The Red Line - European legal history: the unbreakable bond between Church and State
by Lucrezia Nicosia, 7 minutes
This is a special project done in collaboration with the Maastricht Diplomat of the United Nations Student Association (UNSA). It consists of a series of four articles and four podcasts on the role of the Catholic Church within the International and European legal, social and political framework. The articles will be released on the blue&yellow blog of ECA and the Maastricht Diplomat of UNSA will provide a platform for the podcasts on Spotify. Check out the first episode of the podcast here.
The people that helped in the realization of this project are Lucrezia Nicosia and Eliza Wójcik from the blue&yellow blog of ECA, Victoria Alexander, Rhiannon Read and Brendan Hogan from the Maastricht Diplomat of UNSA.
By way of this project, our aim is to contribute to a more informed and just debate on the conflict between religion and secular authority. The following is the first article of the series.
How did human beings decide what was right or wrong? How did they structure society to fit an organized legal system?
Before the adoption of the Corpus Iuris Civilis, Roman law consisted of morals and customs passed through several generations and from which Romans derived their social norms. The latter was defined under the notion of mos maiorum, the customs of the ancestors, which was considered to reflect divine will. As for this close connection to religion, Roman justice existed in two forms: fas and ius, the former being the rules that govern the relationship between people and gods (“divine law”), and the latter being the laws that regulated the interrelation among people (“human law”).
Of course, it was in the interest of the society to respect divine will, and therefore to abide with fas. Similarly, norms of ius were highly influenced by Romans' perception of religion and were shaped to respect divine will.
Roman law is only an example of how religion has determined our current perception of legality.
The way in which the Roman justice system (mos maiorum) was influenced by religion is somehow similar to the current European system. Not only did Catholic dogma reshape our perception of good and evil, right and wrong, but it transcended spiritual power, eventually becoming a concrete actor in both European and International spheres.
Two main legal and philosophical concepts might better explain our current perception of the law: the notions of natural law and positive law.
The philosophical/legal debate between natural law and positive law
Natural law consists of a set of precepts and ideas according to which human beings possess intrinsic values that govern their relations with the world. The theory of positive law, on the other hand, holds that all law is positive law because it was established by a governmental authority; and whether a rule is a legal rule is not determined by whether the rule is morally correct, but by whether the rule was created by means of legislation.
According to the philosopher Thomas Hobbes (1588-1679), the law of nature shall play a role in the state of nature, and legal rules shall be settled in a state of the law of reason. Thus, natural law functions only as an impulse leading to the formation of a state, and the latter, once settled, should base its decisions on the rules that have been laid down by the legislators (thus, positive law).
Thomas Hobbes
Nevertheless, there is not always the need for such a clear separation between natural and positive law. In his attempt to reconcile the philosophy of reason of Aristotle with the teachings of the Christian faith, Thomas Aquinas (1225-1274) defined natural law as “the light of reason placed by nature [by God] in every man to guide him in his acts”. He argued that, while natural law was immutable and applied to all human beings, positive law was circumstantial. Therefore, natural law was to be seen as a guide to the interpretation and the reading of positive law, and the latter was to be set aside when it conflicted with the “light of reason placed by nature”.
Therefore, following Aquinas’ reasoning, if we consider our values to be fundamentally constructed on religion, the latter shall be used as a tool of interpretation of current legislation and, whenever such a system conflicts with the well-established moral values, it shall be set aside. While this view traces back to the XIII century, it appears to be also indirectly connected to nowadays’ legal system.
Thomas Aquinas
The two scenarios presented by Hobbes and Aquinas can be used to analyze whether the influence of the religion is still as such as to impose its values over the legislators, or whether, with the establishment of the state of reason, legal rules became independent from the Catholic doctrine.
The historical secularization of the Catholic Church
The temporal power, as contrasted with spiritual power, relates to the secular influence of the Church over political matters. An example of this power occurred with the creation of the Holy Roman Empire (Sacrum Romanum Imperium) dated back to the 25th December 800, with the coronation of Charlemagne by Pope Leone III. The Empire existed for over one millennium and included the territories of central and western Europe. While its denomination refers on the one hand to the Western Roman Empire, the term “holy” suggests that the rebirth of the imperial power was linked to the religion and had to be considered as a will of God. For this reason, the power to crown the Emperor was initially attributed to the pope.
Further, from 756 until 1870, the acquisition and expansion of the Pontifical States helped in the process of secularization of the Church and placed the latter as one of the most powerful entities in the territory. However, with the unification of Italy in 1861, the Pontifical States were conquered by the Kingdom of Italy, which thus left the Holy See with no direct sovereignty over a territory.
It was only in 1929, with the came to power of Mussolini, that the Church regained its sovereignty by way of the Lateran Treaty, which recognized the power of the Holy See over a newly created territorial entity: a city-state within the city of Rome, and defined as “Vatican City”. Vatican State was only created to provide a territorial basis for the Holy See that could guarantee its independence and its secular influence. Indeed, while the Holy See is based on spiritual sovereignty, Vatican City gave it territorial sovereignty once again after the loss of the Pontifical States.
No definite separation occurred between State and Church: even if the former was recognized by Italy as an independent temporal power with the creation of Vatican State, it still holds a lot of influence on the Italian legislative system, and it is an important actor both at the European and International level.
Conclusion
The temporal influence that the Catholic Church had - and still has - in Europe is a testament to the fact that our history and values have been strongly influenced and shaped by Christian values, even if such dominance is slowly fading away. Nevertheless, just as cutting the umbilical cord is not enough to break the bond between mother and child, making a clearer distinction between Church and State does not ensure complete independence in the decision-making process governed by positive law. This is hard especially when humanity has been cradled in the womb of religion for millennia.
Therefore, even if the European framework is now formally independent from religious dogma, the Catholic Church shaped its existence and later became itself an actor in the temporal dimension of power.
This is a special project done in collaboration with the Maastricht Diplomat of the United Nations Student Association (UNSA). If you enjoyed this article, please check out the podcast on the Maastricht Diplomat on Spotify where me, Lucrezia Nicosia, and Victoria Alexander will have an interesting discussion on this topic! Also, remember to stay tuned for the other articles of the project which will be published soon!
