№ 9-10 2000


The Experience of the Catholic Church in Structuring its Relationship with States in the XX Century

R. Minnerath
Roland Minnerath, Professor, Catholic Theological Faculty of Marc Bloch University, Strasbourg

In the issue of State-Church relations the accent may be put on the State’s legislation or on the Church’s requests. Nations and States have all a specific history and legal tradition. Specially in Europe history has shaped the relationship between States and Churches. As a result we have a great variety of models and legislation even in our days. From the point of view of the Catholic Church, the same basic principles shape its relationship with its secular partners through the changing conditions of history. Precisely during the XX century, the Church underwent a process of rethinking ecclesiologically as well as juridically its relationship with States.

I. One Church in many nations

The organizational specificity of the Catholic Church consists undoubtedly in its transnational structure. Unlike Orthodox or most Protestant Churches, the Catholic Church has no national borders. Philetism is unthinkable in the catholic experience. The Catholic Church may be strongly rooted in the culture of the people like in Ireland, Spain, Poland or Italy, but there are no national Churches. So the partner for the local State in dealing with the Catholic Church is not the local Conference of bishops or the local primate, but the head of the whole Church, the Pope of Rome.

Moreover, the Holy See enjoys the quality of a sovereign subject in international law. The supreme authority in the Catholic Church is acting as a partner at a level of juridical equality with all states in the world. This has been clarified and enforced during this century. From 1870 to 1929 the Pope enjoyed no temporal sovereignty and yet continued to be considered by the powers in Europe and the world as a sovereign in ecclesiastical matters. During that period, various concordates, considered as international treaties, were signed with confessional and non-confessional States. Popes were invited by States such as Germany and Chili to play the role of arbiters in their territorial contests. The creation of the Vatican City State in 1929 was decided by an international Treaty between Italy and the Holy See, so providing the Holy See with a temporal independence at the service of its mission. It is not the Vatican city State which is the international subject maintaining diplomatic relations with about 180 States through the world. As before 1929, it continues to be the Holy See. It is always the Holy See which signs concordates or agreements with States on ecclesiastical matters. Also the Holy See is members of some international organizations and maintains observers at the UN Headquarters in New York and Geneva and with other U.N. Organizations. So the juridical qualification of the Catholic Church is manifested in the sovereignty recognized to the Holy See.

In her approach to secular States, the Catholic Church has always supported the principle of the independence of the ecclesiastical realm with respect to the political. At least along the second millennium the request was libertas ecclesiae: freedom of the Church’s inner government respect to secular powers. Historically the success of the Gregorian reform in the XI century cannot be underestimated. It signalized the will of the Church in the West to claim not only for doctrinal autonomy but also institutional independence in carrying out its mission. In the era of absolutism, the Catholic Church could not escape the general trend of the European monarchies to control the institutional life of the Churches. At least was it admitted that the intrusion of monarchs in the internal functioning of the Church was a privilege bestowed to them by the Pope through a concordate. The principle of the institutional autonomy of the Church was preserved. It was not until our century that the program of Church autonomy came into effect, thanks to the self-understanding of the modern State under the rule of law.

II. Until 1960: the two ‘perfect societies’

At the dawn of the century, the doctrine of the Church with respect to her relations with States was still marked by the remembrances of the absolutist era and some sad experiences with the liberal States. Since the 1860, the official doctrine expressed in the teaching of the two ‘perfect societies’. This theory was first explored by the Austrian canonists in the 18th century and had roots in the Counter-Reformation apologetics. It tried to established the precise limits of both the secular and the ecclesiastical spheres of competence. It made clear that the catholic concept of Church autonomy means legal independence in its own affairs. The State has no competence to rule over Church issues, to appoint Church ministers or to interfere in Church government. The Church is governed by its own legal system, called canon law. The Church does not deduce its legal existence from any concession of the State. The visible and organizational structure of the Church is not granted upon by any secular power. In a word, Church and State are two distinct independent societies.

The second principle is that of their mutual cooperation. There is no way that Church and State could ignore each other. They are at the service of the same persons who may be at the same time citizens and believers. During this century a significant shift in qualifying that cooperation has taken place. Until the early sixties, the official doctrine still supported the thesis of the confessional State. Theoretically where Catholics represented a large and traditional majority in the population, it was assumed that the State should not only recognize the autonomy of the Church in its internal affairs, but also give a special protection to the catholic feeling of the population, and integrate catholic moral and social teaching in State legislation. This was perfectly utopian even in the early 1900s. According to the theory, minority religious groups should not recognized a right to religious freedom, but be merely tolerated. Typical example in Europe was Spain.

The doctrine of the confessional State was restated by Pope Leo XIII at the end of the XIX century. It claimed also that Catholics should enjoy religious freedom where they were a minority. The idea was that the political order had the duty to recognize the true religion and worship God by submitting its laws to the moral teachings of the Church. There was no question of subjective rights in the teachings of the Church. It was assumed that only the truth has rights, not the error. The latter could only be tolerated, for the sake of public peace and the common good. The vision of the relationship of Church and State as two perfect societies was formally adopted by the concordate with Spain in 1953 and the concordate with the Dominican Republic in 1954. It can be said that it also prevailed in the Italian concordate of 1929 and in some Latin American countries like Colombia.

a) Catholic nations in conflict with the Church

The model of the two perfect societies was potentially a conflicting one. Both powers seemed to have to negociate on each issue. The borders about the respective responsibilities of both partners were most of the time fluctuating. Through the XIX and XX century there were few catholic countries at peace with the Church. The necessary transition to a better understanding of the real distinction and autonomy of both State and Church was often dramatic. The Catholic Church had to face severe conflicts with radical governments, in Portugal (1910-1911), in Mexico (from 1924 on), in Spain during the Republic and the civil war (1931-1939).

The crisis in France was particularly hard. Until 1905 the French State and the Catholic Church were linked together by the concordate of 1801. The French Republic decided to denounce it unilaterally. The law of ‘separation’ is to be understood from the background of the former system of recognized religious bodies, namely, the Catholic, Lutheran reformed and Jewish communities. The separation was definitely hostile and aimed at repelling the manifestation of religious life in the private sphere. It did inspire the decree of the Soviet of January 1918 on the separation of State and Church, School and Church. Having proclaimed the separation from Church and State, the French Republic nevertheless ruled that the Churches should have a specific legal support under what it unilaterally called ‘cult associations’. These could not be accepted by the Catholic Church as they imposed her from outside specific juridical features opposed to its internal constitution. What was at stake again was the autonomy of the Church in its internal affairs. An arrangement could be found only in 1924 on the basis of the request of the Church. The later jurisprudence showed that even separated, the State cannot just ignore the constitution of the Churches. This fact seems today widely accepted as the concept of corporate autonomy of religious organizations is more and more widely accepted as a constitutional principle.

After the first World War, the Church had to condemn the nazi, the fascist and the communist ideologies and regimes. Until the Helsinki process in the 1970s, it tried to find a compromise with the communist regimes of Eastern and Central Europe. In these contexts, not only the legal features, but the very existence of the Catholic Church and all Churches was challenged. The claim to be treated as a perfect society did not help.

b) The emergence of the pluralistic State

Not in Europe but in the new World was experienced the first attempt to separate the religious from the political order. The first immigrants in North America were non-conformist groups like the Quakers and the Methodists who had already developed their congregational structure without State interference. These groups living in the same cities of New England wanted no established religion and the freedom to worship according to their conscience. The First Amendment (1791) to the Constitution of the United States is the fruit of the American experiment of a plurality of communities and religions decided to live in the same state. The State must be religiously neutral, not confessional and not hostile to religion.

While United States was experiencing a radically new pattern of having a religious faith in a pluralistic society, Europe was hesitating often through painful conflicts between State control over the Churches and the recognition of their internal autonomy. Historically it was the 1867 Fundamental Law on basic rights of citizens (art. 15) of the Austrian Empire which mentioned the first explicit recognition of internal autonomy of Churches.

The German Weimar constitution (1919) adopted a remarkable Church legislation, whose articles are in force in the Federal Republic. The Churches are separated from the State by their cooperation with the State is institutionalized. ‘Every religious body regulates and administers its affairs autonomously within the limits of the law valid for all’ (art. 137). The major Churches enjoy the status of a ‘corporate bodies under public law’ which enables them for instance to levy taxes on their members with the help of the State administration. The Churches play a major role in civil society. They run schools, hospitals, engage in social and humanitarian activities with special support of the State. The Churches enjoy full internal autonomy. This principle -Selbsbestimmungsrecht is anchored in the constitution. Concordates with the Holy See are in force not only at the level of the Federal State, but also with nearly each local State in Germany. They develop principles set down in the Fundamental Law or the constitution of the La..nder. With Germany in 1919 a other model of Church-State relations was born. It was able to merge two principles: the non-confessional character of the State and the autonomy of the Churches. The principle of the Church autonomy appears in other constitutions in Europe, like Ireland (1937). Italy in its constitution of 1947 affirmed: ‘The Catholic Church and the State, each one in its own sphere, are independent and sovereign’ (art. 7).

III. The new vision of Vatican II

The vision of the two ‘perfect societies’ was abandoned by the Vatican II Council (1962-1965). With its Declaration on religious freedom Dignitatis humanae, the Council took note that the time of confessional States was definitely over. Having no confessional State taking into account what is true or not in matters of religion, the question of civil toleration of the error had no longer sense. The State must not adhere to a specific religious creed. But it has natural duties towards God and the moral order. Among these duties is precisely the respect and the protection of the religious creeds of all its citizens, and fostering their fundamental human rights. The State must respect the religious convictions of its citizens, and consider their structured communities as having a right to exist within the legal system of the State. Its duty is only external to religion itself: care for the public order, for public health and the rights of others.

The council accepted the idea of subjective rights in matters of freedom of religion, but on an anthropological background different from the current language of human rights. Religious freedom is indeed a human right as a request of the very nature of the human person and the nature of religion itself. Religions demands freedom to be authentic. Vatican II limited this freedom to the social and political sphere. On behalf of society or of the State, a person should be immune from any constraint or pressure or restriction in matters of religion. Society must guaranty the freedom of religious or philosophical choices which are met by a person’s conscience. But a person’s conscience cannot pretend to be free in front of God and the truth. It can only search for the truth and adhere to it. So religious freedom in the Catholic understanding is a personal freedom in society which has to be recognized as a subjective right. Vatican II stressed the corporate right of the Church to exist in the legal order of the State. It is known that the human rights as proclaimed in the international instruments are individual rights. But religion can by no means be reduced to an individual issue. Religion implies community of life, worship and teaching which involves a social structure, an institutional continuity. Theoretically this corporative right can be deduced from the individual right to have or not a religion. But Vatican II also underlines that the Church is not just a voluntary association of people sharing the same religious opinions, its origin goes back to the will of its founders. The Church claims for an innate right to be recognized as such.

Vatican II affirms that the central principle of Church-State relationship is the independence and autonomy of both and their cooperation (Gaudium et spes 76. § 3). It immediately goes on saying that this cooperation may assume quite different forms according to circumstances of time and place. So there is no problem for the Catholic church to face a range of different legal statutes in the various countries in which it has believers. All what is requested is the respect of the basic principles of individual and corporate religious freedom and the principle of Church autonomy. The Church avoids the vocabulary loaded with references to hostile ‘separations’ between Church and State. It rather suggest to speak of ‘distinction’ between both domains. So in some modern constitutions in Central Europe, the expression distinction and not separation is used.

Now, where is the link between religious freedom recognized to individuals and the corporate freedom of the Church as an organized community. The point is the following. Modern States consider themselves as bound by the rule of law. They have set a legal framework in which individuals, civil society and State play their respective roles. Basic human rights are primary norms of the whole juridical order and should put clear limits to the domain on which legislation can be taken. The State does no longer claim for controlling all aspect of social life. In particular, it declares itself incompetent in religious issues, and has no interest in dictating internal rules to Church organizations. So Vatican II says : as long as the fundamental right to religious freedom is correctly observed, there will be a sphere of activity in which the State will not interfere. The autonomy of Churches is guarantied within the auto-proclaimed incompetence of the State in religious matters.

a) Changes in legislation after Vatican II

After the Council, it is symptomatic to notice that the Church encouraged those States which still mentioned Catholicism as the official religion of the State, like Spain, Italy, to abandon this reference in their constitutional law. Instead, the new concordates concluded with these countries give a large space to preambles in which the new basic principles governing Church-State relations are enumerated. The Spanish Agreement of 1976 is exemplary in this respect. Each partner at the treaty mentions its highest source of norms. The Church mentions Vatican II and so clearly points at the changes occurred in its doctrinal approach.

In some countries the new understanding of Church-State relation has met the prior constitutional tradition of the State and needed no additional legislation. In States with a concordatarian tradition, new concordates (also simply called Agreements or accord, with the same juridical effect) were signed as with Spain, Italy, Columbia, in which the new doctrinal background was set forth. So the doctrine of the Church could meet the demands for respect of human rights. It must be recalled that modern concordates do not imply privileges for the Catholic Church. They generally give precision to those aspects of religious freedom which is not emphasized in the constitution or the laws of the State. Concordates are signed with States not with regimes, and do not imply a moral endorsement of a specific political regime. So for instance the 1933 concordate with Germany is still in force.

In Italy since 1984 and Spain since 1976–1979 are in force revised concordates which match the permanent demands of the Church in questions of religious freedom and Church autonomy with the constitutional principles of the incompetence of the State in religious issues. But this neutrality is a positive support to the fact that organized religions exist and belong to the cultural identity of the people. In the Italian jurisprudence, the notion of laicit`а has received a fully positive acceptance. The State forbids itself to decide about the content or doctrine of a religion, and only considers its internal structure. The State recognizes that structure in a legal partnership. So small religious communities in Italy like the Muslims, Jews, Adventists signed agreements with the Italian government on the same matters dealt with in the Catholic revised Accord with the Holy See. Here as well as elsewhere the international treaty is a warranty for the internal agreement signed by smaller religious bodies.

b) Towards autonomy for all religious bodies

The Catholic Church through its own historical struggle for corporate freedom has strongly reinforced the concept to-day widely accepted of Church autonomy: for all religious communities in their relationship with the respective States under the rule of law. No wonder that the formula ‘independent and autonomous’ of Vatican II has received an increased acceptance in more recent concordats signed by States with the Holy See. The concept of autonomy has become a common understanding of the very nature of Church corporate freedom.

May some examples of recent concordats be quoted. They belong to the most various religious and cultural backgrounds. So San Marino in the preamble of a convention with the Holy See of 1992 reproposed the formula of the mentioned Italian revised concordat. Poland in the concordat signed 1993, used in art. 1 the words ‘independent and autonomous’, and in its constitution of 1997 (art. 25,3) the concept of ‘autonomy and mutual independence of [State and churches] in its own sphere’. Croatia in its convention of 1996 repeated that Church and State are ‘independent and autonomous’ (art. 1) and that the Church has exclusive competence to order its internal governance (art 5). Also Kazakhstan in 1998 sustained ‘the principles of respect and non-interference in internal affairs’. In Germany where concordats were signed with the new La..nder, the constitutional principle of ‘Selbsbestimmung’ or autonomy of the Church was recalled, so Mecklemburg-Vorpommern (1997) and Thu..ringen (1997). Saxen insisted in saying that the Church ‘orders and manages its own affairs in an autonomous way in the framework of the laws valid for all’ (art. 1).

Some recent political constitutions mention the right to autonomy of religious organizations. Spain speaks of freedom of religion for communities as well as for individuals (1978, art. 16). Portugal is much more explicit and specifies that ‘the Churches and religious communities are separate from the State and free to organize and exercise their own ceremonies and worship’ (1976, art. 41). The constitution of Gabon (1991, art. 1, 13) states that ‘religious communities order and manage their own affairs in an independent way…’.

Proclaming the internal autonomy of religions is one thing. But does such a proclamation mean ignorance or recognition of the Church structures in the legal order of the State? There would be no real autonomy of the Churches, if they had to vest the form of an imposed civil configuration in order to exist and to act in the legal system of the State. Traditionally this legal recognition was granted by Catholic majority States like Columbia (concordate of 1973, art 4), Spain (1979, art. 1, 3–4), Italy (1984, art. 4), Poland (1993, art. 4), Croatia (1997, art. 2, 1–2). But a significant new trend is to be observed during the last three years, when we have many examples of States with no Catholic background granting a legal recognition of the juridical personality of the catholic Church itself and of all the Church institutions enjoying this status in canon law. The examples are Israel, Estonia, Gabon, the Palestinian Liberation Organization.

Four years after the Fundamental Agreement (1993), Israel and the Holy See signed a special Legal Personality Agreement (1997) which assures ‘full effect in Israel law to the legal personality of the Catholic Church itself’ (art. 2), of the Catholic Eastern and Latin Patriarchates, their respective dioceses, the Assembly of the catholic bishops of the Holy Land, many other entities (art. 3), and also the institutes of consecrated life (art. 5). It is recalled that these ecclesiastical juridical persons have been created according to the legislation of the Holy See which is sovereign in international law (art. 6). The provisions of art. 6 make clear that any legal act made by ecclesiastical juridical persons in Israel is governed by the law of Israel. But the designation of the ecclesiastical officer able to act in behalf of the legal person is governed by the canon law. Any ecclesiastical legal person is deemed to have consented to sue and be sued before a judicial or administrative forum in Israel (art. 6. §4).

In Estonia where Catholics are a small minority ‘the Catholic Church as also its institutions which in accordance with Canon law have the status of either public or private juridical persons, shall enjoy juridical personality in civil law, according to the legislation of the republic of Estonia…’ (1997, art. 2). Such institutions have to register with the Estonian authorities. Also Gabon recognizes the juridical personality that the Catholic Church owes by nature, and also the legal personality of its institutions (1997, art. 2). With the Palestine Liberation Organisation an Agreement was signed on February XV, 2000. According to art. 7, ‘full effect will be given in Palestinian law to the legal personality of the Catholic Church and of the canonical legal persons’.

During this century, the leading concept of ‘the liberty of the Church’ has been at the heart of two different visions of State-Church relations. The first one was still marked by the idea that the Church could only defend its freedom towards the State when it was able to dispute to the State the control of the specific domain of religious life. The current vision is a shared vision between the Catholic Church and the modern States under the rule of law. By its constant claim for autonomy and independence in its own domain, the Catholic Church has opened the way for all religious communities to enjoy the same rights of autonomy within the legislation of the different States. In an era of globalization, the future can only be: pluralistic societies, States under having no competence in the sphere of religious life and internal Church organizations, and equal rights for all.

* Доклад был прочитан на английском языке. — Ред.

© Minnerath R., 2000

Приветственное выступление президента Российской академии наук Ю.С. Осипова

Выступление Святейшего Патриарха Московского и всея Руси Алексия II

А.П. Тупикин
Приветствие Министерства культуры Российской Федерации участникам конференции

Н.А. Платэ
Слово перед вручением диплома почетного профессора Российской академии наук Святейшему Патриарху Московскому и всея Руси Алексию II

Обращение президента Российской академии наук академика Ю.С. Осипова к Святейшему Патриарху Московскому и всея Руси Алексию II

Ответное слово Святейшего Патриарха
Московского и всея Руси Алексия II

В.А. Садовничий
Поздравительное приветствие Московского государственного университета Святейшему Патриарху Московскому и всея Руси Алексию II

Митрополит Минский и Слуцкий Филарет
Христианство и культура на пороге третьего тысячелетия

Митрополит Воронежский и Липецкий Мефодий
Церковь, государство и гражданское общество на пороге третьего тысячелетия

Протоиерей Владислав Цыпин
Взаимоотношения Церкви и государства. Канонические принципы и историческая действительность

Н.В. Синицына
Симфония священства и царства

С.Л. Фирсов
Синодальная модель церковно-госу-
дарственных взаимоотношений

А.В. Щипков
венные отношения и проблемы государственного регулирования

Г.А. Михайлов
Государство и Церковь в постсоветский период

Протоиерей Борис Пивоваров
Церковь и консолидация гражданского общества

R. Minnerath
The Experience of the Catholic Church in Structuring its Relationship with States in the XX Century

Р. Миннера
Опыт Католической Церкви в построении взаимоотношений с государством в XX веке (перевод на русский язык)

Митрополит Солнечногорский Сергий
Социальное служение — долг Церкви, обязанность государства, призвание человека

Н.Н. Поташинская
О современной концепции социальной деятельности Католической Церкви

М.В. Каргалова
Христианские истоки европейской социальной модели

Б.К. Кнорре
Конфессионально ориентированное образование в светском обществе

Н.Ю. Степанов
Православные основы системы образования русского зарубежья в 1920–1930-е годы

Митрополит Крутицкий и Коломенский Ювеналий
О Синодальной комиссии Русской Православной Церкви по канонизации святых

Протоиерей Валентин Асмус
Принципы богословского подхода к истории

М.С. Иванов
Сравнение научно-исторического, философского и богословского подходов к истории

Архимандрит Платон (Игумнов)
Христианство на пороге XXI века

Р.А. Лопаткин
Конфессиональный портрет страны

З.И. Пейкова
Отношение к Церкви в России и других странах

Ю.В. Ушакова
Религиозная ситуация: начало XX — канун XXI века

М.П. Мчедлов
Новый тип верующего на пороге третьего тысячелетия

Священник Сергий Широков
Основы современной миссиологической науки и развитие миссионерских исследований

О.В. Шаталов
Теоретические аспекты развития отечественной миссиологии

О.Ю. Васильева
Проблемы прозелитизма в России конца ХХ века

Архимандрит Макарий (Веретенников)
Всероссийский митрополит Макарий и проблемы современной церковно-истори-
ческой науки

С.Л. Фирсов
Актуальные вопросы изучения истории синодального периода Русской Православной Церкви

А.И. Алексеев
К характеристике русских архиереев в первой половине XVIII века (постановка проблемы)

А.В. Журавский
Актуальные и перспективные направления изучения русской церковной истории XX века

направленные в адрес конференции