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HUMAN RIGHTS IN THE HISTORY OF THE ROMAN CATHOLIC CHURCH Rik Torfs The Long and Winding Road1

The Roman Catholic Church and human rights: the relationship is not obvious. The role played by the Roman Catholic Church in regard to human rights in society can be called, at best, ambivalent. On the one hand one cannot escape the conclusion that the Christian ethos, and sometimes the Church itself, has contributed to making the concept of human rights plausible and to its refinement in the Western world. Brute force found itself often corrected by Christianity. In 1895 the Austrian jurist Georg Jellinek (18511911) located the origin of human rights, as they exist today, in the freedom of religion and of conscience which society has sought to enforce on the level of religion since the Ref ormation.2 We could question whether this is entirely true: together with religion, political power-relations and philosophical ideas play an explicit role. But we cannot minimize the key role played by the Church and Christianity in the origin and the development of human rights.3 Opposed to that is the fact that, in a later period, the Church seemed to be everything except an ally of the same human rights. In the title of the written report following a lecture given by Cardinal Roger Etchegaray in 1989 on Christian culture and human rights, the rather provocative (certainly in Catholic circles) motto, From rejection to engagement figured prominently.4 And this rejection is actually a historical fact, which can be little changed by historical writing through rose-colored glasses. In his encyclical Mirari vos of 15 August 1832 Pope Gregory XVI (18311846) called
1Several ideas formulated here were developed earlier in R. Torfs, A Healthy Rivalry. Human Rights in the Church, Louvain, Peeters, 1995, IV + 125 p. 2G. Jellinek, Die Erklrung der Menschen- und Brgerrechte, reprinted in R. Schnur, Zur Geschichte der Erklrung der Menschenrechte, Mnchen, 1974, 177. 3See on this issue D. Kelly, Revisiting the Rights of Man. Georg Jellinek on Rights and the State, Law and History Review, 22/3 (2004) 6072. 4R. Etchgaray, Culture chretienne et droits de I homme: du rejet engagement, in Fderation Internationale des Universits Catholiques (ed.), Culture chrtienne et droits de [homme, Bruxelles/Louvain-Ia-Neuve, 1991, 315.

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freedom of conscience an absurdity, a form of insanity. And in the Syllabus errorum of Pope Pius IX (18461878)5 no great improvement can be seen, as the author condemned a number of modem freedoms.6 There is not really an excuse justifying the attitude of the Church. Yet, there is an explanation. The critical point was the autonomy and anticlerical character with which the concept of human rights was brought into practice. The popes of the nineteenth century, even Leo XIII (1878 1903) with his dawning openness, saw a contradiction between human rights and theonomy, a world order preordained by God.7 It was impossible in these days to differentiate between the historically contingent causes of the rise and formulation of human rights and their fundamental objectives.8 Slowly the Churchs standpoint changed. Is this change a break with tradition? According to Walter Kasper it is not, as the true nature of the Churchs tradition is a living tradition. It does not consist in the blind repetition of the same sentences, but in the living, self-transforming representation of itself and its depositum fidei in the light of the questions asked anew in every period.9 It goes without saying that the very notion of living tradition can play an important strategic role in the evolution of ecclesial thinking. It undermines the possibility of contradictions. In an atmosphere of living tradition, a pope can stay in line with his predecessor, and at the same time proclaim the opposite viewpoint. The attitude of Pius XII (19391958) toward the Nazi regime is not free of criticism,10 but what happened at that time has certainly had major effects in the Church. A positive evaluation of human rights came into existence through a more accommodating attitude toward the world with its political and social dimensions. The way was cleared by two encyclicals of Pope John XXIII (19581963), Mater et magistra (1961) and Pacem in terris (1963), and continued through the Second Vatican Council. Two documents in particular achieved a definitive breakthrough, namely the pastoral constitution Gaudium et spes on the Church in the world
5R. Aubert, Der Syllabus von 1864, Stimmen der Zeit 175 (1965) 124. 6On this point see R. Aubert, Religious Liberty from Mirari Vos to the Syllabus, Concilium 1:7 (1965) 89105. 7See W. Kasper, The Theological Foundations of Human Rights, The Jurist 50 (1990) 152153. 8W. Kasper, o.c., 153. 9W. Kasper, o.c., 153, referring to John-Paul II, motu proprio Ecclesia Dei, 2 July 1980, AAS 80 (1980) 1496. 10A very critical book, not always taking into account historical circumstances, offers D. Verhofstadt, Pius XII en de vernietiging van de Joden, Antwerp, 2009, 510 p.

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human rights in the history of the roman catholic church57 in our time, and the declaration Dignitatis humanae on freedom of religion. Equality and other human rights were treated here in a broad perspective. Since then the Church has struggled consistently for human rights in the world. The post-conciliar popes were all committed supporters of human rights. Human rights were without doubt one of the cornerstones of John Paul II s pontificate (19782005), a position continued by his successor Benedict XVI (since 2005). The Church and human rights, formerly enemies, have made peace and are henceforth allies in the struggle.11 The motivation of human rights in Vatican II lies, in the footsteps of Thomas Aquinas, in the dignity of human persons based on their sharing in the truth of God.12 The innate search of the truth is the basis for human dignity. This leads the council to declare that to acknowledge God is in no way to oppose human dignity, since such dignity is grounded and brought to perfection in God.13 Walter Kasper points out that two traditions merger in this theological foundation, namely a natural law foundation coming from below and a theological, salvific-christologian basis descending from above.14 The Genesis of Human Rights in the Church History does not come to an end with the issue of human rights and the church. What also matters is the issue of human rights in the church. Unlike the situation half a century ago, the Church is no longer a cool observer, or even a referee, when it comes to human rights. The question will be, more than ever: what are the efforts made by the Church to implement human rights in its own structures? In times of sexual abuse scandals,15 the true debate is there. The answer to the theoretical question is practical action. Human rights as such are a recent phenomenon in the Church. They are absent for the most part in the history of canon law. In the 1917 Code of Canon Law an indirect reference appears in Canon 87, which specifies what constitutes a person in the Church. The concept of person refers
11See E. Hamel, LEglise et les droits de lhomme. Jalons dhistoire, Gregorianum 65 (1984) 271299. 12W. Kasper, o.c., 156. 13Gaudium et spes, 21. 14W. Kasper, o.c., 157. 15E. Borgman, R. Torfs and others, Grensoverschrijdingen geduid. Over seksueel misbruik in katholieke instellingen, Utrecht, 2011.

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here to a person with all the rights and obligations of a Christian. The 1917 Code does not say what this means exactly. In 1950 a congress was held at the Gregorian University in Rome on subjective rights and their protection in canon law. One of the speakers was the Leuven professor, Willy Onclin (19051989). He requested a clearer definition and greater protection of the subjective rights, which belong to all the faithful. In this period that was certainly a revolutionary proposition. For Onclin, basic rights were not distant, unknown concepts, because he also taught Introduction to law courses in the Faculty of Law. General interest in the issue of basic rights in the Church cannot be found until about the time of the Second Vatican Council.16 Then everything changed very quickly. Why? Rosalio Cardinal Castillo Lara (1922 2007), former president of the commission for the revision of the Code of Canon Law, cites four factors. On one side there was the influence of the Universal Declaration on Human Rights. Further, the doctrine of the Second Vatican Council played a role by giving special attention to human dignity and respect for each person. Thirdly, there was the breakthrough of the idea of the People of God in ecclesiology. And, finally, the recognition of the radical equality of all Christians exerted influence on the discussion.17 Striking is that the first factor is truly secular, while the second evolved into that direction since the Universal Declaration. The others are rooted in the self analysis of the Church. This approach was plausible in 1986. Today, it would be seen as insufficient, which is interesting, as, legally speaking, church autonomy exists as it did a quarter of a century ago. Yet morally, the Church cannot act anymore as if it where completely free with regard to recognising or not human rights within its own structures. But let us go back a few decades. In the period between the end of the Council and the promulgation of the Code of Canon Law in 1983, canon lawyers carried on an extensive reflection on the theme of basic rights in the Church. Are they necessary? What is their legal foundation? What would a concrete catalogue of rights look like? Concerning the legal foundation, we can distinguish three currents with a number of variations linked to each one, which might be described as juridical, ecclesiological and anthropological.
16J. Kremsmair, Grundrechte im Codex Iuris Canonici 1983, Oesterreichisches Archiv fir Kirchenrecht 42 (1993) 50. 17R.J. Castillo Lara, Some Reflections on the Rights and Duties of the Christian Faithful, Studia Canonica 20 (1986) 10.

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human rights in the history of the roman catholic church59 Schematically expressed, the juridical theory begins from the idea that civil basic rights can function as a guideline to lead to basic rights in the Church. This does not fundamentally alter the existing situation. It would be necessary to make certain adjustments related to the unique nature of the Church, but no fundamental rethinking is required. Alvaro del Portillo (19141994) for example, who later became prelate of the conservative organisation Opus Dei, can be situated on this line. He argues that the roots of human rights can be found in the dignity of the human person. In the same way the rights of Christians flow from their dignity.18 Therefore, there is no essential difference in nature between human rights and the rights of the Christians. Indeed, one might even speak of an analogical foundation. The authors who defend the ecclesiological theory believe that the issue of basic rights in the Church must be authentically ecclesiological from the beginning. An approach which does not follow this path is in danger of building a theory of basic rights which is not well integrated in the system of canon law as a whole, a system which in fact has very clear ecclesiological roots. The most outspoken defender of this position is Paul Hinder (1942), currently bishop.19 Basic rights must be different in the Church than elsewhere, according to this author. The main issue is not the individual who must defend herself or himself against the authorities, but instead the communio of all believers.20 Moreover, what is at stake here is not the person simply as a social being, but the person in his or her totality, that is to say, in all dimensions of his or her existence. Given that perspective, law must be complementary, not totalitarian. Hinder does not see basic rights in terms of natural law. One cannot simply translate natural law into positive law. In any case, does an indicative automatically constitute an imperative? Nor does the author believe in pure fundamental rights. Hinder instead sees basic rights as functional they help to make the communio operative in practice. The structure of this communio is governed by three elements: das Wort (the kerygmatic element), das Sakrament (the sacramental element), and die apostolische Sukzession (the apostolic element). Hinder concludes his book with a catalogue of basic rights, which he
18A. Del Portillo, Ius associationis et associationes fidelium iuxta Concilii Vaticani II doctrinam, Ius Canonicum 8 (1968) 528. 19P. Hinder, Grundrechte in der Kirche: Eine Untersuchung zur Begrundung der Grundrechte in der Kirche, Fribourg, 1977. 20Here, of course, Hinder follows his master Eugenio Corecco (19311995), professor in Fribourg and later bishop of Lugano.

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derives from each of these elements. From the kerygmatic aspect comes, among other things, the right to hear the Word of God and the right to communication. The sacramental aspect implies, among other things, the right to spiritual support by the clergy and to the sacraments. The apostolic element is the origin of the right to share in the work of the ordained clergy, the right of clergy to be heard, and so forth. So Hinder does, in fact, maintain the notion of basic rights, but gives them an entirely new meaning in the wake of his ecclesiological theory a Copernican revolution in comparison with the thought patterns of those inspired by the juridical model. Hinder wrote his book in the seventies. It can be looked at in a positive way, as a link is established between rights and theology. Yet the rights are not human rights, they are, at least legally speaking, limited through the constraints of the communio-idea. Moreover the underlying assumption that the Church remains a societas perfecta, although this notion was not repeated by Vatican II, is always tacitly present. Johannes Neumann (1929), who later became an atheist, defends a standpoint which straddles the gap between the juridical and the theological theories.21 He draws a very sharp distinction between human rights enshrined in canon law which are recognized and guaranteed by the Church, on the one hand, and, on the other hand, the fundamental rights of Christians which are derived from the Gospel. He is fully aware of the large gap between divine inspiration and human law. Neumann finds that there is insufficient research done on the question of which guidelines are inherently necessary to permit basic rights to function within the Church in a meaningful manner. The author insists appropriately on that ecclesiological touchstone, which nevertheless is no more than that: a moment of serious ecclesiological meditation within a system which in essence is juridical. Neumann does not accept any approach which takes the New Testament as its starting point, because it contains insufficient political directives to lead to solid legislation. When I was younger, I admired the Neumann-approach very much. It is characterised by a high intellectual level, and ambitious expectations with regard to the quality of life in the Church. From that perspective, my admiration still stands. But then, the construction, by its search for compromise, suggests that churches and other groups can grant human rights, while in reality they just have to acknowledge them. That brings me to the third possibility of underpinning human rights in the church.
21J. Neumann, Menschenrechte auch in der Kirche? Zrich/Kln/Einsiedeln, 1976.

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human rights in the history of the roman catholic church61 Besides the juridical and the theological theories, there is indeed a more anthropological approach. Human rights must be accepted on anthropological grounds. Basic rights in the Church can be articulated in the light of the Churchs self-awareness, according to Knut Walf (1936), but the Church is not allowed to create these rights out of nothing, as it were.22 Thus, in legal doctrine we find three main theories, juridical, ecclesiological and anthropological, along with the necessary nuances, built up piece by piece. Human rights in the Church grew into a topic of interest especially during the 1970s. In the meantime, legislators were not idle. In Rome lengthy deliberations over the promulgation of a legal constitution for the Church, a Lex Ecclesiae Fundamentalis, which would contain, among other things, provision for basic rights, took place. The idea behind the L.E.F. was bringing together the main canonical norms, as a solid basis both underlying the Latin and the Eastern Code of Canon Law. Although a veritable mountain of preparatory work was done, primarily by Professor Onclin, the constitution never saw the light of day. The project ran up against a storm of protest. The arguments against the work included the following: a) The Lex Ecclesiae Fundamentalis (L.E.F.) is an innovation that breaks with a long tradition and which, in addition, ignores the uniqueness of the Eastern churches. b) The L.E.F. is dangerous because it imposes an exclusively Latin interpretation of the Second Vatican Council. c) The promulgation of the L.E.F. would be unnecessary. The Church never needed a constitution before and does not need one now because there are councils, the texts of the Second Vatican Council, the Gospel and the Word of God as received by the Church: these are the true constitution. Secular societies do need this sort of lex fundamentalis because they arise from a social contract, while the Church is the result of a divine calling. d) The L.E.F. is a complicated and massive document, which could be a hindrance to ecumenical dialogue. So there was no constitution for the Church, to the regret of many canon lawyers and other sensible people. But the duties and rights of all Christian believers, originally planned as a subsection in this constitution, did find
22K. Walf, Die Menschenrechte in der katholischen Kirche, Diakonia 5 (1974) 376388.

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a home in the 1983 Code of Canon Law, particularly in canons 208223, at the beginning of Book II on the People of God. What is striking here is the terminological maneuver: the Code speaks of obligations and rights of all the Christian faithful, not about human rights, nor about the closely related term fundamental rights. The latter is somewhat surprising since the term fundamental rights was still being used during the early phase of the work by the study group De laicis, whose reporter was Alvaro del Portillo. Commentators attribute the fact that it was ultimately thrown out to five factors: the Code does not use the expression; the term connotes a more individualistic struggle by the human subject against the state; a member of the faith community does not exist before the Church exists; the term fundamental is not entirely clear; and the list of rights is not complete. These five arguments do not seem totally convincing, and J.A. Coriden refutes them with no difficulty.23 But the discussion does illustrate a fear of rights which can become so fundamental that even the Church authorities cannot surmount it. Obligations and rights sounds much more reassuring. The Concrete Obligations and Rights of all Christian Faithful Canons 208223 contain the duties and rights of all Christians. A number of stipulations are clearly ecclesiologically oriented; they remain typical for Church life and have hardly any link with secular legal conventions on human rights. I am thinking of, for example, the duty to lead a holy life (canon 210), the duty and the right to commit oneself to the spread of the divine Gospel (canon 211), the right to celebrate the liturgy following ones own approved rite (canon 214), the right to a Christian education (canon 217), the freedom of choice to a state of life (canon 219), and the obligation to contribute to the needs of the Church (canon 222). These stipulations dovetail nicely with the theory of Paul Hinder, more specifically with the three basic elements around which he constructs his catalogue of rights, namely word, sacrament and apostolic succession. In this schema the right to a Christian education primarily has to do with the word; the right found in canon 213 to receive assistance through the
23J.A. Coriden, Reflections on Canonical Rights, in J.R. Provost and K. Walf (ed.), Ius sequitur vitam. Studies in Canon Law presented to P.J.M. Huizing, Leuven, 1991, 3334. In a footnote he cites the publications of his opponents, namely Rosalio Castillo Lara and Eugenio Corecco.

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human rights in the history of the roman catholic church63 sacraments, with sacrament; and obedience to the ordained pastors who represent Christ (canon 212) with the apostolic succession. However, in addition to these theologically inspired rights there are others as well which overlap with, or run closely parallel to, the fundamental rights which regularly appear in civil lists. That is the case for the principle of equality (canon 208), the right to free expression of opinion (canon 212 3), the right to form associations (canon 215), the right to a good reputation and to privacy (canon 220), the right to claim ones rights in accord with the law and the principle of no punishment without law (canon 221). Hinders model applies less clearly to this type of right. In this way the Church implicitly recognizes the existence within the Church of rights which do not proceed exclusively from the ecclesial context, and which cannot be supported exclusively on theological grounds. This could point in the direction of a vision of human rights as an anthropological given, in the line of Knut Walf. But the basis for this line of thought could just as well be found in the application of civil human rights conventions as a source of inspiration. Besides the more theologically and the more juridically inspired rights there is a third category, one which can be interpreted in two ways with very different consequences. I am thinking here, for example, of the otherwise carefully formulated canon 208 which expresses the principle of equality: In virtue of their rebirth in Christ there exists among all the Christian faithful a true equality with regard to dignity and the activity whereby all cooperate in the building up of the Body of Christ in accord with each ones own condition and function. The phrasing is vague, but at least the principle of equality is formulated in the Code of Canon Law. In his analysis of this provision, the late Marcel Diet, a dynamic Flemish canonist and Redemptorist father, argued that canon 208 is theological in nature, and that one cannot draw practical juridical conclusions from it.24 He argued that the equality in canon 208 relates back to the Second Vatican Council, specifically to the Dogmatic Constitution on the Church Lumen gjentium, nr. 32. In this regard he notes correctly that this passage in the Council documents has only a theological and not a juridical meaning. But then he makes a dangerous leap in proposing that, due to its origin, canon 208 is a purely theological statement and is therefore juridically

24M. Diet, Die Gleichheit aller Glaubigen in der Kirche. Zu Kanon 208 des CIC 1983, Theologie der Gegenwart 31 (1988) 113121.

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irrelevant. His main argument, which he develops in a footnote, is purely linguistic. Canon 208 determines that there exists a genuine equality among all Christians. But that existence is expressed by the Latin word viget, in the indicative. That means that this equality already exists; it is no longer waiting to be realized. Hence, the provision is purely theological. If the text were juridical, according to Diet, then it would have read vigeat, a subjunctive which contains not so much a statement as a mission. This is splitting hairs. Article 10 of the Belgian Constitution states: All Belgians are equal before the law. It does not say that they must be equal. Nobody doubts the juridical character of this article of the Constitution in any case. It is unnecessary to add that Diets reasoning, if followed, leads to an interpretation by which the principle of equality is simply a decoration, devoid of all real significance in the system of law. The fact that canons 208 through 223 can be found in a Code of Canon Law indicates that a juridical interpretation is to be preferred. Whenever one is confronted with a rule of law one must keep in mind the ancient maxim potius ut valeat quam ut pereat. This implies that if there are two ways to read a certain law, it is better to choose a reading which accords a law real significance and does not render it meaningless. First Central Question: Supremacy of Fundamental Rights The real significance of rights in the Church does not lie in the way they are formulated in. Terminology matters, but is not enough. What really counts is the question whether rights in the Church are operational. The answer to that question depends on one, very clear question: are the rights and obligations as formulated in the canons 208223 superior all other canonical norms, universal or particular?25 In case the answer is positive, rights really matter. Yet in case they do not, the whole chapter on obligations and rights is merely ornamental. The list of, by definition, abstractly formulated rights will be powerless in its confrontation with specific norms. To put it in other way: without formal superiority, the canons 208 223 are no fundamental rights. They are even no rights, as resulting from
25Completely opposed to this reasoning is W. Aymans, Vom Grundstatut zum Gemeinstatut aller Glaubigen. Ein Beitrag zur kirchliche Rechtssprache, in W. Aymans and K. Th. Geringer (ed.), Iuri Canonico Promovendo. Festschrift fr Heribert Schmitz zum 65. Geburtstag, Regensburg, 1994, 16.

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human rights in the history of the roman catholic church65 their highly abstract character they will lack precision in any confrontation with more specific norms. Two examples can illustrate my point. Canon 229 3 stipulates that, the prescriptions as to the required suitability having been observed, lay people are capable of receiving from legitimate ecclesiastical authority a mandate to teach the sacred sciences. In case this canon is read on its own, which means without the canons 208223 being formally superior, only the minimal suitability is required. If two candidates present themselves, there is no reason to choose the more suitable one. This is no longer true in case the equality principle of canon 208 is formally superior. In that hypothesis, among two candidates fulfilling the requirements of suitability, the more suitable has to be chosen. Meritocracy prevails. The superiority of the equality principle takes care of it. This mechanism leads to a more just solution, even if the vague legal notion of suitability (idoneitas) leaves to the decision-maker a large margin of interpretation. Canon 1741, 3 mentions among the reasons for which a pastor can be legitimately removed from the parish the loss of good reputation among upright and good parishioners or aversion to the pastor which are foreseen as not ceasing in a short time. Read on its own, the canon does not require that the loss of good reputation should have an objective ground. That cruel position, merciless as it is to pastors losing their good reputation as a result of gossip, has been defended as canonically correct in 1994 by Hugo Schwendenwein. This author does not admit the formal superiority of the canons 208223.26 Yet, in the light of a formally superior canon 220, such a disheartening interpretation is no longer possible since this canon states: No one is permitted to damage unlawfully the good reputation which another person enjoys (). It is the simple word unlawfully that brings canon 1741, 3 to a higher level. The negative attitude vis--vis formal superiority should be seen in the context of the nineties. The Catholic Church was in a strong position. Moral claims formulated by others, including secular states, were nonexisting. The Church was both legally and morally autonomous. Theo logical cohesion was perceived as more important than legal efficiency. In that very specific context the position taken in 1996 by the current archbishop of Budapest Peter Erd (1952) must be situated.27 Erd felt
26H. Schwendenwein, Grundberlegungen zur Normenkollisionen in Kirchenrecht, in K. Ldicke and H. Paarhammer (ed.), Neue Positionen des Kirchenrechts, Graz, 1994, 217218. 27P. Erd, Teologia di diritto canonico,. Un approccio storico-istitutozionale, Torino, 1996, 137.

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worried about legal norms with no divine law status whatsoever being superior to legal norms enjoying such a status. In other words, he felt uneasy about the legal hierarchy of norms and ideas not following or even contradicting its theological counterpart. Consequently, canons 208203 can, in his eyes, by no means enjoy a fundamental status, not even at the technical level of their functioning. Erd gives two reasons underpinning his conclusion. Firstly, canons 208 223 have legally and theologically a completely different significance. Secondly, one has to bear in mind the sacred character of Church organisation. This fact makes that some divine law norms have an immediate juridical effect, even when not formulated in the Code. Conversely, it seems impossible to attribute technical superiority to certain norms of merely positive law. This would disturb the equilibrium between law and theology. According to Erd it is not correct to call some simple positive norms fundamental, vis--vis certain theologically deeply-rooted norms, which are more important but not formulated in canon law. An example can illustrate the dilemma. Canon 221 2 protects the rights of the Christian faithful to be judged according to the provisions of the law. Indirectly, this right limits the discretionary power of the bishop. In case canon 221 2 is formally superior, it touches the bishop, with his divine law office. To put it bluntly, on the canonical level canon 221 2 dominates; but on the theological level the position of the bishop prevails. Notwithstanding this apparent paradox,28 that could partly be surpassed by accepting that human rights as given by God precede both secular and canon law, I think that full parallelism between the legal and theological standing of norms is not necessary, as long as two theoretical steps are carefully taken into consideration. The first step goes as follows: Canon law has its proper internal logic. Theology definitely influences canon law to a vital degree, yet the latter also remains a juridical system with certain characteristics which are not
28The paradox can also be solved by attributing a more solid theological position to rights in the Church. Cf. J. Kremsmair, o.c., 55: Im CIC/1983 sind die Grundrechte und Grundpflichten aller Christenglubigen von denen, die speziell fr die Laien gelten, unterschieden. Eine Reihe der spezifischen Rechte der Christen beruhen auf gttlichem Recht, so z.B. das Recht auf das Wort Gottes und die Sakramente, oder das Recht auf die christliche Erziehung. Auch die Menschenrechte werden im kirchlichen Verstndnis als in der von Gott geschaffenen Menschenwrde begrndet und werden ebenfalls als gttliches Recht angesehen. Menschenrechte sind nicht nur der staatlichen, sondern auch der kirchlichen Rechtsordnung vorgegeben und finden daher Beachtung, auch wenn diese im Katalog der kirchlichen Grundrechte nicht explizit enthalten sind.

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human rights in the history of the roman catholic church67 influenced by theology. For instance, the 1983 Code deals much more with the office of governance than with the teaching and sanctifying office of the Church. This statement is fully connected with the idea that law has to deal more with governance than with teaching and sanctification. Contradictions should be avoided, yet other emphases due to the juridical character of canon law are entirely legitimate. The second step should be clear as well: Formal superiority can never go against divine law, norms supposed to be given by God because of their presence in the Bible or their confirmation by the Church, including for instance the indissolubility of marriage or the supremacy of the Pope. Although the functioning, even of the hierarchy, should not be exactly similar in both theology and canon law, divine law should remain the absolute border. Canonical options cannot challenge it. Rallying the example of canon 221 2 (due process) versus the position of the bishop, one could say that accepting canon 221 2 as formally superior does not restrict the hard core of episcopal powers. It only refines the exercitio iuris, the way in which the bishop exercises his power of governance. Canonical hierarchy and theological hierarchy may not be exactly the same, but instead of contradicting each other they just stimulate and strengthen each other. It is striking that, in the eighties and nineties, the theological beauty of canon law eventually eclipsed legal fairness. The formal superiority of the canons 208223 was not rejected by the community of canon lawyers. It was just not discussed. The focus remained elsewhere. Canon law was a very speculative science in those days, under the unhappy influence of the Munich school, with Klaus Mrsdorf (19091989) en Eugenio Corecco (19311995). In the aftermath of Vatican II, canon law gained theological prestige. Over were the days of positivism, so prominently present under the Code of Canon Law 1917. That is why important options, which could have been truly helpful in our era today, never were taken. Formal superiority remained an idea never becoming reality, as an implicit model of theological harmony dominated the discussion. During the first years of the twenty-first century, the negative consequence of the absence of formal superiority became painfully clear. The outburst of the sexual abuse scandals occurred in a Church not at ease with fundamental rights. Moreover, the lack of separation of powers complicated official reactions. The combination of the absence of any internal control of power and a de facto absence of formally superior fundamental rights led to various political and legal mistakes. Two examples can illustrate this point.

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The first example concerns the United States. In 2002, a lot of sexual abuse cases became public. It was not the first series of cases occurring in the States, yet this time an important Church official, the archbishop of Boston, Bernard Francis Law (1931) was involved, not as a sex offender, but as an active participant in the covering-up of child molestation. Eventually Law resigned on 13 December 2002. The United States Confer ence of Catholic Bishops (USCCB) felt the necessity to react, for both moral reasons and the financial liability entailed by the scandals. On 14 June 2002, the USCCB approved a first version of the so-called Dallas Norms.29 These norms, establishing procedures for sexual abuse cases, were very severe to the accused priests.30 The Holy See formulated some objections. That happened in a letter of 14 October 2002, written by Giovanni Battista Cardinal Re (1934), then prefect of the Congregation for the Bishops. The cardinal reminded that the document contained provisions which in some aspects are difficult to reconcile with the universal law of the Church.31 In other words, the American bishops moved from an easygoing attitude to an extremely severe one, without, in the second case, taking seriously the right of defence of the accused. Finally, the norms were adapted to the Roman concerns and eventually recognised on 8 December 2002.32 The discussion on the Dallas Norms illustrates the poor position of fundamental rights in the Church. Before 2002, victims had almost no possibility to protest against unacceptable sexual behaviour including crimes committed by priests. In 2002, the swing of the pendulum went into the opposite direction. No legal culture including formally superior fundamental rights prohibited the American bishops from doing so. It is striking that finally cardinal Re suggested the solution, and not the bishops themselves, who should have been, given the American legal context, very sensitive to a correct application of the right of defence.
29http://www.bishop-accountability.org/resources/resource-files/churchdocs/ DallasNorms.htm. 30See e.g. article 7: When a credible allegation of sexual abuse of a minor by priests, deacons, or other church personnel is made, the alleged offender will be relieved of any ecclesiastical ministry or function. An investigation in harmony with canon law will promptly commence. The accused will be encouraged to retain the assistance of civil and canonical counsel and will be promptly notified of the preliminary findings of the investigation. 31http://www.bishop-accountability.org/resources/resource-files/churchdocs/ Gregory.htm. 32http://www.bishop-accountability.org/resources/resource-files/churchdocs/ FinalNorms.htm.

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human rights in the history of the roman catholic church69 Yet, another Vatican instance, more precisely the Congregation for the Doctrine of the Faith (CDF) made a poor impression when it issued the Normae de gravioribus delictis on 21 May 2010.33 Again, the historical context was dramatic. This time, sexual abuse in the United States was not in the centre of the debate, but similar scandals in European countries such as Ireland, Austria, Germany, Belgium and the Netherlands. The CDF presented a set of very strict norms, and rightly so. However, it also for mulated certain elements incompatible with due process norms and consequently also with the formal superiority of fundamental rights. The most striking example is offered by article 7: A criminal action for delicts reserved to the Congregation for the Doctrine of the Faith is extinguished by prescription after twenty years, with due regard to the right of the Congregation for the Doctrine of the Faith to derogate from prescription in individual cases. It goes without saying that prescription is meant to protect the accused. In case the Congregation can derogate from this principle, it becomes an empty shell. Eventually, for the crimes mentioned in the Normae, not limited to the only sexual abuse, there is no prescription whatsoever. Few legal systems in the world hold a comparable viewpoint. No distinction is made between law and ethics. The absence of formally superior fundamental rights is very visible here. The conclusion can be clear. The absence of the formal superiority of the rights as expressed in canons 208223 seemed innocent and harmless in the eighties and nineties. Yet, today the Church pays a price for that careless, or too theoretical, attitude. At a moment that secular society urgently asks for adequate Church measures combating sexual abuse, a true legal culture as well as an adequate human rights framework are badly missing. Second Central Question: the Common Good34 Here is the second paramount question. Can the Church live with rights of individuals? Or are they always eclipsed by the common good?

33AAS 102 (2010) 419430 offers the complete text, including other crimes. See also http://www.vatican.va/resources/resources_norme_en.html. 34See R. Torfs, Rights in Canon Law. Real, Ideal or Fluff?, in Canon Law Society of America (ed.), Proceedings of the Sixty-First Annual Convention. October 47, 1999, Minneapolis, Minnesota, Washington, 1999, 343384.

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The latter is not an easy notion. Already in the first version of The Code of Canon Law. A Text and Commentary, published by the Canon Law Society of America in 1985, Jim Provost (19392000), while analysing canon 223, rightly observes that we are faced with the option of adopting an institutional emphasis on the good of the Church or of focusing on the Church as the people of God.35 This is indeed a very specific canonical problem, which can be added to a more general one: who is going to determine when the common good is exactly involved? Especially in a system without separation of powers the question who determines or invokes the common good is probably more important than a scrupulous analysis of its content. But then it remains interesting to watch how the common good plays a role in the canonical discussion about rights. Canon 223 1 states that the Christian faithful must take account of the common good of the Church in exercising their rights. In 2, this situation changes. In the interest of the common good (of the Church is omitted), ecclesiastical authority has the competence to regulate the exercise of the rights which belong to the Christian faithful. The key word here is to regulate, in Latin moderari. This notion does not mean that the competent authority can restrict or suppress the rights concerned. It just is a technique to facilitate their use.36 Yet, the context in which the, as such, moderate notion moderari is used turns out to be less positive. Indeed, the next questions that need to be asked are: what can be regulated, and how can it be done? What can be regulated is the exercise of the rights, a terminology referring to the old thomistic distinction between ius and exercitium iuris. Although this distinction can be useful in certain circumstances, it can also mean -in a less harmonious context- that one can by no means make use of a right without the latter, theoretically, being limited: only the exercitium iuris is at stake. In other words, rights are limited on a practical level although theoretically they remain untouched. Worse is the question how, the way in which the regulation of rights for the sake of the common good can take place. Slightly frightening is that canon 223 2 does not give any indication concerning this question.
35J. Provost, The Obligations and Rights of the Lay Christian Faithful, in J.A. Coriden, T.J. Green and D.E. Heintschel (ed.), The Code of Canon Law. A Text and Commentary, New York/Mahwah, 1985, 158. 36T. Meijers, Het recht van vereniging en het verenigingsrecht in de codex van 1983, in R. Torfs, P. De Roo and H. Warnink (ed.), De katholieke identiteit van instellingen en organisaties in het recht, Leuven, 1990, 107109.

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human rights in the history of the roman catholic church71 This could mean that regulating rights can be done by law, by issuing a particular law for instance, but also that an ad hoc administrative measure, directly focusing on a concrete situation, remains possible. Especially on this level the Church is much less demanding than certain modern catalogues of rights, including the European Convention for the Protection of Human Rights and Fundamental Freedoms opened for signature by the Council of Europe on 4 November 1950. In this document rights can be restricted for several reasons. For instance, freedom of thought, conscience and religion guaranteed by article 9.1 can, as one reads in article 9.2, be subject to limitations in the interest of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedom of others. Obviously, the common good is not mentioned as a possible ground for restriction. But also concerning the question, how to restrict these rights, a remarkable difference between the Code of Canon Law and the European Convention should be underlined. Whereas the Code remains tacit concerning the way of regulating rights, the European Convention accepts limitations (which is indeed more than just regulations) only if two conditions are fulfilled at the same time: the limitations need to be prescribed by law and they should be necessary for protecting values in a democratic society. This requirement that there be a previously existing law which formulates the limitation is an important guarantee of real protection of rights. Thus, according to the European Convention last minute-limitations at the executive level are simply inconceivable. Limitations should first be formulated in abstracto before they can be applied in a concrete situation. Canon 223 2 offers less. Certainly, moderari is less defensive than limitations, the notion used by the European Convention. Yet, the way regulations or limitations can be formulated shows another picture: here canon 223 2 does not offer any guarantee against an arbitrary approach on the very administrative level, whereas art. 9 of the European Convention makes such an approach radically impossible. In the European Convention, the common good is neither present among the criteria restricting the freedom of religion (art. 9.2), nor is it mentioned as a possible limitation to the freedom of expression (art. 10.2). In that regard, concerning freedom of expression, the approaches of the European Convention and the Code of Canon Law are remarkably different. In the Handyside-case of 7 December 1976 the European Court stresses the importance of freedom of expression for society as a whole. The court

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underlines that freedom of expression is one of the essential foundations of a democratic society, as well as one of the first conditions for its progress and for the self-development of everybody. For this reason, freedom of expression does not only protect mere information, nor is it limited to ideas, which are positively accepted or just harmless, it also protects hurting, shocking ideas as well as thoughts making the State or a part of the population feel worried.37 In a way, the common good is served by a very broad notion of freedom of expression. This is not true in the Church where freedom of expression is, according to canon 212 3, possible only if certain conditions are fulfilled, among them consideration for the common good being explicitly mentioned. To sum up, according to the European Convention the common good is served by freedom of expression; according to canon 212 3 freedom of expression is only permissible when it serves the common good.38 The two notions are squarely opposed to each other. Conclusion The failure of introducing human rights in the Church becomes inevitable when looking sharply at the debate during the last decades of the twentieth century. Externally, which means as meant for others, in the world, the Church overcame its negative attitude of the past. And certainly after World War II she became a true advocate of human rights. Mission accomplished, so it seems. Yet, internally, the debate about human rights within the structures of the Catholic Church, turned out to be much more complex. Already on the level of the nature and the formulation of rights, problems emerged. The nobility of theology, that became stronger as a result of Vatican II whereas canon law weakened, was often at odds with modern human rights thinking. The reluctance of Peter Erd regarding formal superiority is a good illustration. But the true discussion surpassed by far the exact wording of the rights. What really mattered was their implementation, their feasibility. Here, two questions played a crucial role, sometimes by their presence, sometimes by their absence. Are the canons 208223 superior to other norms? And is the common good
37Court Human Rights, Court Decision Handyside of 7 December 1976, Publ. Eur. Court H.R., Serie A, n 49. 38See R. Torfs, Estructura eclesistica y responsabilidad independiente. Reflexiones en torno a los cnones 212 3 y 218 CIC 1983, Revista Espaola de Derecho Cannico 47 (1990) 663694.

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human rights in the history of the roman catholic church73 eventually an enemy or an ally of individual rights? Or, to summarize more bluntly the ultimate concern underpinning both questions: do the rights of canon 208223 enjoy the necessary space to evolve, and to become truly fundamental, which means cornerstones of the canonical system? In the eighties and nineties, these questions were not truly addressed. Other issues prevailed. And even in the years fundamental rights enjoyed some popularity among canon lawyers, the discussion on their implementation had to give way to more theological and speculative questions.39 Time passed. And the Church did not take fundamental rights seriously. Their formulation was all right. Yet their legal implementation remained deficient. The ultimate proof was delivered by the absence of a credible canonical framework on the moment of the outburst of sexual abuse cases. Is it too late? Are there no longer opportunities for a dynamic canonical approach of fundamental rights, including their legal superiority to other norms and their survival vis--vis the elusive use of common good? A good Christian principle holds that salvation always remains possible, that nothing is lost forever. Yet, a new approach requires courage, combined with a strong ecclesiological vision. How does the church of the future look like? Different options are possible. The first approach consists in a very spiritual Church, separated from the world, not caring too much about internal norms or legal principles: transcendence prevails over immanence. The second approach goes the other way round by caring truly about Gods presence in the world: immanence is not less important than transcendence. Yet a choice between both approaches is not necessary. It is very well possible to opt for an Entweltlichung in the sense of Rudolf Bultmann (18841976)40: the source of Christian commitment does not come from this world. Its source is God. Yet the Entweltlichung stands in a dialectical position towards the Zuwendung to the world. Christians cannot keep their gift from God for themselves. They have to transmit it to the world, which requires a high degree of openness to the latter.41
39An important moment was the congress of the Consociatio Internationalis Studio Iuris Canonici Promovendo in Fribourg (1980) See E. Corecco, N. Herzog, and A. Scola (ed.), Les Droits Fondamentaux du Chrtien dans lglise et dans la Socit. Actes du IV Congrs International de Droit Canonique. Fribourg (Suisse) 611.X.1980, Fribourg/Freiburg Br./Milano, 1981. 40About Bultmann and Entweltlichung, see http://blog.radiovatikan.de/wir-verlieren -uns-an-die-welt-lesen-wir-rudolf-bultmann. 41See on this topic M. Mhring-Hesse, Verweltlicht euch!, Theologische Quartalschrift 192/1 (2012) 9399.

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The combination of Entweltlichung and Zuwendung can be a basis for an approach of canon law not forgetting the theological sources, including its divine inspiration, but also using it for a credible Church and a better world. These are impossible without solid human rights in the Church. Their formal superiority to other norms, as well as their legitimate position as part of, and not as enemy combating the common good, is a consequence of this idea. Human rights in the Church are theologically not dangerous. They are necessary for any credible theology of the future.

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