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11 September 2015

László Trócsányi

Rule of Law: The Ascendancy of Conscience in Europe


 
RULE OF LAW: THE ASCENDANCY OF CONSCIENCE IN EUROPE(1)
 
 
It is a great honour and pleasure for me to speak at the feast of Saint Thomas Becket today. Now an annual tradition in Esztergom, the seat of Hungary’s Roman Catholic Primate, this event has been a veritable celebration of the mind and the spirit, inviting participants to share their thoughts on fundamental questions of the mind, morality, politics and theology. What can I bring to this dialogue as a jurist and Minister of Justice? The topic for contemplation has been identified as “Christian roots, European identity”. In my brief talk, I wish to give you an overview of the intersections of law and Christianity throughout European history, including points of concord and occasional conflict, as well as the most important challenges this relationship faces today.
 
Paradoxically, in discussing the connections between law and Christianity, we need to start by reaching back to a period when Christianity was not yet officially recognised as a religion. European identity has a special component that should be taught in depth to every student attending law school today: it is Roman law. Ancient Rome developed concepts and institutions, primarily in the field of private law, which have made a contribution to the vocabulary and grammar of human cohabitation and society in ways that still seem valid for us. I am fond of pointing out to my students, for example, that the legal term of fraudulent conveyance was known to Roman law as Actio Pauliana. This law remained alive and in effect well after the fall of the Western Roman Empire in 476, and continued to flourish in the Byzantine Empire in the wake of the codification accomplished by Justinian in his Code, Digest, Institutes and Novels. In its lasting effect, Roman law even survived the clash with the barbarian hordes in the West, although the legal system, the unified legal culture, and the very idea of law all quickly faded with the collapse of civilisation there.
 
Yet the conversion of the barbarians to the Christian faith ushered in a process whereby the divergent forms of life favoured by different peoples slowly began to converge. This was a period in which Christianity had to face the rather difficult question of how to carry on the tradition of Roman law. Pagan common law, and in many ways even Roman law, were inhuman to a considerable degree, and thus in need of being humanised by Christianity. A well-known early example for the influence of the ideals inherent in the Gospels was the fate of the ius exponendi. In essence, this referred to the right of the pater familias to expel from the family and abandon a child who was malformed or otherwise found not fit to live. This ancient custom was already banned and penalised by the Christian emperor Valentinian in 374. Incidentally, this sort of barbarism continues to raise its head in the modern world, with certain spiritual and political movements still taking upon themselves to lord over life and death, denying protection to the more feeble and helpless forms of life…
 
The relationship of Christianity and law as such was at first rather problematic, if only because the society proclaimed by Christianity was not based on the rule of law, but on the rule of love. In his first epistle to the Corinthians, Paul sings a panegyric about love, and admonishes local believers to avoid litigation and to entrust their disputes to the community and the church elders instead of bringing them before a court of law. While St Augustine basically argues for the same,(2) it would be a mistake to accuse Civitas Dei of Christian integrationism, for he never denies the parallel legitimacy of the state and the secular world. Having said that, we might as well recall the currency enjoyed in Germany well into the dawn of the modern age by the saying Juristen, böse Christen (“Lawyers make poor Christians”) – a maxim often attributed to Luther. In this era, law was not in the position to erect a lasting edifice, particularly as compared to the heights of sophistication Roman law had attained.
 
The early Middle Ages saw the emergence of ius divinum, or ecclesiastic or sacred law, which adopted many concepts from Roman law, but filled them with new meaning. Vis-à-vis the different versions of feudal particularism, it represented a universal ideal and laid claim to regulating an increasing number of relations in the entire jurisdiction of Western Christianity, including but not limited to legal relations between clerics and the Holy Seat.
 
Medieval public law rested on theological foundations, with not just the Church, but all terrestrial rulers – emperors and kings – claiming to derive their respective legitimacies from divine command. Rulers would be anointed and crowned in divine liturgy. This state of affairs is at least partially to blame for the rampant ambivalence which culminated in the conflict between Thomas Becket and Henry II. The Pope and his bishops, all sovereign lords of secular estates in their own rights, would parade in the role of army commanders, as they often did during the Crusades, and even exercised secular public powers side by side with the Church administration in certain jurisdictions. Spiritual courts were permitted to hear lay cases, for instance pertaining to marital and inheritance law, in several countries starting from the 13th century, and when they did, they applied several rules bequeathed by Roman law in their administration of justice. Concurrently, the emperor and the king strove to claim full powers and extend the embryonic sovereign jurisdiction of the state over the papacy and the entire hierarchy of the Church. These were the days of investiture controversy, in which what was at stake was nothing less than the question of who would govern the Church, have the power to appoint bishops and remove them from office, or to convene and dissolve a synod… In those days, Christianity prevailed over secular law.
 
In the depth of the Middle Ages some other important things happened around law, and especially in jurisprudence. The universities slowly became a scene of intellectual ebullience that ultimately led to the Renaissance in its full bloom. One fruit of this process was the resuscitation of the very idea of law, to borrow a phrase from René David, the noted French authority on comparative jurisprudence.(3) In the early 12th century, Bologna, where Becket himself spent time as a student, gave birth to the school of glossators who wrote commentaries or glosses in the margins of a text, notably Justinian’s Corpus Iuris, to assist readers and professionals with the work of interpretation in the field. Continental Europe became the cradle of ius commune, the medieval incarnation of Roman law, which provided a standard language and culture of law for a newly unfolding commerce and a rising middle class. This goes to show that the resurrection and enthusiastic reception of Roman law was linked to universities and scholarship rather than to any political movement.(4) The late professor Mádl was of the opinion that the law of the European Union, the acquis communautaire, had a chance to become our new ius commune, or community law. As Minister of Justice, however, I personally have doubts about that, given that community law is not so much generated by jurisprudence as it is compiled by technocrats and adopted through compromises among the member states.
 
But let us return to the chronology of progress. The flourishing of law can only be properly understood in conjunction with the theological renewal during the same period. Saint Thomas Aquinas reformulated theology in the idiom of Aristotelian philosophy, and put Antiquity back on the map – or, to be more precise, put it in the service of Christian thought. By so doing, he removed the last obstacle standing in the way of the Renaissance of Roman law.(5)
 
And also of the Renaissance in general. Man began to claim a place, then came to occupy the centre in Aquinian thought, and later in the humanism of the Renaissance. At first, this idea was not articulated in defiance of God and religion. Man was thought of as a person or individual who now enjoyed greater freedom but also had to shoulder greater responsibility. While the ius divinum had been content to demand man to adapt to certain external forms, the new European man now began to pose questions about one’s inner persuasion. If he found a contradiction between form and content, he would break the mould through revolt, protest, and the negation of forms. In the preface to his Institutes of the Christian Religion, Calvin goes so far as to affirm that the Church “can exist without visible form”.(6) The era gave rise to the idea of separating the state from the Church, along with the involvement of devout lay citizens in ecclesiastical governance in the form of the presbytery. Althusius was the founder of the par excellence Calvinist theory of the state, who first articulated the concepts of dual sovereignty and subsidiarity. For him, the genuine, truly existing sovereign consisted of the community constituting the state; the sovereignty of the ruler had to be regarded as being of the derivative, formal kind in comparison.
 
The quasi-democratisation of the Church accomplished by Protestantism redrew the spiritual map of much of Europe, including Hungary. In response, the Catholic Church mobilised its own spiritual and intellectual reserves to meet the challenge, by means of the movement known as the Catholic Reformation. Unfortunately, much, if not all, of this debate was fought in the battlefield. In the 16th and 17th centuries, the Bible was still a common point of reference: the Scripture continued to serve to justify widely incongruous views, for the most part centred around the question of who could be seen as the better Christian. What was increasingly at stake in this dispute, however, was the source and nature of power, and the mode of its exercise. István Kovács, former professor of constitutional law at Szeged University, has pointed out that one of the fundamental dilemmas permeating all books on public law published during the Reformation concerned the extent to which the techniques of exercising power and the mechanisms of decision-making could, and should, be disclosed to the public.
 
The Enlightenment did not break with Christianity summarily or all at once, although from the start it made it a point to refrain from biblical allusions and apology. The thinkers of the Enlightenment no longer sought to locate the source, legitimacy and optimisation of the legal system in transcendence, but identified them in immanence. This was also the period when the first theories of the social contract were proposed.
 
Montesquieu was no longer concerned with who would implement the Civitas Dei or some other utopian idea, or with how this was going to come about. Nor did he expect the state to instate a terrestrial Paradise, although he believed that the system of checks and balances between branches of the state was certainly capable of preventing power from making the lives of its subjects a hell on Earth.
 
Thereafter, the emphasis shifted to practice. The French Revolution and its ideologues, for example Condorcet, attempted to amend the social contract by main force, with a view to perfecting society as they saw fit. The year 1789 ushered in an era of revolutions and gave rise to the notion that the course of history could only be altered by acts of violence. The Polish historian and Minister of Foreign Affairs Bronisław Geremek has argued that the coup de grâce to the Revolution of 1789 was ultimately delivered by the peaceful revolution of 1989, since the implosion of the Soviet empire and the transition from Bolshevik dictatorship to democracy and the rule of law transpired virtually without bloodshed.(7)
 
Let us pause here for a moment. Pope John Paul II reminds us that the tripartite motto of “liberty, equality, fraternity” has its origins in the Gospel, even if the French Revolution adopted it, at least in part, as a gesture of defiance against the Church.(8)
Perhaps this is precisely why this triple ideal has stood the test of time – and why it has remained unrealised to this day. Truth be told, the French Revolution considered the Church to be a foe rather than an ally, and this perception still makes itself felt as we speak. A case in point is the traditional supervisory powers of the French Minister of the Interior over the churches, on the assumption that spiritual teachings can be potentially dangerous for the state. In France, Montesquieu’s thought has also had lasting influence, and his idea of constitutional order has become part and parcel of European identity. This notion implies a paradigm and a culture that are capable of integrating a wide variety of democratic ideas and movements. The second half of the 19th century saw claims being made for the rights of workers, and not just by the political left. In his memoirs, former Minister of Justice Gábor Vladár recalls that the conservative circles he frequented were familiar with the budding social teachings of the Catholic church, while noting, somewhat bitterly that “it took a long time before we began to tread the path of social development staked out by the encyclicals Rerum novarum and Quadragesimo anno – and taking very small steps at that”.(9)
 
The effect was massive, but not sufficiently so. Beset by anticlericalism, the separation of the state from the church, the ensuing efforts to pit one against the other, and by various leftist movements, including Marxism, the church had lost its hold on much of the working class by the middle of the century, at least in Europe. And, as we were to find out later, Bolshevism came to regard Christianity as the ideological arch-enemy.
 
And this brings us to our own age. Europe is still essentially Christian, but this is rapidly ceasing to be a common point of reference in the administration of public affairs. Christianity has remained present as the salt of the Earth: invisible and unsaid, it still nourishes the soil from which culture springs forth.
 
Today, Europe does not know what to do with its Christian legacy. The relationship of the people to their own religious traditions is nowhere more ambivalent than in Europe. The Jew, the Muslim, the Hindu or the Buddhist who no longer practices his faith will hardly ever take a hostile stance against the belief of his forefathers. In this respect, even the Christians of America stand in stark contrast to their European counterparts.
 
A case in point is the controversy, of much relevance to our topic today, around the drafting of the European Constitution. Many participants in this process, including such towering intellectuals and outstanding Europeans as Pope John Paul II, would have liked to see a reference to God or the role of Christianity incorporated in the text of the treaty, but these efforts capsized on the preference for neutrality in terms of philosophical convictions and on the influence of French laicism. The preamble to the Lisbon Treaty, adopted in lieu of the thwarted constitutional draft, ultimately included a vague reference to “DRAWING INSPIRATION from the cultural, religious and humanist inheritance of Europe”. That said, the text goes on to note that this heritage has served as a source of “the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law”.(10) This declaration is not to be underestimated, for what it is. As I have suggested in the foregoing, such an inventory of values has deep roots in Christianity.
 
Europe does not know how not to be Christian. As József Antall said, in Europe, even the atheist is a Christian. Christianity permeates our architecture, fine arts, music and virtually all our cultural assets, material and immaterial, that we hold dear. The unofficial anthem of the European Union is the chorus from Beethoven’s 9th, a setting of a section from Schiller’s Ode to Joy: “All men will become brothers…”
If this is not an expression of the Biblical ideal of the society as a community of individuals steeped in the Judeo-Christian tradition, I do not know what is.
 
Snipping our Christian roots – the refusal to recognise the values of Christianity – is a grave mistake. Hungary’s new Constitution, now called the Fundamental Law, codifies the contribution of Christianity – something that the signatories of the European Union did not feel inclined (or dared not to) undertake. The National Avowal prefacing the Fundamental Law declares that “We recognise the role of Christianity in preserving nationhood”. It hastens to add, very commendably, that “We value the various religious traditions of our country”. For openness and respect of all kinds, including for the religion of others, belong to the core of Christianity. For this reason, I deem the freedom of religion to be an incontrovertible Christian and constitutional value, and an inalienable human right.
 
By mentioning the role of Christianity and other values, such as the nation and the family, the Fundamental Law had the courage to touch upon important questions hitherto relegated to the status of a case closed. This gives me reason to believe that some of the slightly odd and certainly unexpected international debate around Hungary’s new Constitution has been provoked by this boldness.
 
The days of the investiture controversy may be long gone, but we can never afford to close the chapter on the relationship between the state and the Christian church or other religious communities. Indeed, it remains incumbent upon each nation and each church to rethink this relationship. The state, of course, has its own legitimate point of view, which the historical churches duly recognise. Today, they no longer dispute the autonomy of the state and the political domain as they often did in the Middle Ages. The relationship between the state and the church is part of the constitutional identity of the nation.
 
The investiture controversy is unknown in the history of autocephalous eastern churches. These entities virtually constitute a state church, as in Greece, although this was for a long time synonymous with subjection to worldly sovereign power. The head of the Anglican Church is the King or Queen of Great Britain, as is commonly known. The Constitution of Ireland, conceived and adopted “in the name of the most holy Trinity”, makes it a point of “humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, who sustained our fathers through centuries of trial”.(11) The Constitution of Denmark declares the Evangelic Lutheran Church to be the state church of Denmark, which is entitled to the support of the Danish state as such.(12)
A similar situation is witnessed in Sweden(13) and Norway.(14) France, a staunch proponent of the lay state, has spared no effort in keeping religion out of the state, and even public affairs. The Hungarian constitutional solution embraces the middle ground between these two extremes by affirming the separation of worldly and spiritual powers, while not only permitting the cooperation between the state and the church in certain public responsibilities, but codifying that cooperation in positive terms and in depth of detail. In short, the Hungarian model is based on the idea of collaboration. For me, personally, this collaboration is not simply a matter of formality but a very real material requirement, which must be enforced through legislation.
 
Globalisation has created a radically new situation in Europe, with both positive and negative side effects clearly in evidence. For instance, I take a favourable view of our ability, afforded by the advances of technology, to stay in daily contact with other continents, now that information can be exchanged in a matter of seconds. Yet I remain firm in my conviction that, in this rapidly globalised world of ours, it is vital for nations, regions, cities, settlements, and even individuals to preserve their distinct identities. Being without identity implies a loss of value, making us forget where we come from and where we are headed. No man can have a future without having a past. We are facing a throng of new challenges today. One of them is endemic migration. We cannot afford to dispense with solidarity for those living in hardship. The first thing to accomplish here, however, is to find a way to improve the living conditions of prospective emigrants on their native soil. This would serve to stem the huge waves of immigration. The question of refugees seems to be an entirely different thing to me. Today, many of our Christian brethren are exposed to mortal danger in some countries of the Middle East, and Europe has a moral obligation to welcome them in its fold. We must open the gates to those forced to flee on account of their faith. In T. S. Eliot’s famous verse drama, Murder in the Cathedral, the priests, sensing the impending fate of the Archbishop, join the chorus in imploring Saint Thomas to lock the gates. But he resists their entreaties, and orders the gates to be flung wide open. My point here is that the church, both as edifice and institution, cannot afford to become a fortress, and the same goes for Europe.
 
Our image of a Christian martyr is of one murdered by pagans or people of a different faith out of religious hatred. As you will know, Thomas Becket was appointed Archbishop of Canterbury by the king in the hope that his good chancellor and friend would lend him a helping hand in implementing his church policy. But the king was in for a surprise: Becket avowed asceticism and defied him openly. In an almost Pauline turnaround, the newly instated Archbishop’s conscience got the better of his considerations of career, and he renounced the chancery, to devote himself to the service of God rather than the king, to defending the liberty and dignity of the church. Becket, then, must be seen as a Christian martyr, who was assassinated by three or four Christian knights on the command of a Christian king (although what precisely the king said is still contested today). Was Europe Christian at this juncture? Religious pluralism was still a thing of the distant future, and globalisation unheard of. In the structural sense at least, Europe certainly had no choice but to be Christian. Yet Christianity is not a matter of structures, but of the heart and conscience. Saint Thomas Becket was the martyr of free conscience, who set an example of opposing any structure, policy, and even law, if this is what one’s conscience dictates. And this is part of Europe’s Christian legacy too.
 
The relationship between law and conscience continues to be actively debated in our own age. I had been studying on a scholarship at the Catholic University of Louvain-la-Neuve in Belgium in 1989–1990, when King Baudouin refused to sign the abortion bill citing reasons of conscience. A few years previously, Grand Duke of Luxembourg Henri had refrained from sanctioning the euthanasia law for the same reason. Both cases raised some rather specific questions. Some took the view that no one can justify the repudiation of a responsibility under public law on grounds of incompatibility with one’s conscience, while others argued for the importance of standing up for one’s personal convictions.
 
And this brings us to the most harrowing question of all: do we need to take it upon ourselves to express our ideals even at the pinnacle of the hierarchy of power? The Hungarian legislators who drafted the Constitution have answered this question with a resounding “Yes”. Thus, in its current form, Hungary’s Fundamental Law stands as an effort to give expression to principles that have fallen out of fashion, so to speak, by affirming the ability of communities – the family, the nation – to create and preserve value. Here, it may be in order to mention the principle that makes it incumbent upon children of age to care for their parents in need, or the provision that defines marriage as being a partnership between two people of the opposing sex. In addition, the Fundamental Law enshrines a ban on genetic cloning as a means of the selective breeding of humans. Indeed, the domestic and international attacks against Hungary’s new Fundamental Law seem to have less to do with the rules of state organisation than with a disputed catalogue of values.
 
In the debates of values in which we so often get bogged down, we may do worse than find inspiration in the admittedly discomfiting figure of Thomas Becket. We cannot hope to rise up to the ideal of the Gospel unless we embrace the humility avowed by him, who wore a hair shirt underneath his archbishop’s mantle. We must all assume this metaphorical hair shirt as free men if we are to meet the complex challenges of our day and age, to be able to answer those who seek to assault us with their misgivings and criticism.
 
Roots are important, for without them no tree can stay alive and stand tall. At best, it will go limp and lose its fertility, to echo the thoughts of Pope Francis in his address delivered to members of the European Parliament on 25 November 2014, in which he spoke “of a Europe which is now a ‘grandmother’, no longer fertile and vibrant…”(15) No fruit without roots, then. Or, as the psalmist describes the man abiding the law of God: “That person is like a tree planted by streams of water, which yields its fruit in season and whose leaf does not wither.”(16) Christian Europe is not to be known by its roots so much as by the fruit it bears. Let us not fall into the trap of trying to locate Europe’s Christian identity in some distant idealised past. Let us seek that identity in the future instead. For the question today is indeed not whether a Christian Europe has ever existed, but whether we can bring about a Christian Europe, with a Christian Hungary in it.
Translation by Péter Balikó Lengyel
 
 
 
1   This article is an abridged version of the lecture delivered at the festivities of St Thomas Becket in the city of Esztergom on 5 January 2015.
 
2   René David: A jelenkor nagy jogrendszerei (Hungarian translation of Les Grands Systèmes de droit contemporains, Budapest: 1977, 41.
 
3   Ibidem, 41.
 
4   Ibidem, 42.
 
5   Ibidem, 44.
 
6   In Hungarian translation: János Kálvin: Institutio Christianae Religionis – A keresztény vallás rendszere. (Budapest 2014) 25.

7   B. Geremek: L’Historien et le politique (Paris: 1999), 136–137.
 
8   In Hungarian translation: Emlékezet és azonosság (Budapest: 2005), 113.
 
9   Gábor Vladár: Visszaemlékezéseim [My recollections] (Budapest: 1997, 144.
 
10   For the text transposed into Hungarian law, see
http://eur-lex.europa.eu/legal-content/HU/TXT/HTML/?uri=CELEX:12012M/TXT&from=EN
 
 

13   Article 4 of one of the four cardinal acts instating the Swedish Constitution declares that the King of Sweden must be of the Lutheran faith subscribing to the Augsburg Confession. Any person with other convictions is automatically disqualified from succession to the throne.
 
14   Cf. the Constitution of Norway, Article 16. Link: http://www.servat.unibe.ch/icl/no00000_.html
 
15   Link:
 
16   Psalms, 1:3.


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