Between Evangelical Theology and the Liberal Rule of Law: The Confessing Church and the Origins of German Protestant Constitutionalism, 1933–49

This paper contributes to a growing literature on the religious sources of postwar European reconstruction by exploring how German Protestant jurists’ engagement with theology during the National Socialist period (1933-45) shaped their postwar understandings of constitutional democracy. While Protestant theologians and lay intellectuals numbered among the most outspoken critics of the interwar Weimar Republic, Protestant jurists in the early postwar period emerged as prominent defenders and interpreters of the West German constitution. I argue that the origins of this ideological transformation lie in a process of intellectual exchange among oppositional Protestant jurists and theologians around the Nazi-era Confessing Church, an organization of Protestant pastors founded in May 1934 to oppose the takeover of the churches by regime-backed German Christians. In particular, the writings of the Swiss Reformed theologian and Confessing Church leader Karl Barth offered German Protestant thinkers a newfound theological basis for defending a democratic Rechtsstaat (rule-of-law state).

The paper traces a dialogue between law and theology at sites of Protestant intellectual life that emerged in response to the Nazi regime’s suppression of university-based academic research, including Confessing Church periodicals, study groups preparing for a 1937 Oxford ecumenical conference, and wartime resistance circles. It shows how Confessing Church jurists and theologians sought to articulate a theologically-based alternative to both legal positivism and natural law, a line of argument that found its culmination in Barth's 1938 Justification and Justice. The Confessing Church's theology of law took on political significance as a rejoinder to theories of the “total state" advanced by Nazi jurists. After the war, Protestant jurists drew on Nazi-era theological departures to develop a distinctive human rights discourse, which enabled them to play a significant role in crafting the West German Basic Law while simultaneously distancing them from the Anglo-American mainstream of the international Christian ecumenical movement.