Wolność religijna w Hiszpanii na tle przemian społeczno- politycznych w latach 1931-1992

Abstract

During some periods of the Middle Ages, the Iberian Peninsula enjoyed a tolerance which made coexistence among people who professed Catholicism, Judaism and Islam possible. Nevertheless — due to many internal and external circumstances — first in the Medieval and then in the Modern Era, the idea of a close relationship between what was “Spanish” and what was “Catholic” was consolidated in Spain. This idea of unity of political, social and religious plans was materialized in the first constitutions: the Statute of Bayons (1808) and the progressive Constitution of Cadiz (1812). The confessional character of the State assumed by Cortes de Cadiz marked for the future, not only the legislation of the traditional, but also the liberal monarchy. The idea of religious liberty in its individual and collective dimension, as well as, the idea of separation between State and Church, were unknown in the constitutions of 1837, 1845, and 1876. The radical change from this tradition appeared in the constitution of 1869 and in the bill of the republican fundamental law of 1873. The first of these, avoiding any declaration with respect to the confessional or secular character of the State, implanted effective tolerance in favor of non-Catholic cults. At the same time, considering the Catholic Church as a majority religious community with a special role in the history of the Spanish State and nation, the Church was guaranteed privileged treatment. The same did not occur with the constitutional project of 1873. Many regulations were included which underestimated the collective dimension of the religious phenomenon and consequently were detrimental to the collective subjects of religious liberty (principally to the most numerous religious community, that was, the Catholic Church). The monograph analyzes religious liberty in Spain in the years 1931—1992 covering in its study the legislation of the three periods: the Second Republic, franquist Spain, and the present constitutional monarchy. The norms of the first two periods mentioned above reflected two different ways to regulate the religious liberty and relations between State and Church — legislative duality of the “two Spains” (dos Españas). The “first” of these built its norms around the idea of unity of the political, the social, and the religious dimensions. The “second” — giving up this idea — declared the religious liberty of the individual, intending at the same time, to limit what is religious from the social and political dimensions of the life of Spaniards. The norms of the present constitutional monarchy distinguish themselves by their intent to exceed, for the first time in the Spanish legal history, the legislative duality of the “two Spains” concerning the State — Church relations and religious liberty in its individual and collective dimension. In order to better understand the sociopolitical circumstances that accompanied the formation of the republican, franquist and constitutional monarchy norms, in each part of the book, the historical context of the corresponding period is analyzed. In this way, the role of sociopolitical circumstances, which determined, up to a certain point, the course of the legislative processes and the final drafting of the established normative texts is highlighted. The first part of the monograph describes the historical context of the theme of religious liberty in Spain (from the 6th to the 19th century). The framework of this study includes an analysis of topics such as: the role of Catholicism in the process of the birth of the monarchy and the Spanish nation, the State — Church relations up to the downfall of the monarchy in 1931, the idea of “two Spains”, and the anticlericalism of the 19th century. The second part examines religious liberty in the Second Republic. It analyzes the republican legislation, which is characterized by a radical attitude toward the confessional character of the State and tends toward separation of Church and State. First, it describes parliamentary debate over the projects of constitutional regulations of religious liberty, and then it moves to the interpretation of the 3rd and 26th—27th articles of the constitution, which declared and regulated this liberty. It analyzes, among other things, the Law related to Confessions and Religious Congregations, the decree which declared the dissolution of the Society of Jesus in Spanish territory, and the acts which reformed the matrimonial system. The third and fourth parts contain the study of religious liberty in franquist Spain. The third covers this theme from the beginning of military operations in 1936 until the Second Vatican Council; the fourth — from the Council up to the death of General Franco in 1975. The conciliar teaching concerning religious freedom expressed in the declaration Dignitas humanae — put in the context of the second principle of the Law of Principles of the National Movement of 1958 — forced the state legislator to introduce important changes into the Spanish legal system in order to harmonize it with Catholic doctrine. Keeping in mind this significant role of the conciliar doctrine in the transformation of state law, the monograph treats separately preconciliar and postconciliar Spanish legislation of religious liberty. The third part, first studies the normative acts which were abolishing republican legislation, and then those acts, which in franquist Spain, were regulating the rights and obligations of Catholics and non-Catholics, as well as, State — Church relations. The fourth part analyzes the texts of the Organic Law of the State and the Charter of Spaniards’ Rights (Fuero de los Españoles), which were reformed under the influence of the conciliar doctrine. Then, it interprets the first Spanish law of religious liberty (of 1967). The last, fifth part, is a study of religious liberty in the current constitutional monarchy. The examination of sociopolitical reality in which normative acts ware formed is completed by the study of the parliamentary debate. This permits, even in a better way, to show that specific texts of the constitution are rooted in positions represented by the members of the constitutional assembly. In the last part, besides an analysis of the regulations of the fundamental law of 1978, the organic law of religious liberty of 1980 is also analyzed, as well as, the agreements of the concordat of 1976 and 1979 and the agreements of 1992 signed between the Spanish State and minority confessions assembled in the Federation of Evangelical Religious Entities of Spain, the Federation of Israelite Communities of Spain and the Islamic Commission of Spain. The book is composed of an analysis and comparison of the three chronologically successive and, at the same time, very different periods in what concerns regulative norms of religious liberty. It allows us to understand the three different systems of Church-State relations, as well as, three — respectively for each periodways of understanding this liberty and the embodiment of this understanding in legislative practice.