RDC 50/1, June 2000
(issued January 2002)
Summaries résumés en français Zusammenfassungen
Sylvain Beltrame, Religious freedom in Germany : stability and change,
RDC 50/1, 2000, p. 13-23.
The German Federal Constitutional Court’s decision of 16 May 1995 provided an occasion for the judge to clarify the concept of religious freedom in its positive and negative senses (the right to express one’s convictions, as opposed to the right not to state one’s convictions and not to be subjected to another’s convictions). The difficulty lies in finding a balance between these two sometimes contradictory aspects. The Court’s decision has provoked very strong reactions, which are outlined here.
Richard Puza, After the Federal Constitutional Court’s decision : the presence of crucifixes in school premises,
RDC 50/1, 2000, p. 25-28.
By promulgating a new school law on 13 December 1995, the authorities in the Land of Bavaria sought to apply the Federal Court’s decision as restrictively as possible, so as to maintain crucifixes in classrooms. The compromise between those who wish to preserve Bavaria’s Christian tradition and those who demand respect for their minority rights remains shaky.
Jean-Marie Woehrling, Cultural neutrality and the State’s cultural vocation : reflections on the German Constitutional Court’s judgment on crucifixes in schools
RDC 50/1, 2000, p. 29-34.
Unlike France, where the State takes no notice of religious acts, Germany, although neutral with regard to religion, co-operates actively with the major Christian religions, which are considered to be heirs to the majority culture. The German Constitutional Court has ruled that the cross is not only a traditional cultural symbol but also the distinctive sign of a specific religion and that, consequently, it may not be imposed on all citizens. This raises the question of the relations between the state and society.
Jeanne-Marie Tuffery, The Catholic church's law-enforcement powers in the Bas-Rhin from 1801 to 1870
RDC 50/1, 2000, p. 69-88.
Following the 1801 Concordat and its implementing legislation of 1802, the Catholic church collaborated with the State in maintaining public order, especially after Catholicism was reinstated as the state religion in 1814. This collaboration was close until 1830, as demonstrated by the regulations governing the ringing of church bells and processions. With the proclamation of religious freedom in 1830, the exchanges between the bishop and the prefect became less frequent and lost their privileged character.
Emmanuel Tawil, Application for review in the three French départements in which the Concordat applies
RDC 50/1, 2000, p. 89-111.
The procedure of application for review (recours pour abus) was abolished in France by the Law of 1905. Although not formally abolished in the three Concordat départements, it has not been used since 1918. Certain writers and the administration itself believe it to be inapplicable in the absence of an authority with the necessary jurisdiction, or even that it has become obsolete through non-use. However, there is nothing to prevent it being reactivated, in which case the Conseil d’État would have jurisdiction. However, it remains to be seen whether the cases in which such an appeal could be used are compatible with contemporary public law.
Marc Aoun, Legal recognition of religious communities in Alsace-Moselle in the light of the Conseil d’État’s opinion of 16 November 1993
RDC 50/1, 2000, p. 113-134.
Following an opinion by the Conseil d’État on 16 November 1993, religious communities based in Alsace and Moselle may now be legally recognised by simple Prime Ministerial decree. The Franciscan nuns in Reinacker took immediate advantage of this opportunity, as did non-Catholic communities, such as the Protestant deaconesses in Neuenberg.
Francis Messner, Recent developments in the local law on religions in Alsace and Moselle
RDC 50/1, 2000, p. 135-161.
After a long period of inactivity, new regulations have led to several developments in the local law on religions since 1986. The most recent, a decree of 10 January 2001, tidied up a whole range of provisions concerning the four recognised religions. However, this indispensable reform has made no major difference to the relationship between the State and the religions, in contrast to several other European Union countries.
Michel Legrain, Civil marriage and religious marriage : marrying in church without a civil ceremony ?
RDC 50/1, 2000, p. 163-169.
The French Civil Code of 1810 set out very severe punishments for ministers of religion who carried out religious marriages where a civil marriage had not previously taken place. These provisions have been considerably eased by the new Criminal Code of 1994 : only ministers of religion who “habitually” carry out such ceremonies are likely to be punished. Accordingly, it is no longer necessary to resort to the artifices provided for by canon law (secret marriage, etc). So long as such marriages are not “habitual”, priests may agree to church marriages without a prior civil ceremony.
Edoardo Dieni, Sticking to the rules and persistent difficulties in matrimonial canon law
RDC 50/1, 2000, p. 171-196.
Canon law remains extremely marked by the “jus in corpus” conception of marriage : that is, by the idea that marriage is essentially a contract centred on the jus in corpus, the right to the spouse’s body. This concept, supported by Cardinal Gasparri, reached its high point in the Code of 1917, and persists in the 1983 Code and especially in the case-law of the Church courts. This raises a number of theoretical problems that have not yet been resolved : impotence and sterility, the distinction between ius and usus iuris, virginal marriage and bonum prolis, the Augustinian doctrine of triplex bonum, subordination of the woman within the couple, etc. Adding personalism to the jus in corpus structure has merely added to the system’s contradictions. Accordingly, the efficiency of the canon law on matrimony is called into question, as is the faithful’s understanding of this law.
[traduction Margaret Campbell]
RDC 50/2, December 2000
(issued April 2002)
Pierre-Yves Condé, Scandal in Canon Law between theological concept and linguistic expression,
RDC 50/2, 2000, p. 243-262.
of scandal occupies an important place in penal canon law. A sociological
analysis of this concept shows that there is question of a word which is
imprecise in content and indefinite. Scandal is not amenable to description or
definition by the use of legal terminology. When Authority has recourse to a
charge of scandal, the threat of a penalty arises. Scandal in canon law is not
identical with scandal as theologically perceived; it corresponds less to
“danger of the spiritual ruin of one’s neighbour” than to a form of
deviancy, a refusal to submit to ecclesiastical authority. In this way, scandal
appears to be the basis for the legitimacy of penal canon law.
Dominique Le Tourneau, The Magisterium of the Church in the second Millenium,
RDC 50/2, 2000, p. 263-281.
The concept of the magisterium of the Church took shape in the course of the second millennium of the Christian Era in the matter of faith and morals. Vatican I introduced the expression “Ex Cathedra”. Vatican II does not use the word “magisterium”, the current meaning of which is very recent. Today a distinction is made between the infallible magisterium and the non-infallible magisterium, also between the concepts of “defined” and “definitive”. These concepts are still in the process of development, as is evidenced by the recent motu proprio “Ad tuendam fidem”.
Henri Hénaff, The apostolic conservators and the legislation of Boniface VIII (1294-1303),
RDC 50/2, 2000, p. 283-308.
years 1295 and 1298, Boniface VIII reorganized the institution of “Apostolic
Conservators”, the origin of which goes back to the end of the twelfth century.
His work consisted essentially in renewing the status of the conservators basing
himself on the measures taken by his predecessors. He clarified their ability to
act and defined the conditions of their intervention ; in particular, he
placed a limit of the territory and matters which came within their competence
and modified the choice of personnel to exercise that office. As a result, the
juridical status of the conservators was clarified ; the institution became
part of the category of delegated judges and became capable of
carrying out its function more efficiently.
by Christopher Twohig