### SEPARATISM AND JURISDICTIONALISM
1. The possible systems of relations between State and Church are, according to a well-known classification, caesaropapism (v. CESARISMO) 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 (iurisdictio) over all Church activity (ius inspiciendi, ius cavendi, ius advocatiae, 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 its life. A typical example of this system of relations between State and Church was Austria under Maria Theresa, who proclaimed herself supreme advocata Ecclesiarum, while recognizing particular privileges for ecclesiastical organs (which juridically presented themselves as indirect organs of civil authority), yet claimed to subject even excommunications and public penances to sovereign control (v. REGALISMO).
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) statutory action directed to promoting all religious confessions (system implemented in the 19th century by Germany and France before the law of separation); b) statutory 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 advocatiae or protectionis (by virtue of which the sovereign, as guarantor of the unity of Churches and the purity of faith against apostasy, heresy, and schism, exercised a true ecclesiastical power, as did the Sicilian kings) and the ius reformandi (the faculty of the sovereign to carry out within the Church the reforms deemed necessary for the proper functioning of ecclesiastical organs). The typical institutions of jurisdictionalism, even in its non-confessional form, falling under the so-called ius cavendi and ius inspiciendi, were the ius nominandi (indirect or direct appointment of 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.] both preventive and administrative approval); sequestration of temporalities (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 (faculty of the faithful or subject to appeal to civil power against acts of ecclesiastical authority: V. APPELLO PER ABUSO); ius dominii eminentis (right of the sovereign to exercise eminent domain even over the assets of ecclesiastical goods, administering them during vacancies of office or confiscating them for the benefit of the State).
In the second half of the 19th century, especially through the efforts of moderate secularist movements and the so-called liberal Catholics, a system emerged which, although called jurisdictionalist, diverged significantly from the above-mentioned systems, in that it not only renounced the old and blunt instruments 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 owed to Giuseppe Piola, who proceeded from a rigorous and objective critique of the separatist conception, which sought to treat the Church as a private association. “To grant freedom to any power (Piola) cannot consist in treating it differently from what it naturally is, but on the contrary consists 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 among religious doctrines which was the true one. The State was to limit itself to providing the general conditions for the free development of all faiths, through the separation of State and 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 Hinschius’s conception of separatism as the system in which Churches are subject to the law of private associations, to that embraced 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 fall within the sphere of common law; Rothenbücher went so far as to assert that separation is achieved 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, opines that the classification of relations between State and Church must be distinguished in a political sense (“relations of an internal, spiritual order between State and religion”) from that in a juridical sense (“relations concerning external, formal relations between the two institutions and their respective legal systems”), and concludes that separation exists when there is “distinction, mutual autonomy of the two organizations, exclusion of interference between the two legal systems,” whereby the hypothesis that the State regards 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 legal systems excluded, the State nevertheless recognizes the hierarchical constitution of the Church, its nature as a societas iuris perfecta, an institution bearing an original legal system.”
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, one cannot share the scepticism expressed by a distinguished writer (Falco), who has proclaimed the futility of all efforts directed to defining the essence of separation, since these are evaluations derived from the technical means adopted to regulate relations between civil and ecclesiastical power, which “affect the structure and features” of such relations (Fedele). Rather, emphasis must be placed on the circumstance that such qualitative investigations cannot be conducted either by strictly juridical methods or by exclusively historical-political methods, but that one is confronted with one of those phenomena that must be studied by seeking the relations between formal and substantial elements (historical-juridical method). On such grounds, one realizes that the effort directed to defining 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 separatism and jurisdictionalism must be excluded. Separatism, in fact, consisted in the absolute impartiality and non-denominational stance 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 postulates a legally relevant general interest cannot recognize the public character of the organizations that pursue such an end. When, during the Law of Guarantees (v.) for the Papal States (December 1870–April 1871), the theoretical principles of separatism were proposed (expressly condemned by the Syllabus of Pius IX), even the most ardent exponents of the Cavourian formula realized the practical impossibility of legislatively enshrining 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 this system denies religious confessions public-law status and equates them with private associations.
5. The typical form of jurisdictionalism is without doubt the confessional type, implemented by Catholic States in the 18th century and manifested in a special and privileged legal system, based on the assertion 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 religious power. It should be noted that the activities of ecclesiastical organs could not become legally relevant without a manifestation of State will; the State, in fact, exercised intrinsic controls similar to those which, in public law, the higher hierarchical organ exercises over subordinate organs and entities, the most conspicuous 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 confessional jurisdictional State, where the privileged confession bore the brunt of such privileges through subjection to civil authority, extending from the administration of ecclesiastical property to the selection of ministers of worship (v. REGALISMO).
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,
while proceeding from the then-proclaimed principle of the lay and agnostic State in religious matters (a common presupposition of both separatism and non-denominational jurisdictionalism), nevertheless regarded 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 jurisdictionalism, whether confessional or non-denominational, and accordingly 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), as well as the exequatur, the placet, and any other form of governmental assent to acts of ecclesiastical authority, with the exception of the conferral of major and minor benefices (art. 16), and the appello ab abusu (art. 17), while reserving for itself the power to exercise controls over ecclesiastical property. The specific reference to Italian legislation in the period 1861–1929 seems to demonstrate how the aforementioned classifications can have concrete application; in fact, it has been shown that this system cannot be defined as either separatist or confessional or non-denominational jurisdictionalism, but constitutes a tertium genus of jurisdictionalism. 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 transcend 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 primacy of State power, unilaterally recognized in the Church significant spheres of autonomy (interna corporis) excluded from any interference by civil power.