Part Ii Religion Assimilating the Law Catholic Church Law: Challenges

Interdisciplinary Journal for Religion and Transformation in Contemporary Society 7 (2021) 95–124 brill.com/jrat

Part Ii Religion Assimilating the Law

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Catholic Church Law: Challenges by Secular Law and Religious Pluralism

Burkhard Josef Berkmann Holder of the Chair of Canon Law, in particular for Theological Foundations of Canon Law, General Norms and Constitutional Law as well as for Oriental Canon Law, Klaus Mörsdorf-Studium für Kanonistik, Ludwig-Maximilians-Universität München, Munich, Germany [email protected]

Abstract

This article examines the challenges which arise for Catholic canon law from the collision with secular law and the law of other religious communities. It begins by looking at the conditions provided by canon law itself in order to meet these challenges. Subsequently it addresses the specific challenges posed by secular law, especially human rights, and its general influence. Finally, it discusses the challenges posed by religious pluralism, first clarifying the church’s legal relationship with other religious communities and then addressing the very specific question of why church law also applies to non-members in certain cases. The conclusion is that catholic canon law is better equipped to face the current challenges than other religious laws. Nevertheless, there are fruitful tensions and inevitable breaks.

© Burkhard Josef Berkmann, 2021 | doi:10.30965/23642807-BJA10009 This is an open access article distributed under the terms of the CC BY 4.0Downloaded license. from Brill.com09/25/2021 11:22:21AM via free access 96 Berkmann

Keywords church and human rights – non-Catholics – non-Christians – divine law – legal norms – moral norms – legal sanctions

1 Challenges for Canon Law

This article examines the challenges which arise for Catholic canon law from the collision with secular law and the law of other religious communities. It begins by looking at the conditions provided by canon law itself in order to meet these challenges. The next two sections cover the specific challenges posed by secular law, especially human rights, and its general influence. Two further sections discuss the challenges posed by religious pluralism; the first of these sections will clarify the church’s legal relationship with other religious communities, the second one will address the very specific question of why church law also applies to non-members in certain cases. In the end it will be necessary to examine whether canon law is sufficiently equipped to deal with the current challenges.

2 Principles of Catholic Canon Law

Church law is the internal legal order of a church by which it regulates its own affairs. The scope of regulation primarily covers the organisational structure, offices and governing bodies, the legal status of the faithful, the proclamation of faith, the celebration of services, asset management, (criminal-) sanctions and litigation. The law of the Catholic Church is codified to a large extent. The “Code of Canon Law” (CIC) of 1983 applies to the Latin (Western) Church, while the “Code of the Canons of the Oriental Churches” (CCEO) of 1990 applies to the Eastern Catholic Churches.

2.1 Transcendent Foundations and Distinctions between Revealed Law and Human Legislation A certain scepticism about the law is evident in some passages of the New Testament. Redemption may certainly not be expected from mere fulfilment of the law. On the other hand, the existence of a legal system within the church is not simply owed to the necessity of an organisational order or to expedi- ency, but it is in fact theologically justified. Just as, according to the Christian doctrine of faith, Jesus Christ is both true God and true man (incarnation), the

DownloadedJRAT from 7 Brill.com09/25/2021(2021) 95–124 11:22:21AM via free access Catholic Church Law 97 divine and the human elements merge into a single complex reality within the church as well.1 The church is therefore not only a spiritual community which would defy legal regulation, but also a visible assembly which, like every human society, needs a legal order. Considering this theological justification, it is debatable whether church law can be called law only in an analogous sense or in a literal one as well.2 In the ecclesiastical legal system, the distinction between divine and man- made law is presupposed. Divine law is based on a divine origin, whether it was given by God as an order to his creation and can be perceived by the light of natural reason (natural law), or whether it was communicated by God to human beings by revelation and is recognised in faith (positive divine law).3 Divine law is considered to be unchangeable and universally valid. The largest part of church law, however, is man-made law, which has its roots in human legislation within the church and can be adapted to local and temporal circumstances.

2.2 Legal and Moral Norms In the Catholic sphere, a distinction is made between morality and law. Church law only governs relations between legal subjects, while the relationship between God and man is not directly within its scope of regulation. There are, however, interfaces where moral norms become relevant in church law, and the codes of law even contain moral norms in cases where they form a context of meaning with legal ones. Müller demonstrated this by referring to the duty to strive for holiness4 and the duty to seek the truth.5 Both are mere moral duties but they are enshrined in the CIC (c. 210 or c. 748 § 1) because they are connected with genuinely legal duties and claims. In particular, individuals have the legal right to access the truth, for example, the right to hear the gospel, while the ecclesiastical authorities have the legal duty to not hinder their access and to provide the necessary means, for example by preaching the gospel.6 The difference between legal and moral norms becomes more apparent in canon law than in the legal systems of many other religious communities but is less distinct here than in state law. However, even secular law is never fully separated from other types of norms, as is evident from the importance of

1 Cf. Second Vatican Council, Lumen gentium, Art. 8. 2 Cf. Müller, Rechtscharakter, p. 9. 3 Cf. Weber, Art. Ius divinum – Ius humanum, p. 436. 4 Cf. Müller, Streben nach Heiligkeit, pp. 468–480. 5 Cf. Müller, Zum Glauben verpflichtet?, p. 402 et seq. 6 Cf. Berkmann, Nichtchristen, p. 230.

JRAT 7 (2021) 95–124 Downloaded from Brill.com09/25/2021 11:22:21AM via free access 98 Berkmann public morality (“gute Sitten”) in private law, codes of ethics in commercial law or the decision of conscience in conscientious objection to military service.

2.3 Worldly (Temporal) or Eschatological Justice? The distinction between moral and legal norms is also reflected in sanctions. Kelsen distinguishes between the moral order and the religious order: the former remains completely without sanctions, while the latter imposes transcendent ones. But even so, it does not yet become a legal order characterised by sanctions to be imposed by a human authority.7 The reason why religious law has legal character is not found in the fact that it would entail transcendent sanctions but rather that it would entail sanctions in this world which are provided for by law and imposed or ascertained in due legal process. This is precisely the case in canon law. Anyone who misses the appeal deadline of c. 1630 § 1 CIC does not need to expect eternal damnation but rejection of the appeal by the ecclesiastical judge. An impotent person will not ‘go to hell’ for this reason but, according to c. 1084 CIC, cannot marry or may have to expect his or her marriage to be invalidated by an ecclesiastical tribunal. The various penalties generally consist of the deprivation of individual rights under canon law and are intended to protect the church community as well as to cause offenders to make amends. Legal norms differ from moral ones in the fact that they are not binding on the conscience, but as a result of external sanctions imposed in due legal process. This is true for state law as well as for canon law, which is why we can speak of law in its proper sense. However, ‘external sanctions’ must not be reduced to physical force. Such a view, often attributed to Kelsen, is nowadays no longer generally proposed. Especially when one was to compare different laws, the definition of law must not be to narrow.8

2.4 Distinction from Secular Law The distinction between secular and religious law is a fundamental principle within Christianity. The saying of Jesus Christ: “Give to Caesar what belongs to Caesar and to God what belongs to God!” (Matt 22:21) already contains this separation.9 In the first three centuries of Christianity, an ecclesiastical legal order already developed, but there were no Christian rulers yet. The law of the

7 Cf. Kelsen, Reine Rechtslehre, p. 28 et seq. 8 Donlan and Heckendorn Urscheler therefore suggest a functional definition of law. At the centre of this definition are two functions of law. The first consists in “establishing a rational conceptual framework that allows solving all cases according to a consistent pattern”. The second function “consists in the regulation of conduct and in the conflict resolution through institutionalized authority”, cf. Donlan and Heckendorn Urscheler, Concepts, p. 9. 9 Cf. Ferrari, Spirito, p. 239.

DownloadedJRAT from 7 Brill.com09/25/2021(2021) 95–124 11:22:21AM via free access Catholic Church Law 99 early church was therefore always different from state law. Even in later times, disregarding the degree of closeness and intertwining of church and state, it was always clear that these were two different areas of law. This was particularly evident in the fact that the boundaries between the two areas were often vigorously negotiated. Where the areas of church and state overlap, the church strives for a legal cooperation,10 for which the concordat is a particularly suitable legal instrument.

3 Catholic Church and Human Rights

3.1 Advocating for Human Rights Ad Extra In his encyclical letter Pacem in terries from 1963, Pope John XXIII renewed the position of the Catholic Church on human rights and set it forth in detail. The texts of the Second Vatican Council deal with human rights in several places.11 Subsequently, the subject of human rights is repeatedly discussed in official statements of the Catholic Church. At the centre of such discussions is the statement that human rights apply to all people without distinguish- ing between them – solely because of them being human; these human rights cannot be lost. While John XXIII saw human rights as purely based on natural law, John Paul II added a theological justification consisting of one element that referred to creation and another element that referred to christological- soteriological aspects.12

3.2 Implementation of Human Rights Ad Intra With the principles for the code reform, this new emphasis on human rights was expected to be reflected in the revised canon law.13 The original plan to draft a church constitutional law with its own catalogue of fundamental rights and duties was not realised, however. Instead, such a catalogue was included in the 1983 Code (cc. 208–223), but it does not use the term “fundamental rights”. In the formal sense, this term would actually be incorrect, since the CIC is not a higher-ranking law, but on the same level as others. In the material sense, however, the rights of the catalogue can indeed be designated as

10 Cf. Second Vatican Council, Gaudium et spes, Art. 76. 11 E.g. Second Vatican Council, Gaudium et spes, Art. 26. 12 Cf. Kasper, Theologische Begründung, pp. 52 and 55; Lombardía, Grundrechte, p. 608 et seq. 13 Cf. Pontificia commissio codici iuris canonici recognoscendo, Principia 1, 6 and 7, p. 78 et seq.

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‘fundamental rights’,14 because the norms contained in the catalogue are based on divine law, expressing that all Christian believers are to be treated equally, and because their content is of fundamental importance for the entire legal system of the church. Considering that the church has its own catalogue of fundamental rights, however, it does not mean that it is directly bound by specific fundamental rights documents of states or international law. The Holy See has never acceded to the most important international treaties guaranteeing fundamental rights. A direct third-party effect of secular fundamental rights documents is usually – and rightly so – rejected, because otherwise, the purpose of fundamental rights would be reversed.15 It can only be considered in the few cases where the church, based on its secular status as a public corporation in certain countries, exercises public authority.16 At most, an indirect third-party effect can be acknowledged in cases where the state is obliged to enact laws which guarantee the exercise of fundamental rights and thereby impose obligations on third parties. Thus, they may be indirectly bound by fundamental rights as a result of the state’s duty to protect these rights. However, it must be noted that these third parties – just as the church – are bearers of fundamental rights as well, which must not be unduly restricted by this. Hence, the indirect third-party effect of fundamental rights entails two implications for the church. On one hand, it means a stronger binding to fundamental rights since the church has to consider the position of other persons in light of them. On the other hand, it protects the church in cases where its position is interfered with by others. Concerning Switzerland, it also needs to be considered that – in contrast to Germany and Austria – the public-law status of churches does not entail greater autonomy, but a stricter binding to fundamental rights.17 But then again it must be noted that this status is only ascribed to the organisational structures under state-church-law, but not the canonical subdivisions of the Catholic Church.18 There are good reasons why the church created its own catalogue of fundamental rights without being bound by the ones in state law, because the church is of a different nature than the state. For example, invoking the right of

14 E.g. Breitsching, Menschenrechte, p. 199; Heimerl, Menschenrechte und Christenrechte, p. 83; Luf, Grundrechte, p. 108. 15 Cf. Schouppe, Ius connubii, p. 201; Di Fabio, Gewissen, pp. 27 and 72. 16 Cf. Marauhn, Grundrechte in den Kirchen, p. 212. 17 Cf. Hafner, Religionsfreiheit, p. 145. 18 Cf. Brosi, Recht, p. 273. The parallel structure of canon law and state-church law entities, which constitutes a particularity of the Swiss system, mainly developed in the 19th century (cf. Ries, Kirche, pp. 136–139).

DownloadedJRAT from 7 Brill.com09/25/2021(2021) 95–124 11:22:21AM via free access Catholic Church Law 101 conscientious objection to military service against the church would make no sense. On the other hand, there are goods which are equally important in both the state’s and the church’s sphere, but in different ways. This is demonstrated below by the example of freedom of religion.

3.3 Duties of the Church towards Non-members But are there fundamental rights that also apply to non-members and that the church is obliged to respect?19 The CIC catalogue lists Christ’s faithful as subjects. According to c. 204, this includes all those who have received baptism, including non-Catholic Christians. It is disputed, however, to what extent the latter are also covered by the term “Christ’s faithful” in the catalogue of common rights and duties.20 In any case, it does not extend to non-Christians, i.e. unbaptised people. In substance, however, the catalogue by no means only contains rights based on baptism, but also rights arising from human nature.21 While it is disputed whether the rights based on baptism apply to all, it is certain that rights arising from human nature apply to all, including non-members. For example, the basic duty to protect the good reputation of others (c. 220 CIC or c. 23 CCEO) certainly means that all people, including non-Christians, have a right to protection of their good reputation. Finally, the fact that human rights are enshrined in natural law can serve as an argument because natural law also covers non-Catholics and non-Christians and is binding to the church.

3.4 Freedom of Religion in Particular In its decree Dignitatis humanae, the Second Vatican Council affirmed religious freedom and demanded its protection by the state but left open the question of its applicability within the church, which has been subject of dispute to date.22 The justification of freedom of religion, both in terms of natural law and theology, shows that it is awarded to every human being as such and pre- cedes any positive legal order, including the ecclesiastical one. However, since the church is of a different nature than the state, freedom of religion entails different obligations for it. The neutral state must not evaluate doctrines of

19 Cf. Loretan compiles various official church statements which affirm the validity of human rights within the church: Loretan, Freiheitsrechte, p. 24. 20 Cf. Reinhardt, Einführung vor c. 208, recital 5. 21 Cf. Arrieta, Diritti, p. 38; Bauer, Theologische Grundlagen, p. 35; Graulich, Menschenrechte, p. 66; Pree, Einführung vor c. 96, recital 5. 22 For a recent and comprehensive account of the church’s position: cf. International Theological Commission, Sub-commission for Religious freedom, Religious Freedom for the Good of All.

JRAT 7 (2021) 95–124 Downloaded from Brill.com09/25/2021 11:22:21AM via free access 102 Berkmann faith and must permit the change and abandonment of faith. For the church as a religious community, however, a certain common faith is constitutive. By ful- filling its duty to proclaim the doctrine of faith (c. 747 § 1 CIC), to promote the faith of its members and to provide them with the means to practice it (c. 213 CIC), it enables them to exercise their religion (positive side of religious freedom). On the other side, it may not use any coercion – including any improper means (Art. 13 Ad gentes) – to embrace the faith (c. 748 § 2 CIC; negative side of religious freedom). However, it may require its members to preserve their faith (cc. 750–754 CIC)23 and check whether it is still present. While it may not set apostasy at liberty, it also may not prevent it by force but can only declare excommunication as a sanction (c. 1364 CIC). This is a consequence of the moral obligation of all persons to seek the truth according to c. 748 § 1 CIC. Once that quest is complete, once the truth is known, then they are obliged to hold on to the truth and regulate their lives in accord with it. This applies in particular to Catholics who have already embraced ‘the truth’, which is to be understood in the objective sense. Their religious liberty consists in freely practising the faith and in demanding from the church the necessary means to do so. Conversely, canon law does not give the right to abandon the faith if it is no longer subjectively felt to be convincing. In view of this fact, it is all the more remarkable that the Holy See, in the Fundamental Agreement with Israel, made a general commitment to respect religious freedom.24

4 Relationship between Canon Law and Secular Law

4.1 Church as a Legal Community Independent from the State From a canon law point of view, the relationship to the state is often conceived as one between partners of equal level. However, this does not necessarily cor- respond with the state perspective, which might see religious communities as just one example of various particular legal communities which owe their limited autonomy to corporate religious freedom. How can these two points of view be conciliated? The equal rank of church and state was particularly emphasised by the so- called Societas Perfecta doctrine in the 19th and 20th century. According to this doctrine, the church as well as the state are legally perfect societies in the

23 In contrast with c. 748 § 2 CIC, cc. 750–754 CIC refer to Catholics who have already adopted the faith. 24 Cf. Holy See/State of Israel, Fundamental Agreement, Art. 1 § 2.

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Aristotelian25 sense. Each one of them pursues an overall goal (final end) and is in possession of all means necessary to achieve it. The church’s goal is the salvation of souls, the state’s goal is common welfare.26 The mutual independence as well as the possibility of relationships at eye level can be justified using this doctrine.27 The fact that the documents of the Second Vatican Council do not mention the term societas perfecta at all led to a discussion debating whether this doctrine continues to be in force or whether it was replaced by the con- cept of religious freedom.28 Even if this doctrine is hardly ever used as a justification any more, factual ascertainments of independence and equal rank can still be found in the law applicable today. An unprecedented number of con- cordats has been signed since the Council. These are treaties between formally equal subjects of international law, a state and the Holy See acting as head of the Catholic church. Furthermore, the CIC/1983 continues to claim various iura nativa (innate rights) or iura propria et exclusiva (proper and exclusive rights), which are attributed to the church from its origin, i.e. without any deri- vation or conferment by a human power.29 Regardless of this, a new theory appears to be evolving – of all things, amongst experts in state law –, which views the relationship between the legal orders of state and church under the paradigm of conflict of laws. Thereby, the state would recognise religious law as an autonomous legal order, just like for- eign law, and regulate its relationship with it by the rules governing conflict of laws.30 This implicitly means, however, that church law is being taken seriously as a separate legal order standing opposite to state law. Of course, these examples cannot belie the fact that the church’s legal order is perceived in a different manner from the church’s internal perspective than from the state’s external one. This connection between internal and external perspective is obviously somewhat Janus-faced.31 Internal and external

25 Cf. Aristoteles, Politik, 1, 1252a1–7. 26 Cf. Granfield, Societas perfecta, p. 462; Listl, Lehre, p. 1244. 27 Cf. Dalla Torre, Città, p. 62. 28 Berkmann, Katholische Kirche und Europäische Union, p. 176. Another question is whether the state can still be considered a societas perfecta in light of increasing international intertwining and supranational involvement. Negative Dalla Torre, Città, p. 64. 29 Namely in cc. 232, 362, 747 § 1, 1254 § 1, 1260, 1311 and 1401; cf. Durand, Le droit canonique et les relations Églises-États, p. 117; Göbel, Das Verhältnis von Kirche und Staat, p. 111; Lüdecke, Grundnormen, p. 134. 30 E.g. the hypothetical consideration in Sydow, Selbstregulierende Organisationen, p. 25; Augsberg, Taking Religion Seriously, p. 299: “Contrary to this individualistic approach, the constitutional guarantee of religious freedom may be regarded as an arrangement of specific conflict of norms […].” 31 Cf. Seinecke, Rechtspluralismus, p. 371.

JRAT 7 (2021) 95–124 Downloaded from Brill.com09/25/2021 11:22:21AM via free access 104 Berkmann justification are interacting in such a way that the existence of church law can be justified from both perspectives, while each perspective follows a different logic. From an external perspective, something can be seen as granted by religious freedom. In contrast, from an internal perspective, the same thing may be seen as the exercise of a competence that is inherent to the church by virtue of its foundation. What can be considered a realisation of pluralism from the external perspective, can be perceived as fulfilment of the only and absolutely true commandment from the internal one. From the inside, many things can be claimed as innate rights, which would be considered mere concessions from the outside. Religious freedom, as a human right, is not created by the state, but predefined by the state. However, concerning its limitations, the state is granted some leeway. In doing so, each side views the other one through its own glasses. This specific asymmetry is being accepted by both sides and does not usually impair the function of the system, aside from in some extreme cases. It can therefore happen that a religious organisation considers its own law to be an independent legal system, while from the exterior perspective, its binding force appears to be derived from the state.32

4.2 Mutual Influences At present, canon law finds itself under an increasing pressure to adapt exerted by secular law. This is particularly evident at the level of European law. An eval- uation of the case law of the European Court of Human Rights (ECtHR) shows that, in many cases, it is considered to be in conformity with the European Convention on Human Rights (ECHR) when a state permits the application of religious law.33 In that regard, Christian canon law even scores better than other systems of religious law.34 In certain cases, however, the Court found that a state would violate fundamental rights if it were to give effect to an ecclesiastical decision in the secular sphere. Examples of this can be found concerning the ecclesiastical marriage annulment proceedings,35 the law governing ecclesiastical university teachers36 and ecclesiastical labour law.37 The church authorities are then faced with the decision to either adapt church law or to accept that it will no longer be recognised by the state.

32 Cf. Berkmann, Existenzberechtigung, p. 142 et seq. 33 Cf. Berkmann, Religiöses Recht, p. 21. 34 Cf. Berkmann, Religiöses Recht, p. 36f. 35 ECtHR, Pellegrini v. Italy, No 30882/96 (20th July 2001). 36 ECtHR, Lombardi Vallauri v. Italy, No 39128/05 (20th October 2009). 37 ECtHR, Schüth v. Germany, No. 1620/03 (23rd September 2010).

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This influence is particularly intense in the area of EU law. The European Court of Justice’s (ECJ) rulings38 on the anti-discrimination directive39 restrict the scope which the churches in Germany have so far enjoyed in shaping their own labour law based on their right of self-determination. In this context, the Catholic Church changed the “Grundordnung des kirchlichen Dienstes im Rahmen kirchlicher Arbeitsverhältnisse” (basic order of employment relationships within the church) as early as 2015.40 Another example is the EU’s General Data Protection Regulation,41 which, in Article 91, only allows a separate data protection law of the church if it meets certain high standards. The Catholic Church in Germany therefore enacted a new church data protection law and corresponding procedural rules.42 From a historical perspective, it becomes obvious that such an influence was not only exerted by secular law on church law, but also – and quite significantly – vice versa. While it is generally known that canonists had great influence on the development of Western legal culture, Decock specifically shows this for three areas: “mercy and justice; mediation and litigation; and the protection of subjective rights and human dignity”.43 These are precisely the same areas in which secular law now influences church law. From this point of view, it is therefore only fair to observe the mutual repercussions between church and secular law.

5 Legal Relationships with Other Religious Communities

5.1 Relationships in Terms of Concentric Circles Since canon law is built on ecclesiology, it seems appropriate to outline the ecclesiological status of people of different faith or belief. The Second Vatican Council developed a new model of the church and its relationship to those not belonging to it. In Art. 14–16 Lumen Gentium, the model of concentric circles can be found,44 which are, listed from the innermost to the outermost:

38 ECJ, C-414/16 and C-68/17. 39 Council of the European Union, Directive 2000/78/EC. 40 Verband der Diözesen Deutschlands, Grundordnung des kirchlichen Dienstes. 41 European Parliament and of the Council of the European Union, Regulation (EU) 2016/679. 42 Cf. Joachimski, Änderungen, p. 86; Ziegenhorn/Drossel, Anwendung, p. 232. 43 Decock, Light of the World, p. 16. 44 It can also be found in: Second Vatican Council: Nostra aetate, Art. 2–4, but in reverse direction. Originating from Hinduism and Buddhism as well as other religions (Art. 2 Sec. 1 NA), it goes to Islam (Art. 3 NA) and eventually to Judaism (Art. 4 NA).

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Catholics (Art. 14 Sec. 1 LG), Catechumens (Art. 14 Sec. 3 LG), non-Catholic Christians (Art. 15 LG) and finally non-Christians, with Jews mentioned first, followed by Muslims and ultimately those who do not believe in God (Art. 16 LG).45 From the perspective of canon law, the crucial difference is whether a person has been baptised or not. By baptism, a human being becomes Christ’s faithful (c. 204 § 1 CIC) and is conferred the rights and duties proper to Christians (c. 96 CIC). Amongst Christians, Catholics form the group which is in full communion (“communio plena”) with the Catholic Church, as expressed by the three bonds of the profession of faith, the sacraments and ecclesiastical governance (c. 205 CIC). Other Christians are not in full communion (“communio non plena”), which diminishes their legal status (c. 96: “insofar as they are in ecclesiastical communion”). Within the communio non plena, there is a further distinction between churches and ecclesial communities. “The Churches which, while not existing in perfect communion with the Catholic Church, remain united to her by means of the closest bonds, that is, by apostolic suc- cession and a valid Eucharist, are true particular Churches.”46 On the other hand, the ecclesial communities “have not preserved the valid Episcopate and the genuine and integral substance of the Eucharistic mystery”, but “those who are baptized in these communities are, by Baptism, incorporated in Christ and thus are in a certain communion, albeit imperfect, with the Church”.47 The CIC adopts this distinction in several of its regulations48 and, in c. 844, links different legal consequences to membership in a church or ecclesial community respectively.49 This distinction is also significant concerning the recognition of legal orders of the respective communities, as shall be examined below. Conversely, non-Christians are those unbaptised. Theologically, they can be distinguished by proximity as well: Judaism, other monotheistic religions, all further religions and ultimately those who do not believe in God. The legal status of the respective individuals, however, is almost identical. The require- ments for a marriage between a Catholic and an unbaptised person are the same regardless of whether that person is affiliated with another religion and

45 The model of concentric circles goes back to the encyclical Ecclesiam Suam, which was authored by Paul VI during the Council, cf. Paul VI, Ecclesiam Suam, pp. 609–659. The encyclical moves from the outside inwards: all humanity (Art. 97), believers in God (Art. 107), separated Christian brothers (Art. 109) and Catholics (Art. 113). 46 Congregation for the Doctrine of the Faith, Declaratio Dominus Iesus, pp. 742–765, No. 17. 47 Congregation for the Doctrine of the Faith, Declaratio Dominus Iesus, pp. 742–765, No. 17. 48 Cf. cc. 364 °6, 463 § 3, 844 §§ 2–5, pp. 908, 933, 1124 and 1183 § 3. 49 Cf. Heinemann, Kirchen, p. 385 et seq.

DownloadedJRAT from 7 Brill.com09/25/2021(2021) 95–124 11:22:21AM via free access Catholic Church Law 107 regardless of what religion they might be affiliated with (c. 1086 § 2 and c. 1125 seq. CIC). With respect to the unbaptised spouse’s freedom of conscience, however, the liturgical rite of marriage can be adapted according to the non- Christian faith or non-religious worldview of the spouse.50 A particularity applies to Catechumens, who are preparing for baptism, and, not being baptised yet, are not yet considered Christians. However, they enjoy a special legal status according to cc. 206, 788 and 865 CIC as well as to the regulations regarding catechumenate in particular law. Certain rights, which are usually reserved to Christians, are already extended to them.

5.2 The Role of Canon Law Church law is concerned not only with the internal affairs of the church and its own members, but to a lesser extent with relations with non-members and non-Catholic communities as well. This phenomenon is quite similar to phe- nomena of secular law, which not only regulates the internal sphere of states, but also includes the law on foreigners, conflict-of-laws and international law. As far as church law is concerned, two circles of external relations can be distinguished. The first circle includes other Christian communities and their members, which are characterised by greater theological proximity and closer legal ties with the Catholic Church. The second, more distant circle comprises the non-Christian religions and their members, with whom legal ties are weaker. In such relations, the law can serve a particular function. It is precisely its formal and abstract character which offers the advantage to establish connec- tions between people and institutions that are otherwise quite different. On this subject, Pree states:

The law – and only the law – makes it possible to abstract from the sub- stantive differences between the churches and thus to recognize the same legal capacity of the dialogue partner as a purely formal factor, without having to deal with all the content relating to the faith, morality, sacraments and discipline of the other partner or without having to sur- render one’s own identity. Rather, ecumenical dialogue presupposes the confessional identity of each partner.51

50 Cf. Congregation for Divine Worship, Ordo celebrandi matrimonium, No. 36 Praenotanda and No. 152–178. 51 Pree, Par cum pari, p. 362.

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At a legal level, it is thus easier to recognise the formal equality of the subjects involved. The fact that dialogue takes place on equal terms is a principle that is widely recognized in inter-church52 and interreligious53 relations.

5.3 Recognition of the Law of Other Religious Communities As far as state law is concerned, one can state that it has essentially always been recognised by the church. Religious law of other communities, on the other hand, was only gradually recognised, with the Second Vatican Council mak- ing an important change of direction. Article 4(2) of the Council Declaration Dignitatis Humanae reaffirms the right of religious communities to govern themselves according to their own norms. This includes the right to have and observe their own legal order. According to Dignitatis Humanae, this is a mani- festation of corporative freedom of religion which the church also grants to other religious communities.54 Indeed, the social dimension of the human being requires that he or she is able to practice his or her religion not only as an individual but also in community with others.55 As far as the Christian churches are concerned, the conciliar decree Unitatis Redintegratio contains a specific statement. In Art. 16, the Council declares that the churches of the Orient have the capacity to govern themselves according to their specific orders. A corresponding statement for the ecclesial communities which emerged from Reformation is missing, however. But in any case, Article 4 of Dignitatis Humanae applies to them as well, since they are in fact religious communities and their legal order can also be founded on the principle “ubi societas, ibi ius” from the philosophy of law.56 In addition, the Council also recognised church-forming elements in these communities (Art. 3 and 19 Unitatis Redintegratio). These include the Word of God and the sacrament of baptism. If these two elements that are sometimes used to establish law in the Catholic Church are recognised in such communities then their law-establishing function cannot be denied to them either.57

5.4 Legal Status of Non-Catholic Christians Church law also regulates the status of non-Catholic Christians in relation to the Catholic Church, e.g. under which conditions they may receive sacraments

52 Cf. Pree, Par cum pari, p. 354; cf. Second Vatican Council, Lumen gentium, Art. 11. 53 E.g. Second Vatican Council, Nostra aetate, Art. 5; Second Vatican Council, Gaudium et spes, Art. 29. 54 This can be deduced from: Second Vatican Council, Dignitatis humanae, Art. 13. 55 Cf. Pavan, Erklärung, p. 722. 56 Cf. Berkmann, Ehen, p. 71. 57 Cf. Sobański, Ökumenismus, pp. 715 and 720.

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(c. 844 CIC) or enter into a mixed marriage (c. 1124–1127 CIC). Furthermore, church law contains conflict-of-laws rules. What law does a Catholic ecclesiastical court have to apply in matrimonial proceedings, for example, if one or both parties are not Catholic? It must apply the matrimonial law which is applicable to the respective party, as can be seen from Art. 2–4 of the matrimonial procedural rules Dignitas connubii.58 An “interecclesial law” is developing between the various Christian churches and ecclesial communities, similar to international law between states. A significant example is the Magdeburg Declaration of 2007.59 This declaration contains a formal agreement between the eleven signatory religious communities on the mutual recognition of bap- tisms performed in Germany.

5.5 Legal Status of Non-Christians The current code of canon law makes numerous references to non-Christians. Thus, only the most pertinent examples in the CIC can be named here. Non- Christians are entrusted to the pastoral care of bishops (c. 383 § 4) and pastors (c. 528 § 1 and c. 771 § 2). Dialogue with non-Christians must be part of the instruction for priest students (c. 256 § 1). The pontifical legates must foster suitable relations between the Catholic Church and non-Christian religions (c. 364 No. 6). Non-Christians must not be coerced to embrace the Catholic faith (c. 748 § 2). In teaching the faith, consideration must be given to their own “temperament and culture” (c. 787 § 1). Only those who have not been baptised yet can receive the sacrament of baptism (c. 864). According to the Latin Code, non-Christians may baptise in a case of necessity (c. 861 § 2). Non-Christians have a right to marry (c. 1058). A marriage between a Catholic and an unbaptised person can be made possible through dispensation (c. 1086). Following another dispensation, such a marriage can even be concluded in civil form or in any form which the religion of the non-Christian partner designates (c. 1129 in conjunction with c. 1127 § 2). A marriage which has been concluded between two unbaptised partners can be dissolved if one of them is baptised and mar- ries another partner (c. 1143–1149). Likewise, a marriage which exists between a baptised and an unbaptised partner can be dissolved if it has not been consum- mated (c. 1142). Non-Christians can receive blessings (c. 1170). Catechumens and children who die before intended baptism may receive a church burial (c. 1183 §§ 1–2). According to Oriental canon law, church burial can even be granted to adults who appeared close to the church but died before receiving

58 Cf. Pontificium Consilium de Legum Textibus Interpretandis, Instructio: Dignitas Connubii; Berkmann, Ehen, pp. 114–129. 59 Eleven Christian Churches in Germany, Magdeburg Declaration.

JRAT 7 (2021) 95–124 Downloaded from Brill.com09/25/2021 11:22:21AM via free access 110 Berkmann baptism (c. 876 § 2 CCEO). Finally, non-Christians can be party to processes before ecclesiastical courts (c. 1476 CIC). However, does canon law actually recognise non-Christians as persons in the legal sense? The central provision on this subject is c. 96 CIC.60 A majority of canonists understand this norm as stating that only baptised individuals are persons in the sense of canon law.61 However, this view should be rejected. First, non-Christians can be in a multitude of canonical legal relationships with the church, as shown in the examples given above. The ability to form legal relationships is, however, just what characterises personhood in the legal sense. Second, the Second Vatican Council stressed that all people are persons, regardless of their religious affiliation, because they have been created in the image and likeness of God.62 Third, c. 96 CIC, if read closely, in no way entails that only people who have been baptised are persons. What is established by baptism according to this canon is not the personhood as such, but rather a certain category of persons, namely the “personae in Ecclesia” or “persons with the duties and rights which are proper to Christians” respectively.

5.6 Institutional Relations Up to this point, only relations to non-Catholics as individuals were discussed, but beyond that, the question arises how the legal relations to their communities as institutions are shaped. Such institutional relations can especially manifest themselves in three ways: establishing entities for dialogue and cooperation, membership in overarching organisations and agreements between the various communities. As expected, these relationships are more intense with regard to other Christian churches and ecclesial communities, while they are still developing with regard to non-Christian religious communities and just weakly pronounced with regard to non-religious ideologies. The three forms can only be briefly outlined in the following. The Catholic Church establishes entities for dialogue and cooperation on its various constitutional levels. At the universal level, the following are worth mentioning. The Pontifical Council for Promoting Christian Unity is respon- sible for relationships to other churches and ecclesial communities. Affiliated to it is the Commission for Religious Relations with the Jews. This structure emphasises the particular status of Judaism. Other non-Christian religions

60 C. 96 CIC: “By baptism one is incorporated into the Church of Christ and is constituted a person in it with the duties and rights which are proper to Christians in keeping with their condition, insofar as they are in ecclesiastical communion and unless a legitimately issued sanction stands in the way.” 61 Cf. the evidence in Berkmann, Nichtchristen, pp. 128–136. 62 Second Vatican Council, Gaudium et spes, Art. 12 and 29.

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63 Cf. Johannes Paul II, Inde a pontificatus. Regarding this cf. Del Ré, Rat für den Dialog mit den Nichtglaubenden, p. 638. 64 Examples in Synek, Ökumenisches Kirchenrecht, pp. 63–65; Hallermann, Vereinbarungen zur gegenseitigen Anerkennung der Taufe, pp. 118–139; Hallermann, Ökumenische Verein barungen, pp. 215–220. 65 Cf. Pope Francis/Grand Imam of Al-Azhar Ahmad Al-Tayyeb, A document on Human Fraternity for world peace and living together. 66 Cf. Güzelmansur, „Menschliche Brüderlichkeit‟, p. 63.

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5.7 Relations with States Differ from Relations with Other Religious Communities Institutional relations of the Catholic Church with states differ from those with other religious communities in formal and material aspects. While the church recognised the existence of the state as based on natural law ever since, it used to question the legitimacy of other religious communities for a long time. The aforementioned recognition of their legal orders by the Second Vatican Council constitutes a step of vital importance. But there is still need for clarification with regards to whether these communities are recognised in their peculiarity as ecclesial or religious communities or only as natural associations of people.67 In this regard, the model of concentric circles applies. Non-Catholic churches are recognised in their proper sense, and even in ecclesial communities such elements, which “build up and give life to the Church” (Art. 3 Unitatis redintegratio), can be found, while in non-Christian religions, “the good things, spiritual and moral, as well as the socio-cultural values” are recognised (Art. 2 Nostra aetate). Recognising such church-forming elements in the case of ecclesial communities or “rays of truth” (Art. 2 Nostra aetate) in the case of non-Christian religions means, at least in part, an intrinsic recognition that positively approves certain elements as genuinely religious elements. In contrast, the recognition stated in Art. 4 Dignitatis humanae is based on corporate religious freedom and thus ultimately on the social nature both of man and of religion itself. It is an extrinsic recognition that is not different from the way the state recognises religious communities. Treaties between the Holy See and states can be clearly assigned to international law. But which superior legal order do agreements between churches and other religious communities belong to? Is there such thing as an inter- denominational or interreligious law, comparable to international law? At least with regards to Christianity, authors of various denominations affirm the existence of a common and comprehensive Christian legal sphere.68 Between treaties with states and agreements with other religious communities, there are also differences regarding their content. The state’s and church’s respective fields of competence are mostly separated in substance, but members of the church are obviously citizens of the state at the same time. Therefore, treaties are limited to mixed matters (“res mixtae”). Conversely, other religious

67 Pree justifies the ecclesiastical parties’ competence to enter into agreements by their natural legal competence as well as baptism and the specific ecclesiastical freedom of association, cf. Pree, Kirchenrecht in der Ökumene, p. 531. 68 Cf. Engelhardt, Zwischenkirchliche Beziehungen, pp. 84–86 (with important distinctions); Pree, Par cum pari, p. 367; Synek, Ökumenisches Kirchenrecht, p. 63; Pirson, Ökumenizität des Kirchenrechts, p. 512 et seq.

DownloadedJRAT from 7 Brill.com09/25/2021(2021) 95–124 11:22:21AM via free access Catholic Church Law 113 communities are mostly active in the same fields as the church, while there is usually no ‘overlap’ between their members. This has consequences for the content of the agreements. A fundamental distinction must be made between mutual commitments and joint declarations.69 The following subject matters are commonly found:70 recognition of baptism and other sacraments, or official acts in general, use of worship buildings, conversion of clergy, ecumenical associations etc. On the other hand, truth, faith and morals are not directly subject of such agreements.71

6 Why Church Law Also Applies to Non-members

Religious law differs from secular law in its scope of applicability, which is primarily personal rather than territorial. As a rule, the norm addressees are only the respective community’s own members – regardless of their place of residence.72 However, there are exceptions to this rule. As can be seen from the previous sections, Catholic canon law also applies to non-members in some cases. How can this be justified?

6.1 Exclusive Jurisdiction over All Baptised One reasoning that was common before the Second Vatican Council and referred only to non-Catholic Christians, i.e. to those who had been baptised, was that the Catholic Church had exclusive jurisdiction over all baptised Christians anyway, since non-Catholic Christians were only regarded as apos- tate Catholics (c. 1960 Code of 1917). This claim to exclusive jurisdiction was abandoned following the Second Vatican Council.73 Therefore, it does not appear in c. 1671 § 1 CIC, nor in Art. 3 § 1 Dignitas Connubii. This is not only semantics, but also an actual change of direction, since the marriages of non-Catholic Christians are not only subject to the jurisdiction of the Catholic Church anymore, but to other jurisdictions as well.74 It can therefore be observed that the church holds on to its general competence for the marriages of all baptised persons, but no longer regards it

69 Cf. Engelhardt, Zwischenkirchliche Beziehungen, p. 88. 70 Cf. Engelhardt, Zwischenkirchliche Beziehungen, pp. 88–90; Pree, Kirchenrecht in der Ökumene, pp. 534–536. 71 Cf. Pree, Kirchenrecht in der Ökumene, p. 534. 72 Cf. Puza, Religionen, p. 106. 73 Cf. Pontificia commissio codici iuris canonici recognoscendo, Coetus: De modo procedendi pro tutela iurium seu de processibus: Sessio VI), p. 256; Ortiz, Note, p. 370. 74 Cf. Llobell, Giurisdizione, p. 84; Prader, Probleme, p. 459.

JRAT 7 (2021) 95–124 Downloaded from Brill.com09/25/2021 11:22:21AM via free access 114 Berkmann as exclusive, and is even willing to waive its exercise in favour of a concurrent competence of other churches and ecclesial communities.75

6.2 Divine Law Divine law is regarded as universal and unchangeable, i.e. it applies without territorial or temporal limitations.76 This entails that it applies to all people without distinction, i.e. equally to non-Catholics and non-Christians. It can therefore be justified that the part of church law which contains divine law also applies to them, while the other part, which is merely ecclesiastical law, does not. Consequently, c. 11 CIC stipulates that merely ecclesiastical laws impose obligations for those who have been baptised in or were received into the Catholic Church. However, this traditional view gives rise to some issues. What Christians naturally consider as timeless and universally valid is by no means always regarded as compelling and plausible by non-Christians.77 If it is assumed that natural law can be perceived by the light of pure reason, then the reality of the various non-Christian cultures shows that what Catholics understand as natural law is not at all recognised and observed ubiquitously.78 A vivid example of this is polygamy, which is permitted in Islam and was not only tolerated but very much encouraged by the patriarchs of the Old Testament. Even among the Christian denominations there is no agreement on the significance and extent of divine law.79

6.3 Magisterial Competence of the Church The church claims the exclusive competence to interpret divine law and declare it as binding for all people (cf. c. 1075 § 1 CIC). This competence is reflected in c. 747 § 2, which states that it is the church’s duty to proclaim moral principles, even about the social order, always and everywhere as well as to judge human affairs of all kinds insofar as the fundamental rights of the human person or the salvation of souls so require.80 Occasionally it is suggested that this competence, which extends to all people without distinction, is used as an argument

75 Cf. Berkmann, Ehen, p. 79. 76 Cf. Lüdecke, Verständnis, p. 182; Pree, Ius divinum, p. 24. 77 Cf. Ratzinger, Stellungnahme, p. 7. 78 Cf. Riedel-Spangenberger, Gottesrecht, p. 102; Viola, Cristianesimo, p. 243. 79 Thus, the Catholic and Orthodox churches agree on the existence, but not on the legal status of divine law, cf. Primetshofer, Interkonfessionelle Geltung, p. 197. On the various con- ceptions of ius divinum in the Protestant sphere, cf. Lederhilger, Ius divinum, pp. 21–90. 80 Cf. Carreras, Giurisdizione, p. 217; Schwendenwein, Kirchenrecht, p. 359.

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6.4 Voluntary Submission Another way for non-members to become addressees of canon law is by volun- tarily submitting to it.83 Such submission can also be implicit, if a non-Catholic engages in any kind of contact with the church. Examples may be the entering into a contract of employment with a church employer or joining a canonical association, an action in a legal case – for example concerning the nullity of a marriage – or an application in an administrative proceeding – such as a marriage dissolution proceeding. When non-Christians enter the catechumenate or receive blessings, they are subject to the relevant church regulations. However, there are also cases in which non-members involuntarily become addressees of ecclesiastical legal norms, such as in cases of baptism against the will of the parents (c. 868 § 2 CIC), inclusion in church proceedings as a non-claimant (c. 1476 CIC) or dissolution of marriage against the will of one partner (cf. c. 1142 CIC).

6.5 Indirect Contact with the Ecclesiastical Legal System Non-Christians can also come into contact with the ecclesiastical legal system through contact with a Catholic, who is obviously bound by church law.84 The marriage between a Catholic and a non-Catholic is often cited as an example. Ecclesiastical legal norms thus indirectly apply to non-Catholics.85

6.6 Material Context Based on Juridical Goods of the Church The attempts to justify the validity of church legal norms for non-Christians which have been academically discussed so far can only explain certain aspects of the matter. A more comprehensive approach to justification is based on the factual context with juridical goods of the church86 such as the word of God, the sacraments, but also natural goods.87 It assumes a material scope of application for church law, which extends precisely as far as there are legal assets of the church. Whether a legal norm applies to non-Catholics ultimately depends

81 Cf. Bohm, Acatholicus, p. 36; Gismondi, Acattolici, p. 33 et seq. 82 Cf. Pree, Wandelbarkeit, p. 133; Sobański, Verbindlichkeit, p. 536. 83 Lombardía, Infieles, p. 140; Hervada, Ordenamiento, p. 113. 84 E.g. Bernard, “… alle in den Schoß der Kirche rufen”, p. 69; D’Auria, Considerazioni, p. 105; Peperoni, Persone fisiche, p. 430. 85 Cf. Urrutia, Normes generales, MN 118. 86 Cf. Errázuriz Mackenna, Justice in the Church, pp. 216–252. 87 More detailed in Berkmann, Nichtchristen, pp. 788–793.

JRAT 7 (2021) 95–124 Downloaded from Brill.com09/25/2021 11:22:21AM via free access 116 Berkmann on whether it regulates a juridical good owed to or by a non-Catholic person. The church undoubtedly has authority over its juridical goods. Church law primarily regulates the internal affairs of the church, but since the church is in the midst of the world, it also has relationships with people of other faiths, which sometimes take on a legal dimension. These individuals are thereby taken seriously as subjects in the legal sense as well. Not doing so would mean ignoring their rights and ultimately degrading them to mere objects. Giving someone a legal status does not mean usurpation. Not giving someone a legal status means not recognising them as legal subjects.

7 Equipment of Catholic Canon Law to Meet the Challenges

As the many aspects examined in this article show, canon law fulfils two functions. First, it protects Catholic identity and defines the church’s own sphere of action. Secondly, it enables contacts and legal relations on an equal level with both states and other religious communities and their members. Catholic canon law is probably better equipped to meet the challenges of both secular law and religious pluralism than many other religious laws, for the following reasons: – Canon law has no difficulty in recognising the existence of a secular legal sphere, because the separation between secular and religious is already established in Christianity, canon law has developed alongside secular law from the beginning, and is largely limited to the basic religious practices and internal organisation of the church. – Since the origins of canon law go back to the time of the Roman Empire and its historical development ran parallel to state law in Europe, ecclesiastical and secular law have often influenced each other, so that the principles of the continental European understanding of law can also be found in canon law. – The Catholic Church has always held the doctrine of natural law in high esteem, which gives it a means of building legal bridges to those of other faiths. It recognises their legal subjectivity and a legal sphere common to all people. – Developments in the doctrine of the church, which have been discernible since the middle of the 20th century and which were particularly favoured by the Second Vatican Council, enable the church to respond actively to current challenges: affirmation of human rights and dialogue with non- Catholics and non-Christians.

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This does not mean, of course, that there are no tensions and breaks. Rather, friction might be necessary to some extent if the church is not to be simply absorbed into the world, but to bring its critical potential, its prophetic mes- sage, into play.88

Biography

Since October 2016, Prof. Dr. habil. theol. Dr. iur. Burkhard Josef Berkmann has held the Chair of Canon Law, in particular for Theological Foundations of Canon Law, General Norms and Constitutional Law, as well as for Oriental Canon Law at the Klaus-Mörsdorf-Studium for Canon Law at the Ludwig- Maximilians-Universität in Munich.

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Translation by Fr. Augustinus Fries

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