(A2-23) Religiously Radicated Economic Orders under the Basic Constitutional Law – neo-Thomistic Natural law in German Post-War Constitutions

Many observers, who plainly assume that a decision of the German federal constitution for the free market economy is self-evident, are to this day irritated by the fact that the Federal Republic of Germany’s Basic Constitutional Law not only authorises expropriations (Section 14 (3) of the Basic Constitutional Law) but also endorses the collectivisation of capital equipment or its conversion into public sector forms, respectively (Section 15 of the Basic Constitutional Law). However, both provisions are not only applicable law but the terminal moraines, so to say, of a much broader development, manifesting itself in the Southern and West German post-war state constitutions. These were either due to the overwhelming Christian Democratic majorities (as in Bavaria, in the south-west or in Rhineland-Palatinate) or came about with the CDU (Christian Democratic Union of Germany) or CSU (Christian Social Union of Bavaria) being significantly involved: it is not quite in line with the prevalent image of the “conservative bastion” that of all constitutions, it is the Bavarian dating back to 1946 which contains social basic rights such as the right to work and housing (Section 106 (1), Section 166 (2) of the Bavarian Constitution), and this is often unknown even to constitutional lawyers.

On closer inspection, the relevant provisions turn out to be constitutional borrowings from Catholic social teaching, closer to neo-Thomistic economics as it was formulated in the first half of the 20th century. From this perspective, the provisions of the state constitutions are part of the oft-quoted post-war “renaissance of natural law” – however, unlike many implementations of this school of thought, which is usually deemed as overcome, they are still valid.

The project intends to investigate more closely the extent to which norms as to the economic order that were clearly influenced by religion found their way into the constitutions after 1945. In the process, it needs to be asked how this incorporation took place (are the actors religiously minded politicians or politically active clergymen?) and whether it has at all been perceived or even discussed as a religiously radicated norm setting (what is of interest here is, for example, how the relationship to in parts coextensive claims of those state constitutions presents itself that are due to socialist-secular majorities, as in the case of Hesse). Moreover, from the perspective of the sociology of law the application of the relevant provisions and, thus, their accountability for the economy subsystem needs to be analysed. Finally, it must be investigated from a normative perspective whether the religiously induced genesis still can or must have an effect on the interpretation or even the validity of norms even today.

The Project is part of coordinated project group Religious influences on economic systems and activities.