Towards a new Ecclesiastical law Rethinking majority Perspectives

Transcription

1 Towards a new Ecclesiastical law Rethinking majority Perspectives Presentation from the laboratory in the HERA-funded research project Protestant Legacies in Nordic Law, ProNoLa, Nordic Conference on Ecclesiastical Law, Gustavelund, Tuula, Finland Lisbet Christoffersen lic@ruc.dk; lic@teol.ku.dk 1

2 0. Framework: 3 books to be published. This paper will be one of the last articles in the third book, edited by Pamela Slotte, Åbo, & Niels Henrik Gregersen, focusing on challenges from international law, religious pluralism & non-religiousity. It answers to the tendencies to confessionalisation of ecclesiastical law. The paper takes such tendencies seriously, answering with questions: how and what and by whom, then? What would make ecclesiastical law a better, more legitimate and in the same time legal law? lic@ruc.dk; lic@teol.ku.dk 2

3 Central concepts: Ecclesiastical law: law within christian churches that organise the churches internally jf religious law (Catholic Canon Law, Shari a etc.) Church law: state legislation concerning a church: The Finnish Evangelical Lutheran Church, e.g. but also all state legislation concerning the Danish Folk Church, e.g. Religion Law: State law that organises relations between state and religious communities, incl possible state requirements to religious law and ecclesiastical law Legality: what makes a law law from a legal point of view Legitimacy: what makes a law acceptable, seen from other perspectives, such as theological or human rights or lic@ruc.dk; lic@teol.ku.dk 3

4 Focus: I focus on the evangelical-lutheran majority churches in our countries. With 65+ % of the populations as members. But I do also give some comparisons to other religious communities. My question is not a simple state-church-relations-question. My question is: if changing these relations, what then happens with legitimacy and legality of the regulation of church affairs. Or, with the wording from a committee under the Danish bishops in a paper, sent out for public hearing 7th June 2018: WHO DECIDES? (hvem bestemmer?). One could add: and what is it possible to decide? lic@ruc.dk; lic@teol.ku.dk 4

5 To conclude the framework: Overview over the presentation: 1. Possible lines of argumentation regarding legitimacy for such developments: two different sets of norm structures one set open legal norms combined with local freedom to choose - or an intertwined structure 2. Law governance thinking also here intertwined 3. Theologically speaking: in order to live up to theological norms or in order to serve the purpose of the church 4. Legally speaking: general rule of law requirements into all religious communities and especially to majority communities lic@ruc.dk; lic@teol.ku.dk 5

6 1. Legitimacy for legal norms within a (majority) church in post-lutheran Nordic area 1. Part of state legislation, either in parliament or in government, in practice, but not in legal theory with an arms-length principle of freedom, or, on the contrary, an intertwinement-structure (the double case of Denmark) 2. Delegated authority from state law to church institutions (the case of the Norwegian Church after 1st Jan 2017 legal subjectivity) 3. Public/private entity by law established, including major dimensions of internal competence which is then expected to develop a governance set of norms in the format of law (the Church of Sweden) 4. There is but one law, but the Church is solely takes legal initiatives concerning internal church matters (the Ev.Lu.Church of Finland) 5. Human Rights establish the legitimacy for religion law (state law on religion) and likewise the legitimacy for the development of an internal ecclesiastical,also theologically legitimized legal structure (the case of EKD etc) lic@ruc.dk; lic@teol.ku.dk 6

7 Where do the ideas concerning theological legitimation pop up? Organisation of the services, of the leadership in ecclesiastical affairs, contend of the rituals, hymnbooks, music etc (a narrow understanding of the concept internal affairs ). The above mentioned + organisation of ministry; economic and organisational affairs; a general and broad autonomy based on the self-understanding of the church Gender & sexuality & decorum is that a good sign? lic@ruc.dk; lic@teol.ku.dk 7

8 How broad and deep is autonomy to be understood? Broad understanding of internal affairs narrow understanding of legitimacy The Churches can - within the framework of the law of the land (die für alle geltende Recht) decide whatever is in their autonomous interest The hope in this position is that the legislators respect the idea of collective institutional FROB which leaves much space for autonomy Narrow understanding of internal affairs broad understanding of legitimacy In general: The more one limits the field of internal affairs to the core of the ritual or the liturgy, the broader a legitmacy is it possible to find behind the idea of autonomy However, the case of circumcision contravenes this position lic@ruc.dk; lic@teol.ku.dk 8

9 Limits to legal autonomy illegitimate legitimacy: Criminal law limitations but this is also a discussion about what is to be criminalized (circumcision as the current example). No internal enforcement of cases that in the society are under the jurisdiction of criminal law Prohibition on enforcement but what about social enforcement (Jehovas Witnesses)? lic@ruc.dk; lic@teol.ku.dk 9

10 1. To conclude this part: possible basis for legitimacy a. State has an interest in ruling religion, version a: to ensure a common value basis behind it s laws (Ørsted, 1807); version b: secularist version: to ensure not too much religiousity and competition; version c: the population has a well functioning democratic system and church affairs are no different from military or university affairs: they have norms that needs to be taken into account in the regulation. b. Collective organisational freedom of religion and belief c. Lutheran theology: two regiments in version a: law is secular, i.e.: the state law; or version b: ruling the church is part of the religous regiment, i.e.: an internal ruling. d. Associational identity (like FIFA, the international football association) lic@ruc.dk; lic@teol.ku.dk 10

11 2. Law vs non-law (governance ) New Public Management instruments: agreements that are binding, but not legally binding. Governance systems internally in an organisation which is not interpreted as part of or related to the law (because the law is an oldfashioned, hierarchical instrument) Collaboration instruments; education and courses etc etc However: everything functions in the shadow of the hierarchical law, and when the problematic case comes up, the law re-enters the scenery lic@ruc.dk; lic@teol.ku.dk 11

12 2.1. Is (ecclesiastical) law at all anything good? Lutheran regard the organisation of society, incl the church, by law (i.e.: the rule of law) as something good. As part of creation? Of God s will for the good society? For the sake of the evil among mankind? I don t think all protestants think in that way about the law. Baptist s (and e.g. the evangelical-lutheran free church in Norway) tend to think, that law is state-made, and that state should not interfere with the organisation of the religious community. FREE in the real meaning of the word: free of state interference. They do however have internal regulations, by-laws etc. Pentecostal movements originally focused more on the charismatic leadership, not on a supposedly legal internal structure; they have however also established churches, organisation, bylaws etc. Some of the inheritance has to do with perception of the state lic@ruc.dk; lic@teol.ku.dk 12

13 2.2. the current discussion in the Danish context about de-regulation, a report June 2018: Who is to regulate the state? (regulation by law, by royal decree or by legal delegation) Every single congregation in the congregation council? Each bishop/the priest? The Church? (but who is that??) What is to be regulated A minimum model (our Lords prayer, the blessing & the creed) A maximum model (every single step in a service, incl the texts to be read and the hymn book) An in-between model (however unclear what that is) lic@ruc.dk; lic@teol.ku.dk 13

14 3. Theological thinking regarding law Purpose of the theological thinking In order to live up to theologically defined norms? In order to serve the purpose of the church? In order to criticize the existing structures and norms Use of the theological thinking As proposals for or limiting response to new legislation, established by the legislative powers of the state As legitimation of an internal legislative procedure As central dimension in interpretation of the law As normative framework for applying the law As normative requirements in establishing an internal judiciary and for accepting or denying access to civil courts

15 Who could provide such theological thinking? University professors (etc) the faculties are non-confessional, but does that prevent them from thinking into these questions? The priests, deans and bishop s they have as part of their professional work to improve the organisation Lay people with an elected office within the organisation; lay people in office (it is also their professional task); lay people without any official function (priesthood of all believers) As long as the church is not only a confessional religious community for it s members, but also caretake e.g. cultural heritage: any interested professional and lay lic@ruc.dk; lic@teol.ku.dk 15

16 A couple of examples: liturgy Professional theologians, theologians with an office, lay people with an office, lay elected people, church members, anyone interested in classical music etc Use of cemetries (maybe professional theologians), professionals with an office and an understanding of church economy, church members and their representatives, interested in cultural heritage and in a green future lic@ruc.dk; lic@teol.ku.dk 16

17 4. Basic rule-of-law requirements to religious organisations (especially (lutheran) majority): 4.1. Normative limitations: a. Equality and non-discrimination requirements how far is an exemption on basis of religious norms acceptable in a majority church? (different solutions in the Nordic countries EU-law) b. Follow societal norms on employment law only with limited exemptions. c. Administrative law requirements: transparency, accountability, good governance, foreseeable, applicable for all lic@ruc.dk; lic@teol.ku.dk 17

18 4.2. Institutional requirements a. Distinction internally between legislative, executive and judiciary powers b. An actually existing set of legal norms as basis for the function in the church, that is: a valid and used set of norms regarding decision making etc c. Procedural norms regarding the individual s right to defence etc. Access to justice-norms internally. d. But also access to the societal judiciary, e.g. in cases regarding employment lic@ruc.dk; lic@teol.ku.dk 18

19 4.3. Always ask why to regulate: who is the weaker part, which the law is to protect? In nordic lutheran ecclesiastical law so far, the protected weaker part througout the 20th century was the not-necessarily-so-active church member. The legal development tended towards eliminating all regulations that set up requirements for taking active part (or remaining passive, but still an equal part) in the church. Prof Heiner Bielefeldt country visit to Denmark March Recommendations Dec. 2016: develop a model for the Danish Folk- Church based on active membership. Active? lic@ruc.dk; lic@teol.ku.dk 19

20 5. Secularisation or confessionalisation of ecclesiastical of law in the Nordic countries? There is a rising lack of legitimacy behind the institutional legislative competences of the legislative powers when it comes to ecclesiastical law and especially the liturgical norms There is a high expectation to establish internal legitimacy, especially when it comes to questions regarding liturgy etc (internal affairs in narrow sense); but also both internal and external legitimacy regarding buildings, employment rules etc. On the other hand there is an absolute lack of legitimacy behind any sort of punishment structures, criminal law structures etc within religious communities; and I think there is a very high reluctance towards internal judiciary systems, if they are final An argument as because they are muslims, they of course give legitimacy to Shari a is also not satisfying because, do they actually do that? The muslims? The Catholics? The Lutherans? There is a necessity, I think, to bring this discussion out of a state-church-relationsparadigm and into a paradigm of what legitimates which kinds of ruling, of interpretation and application of law and of (final) judgement structures lic@ruc.dk; lic@teol.ku.dk 20