SEPARATISM AND JURISDICTIONALISM
1. The possible systems of relationship between State and Church would, according to a well-known classification, be Caesaropapism (v. CESARISMO) or theocracy (v.), jurisdictionalism and separatism.
Jurisdictionalism is further subdivided into confessional, non-confessional, and liberal or new. Confessional jurisdictionalism, defined as “the opposite of the theocratic form within the system of union” (Del Giudice), was characterized, besides the pre-eminence of civil power (jurisdictio) over all Church activity (ius inspiciendi, ius cavendi, ius advocatae, ius reformandi), by the State’s adherence to a particular religious confession, whereby the State gloried in protecting the Church but at the same time supervised every act of the Church. A typical example of this system of relations between State and Church was Austria under Maria Theresa, who, proclaimed supreme advocate of the Churches, while granting particular privileges to ecclesiastical organs (which juridically presented themselves as indirect organs of civil authority), claimed to subject even excommunications and public penances to sovereign control (v. REALISMO).
Non-confessional jurisdictionalism, in which the pre-eminence of civil power was not accompanied by the State’s adherence to a particular religious confession, historically assumed two different attitudes: a) state action directed to promoting all religious confessions (system implemented in the 19th century by Germany and France before the law of separation); b) state action directed to restraining the so-called abuses of the limited powers recognized to them by civil authority (system implemented by France after the 1905 separation law, by Portugal, and advocated in Italy by left-wing currents after unification).
The most common categories of the iura maiestatica circa sacra claimed by the princes of confessional jurisdictionalist States were the ius advocatae or protectionis (by virtue of which the sovereign, as guarantor of the unity of the Churches and the purity of the faith against apostasy, heresy, and schism, exercised a veritable ecclesiastical power, as did the Sicilian sovereigns) and the ius reformandi (the faculty of the sovereign to implement within the Church the reforms considered necessary for the proper functioning of ecclesiastical organs). The typical institutions of jurisdictionalism, even non-confessional, falling under the so-called ius cavendi and ius inspiciendi, were the ius nominandi (indirect or direct appointment of the holders of ecclesiastical offices); ius exclusivae (the so-called non-acceptance of a particular ecclesiastic for a particular office); ius EXEQUATUR E PLACET (v.) (preventive and administrative approval); sequestration of temporalities (the faculty of civil power to sequester ecclesiastical benefices either for poor administration by the holder or as a sanction against the holder’s political conduct); ius appellationis or appellatio ab abusu (the faculty of the faithful or subject to appeal to civil power against acts of ecclesiastical authority; V. APPELLO PER ABUSO); ius dominii eminentis (the right of the sovereign to exercise eminent domain even over the assets of ecclesiastical goods, administering them during vacancies of office or incorporating them in the interest of the State).
In the second half of the 19th century, especially through the efforts of moderate secularist currents and the so-called liberal Catholics, a system emerged which, although called jurisdictionalist, diverged considerably from the systems recalled above, in that it not only renounced the old and blunt means of ancient jurisdictionalism (exequatur and placet in statutory and police matters), but also recognized an area of autonomy for ecclesiastical power that, however, was determined exclusively and unilaterally by the State. This was the new or liberal jurisdictionalism, whose most complete elaboration is due to Giuseppe Piola, who proceeded from a rigorous and objective critique of the separatist conception, which wished the Church to be considered as a private association. “To grant freedom to any power (Piola) cannot be considered in treating it differently from what it naturally is, but consists rather in fully recognizing the mode of being and acting proper to that power, in a word, its nature.”
2. Separatism, on the other hand, proceeded from the principle that the State had neither its own faith nor its own religion, and therefore could not judge which of the religious doctrines was the true one. The State should limit itself to providing the general conditions for the free development of all faiths, through the separation of State from Church, and “removing from legal institutions whatever still remains in them of traditional confessionalism and establishing a regime equal for all cults or, better, reducing the regime of cults to common law.”
When doctrine sought to grasp and systematize the juridical concept of separation, various opinions were expressed by writers. From the conception of Inchius, that separatism is the system in which Churches are subject to the law of private associations, to that accepted especially by Italian liberals in the second half of the 19th century—and synthesized in the Cavourian formula “a free Church in a free State”—according to which separation required that religious confessions be brought within the sphere of common law; Rothenbücher went so far as to assert that separation is realized when the organization of Churches is left entirely to the free will of the faithful. Checchini, who has recently reworked the problem in its entirety, holds a different view, distinguishing between the classification of relations between State and Church in a political sense (“relations of an internal, spiritual order between State and religion”) and in a juridical sense (“relations concerning external, formal relations between the two institutions and their respective orders”), and concludes that separation exists when there is “distinction, mutual autonomy of the two organizations, exclusion of interference between the two orders,” whereby the hypothesis that the State considers the Church as a simple association of private law realizes only “a species of the genus separation (the extreme form),” whereas juridical separatism also exists when, “with every interference between the two orders excluded, the State nevertheless recognizes the hierarchical constitution of the Church, its nature as a societas iuris perfecta, an institution bearing an original order.”
3. It cannot be denied that the aforementioned qualifications (analysis of the substantial realities of a system) do not have an absolute value but only a relative one. Nevertheless, it does not seem possible to share the scepticism expressed by a distinguished writer (Falco), who proclaimed the futility of all efforts directed to fixing the essence of separation, since these are evaluations derived from the technical means adopted to regulate relations between civil power and ecclesiastical power, which “affect the structure and physiognomy” of such relations (Fedele). Rather, emphasis must be placed on the circumstance that such qualitative investigations cannot be conducted either with a strictly juridical method or with an exclusively historical-political method, but that one is faced with one of those phenomena that must be studied by seeking the relations between formal and substantial elements (historical-juridical method). On such bases, one realizes that the effort directed to fixing the aforementioned concepts is not in vain.
4. If, for example, one limits oneself to examining the relations between the Italian State and the Catholic Church from 1861 to 1870, with a view to classifying them into one of the three types outlined above, it will be seen that both the separatist (s.) and the jurisdictional-confessional (g.) systems must be excluded. Indeed, the separatist system was concretized in the absolute impartiality and aconfessional nature of the State with regard to the religious phenomenon (political element) and consequently held that the organizations of the various cults should be subject to common law (juridical element), precisely because an order that aims to deny that the religious end posits a juridically relevant general interest cannot recognize the public character of the organizations that pursue such an end. When, during the debate on the Law of Guarantees (v.) for the papacy (Dec. 1870–Apr. 1871), the attempt was made to implement the theoretical principles of separatism (expressly condemned by the Syllabus of Pius IX), even the most ardent exponents of the coadjutant form realized the practical impossibility of legislatively sanctioning such a doctrine, since they would have had to deny the Catholic Church the character of a public power and, consequently, reduce the regulation of Catholic worship to common law. This realization allows one to exclude that the relations between Italy and the Catholic Church up to 1929 can be classified under the separatist system, inasmuch as that system denies religious confessions public-law status and equates them with private associations.
5. The typical jurisdictional-confessional system is undoubtedly the confessional one, implemented by Catholic States in the 18th century and manifested in a special and privileged legal order, based on the affirmation of the exclusive sovereignty of the State (regalist principle), tempered by the State’s adherence to the beliefs of a particular religious confession, though without recognizing a defined sphere of competence to the religious power; and with the clarification that the activities of ecclesiastical organs could not become legally relevant without a manifestation of State will, which in fact exercised intrinsic controls similar to those that, in State public law, the higher hierarchical organ exercises over subordinate organs and entities, the most far-reaching of which was the *appello ab abusu*. It has already been noted how the Austria of Maria Theresa and Joseph II constitutes the typical example of a jurisdictional-confessional State, where the privileged confession bore the brunt of such privileges with a subjection to civil authority extending from the administration of ecclesiastical property to the selection of ministers of worship (v. R. R. GALLICANISM).
6. Italian legislation prior to the Concordat, and in particular the law of 13 May 1871 on the prerogatives of the Supreme Pontiff and on relations between the State and the Church, though proceeding from the then-proclaimed principle of the lay and agnostic State in religious matters (a common presupposition of both the separatist and the aconfessional jurisdictional systems), nevertheless considered the religious end as a public end, with the consequence that the Catholic confession and its organs and entities were relevant to public law. The principle was thus affirmed—albeit only indirectly—of the recognition of the Catholic Church as an original entity with its traditional structure. With the aforementioned law of 13 May 1871, the State renounced almost all the controls of the old jurisdictional-confessional system, whether confessional or aconfessional, and therefore abolished “every special restriction on the exercise of the right of assembly of members of the Catholic clergy” (art. 14); it renounced the right of apostolic legation in Sicily and the right of nomination or proposal in the conferral of major benefices throughout the kingdom (art. 15), the *exequatur*, the *placet*, and any other form of governmental assent to acts of ecclesiastical authority, with the exception of the provision of major and minor benefices (art. 16), as well as the *appello ab abusu* (art. 17), but instead claimed the power to exercise controls over ecclesiastical property. The reference to Italian legislation of the period 1861–1929 seems to demonstrate how the aforementioned classifications can have concrete application; indeed, it has been pointed out how this system cannot be defined as either separatist or jurisdictional-confessional (whether confessional or aconfessional), but constitutes a *tertium genus* of the jurisdictional system; for, from the political point of view, it was based on liberal conceptions, and from the juridical point of view, on the recognition of the Church as an autonomous and original entity pursuing ends that lie outside both the merely private sphere and the public-law sphere of the State. The relations in question were therefore not subject to regulation by common law, but to a necessarily special discipline that, while reaffirming the preeminence of State power, unilaterally recognized in the Church significant areas of autonomy (*interna corporis*) excluded from any interference by civil power.