SEPARATISM AND JURISDICTIONALISM.
1. The possible systems of relations between State and Church would be, according to a well-known classification, caesaropapism (v. CESARISM) or theocracy (v.), g. and s.
Jurisdictionalism is in turn 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 by the pre-eminence of the civil power (iurisdictio) over the whole activity of the Church (ius inspiciendi, ius cavendi, ius advocatiae, ius reformandi), by the State's adherence to a particular religious confession, whereby the State prided itself on protecting the Church but at the same time supervised its every act. A typical example of such a system of relations between State and Church was the Austria of Maria Theresa, who, having proclaimed herself supreme advocata Ecclesiarum, while recognizing particular privileges for ecclesiastical bodies (which juridically presented themselves as indirect organs of the civil authority), claimed to subject even excommunications and public penances to sovereign control (v. REGALISM).
Non-confessional jurisdictionalism, in which the pre-eminence of the civil power was not accompanied by the State's adherence to a particular religious confession, has historically assumed two different attitudes: a) state action directed at promoting all religious confessions (a system implemented in the 19th century by Germany and by France before the law of separation); b) state action directed at curbing the so-called abuses of the limited attributions recognized to them by the civil power (a system implemented by France after the law of separation of 1905, by Portugal, and hoped for in Italy by the left-wing currents after unification).
The most common categories of the iura maiestatica circa sacra claimed by the princes of the confessional jurisdictional States were the ius advocatiae or protectionis (by virtue of which the sovereign, as guarantor of the unity of the Churches and of the purity of the faith against apostasy, heresy and schism, exercised a true and proper ecclesiastical power like the Sicilian sovereigns) and the ius reformandi (the sovereign's faculty to carry out within the Church the reforms considered necessary for the correct functioning of ecclesiastical bodies). The typical institutions of jurisdictionalism, including non-confessional jurisdictionalism, falling within the so-called ius cavendi and ius inspiciendi, were the ius nominandi (indirect or direct appointment of the holders of ecclesiastical offices); ius ecclesiae (the so-called non-acceptance of a particular ecclesiastic for a particular office); ius placiti regii or placet and exequatur ([v.] approval both preventive and administrative); sequestration of temporalities (the civil power's faculty to sequester ecclesiastical benefices both for bad administration on the part of the holder and as a sanction against the holder's political conduct); ius appellationis or appellatio ab abusu (the faculty of the faithful or of the subject to appeal to the civil power against acts of ecclesiastical authority: v. APPEAL FOR ABUSE); ius dominii eminentis (the sovereign's right to exercise eminent domain also over the patrimonies of ecclesiastical goods, administering them during the vacancy of the office, or else confiscating them in the interest of the State).
In the second half of the 19th century, through the work especially of the moderate lay currents and of the so-called liberal Catholics, a system established itself which, although calling itself jurisdictionalist, departed notably from the systems recalled above, in that it not only renounced the old and blunted means of ancient jurisdictionalism (exequatur and placet in statutory and police matters), but recognized for the ecclesiastical power a sphere of autonomy which, however, was determined exclusively and unilaterally by the State. This was the new or liberal jurisdictionalism, whose most complete elaboration is owed to Giuseppe Piola, who started from a close and objective critique against the separatist conception, which wanted the Church to be considered as a private association. "To give liberty to any power whatsoever (Piola) cannot consist in treating that power differently from what it naturally is, but consists on the contrary in fully recognizing the mode of being and acting proper to that power, in a word its nature."
2. Separatism, on the other hand, started from the principle that the State had neither a faith nor a religion of its own, and therefore could not judge, among religious doctrines, which was the true one. The State should have limited itself to providing the general conditions for the free development of all faiths, through the separation of State from Church, and "removing from juridical institutions whatever still remains in them of traditional confessionalism and establishing a regime equal for all cults, or rather reducing the regime of cults to common law."
When doctrine sought to grasp and systematize the juridical concept of separation, the opinions expressed by writers were various. From Hinschius's conception, that separatism is the system in which the Churches are subject to the law of private associations, to that accepted especially by the Italian liberals of the second half of the 19th century — and synthesized by the Cavourian formula "a free Church in a free State" — according to which separation required that religious confessions fall within the sphere of common law; Rothenbücher went so far as to affirm that separation is realized when the organization of the Churches is left entirely to the free will of the faithful. Checchini, who has recently reworked the problem in its entirety, holds that the classification of relations between State and Church in a political sense ("relations of an internal, spiritual order between the State and religion") must be distinguished from that in a juridical sense ("relations pertaining to the external, formal order between the two institutions and their respective legal orders") and reaches the conclusion that there is separation when there is "distinction, mutual autonomy of the two organizations, exclusion of interference between the two legal 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 there is also separation in the juridical sense when, "all interference between the two legal orders being excluded, the State nevertheless recognizes the hierarchical constitution of the Church, its nature as a societas iuris perfecta, as an institution bearing an original legal order."
3. One cannot fail to note that the aforementioned qualifications (analysis of the substantial realities of a system) do not have an absolute but only a relative value. Nevertheless, the skepticism manifested by a distinguished writer (Falco), who proclaimed the vanity of all efforts directed at fixing the essence of separation, does not seem to be shared, since these are evaluations, derived from the technical means adopted to regulate the relations between civil power and ecclesiastical power, which "affect the structure and the physiognomy" of such relations (Fedele). Rather, emphasis must be placed on the circumstance that such qualitative investigations can be conducted neither with a strictly juridical method nor with an exclusively historical-political method, but that we are faced with one of those phenomena that must be studied by seeking the relations between the formal and the substantial elements (historical-juridical method). On such bases one realizes that the effort directed at fixing the concepts recalled above is not useless.
4. If, for example, one limits oneself to examining the relations between the Italian State and the Catholic Church from 1861 to 1870, in order to classify them under one of the three types set out above, one will see that both separatism and confessional jurisdictionalism must be excluded. In fact, separatism took concrete form in the absolute impartiality and non-confessional character 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 a legal order that sets out to deny that the religious end postulates a general interest of juridical relevance cannot recognize the public character of the organizations that pursue that end. When, during the discussion of the law of the pontifical guarantees (v.) (Dec. 1870 - Apr. 1871), the implementation of the theoretical principles of separatism was proposed (expressly condemned by the Syllabus of Pius IX), even the most ardent exponents of the Cavourian formula realized the practical impossibility of sanctioning such a doctrine by legislation, since they would have had to deny the Catholic Church the character of a public power and, consequently, reduce the regulation of the Catholic cult to common law. This observation makes it possible 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 to religious confessions their public-law character and identifies them with private associations.
5. The typical jurisdictionalism is undoubtedly the confessional one, implemented by the Catholic States of the 18th century and manifested in a special and privileged law, at the basis of which lay the affirmation of the exclusive sovereignty of the State (regalist principle), attenuated by the adherence of the State itself to the beliefs of a particular religious confession, but without any defined sphere of competence being recognized for the religious power; and with the specification that the activities of ecclesiastical bodies could not become juridically relevant without a manifestation of will by the State, which precisely exercised intrinsic controls, similar to those that in state public law the superior hierarchical organ carries out with regard to subordinate organs and bodies, the most conspicuous of which was substitutive control (appeal ab abusu). It has already been said how the Austria of Maria Theresa and Joseph II constitutes the typical example of the confessional jurisdictional State, where precisely the privileged confession paid dearly for such privileges with a subjection to civil authority that extended from the administration of ecclesiastical property to the choice of ministers of worship (v. REGALISMO).
6. The pre-Concordat Italian legislation, and in particular the law of 13 May 1871 on the prerogatives of the Supreme Pontiff and on the relations of the State with the Church, although starting from the then proclaimed principle of a lay and agnostic State in religious matters (a premise common to separatism and to non-confessional jurisdictionalism), considered the religious end as a public end, with the consequence that the Catholic confession and its organs and bodies were relevant for public law. There was affirmed, therefore, the principle, expressed only indirectly, of a recognition of the Catholic Church as an original body and of its traditional structure. With the aforementioned law of 13 May 1871 the State renounced almost all the controls of the old jurisdictionalism, whether confessional or non-confessional, and accordingly abolished «every special restriction on the exercise of the right of assembly of the members of the Catholic clergy» (art. 14); it renounced the right of the apostolic legation in Sicily and the right of appointment or presentation in the collation of the major benefices throughout the kingdom (art. 15), the exequatur, the placet and every other form of governmental assent to the acts of ecclesiastical authority, with the exception of the provision of major and minor benefices (art. 16), as well as the appeal ab abusu (art. 17), but it claimed, on the other hand, the power to exercise controls over ecclesiastical property. The specific reference to the Italian legislation of the period 1861-1929 seems to demonstrate how the classifications mentioned above can have a concrete application; in fact, it has been pointed out how such a system cannot be defined as either separatist or confessional or non-confessional jurisdictionalist, but constitutes a tertium genus of jurisdictionalism; inasmuch as, from the political point of view, it found its basis in liberal conceptions and, from the juridical point of view, in the recognition of the Church as an autonomous and original body pursuing ends that lie outside both the merely private field and that of state public law. The relevant relations, therefore, were not subject to the regulation of common law, but to a necessarily special discipline which, while reaffirming the pre-eminence of state power, unilaterally recognized for the Church considerable spheres of autonomy (interna corporis) excluded from any interference by civil power.
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