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Silvio Ferrari on “Church & State in Europe”

This legal scholar advances Vatican views. He’s enamoured of group rights, rather than individual rights (i.e., the “rights” of organisations whose leaders have not been chosen by the electorate). Prof. Ferrari sees no problem with massive social control exercised by a church at state expense, so long as “freedom of conscience” is on the law books. Like the Vatican he redefines separation of church in a way that would permit concordats....

 Ferrari's remarks afford us an interesting glimpse into Vatican strategy. 

♦  He points to the numerous concordats quickly concluded by the Vatican with East European states before their entry into the EU and concludes from this that concordats are "far from being outdated". The implication seems to be that this expresses the wave of the future and even modern European values, rather than being the fruit of a special Vatican effort to conclude concordats with vulnerable new states. 

♦  He then pointedly asks "is the border between Catholic and Protestant countries still significant?" If, as he claims it is not, then this opens up a whole new field for concordats in northern Europe. This is because since the Reformation these traditionally Protestant countries have rejected concordats as exacting tribute for Rome. 

♦  And finally he provides the Vatican's re-definition of church-state separation, which, of course, is nothing "outdated" like the normal meaning. "Separation does not mean any more (as ... in the past) the State obligation to abstain from placing its own resources at the service of the religious communities". His new definition just happens to open the door wide to concordats. A year later he was echoed by the Archbishop of Strasbourg who announced that  "The concordat is an effective and positive implementation of a true secularism."* .

Most of the purely descriptive part (pages 1-4) of his paper is given below. For his excellent bibliographical footnotes, as well as his Vatican-conforming analysis and recommendations, see Church and State in Europe: a comparative outlook (2000). He is also has an article about post-conciliar concordats on the Vatican concordat site.

* "Le concordat est. une mise en oeuvre effective et positive d'une vraie laïcité." Cited in an article by Jacques Fortier on the "Religion" page, Les Dernières Nouvelles d'Alsace, 12 September 2001. 

 Excerpt from Silvio Ferrari's

Church and State in Europe: a comparative outlook (2000)

The traditional classification of Church-State systems in Western Europe is based on a tripartition: separation systems, concordatian systems and national Church systems.

I.  Italy, Germany and Spain, for example, are called concordatarian countries because their relationship with religious groups is base on concordats (with the Roman Catholic Church) and agreements (with other denominations). The basic idea in these countries is that relations with religious groups are better regulated through bilateral provisions. negotiated between the State and each religious group (or at least with those which are larger in number or have been active in the country for a long time). Judglng from what happened in the post-Communist countries, the concordatarian system is far from being outdated: already 8 countries have concluded concordats or agreements with the Catholic Church or other religious groups in a relatively short span of time.

II. The state (or national) Church system is a feature of North Europe. Iceland, Denmark, England, have a State or a national Church. This Church frequently enjoys a preferential treatment, for example in the field of religious education in the schools or chaplaincies, in prisons, hospitals or in the army. On the other hand, the State exercises a strong, control over the organisation and activities of the Church: the head of the State is the head or the governor of the Church, bishops are appointed by State agencies. etc.

The path taken by the post-Communist countries confirms the crisis, which had already, emerged a few years earlier in Western Europe, of systems founded on a State Church. Abandoned by Sweden, on the point of being so by Norway, this system has not been adopted by any ex-Communist country, not even by those whose religious tradition is Lutheran: indeed in Estonia, which is the only nation where the Lutherans are the majority, its adoption was constitutionally excluded.

The lack of success that the system of State Church has encountered in the north-eastern countries of Europe would appear to indicate that this model of relations between State and Church no longer has much capacity for expansion. This is principally due to the difficult of conjugating it with a principle that has become progressively, more important throughout the twentieth century, that is, respect for the autonomy of the Church in doctrinal and organisational matters.

III. France, Ireland. Belgium and the Netherlands are separatist countries. lt is a very heterogeneous group: Ireland, whose Constitution contains an invocation to the Holy Trinity, has little to do with France, that has constitutionally proclaimed the laicité of the State. Therefore it is correct to say that the separatist group is a residual group, into which the countries that have neither concordats nor State or national Churches are placed: an examination of the legal discipline of some central topics in Church-State relationships (financing of Churches, teaching of religion in State schools. etc.) confirms these countries have little in common.

In the post-Communist States, only the Constitution of the Russian Federation (art. 14) affirms the laicité of the State, according to the French model.

Many constitutions declare the separation of the State from the Church, but this declaration is of an essentially technical nature and does not possess the same programmatic significance as that of Article 1 of the French Constitution. In other historical periods such references to the separatist principle would have had a precise meaning, namely to give legal expression to a policy, aimed at reducing relations between the State and the religious communities to the minimum. Today this is no longer so.

Evidence of this change maybe found in the frequency with which these same "separatist" countries have concluded agreements and concordats with the Roman Catholic Church or other religious communities (as came about in Croatia, Slovenia, Hungary Latvia) or have acknowledged the existence of a traditional Church (which is the case of Bulgaria) or have inserted some clauses in their own constitutions that encourage cooperation between the State and the religious communities (Serbia: art. 41). These initiatives and provisions would hardly be compatible with Church-State separation in the meaning conceived by Cavour in the nineteenth century or by the French legislator of 1905. The explanation for this apparent contradiction lies in the change of meaning attributed to the notion of separation in the constitutional charters of the post-Communist countries. Today separation substantially means a distinction between one area of relations belonging to the State and another pertaining to the Church and, consequently, respect of their mutual autonomy.  […] But separation does not mean any more (as it was in the past) the State obligation to abstain from placing (12) its own resources at the service of the religious communities.

Now in my opinion, this traditional tripartition -- separatist countries, concordatarian countries. and State-Church countries -- is culturally and legally outdated. Therefore it is of little use in understanding what is going on in the field of Church and State relations.

Legally the classification over-emphasises the formal side of the Church-State relationship and does not pay enough attention to their content. Belgium and Ireland are separatist countries, they have no concordats, yet the Roman Catholic Church enjoys a better legal position there than in some countries where a concordat has been concluded. The signing of a concordat does not seem to be the qualifying element of the State's attitude toward a Church, neither from a political nor from a legal point of view. But the same reasoning can be repeated in relation to State or national Churches. The Church of England is a national Church but the support it receives from the State is far less than the support the German State gives the Roman Catholic and Protestant Churches in Germany.

From a cultural point of view, that tripartition (concordatarian countries, State/national Church countries. separatist countries) is a leftover of a Europe divided among Protestant countries (with a State Church), Roman Catholic countries (that is, concordatarian countries) and secular countries (the "separatist" France). But it is highly questionable whether these partitions are still meaningful. After the process of secularisation that spread all over Europe and after the Vatican II Council, is the border between Catholic and Protestant countries still significant? And as for the revision of the notion of "laicité" that is going on in France, is it not a sign that the meaning of secular State is changing in the very place where it had become the symbol of the relationship between Church and State? […]


Silvio Ferrari
"Church and State in Europe: a comparative outlook" (2000)

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