RICERCA ITALIANA     

Law of the ‘Prince’, law of the Church: the problem of secularization and tolerance from the perspective of legal history.

Università degli Studi di Genova

Abstract

The research intends to address the historical problem of secularization (a subject of great historiographical importance and still of considerable topicality) from the late Middle Ages until the beginnings of the contemporary age.
The research will involve various levels, periodizations and areas of inquiry, which will be partly closely connected and partly deliberately ‘non-coincident’ in order to furnish the most composite perspective possible.
The scenario comprises the consequences for European history of the Protestant reformation: from the wars of religion to the problems consequent on the application of the Council of Trento in the Catholic countries, from the crucial issue of tolerance to the problem of constructing the state apparatuses. These matters were accompanied (as well known) by outstanding cultural production in different domains and periods. But this also raises the crucial topic of the formation of an European culture in an age of political, juridical and religious fragmentation.
A first body of research will be conducted by two local units, starting from the historical experience of the construction of the Savoy state and examining a broad range of issues, from the Waldensian question, through matrimonial, fiscal and jurisdictional issues, to the Jansenist problem. The Savoy state, also for geopolitical reasons, was undoubtedly an original arena of encounter among different cultures and experiences: for example, the problem of the influence of Gallicanism (in its diverse variants) has for some time been regarded as crucial to understanding of the action of judges and functionaries.
This mention of the French (and Gallican) influence on the culture of the Savoy jurists introduces the second level at which research will be conducted by the various local units: namely, the level that can be more properly termed the ‘history of ideas’ (without, however, ever separating these from the ‘practices of government’). Names like Bodin or Grotius do not require further specification, but it is the conviction of the participants in this research project that, despite the now boundless bibliography on such authors, further research is still necessary (as shown, for instance, by Van Dam’s recent edition of Grotius' “De imperio summarum potestatum circa sacra”). Alongside what can be called the ‘pillars’ of European legal culture in the modern age, there was a dense network of minor authors (today considered) who also constituted the connective fabric of the intellectual production of their time, and who contributed to forming the much debated ‘communis opinio’.
At the level of the history of ideas (but a history which seeks to be not ‘only’ of ideas) lies one of the research approaches adopted by the project: study of the Church’s reactions to the secularization and laicization of the law. For it should not be forgotten that a process which can be summed up in the word ‘secularization’ was anything but pacific; rather, it was the consequence and the origin of conflicts. Hence also the history of ideas cannot be seen solely as conciliatory progress under the sign of continuity. For example, ‘freedom of conscience’ was long considered to be hugely dangerous. The study of certain aspects of cultural conflict and the instruments deployed by the Catholic Church to halt the circulation of regalist and jurisdictionalist ideas – first Enlightenment-driven and then ‘constitutional’ – will be subjected to study by other researchers belonging to local units.
This, however, would be a limited and unidirectional perspective were consideration not also made of developments in the law of the Church itself. Numerous institutional and cultural factors exerted, and still do, great influence on the life of the ecclesiastical organization and they warrant focused and detailed investigation: from the projected (and failed) ‘liber septimus’ to the rise of new and powerful central congregations (of the Holy Office, of the Council, of Immunity). <<<

Principal Investigator

Rodolfo Savelli Università degli Studi di GENOVA

Research Objectives

The overall objectives of the research project (given the characteristics of its scientific-disciplinary sector) can be rapidly summarized: advancement of knowledge on a problematic central to contemporary civilization in its historical-genetic dimension.
It is not the intention to revert to periods excessively distant in time (but still influential, given the theme). Yet it should be pointed out that, after the breakdown of unity in the ‘respublica christianorum’, there arose in Europe the problem of conflict and religious peace, and therefore of tolerance and secularization in the policies of states. The project’s proponents therefore consider analysis of episodes which contributed to the current system of relations between states and churches, between states and citizens, to be an objective worth pursuing.
In factual terms, the aim of the project is to produce articles and/or books setting out the results of the research. <<<

First Results

The project intends to contribute to knowledge of important episodes in legal history between the fifteenth century and the end of the 1800s, the intention being to furnish substantial results on matters which are not only historically significant but have acquired increasing importance in recent decades. The worldwide debate on issues such as tolerance, secularization, marriage, and the relationship between states and churches, demonstrate the extent to which the themes addressed by the project are of urgent topicality. Without thorough knowledge of events which for centuries have conditioned the civil and legal evolution of European society, it is difficult to understand the complexities of the present day. As has been stressed in a recent book on the history of law in Europe, “vita magistra historiae” (Padoa Schioppa 2007).
Obviously, because this is basic research, immediate applications are not envisaged, but only an advancement of scientific knowledge which may have impact at the level of university teaching or (mediated) influence in various institutional sectors. <<<

Timescale

24 months

National and international background

Recent decades have seen a proliferation of publications on the theme of secularization, especially in the fields of theology, philosophy, political science, and sociology. And the same applies to the other theme stated in the project title: tolerance. But the historical-juridical perspective has remained in the background, particularly in Italian historiography, and despite past research of notable importance (for instance, the studies by Ruffini and Jemolo, those by Margiotta Broglio or Paolo Prodi, to name only some of the best-known authors).
Two recent conferences, one organized by the Michele Pellegrino Foundation and the other by the University of Milan Bicocca, have evidenced that legal, political, constitutional and religious analysis must be flanked by an indispensable historiographical dimension (Chiese cristiane, pluralismo religioso e democrazia liberale in Europa Bologna, Mulino, 2006; Laicità e stato di diritto, Milan, Giuffrè, 2007).
Symptomatic from this point of view is the publishing history of a short but illuminating article by the German jurist Böckenförde, “La formazione dello stato come processo di secolarizzazione”. Originally published in 1967, this article first appeared in Italian in 1986, and was reprinted in rapid succession by two different publishing houses in 2006 and in 2007. The article’s fortune is indicative of the currency of the topic when examined along a historical dimension (as given to it forty years ago by the above-mentioned German constitutionalist).
In Böckenförde’s reconstruction, which draws on well-known works [Ranke, Schmitt, Schnur and Lecler], the ‘civil-religious’ war in France was an epochal event. The French state re-emerged from this conflict thanks to a policy of pacification which reflected the theories of the politique (and Gallican) jurists. As Böckenförde remarked on another occasion: “it must be admitted that religious freedom, which today is obvious even to Christians, owes its origin not to the Churches, the theologians or Christian natural law, but to the modern State, the jurists and the rational law of nations”. Many historians would be right to raise more than a few objections against this reconstruction, yet it has also found considerable consensus.
Obviously, alongside ‘epochal’ events and authors who have marked European legal culture (from Bodin to Grotius, Hobbes, Locke, etc.), also to be considered are all those experiences (coeval, previous, subsequent) which allow more composite evaluation of the phenomenon with further nuances and details (also divergent). Impressive reconstruction of the ‘great event’ must necessarily be accompanied by more circumscribed (but not minor) European and Italian experiences, just as account must be taken of the theories and practices (in the past) of those who opposed the processes of secularization and tolerance.
If, as it seems, the term ‘secularization’ was first used in its modern sense during the negotiations for the Peace of Westphalia, it is also true that the jurisdictional problem – which certainly cannot be conceptually identified with secularization – has a longer history and developed in extraordinary parallelism with it, involving pivotal institutes of the ecclesiastical orders. For European legal history in the modern age, baptism and marriage (for instance) were two areas of conflict with manifold significance (as recent studies by Elena Brambilla and the group coordinated by Diego Quaglioni and Silvana Seidel Menchi have shown).
The recent opening of the archives of the Congregation for the Doctrine of the Faith (formerly the Holy Office) has furnished historians with an abundance of materials, of which historians of religion and science or social historians have taken especial advantage. Indeed, the newly-available archival sources flank others already known, and this has enables examination (or re-examination) of crucial problems concerning juridical (civil and canon) culture: from classic issues such the inquisitorial trial to apparently minor questions such as the (ineffectual) prohibition of publishing the deliberations of the Congregation of the Council. Still to be studied, however, above all in regard to the period following promulgation of the Clementine index (1596), is the encounter/clash with European legal culture.
An equally significant topic is the various implications of lay and ecclesiastical taxation within the more general theme of legitimacy in modernization processes [Prodi-Kellenbenz; Giannini; Lavenia] and attempts to impose secular control on the complex system of ecclesiastical benefits [Donati-Flachenecker].
The issue of tolerance can be construed in light of the theme of freedom of conscience. This is a linking theme from Trento until Vatican Council II [Scatena], but its diverse legal (legislative and doctrinal) junctures must still be thoroughly explored by research on the modern age and the nineteenth century. <<<