Svoboda a právo v perspektivě obratu konstantinovského a za Jana XXIII

Abstract

Two events constitute the historical structure of the hereby study and an impulse to undertake reflection upon the contemporarily significant – e.g. within the area of the broadly defined ecumenia – the topic of the relationship between: freedom and law, in the depiction of the Catholic Church. The Edict of Milan, published jointly by the Emperors of the western and eastern part of the Empire 1700 years ago, established the freedom of religion in the Roman Empire. This epochal step taken by Emperor Constantine the Great – for the Emperor of the western part of the Empire is believed to have been the initiator and executor of the transformation process – is referred to as the "Constantinian turn", initially denoting the equality of rights of the Christian Church and other religions (from that moment on Christians, after the period of persecution, could, without impediments, practice their religion), and additionally bonded the Church with the state to such an extent that Christianity became the official religion of the Imperium Romanum. 50 years ago, almost on the eve of the ecumenical Second Vatican Council, Pope John XXIII., a great promoter of the aggiornamento of the Catholic Church and its law (Codex Iuris Canonici), published the celebrated encyclical Pacem in Terris. The connection between this document and the vital issues of Vaticanum II is so fundamental and deep that the name of the above‑mentioned Pope deserves to even be more associated with the breakthrough/turn of the Second Vatican Council – in the legally relevant areas of: ecclesiology (Lumen Gentium Constitution), ecumenism (Unitatis Redintegratio Decree, Nostra Aetate Declaration) and religious freedom (Dignitatis Humanae Declaration). Suffice it to say, that the basic doctrinal premise of the "Encyclical of the Love for Man" (as it was acclaimed by the commentators) is a thesis regarding the natural and supernatural dignity of a human being, which is derived directly from God’s Natural law (PT, n. 3). This is precisely where the answer to the question – are why the rights of a human being primary and inalienable (PT, n. 9, 145) and as such cannot be confined or abolished by any human authority (PT, n. 60) – is to be found. We shall also descry the affirmation of the Augustinian postulate: credere non potest (homo) nisi volens (In Evangelium Iohannis Tractatus, 26,2), leading to a renewed – ingrained in tradition – approach on the part of the Catholic Church to the issue of religious freedom (Let us add: an approach significantly different from the preconciliar religious tolerance). A sentence from the Encyclical is helpful informing us that: “also among Man’s rights is that of being able to worship God in accordance with the right dictates of his own conscience, and to profess his religion both in private and in public” (PT, n. 14). This constitutes a forerunner to the acclaimed proclamation from the conciliar declaration on religious freedom: "It is one of the major tenets of Catholic doctrine that Man’s response to God in faith must be free: no one, therefore, is to be forced to embrace the Christian faith against his own will. This doctrine is contained in the word of God and it was constantly proclaimed by the Fathers of the Church" (DH, n. 10). The doctrinal context, outlined in such a way, allows for the fundamental determinants of the canon law to be more precisely displayed (in the titular ecumenical vista), namely: in the general depiction – the originality of Communion Law, which can clearly be defined by means of Ecclesia iuris; in the detailed depiction – (1) religious freedom and, tightly related to it, the integral and living overtone of depositum fidei, as fundamental principles of the legal order in the Church, (2) the sameness of the aim of the Church law ad intra and ad extra in putting into effect the divine‑human Communio, (3) the synodal character of the Church’s structure, which permits references to the Church law as the order of service (diakonia), (4) the universal mission of the Church and the ecumenical opening towards the world related to it, which determines the open position the science of canon law adopts towards the legal culture of every environment in which the Church is present and where it functions.