State Church Law

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As a state-church law is referred to the state law against religious and philosophical communities . It is part of public law and is sometimes also referred to as religious constitutional law. It is not to be confused with canon law , which every religious and ideological community gives itself autonomously.

introduction

State church law is a cross-section from different areas of law. The common point of reference of the regulations is that the religious and ideological development opportunities of the citizen and the corresponding communities as well as the relationship between the state and religious communities are regulated. The fundamental decisions on this are made in the constitution . Details will then be implemented within the framework of simple legislation . State church law and its regulations are spread across a wide variety of laws (e.g. in labor law, criminal law, building law, school law, etc.). It is not a self-contained system, but results from the synopsis of a wide variety of regulations. It is an expression of centuries of development: the state claimed sovereignty and regulatory authority over the religious affairs of its citizens, or viewed the religious communities as part of itself. It was not until the 19th century that the comprehensive idea that the religious community should participate as part of legislation developed.

To the subject

The genesis of the term state church law does not derive from the state church , but from the law of the state for the churches. The term therefore comes from a time when the relevant regulations actually mainly concerned the two Christian churches. In this respect, it is a specialty in the German-speaking area and is still considered appropriate today, as Christian churches continue to be significantly affected by it. Some of the objection to the alternative term religious constitutional law is that it is at least just as unclear because state church law does not deal with the fundamental legal internal organization of religious communities. In the free state, the constitution of a religious community is a matter for the religious community itself. However, the advantage of the designation "religious constitutional law" is the representation of religious plurality.

Differentiation from canon law

In the time of the state churches, internal church law was also part of state laws. Even today, the church constitution is enacted by the state in some Swiss cantons and thus regulates, for example, what is the basis of church action (for example a municipal law that applies in part to both political and regional church communities). In Germany, for example, a state decision on this actually theological question is reserved for the relevant religious community. This recognition of the autonomy of a religious community in internal affairs, especially with regard to the content of faith, is an essential part of state church law (right of self-determination as a result of freedom of assembly). Due to the modern unbundling of state and church is church law does not state church founded in law and ecclesiastical law is not canonically founded. This disentanglement arose among other things through the doctrine of the two kingdoms of the reformer Martin Luther and was later reworked philosophically by John Locke and Baron Montesquieu . The purpose of the separation was not so much to protect the state or the citizens from the church as it was to make the religious communities free and independent, i.e. to protect the church from the state.

On the part of the religious communities, the essential regulations of the state church law of the 19th and 20th centuries met with a fundamental skepticism. The trigger for this on the part of the Catholic Church was, among other things, the experience of the French Revolution, where the declaration of human rights also began the suppression of the Catholic Church. It was only with its declaration Dignitatis humanae in the context of the Second Vatican Council that the Catholic Church refrained from claiming privileges from the state as a “true” religion and recognized the religious freedom of the individual. The skepticism of the Protestant churches stemmed from their close connection with the state, which was also skeptical in this respect.

Essential topics of state church law

Of fundamental importance in terms of individual law and a generally recognized component of state church law is the more or less strong guarantee of individual religious freedom . In the German jurisprudential discussion, the regulation on religious freedom is used as a defining feature of state church law. The other state church law regulations are understood as serving this freedom and making it effective.

There are also various corporate guarantees, i.e. regulations of the state that deal with the religious communities formed by citizens.

Parity and non-discrimination

Many countries, especially in the western hemisphere, have replaced the public recognition of just one church or just one religion with a fundamental equal treatment of all religious and ideological communities. Intermediate stage was the partially equal treatment of several religious communities. See also the parity principle .

Separation of state and church

The fundamental relationship between the state and the religious communities is a recurring subject matter in all legal systems. Historically, the state viewed the religious communities or the state religion as its task and under its control. Since the 19th century, however, various forms of separation between church and state have developed. Individual states followed the path of a strict separation of church and state such as the USA or France , where church property was nationalized with the decree Le décret des biens du clergé mis à la disposition de la Nation in 1789 , or implemented extensive disentanglement, as in the Swiss cantons of Geneva and Neuchâtel .

Other states, such as England as part of Great Britain or for a long time the Scandinavian countries, have or had state churches while at the same time granting individual religious freedom.

In between, the models of cooperative separation, such as in Germany and Austria and now also in most Scandinavian countries and with restrictions in Ireland, are to be found:

“The expansion of the cooperative elements between the religious communities and the state can now take place more easily than before because both sides are no longer in direct competition and can therefore meet each other more freely. The secular character of the state has long since become a matter of course, so that it no longer needs to assert itself politically or even religiously against the church. "

See also

literature

Germany
See: literature on the German state church law
Austria
  • H. Pree: Österreichisches Staatskirchenrecht , series: Springer's short textbooks on law , 1984, ISBN 978-3-211-81829-9 .
  • Herbert Kalb: State Church Law - European Union - Austria - some reflections . In: Herbert Kalb, Richard Potz, Bruno Primetshofer, Brigitte Schinkele (eds.): Austrian Archive for Church Law (ÖAKR), Vol. 44, Austrian Society for Church Law, 1995, pp. 88–97.

Web links

Individual evidence

  1. ^ Hans Michael Heinig and Christian Walter (Eds.): State Church Law or Religious Constitutional Law? A conceptual political dispute. Mohr Siebeck, 2007.
  2. ^ Eugen Isele : The relationship between church and state in the Swiss Confederation . In: Joseph Listl (ed.): Outline of post-conciliar church law . Pustet, Regensburg 1980, ISBN 3-7917-0609-8 , pp. 897-906.
  3. ↑ Ueli Friederich: Churches and religious communities in the pluralistic state. On the importance of religious freedom in Swiss state church law (=  Treatises on Swiss law , issue 546). (Zugl .: Bern, Univ. , Diss., 1991) Stämpfli, Bern 1993, ISBN 3-7272-0190-8 , p. 67 f.
  4. ↑ http://www.vatican.va/archive/hist_councils/ii_vatican_council/documents/vat-ii_decl_19651207_dignitatis-humanae_ge.html (accessed on: April 13, 2012).
  5. ↑ Ueli Friederich: Churches and religious communities in the pluralistic state. On the importance of religious freedom in Swiss state church law (=  Treatises on Swiss law , issue 546). (Zugl .: Bern, Univ. , Diss., 1991) Stämpfli, Bern 1993, ISBN 3-7272-0190-8 , p. 45 f.
  6. ^ Paul Fabianek: Consequences of secularization for the monasteries in the Rhineland: Using the example of the monasteries Schwarzenbroich and Kornelimünster . BoD, Norderstedt 2012, ISBN 978-3-8482-1795-3 , p. 6 and annex ( Le décret des biens du clergé mis à la disposition de la Nation (1789)).
  7. ↑ Ueli Friederich: Churches and religious communities in the pluralistic state. On the importance of religious freedom in Swiss state church law (=  treatises on Swiss law , issue 546; also: Bern, Univ. , Diss., 1991). Stämpfli, Bern 1993, ISBN 3-7272-0190-8 , p. 239 f.
  8. ↑ Peter Karlen: The Basic Right of Religious Freedom in Switzerland (=  Zurich Studies on Public Law , Vol. 73; Zugl .: Zurich, Univ. , Diss., Sa). Schulthess Polygraphischer Verlag, Zurich 1988, ISBN 3-7255-2605-2 , p. 121.