tion of these minorities is warranted, extending from the right to marriage, the
right to bear or adopt children, to the maximization of sexual freedom, includ-
ing sadomasochism based on mutual consent.
Following these lines of argument, the spectrum of legal reaction to homo-
sexuality in Germany has noticeably evolved from criminal prohibition before
1969 to legal tolerance and now, to the present-day struggle for full social
and legal recognition and even special state support.85 The latter was discussed
during the latest reform of the German Constitution but was eventually
rejected. Several German states have extended the anti-discrimination clauses
of their constitutions to include sexual orientation.
The liberal communitarian can live with the current version of the German
Constitution—a criminal sanction against homosexuality would violate the
general right to liberty as provided in article 2, section 1, on account of being
disproportionate. Apart from that, it is left to the German parliament to strike
an acceptable balance. It is important to distinguish between (1) criminal
sanction/repression, (2) liberalization/limited tolerance, and (3) state
aid/full recognition and/or tolerance.86 For any liberal commentator, crimi-
nalization is only legitimate when considerable, verifiable—perhaps even
direct—damage occurs. In the case of homosexuality practiced on the basis of
mutual consent, one can hardly speak of damage, and it therefore must be
excluded from criminal sanction.
and Moral Reasoning, 77 CALIF. L. REV. 505 (1989). The conceptual dividing line in this discussion
is between liberals (equivalent to universal communitarians) and liberal communitarians.
83
Both these points reflect important aspects of self-determination and justice that force even
conservative communitarians, as “weak liberals,” to strike a balance. See supra text accompanying
footnotes 30 and 31.
84
Queer Theory, which advocates a particularly broad conception of sexual freedom in the United
States, makes this obvious. It offers a philosophical foundation for constitutional provisions ruling
out discrimination on account of “sexual orientation.” See F. Valdes, Coming Out and Stepping Up:
Queer Legal Theory and Connectivity, 1 NAT’L J. SEXUAL ORIENTATION L. 3 (1993).
85
A detailed discussion is provided in JÖRG RISSE, DER VERFASSUNGSRECHTLICHE SCHUTZ DER
HOMOSEXUALITÄT [CONSTITUTIONAL PROTECTION OF HOMOSEXUALITY] 25, 34 (1998).
86
In American jurisprudence, these distinctions have been intensively and antagonistically
discussed by the Supreme Court justices in Bowers v. Hardwick, 478 U.S. 186 (1986), Romer v.
Evans, 517 U.S. 620 (1996), and Lawrence v. Texas, 123 S. Ct. 2472 (2003).
456 W. Brugger
Sadomasochism between consenting adults is a difficult, borderline case.

The universalistic communitarian, who demands strict state neutrality in
matters concerning private lifestyles, would adhere to the principle of legal
exemption and—in order to remain consistent—would also demand full recog-
nition by the law. The universalistic communitarians’ most important maxim
in determining legal regulation is that “anything goes” as long as it occurs
between consenting adults. The liberal communitarian, however, would view
this as going too far. He or she would ask whether this form of self-determination
falls within the framework of sexual practices that allow its participants to live,
thrive, and develop. If not, then distinguishing between decriminalization
and full legal recognition (for example when teachers address sexuality in pub-
lic schools) would be justified.87
Another important matter of social and legal debate is the question of how
homosexuality should be dealt with in schools. In this context, the liberal com-
munitarian will at least advocate tolerance in order to balance out opposing
views. As for the rights of homosexual couples to adopt children, it is difficult to
find a middle position. If homosexuality is not regarded as immoral or harmful
to society, then the usual criteria, stipulating protection and promotion of the
child’s welfare, should apply. However, if homosexuality is deemed immoral or
unhealthy, then the state is obligated to prevent such harm to the child’s
welfare, on the assumption that homosexual couples encourage their children
to emulate their lifestyle and that this actually leads to homosexuality.88
7.3.5
Suffice it to say, the discussion above demonstrates why conservative and
some liberal communitarians are against anchoring “sexual orientation” in
a constitutional antidiscrimination clause. Such a far-reaching guarantee of
sexual choice would make it difficult or even impossible to legislate against the
following: special state support for traditional marriages as opposed to same-
gender marriages; the principle of monogamy; state differentiation, especially
in schools, between cautious tolerance and full approval of homosexual
relationships; distancing of the state from extreme sexual practices.
One more point should be mentioned. According to conservative, as well as
liberal, communitarianism, and in contrast to universalistic communitarianism,
the convictions of the majority, and traditions of long standing are not a priori
morally and legally questionable or illegitimate expressions of an irrational
prejudice toward the just and enlightened convictions of the minority.89
87
See Laskey, Jaggard and Brown v. The United Kingdom, Feb. 17, 1997, 1997-I REPORTS AND
DECISIONS 120; Selznick, supra note 82, at 511 (on the restriction of the “anything goes” thesis).
88
This has been called into question by recent studies. See RISSE, supra note 85, at 21, 338.
89
This view is taken, however, by the Frankfurt District Court in its plea for giving same-sex mar-
riage a status equal to that of traditional marriage. AG Frankfurt, 43 N.J.W. 940 (1993) (“It is . . .
Whether any of these positions is correct must be clarified in social and

political discourse in which, according to all three variants of communitari-
anism, the principles of democracy and fundamental rights must be guaranteed.
Traditional notions of “good” and “just” deserve an increased level of respect
under conservative communitarianism and at least a moderate level of respect
among liberal communitarians. This by no means rules out the possibility of
revising one’s views. Such revisions, moreover, can legitimately extend to
universalistic preconceptions of rationality, reason, and justice.
7.4
Lastly, it is necessary to address the difference between neutral liberalism and
liberal communitarianism. Liberal neutralism, as advocated by Immanuel
Kant and John Rawls among others, differentiates strictly between standards
of good living and standards of justice.90 The standards of proper living in
present times are seen as irrevocably pluralistic and controversial, while
the standards of justice and fairness are much less so. The latter should be
amenable to objective solutions within the framework of proper procedures.
John Rawls, for instance, proposes a neutral and objective resolution
of normative claims by approaching them from behind a veil of ignorance,
which thus guarantees the fairness of the decision-making process regarding
the basic structures (i.e., the constitution) of a political community.
Communitarians question whether a dramatic difference exists—as to the
degree of consensus or dissension—between the standards of the good and
those of the just, as claimed by neutral liberalism. In addition, communitari-
ans consider not only justice but also, at least to some extent, the value of
particular social formations to be amenable to discussion, debate and collective
decision making.
Neutral liberalism must relegate the formulation of what constitutes a
fulfilled life (as in marriage and family) to the realm of the private sphere as
soon as controversies arise and must likewise abandon collective support for
disputed positions as provided, for example, in article 6, section 1 of the Basic
Law: “Marriage and family shall enjoy the special protection of the state.”91
Liberal communitarians will take a different view, so long as one may plausibly
irrelevant that a large part of the population may reject marriage between persons of the same
gender holding that to be morally objectionable. Such attitudes for which there is no rational foun-
dation cannot stand in the way of concluding a marriage”). This statement reflects the ruling
opinion in Lawrence, 123 S. Ct. 2472 (2003).
90
See Stefan Huster, Die religiös-weltanschauliche Neutralität des Staates: Das Kreuz in der Schule aus
liberaler Sicht [The Religious Neutrality of the State: The Discussion of the Crucifix in the Schoolroom
from a Liberal Perspective], in Brugger & Huster, supra note 11, at 69; Brugger, On the Relationship,
supra note 11, at 109 (a critique of this idea). See also SELZNICK, COMMONWEALTH, supra note 9, at 380
(also in a critical vein).
91
GG art. 6 § 1 (F.R.G.).
458 W. Brugger
assume (regardless of whether everyone is convinced) that these ways of life

provide—compared to other options—the best conditions for rearing children
and teenagers to become stable, balanced adults.92 For neutral liberalism, this
argument would already exceed the threshold of tolerable state repression.
Liberal communitarians, in contrast, regard marriage and family as a way
of life supported by “funded experience,”93 which is neither repressive nor
oppressive because no one is coerced into participating in it, and dissolution of
marriage is available through legalized divorce.
One may also characterize the difference between neutral liberalism and
liberal communitarianism as follows: liberal communitarianism represents
a moderate form of perfectionism. A political community may promote
and selectively support “tried and true” lifestyles, even though these may be
opposed by some, as long as the basic requirements of liberalism are respected.
This means that “enter” and “exit” options should be available in most
associations, and that functionally equivalent forms of the tried-and-true
lifestyles should be allowed by law, as is done in the German Life Partnership
Code.94 Thus, one may decide to live in a ménage à trois, and be accorded the
right to do so by the general liberty clause or the freedom of association clause
in the German Constitution; however, a polity based on the concept of liberal
communitarianism retains the right to prevent the marriage of three persons.
The liberal neutralist will have difficulties with such a prohibition so long as
the participants are consenting adults who want to form a “union” of what-
ever duration. However, it should be kept in mind that tradition alone is not
determinative—human well-being must be the ultimate test. One cannot fully
determine what is good for people generally in an individualistic and ad hoc
manner, according to a “whatever-two-adults-consent-to-at-the-moment”
theory. Perspectives on what constitutes the common good should consider
the long-term conditions and consequences of individual and collective
choices for the fabric and the quality of the polity’s social and political life.
92
COMMUNITARIAN READER, supra note 1, chs. 5, 6; SELZNICK, COMMONWEALTH, supra note 9, at 379;
Brugger, On the Relationship, supra note 11, at 142.
93
On this formula, which originates in pragmatism, see SELZNICK, COMMONWEALTH, supra note 9, at
20, 22, 37, 40, 129, 289.
94
One may also read Selznick’s work as a commentary on the much quoted dictum by Ernst-
Wolfgang Böckenförde that the liberal state exists by virtue of conditions that it cannot guarantee
itself. See Böckenförde, supra note 67. “Cannot guarantee” does not rule out, but rather includes
reflection and promotion of conditions that encourage civil support.
Appendix: Three variants of communitarianism

A. Substantive, B. Liberal C. Egalitarian-
conservative communitarianism universalistic
communitarianism communitarianism
1. Anthropology, Individual needs Individual needs Autonomous
conception of strong roots in to live in multiple individual
human nature: the community communities endowed
with reason
2. Conception of Freedom to lead a Freedom and Fulfillment
freedom: fulfilled life in fulfillment in one’s through option
one’s community community of freedom from
one’s community
3. Importance of Constitutive role; Range from Primarily
traditional community goals instrumental to instrumental,
lifestyles: placed before self constitutive free choice of
lifestyle, self
placed before
community goals
4. Conception of Priority of Mutual references Priority of
morality traditions, between conven- reflexive, critical
ethical practices, tional and morality over
conventional reflexive, conventional
morality critical morality morality
5. Justification of Recourse to “is” Recourse from Recourse to
moral norms; as the concrete “is” to “should” “should” through
principium substance of through master abstraction;
diiudicationis good and just; ideals; particular proceduralization;
particular and general discourse from
justification; justifications; “outside” to
internal from “inside” to “inside”; extensive
perspective; “outside” generalizations
may be only arguments;
marginally graded
generalized responsibilities
6. Compliance Individual is Immanence and Appeal to reason;
with moral integrated and transcendence of all human beings
norms, principium bound by existing existing are ends in
executionis: relationships of relationships themselves
solidarity of solidarity
7. Relationship Community Community and Universal justice
between tends to replace justice must be tends to displace
community or define justice balanced or take priority
and justice: over particular
communities
460 W. Brugger
Appendix: continued
A. Substantive, B. Liberal C. Egalitarian-
conservative communitarianism universalistic
communitarianism communitarianism
8. Relationship Collective goals Collective goals Individual rights

between tend to have and individual tend to have
collective goals priority rights must priority
and individual be balanced
rights:
9. Conception Traditional Balance between Equal respect and
of the common lifestyles the respect and promotion of all
good: primarily promotion of people and groups;
respected particular neutrality toward
and promoted; lifestyles and particular lifestyles
constitutional constitutional
rights to freedom rights to equality
and equality and freedom
are secondary
10. Minority Priority placed on Open and Priority placed on
rights: status of civilized struggle on status of
majority for recognition minority
11. Mutual Near horizon of Theory of Far horizon of
responsibility morality takes responsibility morality takes
among precedence spheres graded precedence
individuals: from near to far
horizons of
morality
12. Primary Concrete Concrete Abstract legal
focal point of personality personality and person
human beings: abstract legal
person
13. Political Substantial Participation in Democratic
integration consensus and/or the democratic participation and
and stability participation process and rights to freedom
achieved in the substantial and equality
through: democratic consensus
process

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ARTICLE

Communitarianism as the social and

social democracy, and Christian natural rights.12 Regardless of their distortions

2. The three basic theses of communitarianism

However, if I focus on citizenship as the criterion of community, then, according

“freedom from,” but rather engagement in a discourse on where freedom

distinguish themselves.23 This means that the principle of subsidiarity must

3. Conservative, liberal, and universalistic

Because the distinctions hinge on the proper relationship between freedom

associated with those theories or practices. It is “liberal” in the weak sense of

postulates of equality that Ronald Dworkin captured in Taking Rights Seriously

contractual, professional, class, intellectual, gender, religious, or race relation-

of “flüchtige Gelegenheitsvergesellschaftung” (fleeting chance associations) and “perennierende

an attractive social theory require a meaningful differentiation and mediation

7. Communitarian constitutional theory: The German

had spoken of the development of a national spirit or Volksgeist). Successful

German Constitution50 reveals an internal differentiation of the individual fed-

reducing abuses of authority and securing permanent peace were prominent

valid competing concerns. It is important, in their view, to strike a balance

7.3 Formation of communities without reference to politics

Doctrinally speaking, fundamental rights in general, and rights to form

an object of religious worship. In either of those events, it would be judged by

homosexuality as immoral or as a hindrance to the healthy development of

Sadomasochism between consenting adults is a difficult, borderline case.

Whether any of these positions is correct must be clarified in social and

assume (regardless of whether everyone is convinced) that these ways of life

Appendix: Three variants of communitarianism

8. Relationship Collective goals Collective goals Individual rights

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