§ 225. Present-Day Church-State Relations

The relation between ecclesiastical and state power which we have now set forth rests on the prescriptions of the positive law of the Orthodox Church, and as such it still has, today, practical importance for the Orthodox Church in all those states which recognize the lawful existence of the Church.

Different is the teaching on the relation between Church and State in the ecclesiastical law of the Roman Catholic Church, and different again in Protestant ecclesiastical law. This depends on the particular ecclesiastical constitution that exists in the Roman Catholic Church and among the Protestants, a constitution different from that of the Orthodox Church. Both the Roman Catholic Church and the Protestants recognize that ecclesiastical and state power both proceed from God, they recognize the distinction between these powers, and also their respective independence within their own boundaries, and to this extent they are more or less in agreement with the teaching of Orthodox ecclesiastical law on this matter; they differ from that law, and also from one another, only in that the one holds ecclesiastical power to be superior to state power, with the latter dependent on the former, while the other, conversely, holds ecclesiastical power to be in everything dependent on the state.

In the Roman Catholic Church the pope is the representative of ecclesiastical power and is regarded as the sovereign of that Church, an absolute sovereign, who has power even over rulers, to such a degree that he may, under given circumstances, absolve subjects even from their oath of allegiance to their ruler.[1] On this universal sovereign all Roman Catholic subjects of this or that state are dependent, and in order to establish the religious position of such subjects within a given state, special agreements have been and are concluded between the pope and the ruler of the state in question, called concordats, by which the relation between the state and the pope is regulated in fixed articles. The first such concordat was concluded in 1122 between Pope Callixtus II and the emperor Henry V, after the well-known dispute over investiture. All later concordats have the form of international treaties and are established according to the circumstances which time brings with it, with more or less concession from the rights which the contracting parties consider themselves to hold. Such agreements are concluded by the pope not only with states in which Roman Catholics form only a small number alongside adherents of other faiths, but also with states in which the ruling house and the majority of subjects are of the Roman Catholic faith. Moreover, these agreements between popes and rulers have, in more recent times, begun to lose their former significance, especially after the Vatican Council of 1870, and individual states have already abolished those agreements which existed with them—for example in Austria, where the concordat of 1855 was entirely abolished by state law.[2]

Among the Protestants the head of the Church is the ruler of the land, who has power not only in external but also in internal matters of the Church, and hence in matters of belief as well. So teach their theologian-canonists, on the basis of the teaching of Luther and other reformers. The Anglicans profess this same thing.[3] And Protestants recognize supreme power in the Church not only in the ruler of their own faith, but also in those rulers of the respective states who do not profess their faith. Accordingly there is regulated, among the Protestants as among the Anglicans, the relation between Church and State—a relation by which all church matters, without distinction, are subordinated, in the last instance, to the state power.

As regards the Orthodox Church, the present-day church-state relation in the Orthodox states is arranged according to the position which the Orthodox faith occupies as the state religion, and according to the degree to which the representatives of state and ecclesiastical power grasp the calling of Church and state.

In the Ottoman empire, wide rights and independent ecclesiastical administration under the protection of the state power were recognized for the Orthodox faith already under Sultan Mehmed II, when the Turks conquered the Byzantine empire. But since, in the course of time, those rights, owing to internal and external circumstances, had already become illusory, the Hatt-i Hümayun of 18 February 1856 again restored the Church’s former independent position, always under the protection of the state power. This same thing, only in another form, was recognized for the Orthodox Church in the Ottoman empire by the constitution of 23 December 1876. So, at least, stands the matter officially—while in practice, of course, things are quite different.[4]

The church-state relation of the Orthodox Church in the Austro-Hungarian monarchy has been different in the lands of the Hungarian crown, and different in the other lands. In the lands of the Hungarian crown the Orthodox Church has enjoyed, on the basis of older privileges, a certain autonomy in ecclesiastical and church-political relations under the protection of the state power. By Hungarian Law Article XX of 1847-8, legal equality was proclaimed among all confessions recognized by law in the state. This was established by §3 of that legal article, while by §8 the state guarantees to Orthodox subjects the right of disposition in all matters of religion and schooling, under the oversight of the state power. By Law Article IX of 1868 the rights granted to the Orthodox Church by Law Article XX of 1847-8 were confirmed, and, the lawful existence in the state of an independent metropolitanate of Sibiu alongside the metropolitanate of Karlovci having been recognized, it was established by §3 of this Law Article IX that, “while preserving to His Majesty the highest right of oversight, which he constitutionally exercises, the faithful of the metropolitanate of Karlovci and of Transylvania are authorized to be able to conduct and arrange independently, and separately, within the bounds of the laws of the state, their church, school, and related endowment affairs at their congresses, which are to be convened at fixed times, and after prior notice thereof to His Majesty by the respective metropolitans, and that they may administer and manage such matters independently, in the sense of the rules adopted at those congresses and approved by His Majesty, through the medium of their own organs”; while by §9 of this same Law Article it is further established, in general, that to the members of the Orthodox Church in those two metropolitanates “there are recognized, also for the future, all those rights which they have hitherto enjoyed, in the independent conduct of their church-communal and school affairs, in the free use of their church language, and likewise in the administration of their church-communal property and their endowments.”[5] By Law Article LIII of 1868 the inter-confessional relations among the members of the respective confessions in the state were established, and freedom of transfer from one Christian confession to another was recognized. — So it stands in the lands of the Hungarian crown; while in the lands represented in the Vienna Imperial Council, the state position of the Orthodox Church has passed through several changes. Until 1781 the Orthodox Church was almost without rights in the state. In that year, by the Patent of Toleration of Emperor Joseph II of 25 October, her lawful existence in the state was recognized, alongside the Roman Catholic and Protestant churches; but of any equality of rights with the Roman Catholic Church there was as yet no mention.[6] And so it remained until 1849. In that year, by the imperial patent of 4 March, and then again by another imperial patent of 31 December 1851, the equality before the law of all confessions was in principle proclaimed, and equal independence in the exercise of their confessional rights, such as were contained in the aforementioned Patent of Toleration, was guaranteed to all confessions recognized by law in the state.[7] By the state law of 21 December 1867, complete freedom was proclaimed to all confessions recognized by law in the state, including the Orthodox Church. “Complete freedom of faith and conscience is guaranteed to everyone; the enjoyment of civil and political rights is independent of religious confession, but that religious confession cannot free anyone from the performance of the civil-political duties of the state; no one may be compelled to a religious act or to participation in any church ceremony, insofar as he is not, by the authority of some third party, subject by law to being so compelled”—so reads Article 14 of the said law, while Article 15 says: “Every church and every religious community which is recognized by law has the right to profess its faith publicly and jointly, to arrange and administer its internal affairs independently, to possess and enjoy its institutes, endowments, and property, destined for worship, instruction, and charity, but is subject, like every other community, to the general laws of the state.”[8]

CHAPTER TWO. The Church and the members of other faiths.