THE SECULAR LIBERAL STATE AND RELIGIONtlicht] to its very core, so that the law completely penetrates political authority. The
statuary positivism [Staatswillenspositivismus] of the German theory of public law (from
Paul Laband and Georg Jellinek to Carl Schmitt), which was rooted in theKaiserreich
[Imperial Germany], provided a loophole for a nonlegal ethical substance ‘‘of the state’’
or ‘‘of the political.’’ By contrast, in a constitutional state no sovereign exists who could
draw upon a prelegal substance.^5 Once it is gone, the preconstitutional sovereignty of the
prince leaves no gap that would subsequently need to be filled—in the form of an ethos
of a more or less homogeneous people—by an equally substantial popular sovereignty.
In light of this problematic heritage, Bo ̈ckenfo ̈rde’s question has been understood to
imply that a fully positivized constitutional order would be in need of religion or some
other ‘‘sustaining force’’ in order to secure cognitively the foundations of its validity.
According to this interpretation, positive law’s claim to validity needs to be backed up by
the prepolitical-ethical convictions of religious or national communities because such a
legal order cannot be self-referentially legitimized on the basis of democratically generated
legal procedures alone. If, by contrast, one conceptualizes the democratic process, not
positivistically, like Hans Kelsen or Niklas Luhmann, but rather as a method by which
legitimacy may be generated out of legality, there arises no validity deficit that would then
need to be filled by ‘‘ethical life.’’ As opposed to the right-Hegelian understanding of the
constitutional state, the proceduralist, Kant-inspired view insists upon an autonomous
foundation of constitutional principles that, at least in its intention, is rationally accept-
able to all citizens.
2
In what follows, I will assume that the constitution of the liberal state is self-sufficient
with regard to its need for legitimation, that is, that it can draw upon the resources of a
set of arguments that are independent of religious and metaphysical traditions. Even given
this premise, however, doubt regarding motivation persists, for the normative, existential
presuppositions of the democratic constitutional state are more demanding with respect
to the role of citizens [Staatsbu ̈rger], who regard themselves as authors of the law, than
with respect to the role of citizens of society [Gesellschaftsbu ̈rger], who are merely the
addressees of the law. Addressees of the law are expected only, when exercising their
subjective freedoms (and claims), not to overstep any legal boundaries. Such obedience
in the face of laws binding on freedom differs significantly from the motivations and
attitudes expected from citizens [Staatsbu ̈rger] in their capacity as democratic fellow
lawgivers.
Citizens should actively exercise their communicative and participatory rights, not
only with regard to their own best interests but also with respect to the public good. This
requires a greater motivational outlay, one that cannot be legally commanded. To require
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