Political Clause

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The political clause in canon law between the Vatican and German states describes the right of the German state institutions in Germany not to agree to an appointment of church dignitaries by the Pope for political reasons and thus to prevent the appointment of undesired officials.

The development of the state right to remember

The political clause of the Concordats has its historical origin in the right of the Protestant sovereigns to exclude less agreeable persons from the election by the cathedral chapters. The decision as to whether a candidate was acceptable was entirely at the discretion of the state leadership. In the 19th century it was reserved for the regent, who was completely free to exercise his right of exclusion. The princes were not obliged to explain their motives to the Holy See and did not allow the Curia or the cathedral chapters to evaluate their decision.

Characteristic of the last third of the 19th century is the efforts of the church to free itself from state subordination. The Vatican therefore first endeavored to align the state law of excluding unpleasant candidates with the political right to commemorate the concordats concluded with Montenegro and Colombia. However, the attempts of the Curia were initially unsuccessful and were unable to fundamentally change German bishops' suffrage. They had the right of treaties against them or they failed in the popular representative bodies. The legal situation only changed after the end of the First World War , when the changed territorial and political map required the conclusion of a large number of new European concordats. Their content-related, terminological and syntactic equivalents in the formulation of the state's right to commemorate characterize the political clauses for Joseph H. Kaiser as "the very own creations of the Vatican diplomacy."

The state right to remember the German country concordats

In 1924, the young Bavarian Republic of the German states was the first to agree with the Curia on a reformulation of the state's right to remember. The king's right of nomination was transferred to the Holy See, to which the Concordat in Article 14 guarantees the completely free appointment of archbishops and bishops. When selecting a suitable successor for the completed bishopric, the Vatican has only to appreciate the triennial lists regularly sent in by all Bavarian dioceses and the list of proposals specially submitted by the chapter of the diocese concerned, without being bound by them. Before the publication of its election decision, however, the Holy See is obliged "to contact the Bavarian government in an unofficial manner in order to assure itself that memories of a political nature do not prevail against the candidate."

Five years later, after tough negotiations with the Vatican , Prussia agreed on a concordat that, compared to the Bavarian one, contained a different electoral mode and a more strictly worded right to remember. In the Prussian dioceses too, lists of candidates for the Holy See are drawn up after an episcopal see has been settled. In contrast to the Bavarian mode, in Prussia, in addition to the cathedral chapter of the vacant diocese, all other diocesan bishops are required to nominate suitable candidates for the curia. The Holy See appreciates the personnel proposals submitted to it and then transmits three candidates to the chapter, from which it elects the new bishop in a free, secret ballot. The appointment of the elected bishop is reserved to the Holy See, which, according to Article 6 of the Prussian Concordat of June 14, 1929, has undertaken not to appoint any candidate for bishop or archbishop "from whom the chapter after the election by requesting the Prussian state government has determined that there are no political concerns about him. ”The Prussian Concordat in Article 7 provides for an analogous regulation for the appointment of coadjutors with the right of succession or that of a Praelatus nullius . In these cases, too, the Holy See is not entitled to make the appointment without first making a request to the Prussian government to ensure that there are no political concerns about the candidate.

In the contract negotiations, the Prussian state government had tried in vain to extend the state's right to remember to include episcopal coadjutors, apostolic administrators , all local ordinaries, chapter dignities, vicars general and the auxiliary bishops without being able to assert their concerns against the Holy See. As early as the deliberations of June 22, 1926, the Apostolic Nuncio , Eugenio Pacelli , had emphasized that none of the more recent Concordats contained such far-reaching concessions to the state as the Prussian.

The succession regulation for the Archdiocese of Freiburg in Article III of the Baden Concordat of October 12, 1932 largely followed the Prussian mode. As in the Bavarian and Prussian dioceses, the chapter transmits a list of canonically suitable candidates to the Holy See after the archbishopric has been settled. When compiling the crucial electoral list for the chapter, the Vatican has to appreciate the proposals of the metropolitan chapter as well as the lists to be submitted annually by the archbishop without being bound by them. The Baden Concordat only binds the Vatican in compiling its list of candidates to the extent that at least one of the three candidates must belong to the Archdiocese of Freiburg. The cathedral chapter then chooses the new archbishop from the Roman list in a free, secret ballot. Before the appointment of the newly elected Metropolitan, the Holy See has to ascertain to the Baden state government "whether the state government has concerns about the same of a general political, but not of a party-political nature." The Baden Concordat thus contains in contrast to the previously concluded German state concordats two peculiarities: the Holy See undertakes to nominate at least one candidate from the Archdiocese of Freiburg, while on the other hand the state's right to commemorate is clearly specified to the extent that the concerns raised against the elected archbishop must not be of a party-political nature.

The political clause of the Reich Concordat

When the National Socialists took power in Germany in January 1933, the state's right to commemorate was bindingly codified for most of the German dioceses through the concordats negotiated with the democratically elected state governments. Only the dioceses of Mainz , Meißen and Rottenburg were not covered by the existing regulations. For the new rulers, however, the anchoring of a political clause at the Reich level, along with the depoliticization of the Catholic clergy organized in the center, was a central motive for the conclusion of the Reich Concordat. Although the National Socialist rulers strove for a centralized imperial structure in the long term and the Weimar Constitution placed imperial law above that of the federal states, the Berlin government agreed in Article 2 of the Reich Concordat with the Vatican that the regulations contained in the state concordats would continue to apply without restriction. Only if the articles of the Reich Concordat go beyond the provisions of the Land Concordats are they also binding as supplements for Bavaria, Prussia and Baden. For the dioceses of the countries concerned - especially with regard to the veto character of the individual political clauses - the right of remembrance formulated in the respective country concordat remained decisive, even if the decision-making authority on expressing political concerns had shifted from the state to the imperial government.

The Reich Concordat in Article 14, as well as the political clauses of the Land Concordats, confirmed the principle of the free right of appointment for all church offices anchored in the Reich Constitution without state involvement. At the same time, the contracting parties agreed to transfer the voting mode fixed in the Baden Concordat for the Archdiocese of Freiburg to the dioceses of Mainz, Meißen and Rottenburg, which are not yet covered by the state concordats. According to the Reich Concordat, three prerequisites are now uniformly required for all dioceses for the appointment to a spiritual office: the candidate must be a German citizen, have acquired a high school diploma entitling to study at a German university and have completed at least three years of philosophical and theological studies. The course can optionally be completed at a state German university, at a church academic teaching institution in Germany or at a papal university in Rome. However, this basic requirement can be waived by mutual agreement.

In formulating the state's right to commemorate, the contracting parties largely followed the political clauses of the Baden and Prussian Concordats without adopting either of the two exactly: “The bull for the appointment of archbishops, bishops, a coadjutor cum jure successionis or a Praelatus nullius is first issued after the name of the designated governor has been communicated to the Reich Governor in the responsible state and it has been established that there are no general political concerns about him. ”In addition to integrating the newly created institution of the Reich Governor into the process of requesting the Concordat, the political clause of the Reich Concordat was specified the concept of political concerns about the Prussian Concordat as concerns of a general political nature, but at the same time dispensed with the addition contained in the Baden Concordat that the concerns expressed should be "non-party-political".

In the final protocol, which, according to the express will of the contracting parties, forms an integral part of the Concordat, the Church and Reich expressed their agreement “that if there are concerns of a general political nature, they will be raised as quickly as possible. If such a declaration is not available after 20 days, the Holy See will be entitled to assume that there are no concerns about the candidate. ”In addition to the obligation to maintain full confidentiality about the person of the candidate until publication of the appointment want, the contracting parties explicitly confirmed to each other in the final protocol that “a state veto right (...) should not be established”.

Individual evidence

  1. ↑ Joseph H. Kaiser, The Political Clause of the Concordats, p. 73.
  2. ↑ Article 14, § 1, paragraph 3 of the Bavarian Concordat of March 29, 1924, quoted from: L. Schöppe, Concordate since 1800, 49.
  3. ↑ Article 6, § 1, paragraph 3 of the Prussian Concordat of June 14, 1929, quoted from: L. Schöppe, Concordate since 1800, 65
  4. ↑ Cf. D. Golombek, The political prehistory of the Prussian concordat, 61
  5. ↑ Article III, paragraph 2 of the Baden Concordat of October 12, 1932, quoted from: L. Schöppe, Concordate since 1800, 39.
  6. ↑ Article 14, paragraph 2, number 2 of the Reich Concordat of July 20, 1933, quoted from: L. Schöppe, Concordate since 1800, 31
  7. ↑ Final Protocol to the Reich Concordat: On Article 14, Paragraph 2, Item 2, quoted from: L. Schöppe, Concordate since 1800, 34

swell

  • Schöppe, Lothar, Concordats since 1800. Original text and German translation of the current Concordats (Volume XXXV. Of the series of documents, published by the Research Center for International Law and Foreign Public Law of the University of Hamburg), Frankfurt am Main 1964.

literature

  • Bernd, home, brown bishops for the empire? The relationship between the Catholic Church and the totalitarian state depicted on the basis of the appointment of bishops in National Socialist Germany, ISBN 978-3-00-023539-9 , Bamberg 2007, URN: urn: nbn: de: bvb: 473-opus-1261 , URL: http: //www.opus-bayern.de/uni-bamberg/volltexte/2007/126/
  • Kaiser, Joseph, H., The Political Clause of the Concordats, Berlin-Munich 1949.
  • Weber, Werner, The German Concordats and Church Treaties of the Present. Text edition with the official justifications as well as supplementary provisions, comparative overviews, references to literature and a subject index, Göttingen 1962.
  • Weber, Werner, The Political Clause in the Concordats. State and Episcopal Office, reprint of the Hamburg 1939 edition, Aalen 1966.