Spanish Ecclesiastical Law: A Comprehensive Overview

Posted on Nov 19, 2024 in Law & Jurisprudence

Lesson 5: Sources of Spanish Ecclesiastical Law

Introduction

The sources of law are fundamental to any legal system. Understanding how law originates within a system is crucial for any legal expert. Issues of legality, hierarchy, and the interplay of norms are directly linked to the source of law. This understanding is essential in Spanish ecclesiastical law, which has unique characteristics within the broader legal framework.

While there’s general agreement on the importance of studying legal sources, discrepancies arise when defining the concept, classification, hierarchy, and interrelation of these sources. This is also true within ecclesiastical law. Following Federico de Castro’s proposals, we distinguish between formal and material sources. Discrepancies arise in the approach, assessment, and interpretation of these sources (Souto).

Ecclesiastical law addresses religious matters with societal impact. Civil legislative bodies are the primary sources of ecclesiastical law. However, rules from religious authorities can be effective within the state through a process of nationalization, where the civil authority validates the religious rule.

This lesson focuses on formal sources: those with binding force mandated by the legislative body (De Buen). We’ll examine the main legal texts constituting the core of Spanish ecclesiastical law.

Each legal area has specific sources. General rules intersect with specific ones. This is particularly important in ecclesiastical law, which has several unique circumstances (Roca):

  • Lack of a Unified Code: Unlike other legal areas, there’s no single code. Regulations are dispersed throughout the Spanish legal system, embedded within civil, commercial, tax, and criminal law. All rules explicitly or implicitly referring to religious freedom and denominations are considered sources.
  • Difficulty of Systematization: The breadth of sources makes systematic study challenging. Varied criteria for systematization exist, reflecting the relative novelty of the subject and the dynamic nature of social variations.
  • Decentralization of Lawmaking: The proliferation of legal rule producers has affected ecclesiastical law, leading to state, regional, and community-level variations.
  • Limited Role of Custom: The statist nature of ecclesiastical law limits the role of custom, unlike its growing importance in fundamental rights.
  • Overlap with Other Disciplines: The recent emergence of ecclesiastical law and the multiplication of sources have led to overlap with other legal disciplines (e.g., ecclesiastical criminal law, ecclesiastical tax law) and the need for basic knowledge of religious orders.
  • Agreements as Sources: The existence of pacticio sources is a key element.
  • Importance of Judicial Interpretation: Legal judgments and administrative rulings are crucial for interpreting vague legal concepts like conscience, religion, or religious purposes.
  • Unilateral and Bilateral Sources: Traditionally, sources are classified as unilateral (originating from state legislative activity) or bilateral/pacticias (from agreements with other states or religious groups). This duality is a defining feature. While both are sources of Spanish ecclesiastical law, this classification can lead to misunderstandings (Garcia Garate).
  • Dispersed Unilateral Sources: Genuine unilateral sources emanating solely from the state regulate religious activity (e.g., Religious Freedom Act). These can be specific provisions or qualifications within general provisions.
  • Bilateral Sources and Their Legal Nature: These range from international conventions to agreements with religious groups. Their legal nature within the state system poses challenges for systematic classification, legal status, and degree of attachment to state legal sources.

1. Unilateral Sources

Unilateral sources are classified according to the hierarchy of norms established in the Constitution (Art. 9.3, supplementing Art. 1 of the Civil Code).

The Spanish Constitution

The 1978 Constitution is the ultimate source of ecclesiastical law. It secures rights and liberties and regulates the state’s political organization. It protects the religious dimension of Spaniards and the freedom of religious denominations.

Key precepts related to religious matters include:

  • Art. 14 (principle of equal treatment regardless of religion)
  • Art. 27.3 (parental rights on religious and moral education)
  • Art. 16 (the state’s position on religion)

Articles 32 (marriage), 39 (family), 46 (artistic and historical heritage), 9.2 (equality and freedom), and Article 1 (superior values of equality and freedom) are also relevant.

The Constitution’s supremacy stems from its programmatic nature. Fundamental rights become effective when implemented through specific legislation (organic laws, ordinary laws, etc.).

The Constitution incorporates international human rights instruments (Art. 10), which serve to interpret fundamental rights.

The Religious Freedom Act

The Religious Freedom Act (LOLR, July 5, 1980) develops Art. 16 of the Constitution. It was a novel law, the first of its kind, and has served as a model for other countries. It replaced the 1967 Act, which subordinated religious freedom to the Catholic Church.

The LOLR establishes a single legal framework for all denominations. However, it’s not the sole source governing the religious factor, and it doesn’t fully address the Catholic Church’s unique status. While applicable to all, its practical relevance primarily affects non-Catholic denominations, creating a duality of legal regimes.

Key articles of the LOLR:

  • Art. 1: Recognizes and develops constitutional principles.
  • Art. 2: Defines the content of religious freedom based on international instruments.
  • Art. 3.1: Limits the exercise of religious freedom based on public order (health, safety, morals).
  • Art. 3.2: Excludes activities unrelated to religious content from protection.
  • Arts. 4-8: Address judicial protection, registration of confessions, agreements, autonomy of religious entities, and administrative bodies promoting religious freedom.

Other Unilateral Sources

Due to the lack of a unified code, numerous state regulations govern the religious phenomenon, either specifically or incidentally. Examples include Royal Decree 142/1981 (Register of Religious Entities), Royal Decree 1159/2001 (Advisory Commission on Religious Freedom), and Law 30/1981 (marriage regulation).

Political decentralization has led to regional ecclesiastical law. While Autonomous Communities are not responsible for regulating religious freedom or the general system of faiths, they have delegated powers affecting religious matters (e.g., historical heritage, religious care in public centers, religious holidays, teaching, social services). This creates varied regional approaches within constitutional principles.

2. International Regulations Regarding Religious Freedom

International law increasingly affects individuals’ daily lives. Art. 10.2 of the Constitution mandates interpreting fundamental rights in accordance with international human rights instruments. This limits national sovereignty in matters of universal human rights.

Two fields of international law are relevant: universal law and European law.

A) Universal Law (United Nations)

The UN has addressed religious discrimination through general human rights documents and specific documents on religious intolerance. Key documents include:

  1. UN Charter (1945): Proclaims universal respect for human rights, equality, and non-discrimination (Arts. 13, 55).
  2. Universal Declaration of Human Rights (UDHR, 1948): Recognizes the right to freedom of thought, conscience, and religion, including the freedom to change and manifest religion or belief (Art. 18).
  3. International Covenant on Economic, Social and Cultural Rights (1977): Guarantees rights without discrimination (Art. 2.2) and addresses religious freedom in education (Art. 13).
  4. International Covenant on Civil and Political Rights: Distinguishes between the freedom to have a religion (absolute and unlimited) and the freedom to manifest a religion (subject to limitations) (Art. 18). Connects freedom of belief with religious and moral education.
  5. UN Convention on the Rights of the Child (1989): Recognizes children’s right to freedom of thought, conscience, and religion (Art. 14).
  6. UN Declaration on the Elimination of Religious Intolerance (1981): Emphasizes non-discrimination in children’s education (Art. 5).
  7. Declaration on the Rights of Minorities (1990): Recognizes the right to profess and practice religion (Art. 2).

B) European Law

Two scenarios exist: countries within the Council of Europe and the European Union.

a) Council of Europe:

  • European Convention on Human Rights (1950): Protects freedom of thought, conscience, and religion (Art. 9), mirroring Art. 18 of the UDHR.

b) European Union:

Initially focused on economic cooperation, the EU has increasingly recognized fundamental rights. Key developments include:

  • Single European Act (1986): Member States commit to promoting democracy based on fundamental rights.
  • Treaty on European Union (1992): Respects fundamental rights as guaranteed by the European Convention (Art. 6).
  • Treaty on the Functioning of the European Union (Lisbon Treaty, 2007): Respects the status of churches and religious associations (Art. 17).
  • Charter of Fundamental Rights of the European Union (2000): Recognizes fundamental rights, balancing respect for national identity with EU law.

The Court of Justice of the European Communities has played a role in protecting religious freedom, particularly in employment cases.

3. Agreements Between the Holy See and the Spanish State

The Catholic Church has a history of agreements with states to regulate mixed matters (issues concerning both state and church) and define the Church’s legal position. These agreements, known as Concordats, are bilateral treaties between the Holy See and the state.

Spain has had multiple agreements with the Catholic Church (1753, 1851, 1953). While the 1953 Concordat is no longer in force, it influenced relations until the 1978 Constitution. Current agreements include:

  • 1962: Recognition of civil effects of non-ecclesiastical studies.
  • 1976: Appointment of bishops and prosecution of clergy.
  • 1979: Four agreements replacing the 1953 Concordat, covering legal matters, economic issues, education and culture, and religious assistance to the armed forces.

Subsequent agreements, like the 1980 agreement on corporation tax, follow Spanish legal forms (decrees, orders).

Key aspects of these agreements:

  • Legal Nature: The 1979 agreements, along with those from 1976 and 1962, are international treaties, recognized by the Constitutional Court (STC 66/1982). They are binding and require both parties’ legal systems to be consistent.
  • Elements of the Relationship: Negotiations involve the Holy See (represented by Section II of the Secretariat of State) and the Spanish government. The process includes negotiation, signature, ratification by Parliament, and promulgation.
  • Interpretation: Doubts are resolved by mutual agreement.
  • Termination: Termination or suspension is governed by international law, including mutual agreement, termination clauses, serious violations, application of rebus sic stantibus, and changes affecting state sovereignty.

4. Agreements with Faiths Other Than Catholicism

Agreements with non-Catholic faiths are a characteristic source of Spanish ecclesiastical law, reflecting religious plurality. Art. 16 of the Constitution establishes the principle of cooperation with religious faiths. Art. 7.1 of the LOLR implements this by allowing for agreements with registered faiths with notable roots in Spain.

  • Legal Nature: These agreements are unilateral state laws, reflecting the state’s commitment to religious institutions. While formally unilateral, they have bilateral content (Fornes). They are sui generis conventions of domestic public law.
  • Subjects Involved: The Spanish government (Ministry of Justice) negotiates, Parliament approves, and the King sanctions and promulgates. Religious denominations are represented by legitimate organs, often federations representing multiple communities (e.g., Federation of Israelite Communities of Spain, Federation of Evangelical Religious Entities of Spain, Islamic Commission of Spain).
  • Procedure: The proposal is submitted to the General Directorate of Religious Affairs, negotiated, reviewed by the Advisory Commission on Religious Freedom, signed, and approved by Parliament as an ordinary law.
  • Content: The LOLR doesn’t specify content, which is determined by agreement. The 1992 agreements cover legal personality, religious functions, festivals, places of worship, ministers, social security, marriage, religious assistance, education, finances, taxation, and historical heritage.
  • Interpretation: Guided by mutual agreement, often through a Mixed Commission.
  • Termination: Can be terminated with six months’ notice and are subject to revision.

5. Other Sources of Ecclesiastical Law

Apart from the sources of ecclesiastical law already mentioned, there are other sources of secondary, but no less important. We refer to the value of constitutional jurisprudence, especially as a source of law, decisions of the Administration and the reception state of religious orders.
A) A realistic analysis of the sources of law necessarily requires reference to the Constitutional Court. There are several, the functions performed by the High Court, but two issues primarily affect our subject: a) the resolution of technical resources for defense and protection of fundamental rights, including religious freedom, and b) the resolution of resources or issues of unconstitutionality. Well just this second function directly affects the subject of the sources.
It is not easy to specify the value judgments of the Constitutional Court has on the system of sources, as this court is not a judicial body and its function is to prosecute or enforce judgments. However, because this Supreme Court acts as a negative legislator “when declaring the unconstitutionality of a law or precept, and has an interpretative function, explicitly recognized by the art. 5.1 of the Organic Law of 1986 when he says: “Judges and courts can challenge and apply the laws and regulations according to the precepts and constitutional principles as interpreted by them resulting from the decisions of the Constitutional Court ‘ – leads to the doctrine to consider the judgments of this Court are to be located in the hierarchy of norms, immediately after the Constitution and above all other sources of law.
While this view is disputed, the following reasons we hold the side of the option identified. Thus, when the Constitutional Court declares that a particular regulatory provision is contrary to the Constitution, what it does is an act by which rejects as “non standard” or “no law” that provision. Decision that can not resist ordinary legislator. Moreover, as the constitutional mandates not have a univocal meaning, accurate and not debatable, since the
Constitution is littered with concepts that require a legal interpretation for its application that the interpretation made by the High Court is the premium over any other that may give a different court or the ordinary legislator. But is that even should be noted finally that the Constitutional Court can create law not only when limited to abolish a rule of order, but when you make a broad interpretation or analog of a law in force or when he gives life to a new available from some constitutional interpretation. Example of this is the right to object to abortion, not being explicitly recognized in any standard, however is exercised from that that Court stated, in ruling of 11 April 1985, that “it should be noted, so concerns the right to conscientious objection exists and can be exercised regardless of whether it was given or not such regulation. Conscientious objection is part of the contents of the fundamental right to ideological and religious freedom recognized in the art. 16.1 of the Constitution. ”
Also, the Supreme Court’s jurisprudence and the Audiencia Nacional of particular interest to the ecclesiastical law. The decisions of these courts on matters affecting religious freedom may become generally applicable rules.
B) The Administration appears, increasingly, as an authentic source
Right. Sometimes performs tasks of the legislature following the challenge
to Delegalization techniques involving a legislative delegation to
executive, but should also say that the rule which is usually
is applied by the authorities. In regard to religious freedom Citizen
often go to the Administration to exercise their rights and resolution
thereof, is making decisions that set the standard for future conflict
similar characteristics.
Among the administrative bodies whose decisions affect more directly to religious matters, include the General Directorate of Religious Affairs and the Advisory Commission on Religious Freedom, dependent on both the Ministry of Justice.
C) Finally, we must refer to the reception state of the systems
confessional, as special characteristics of the ecclesiastical law concerning
sources.
In those democratic states, for Spain, where legal systems are reported, among others, by the principle of religious freedom, it is quite common ecclesiastical law and take into account certain effects attributed to norms that belong to other religious orders . In our country we are, by tradition, the prevailing religious system has been the Catholic Church, which remains valid today. To determine how the connection is established between Spanish law and canon law must stop at the following key mechanisms: referral or referral and budget.
a)) Reference: consists of giving effect to rules of origin civil confessional. Depending on how this is done we can talk for reference material or formal. The first one, also called recepticia, does not involve a declaration by the state of competition law to regulate certain matters religious. In this case just received in the state law rules from another system. As an example, include the recognition of the Civil Code of marriages concluded under the provisions of law. In the case of formal referral or recepticia not, however, state law recognizes the jurisdiction of a different order-the-denominational governing a particular legal relationship, and provides efficiency in their own sphere in the relations arising under the order competent. For example, the existing legal agreement with the Holy See, in its art.1.3 recognizes the juridical personality of the Spanish Episcopal Conference.
b)) The budget. Is the consideration of the canonical norm as presupposition or assumption made by the state standard. This figure arises when, legally discipline a particular material, is part of concepts that do not originate in the order itself, but take a different phenomenological field. For example, terms such as dioceses, parishes, bishops.