A Shield Forged into a Sword

A Shield Forged into a Sword

[dropcap]W[/dropcap]riting for “Gazeta Wyborcza” about three paradoxes of normalizing the relations between the Catholic Church and the state, I finished my text with a description of a practice by which the current strong and disproportionate religious world-view’s inroads into culture, education and medicine are backed with a thesis about the need to subordinate Polish law to the interpretation consistent with the Catholic world view in its extreme version; similar support is given to the conviction that the ones who do not “share this faith,” (a reference to the pluralistic terminology of the preamble to the Constitution) should also submit to its dogmas. And yet it is all said to be for the sake of freedom of conscience. Since then, the incumbent deputy Minister of Justice has, twice and in public, called into question the assumption about Poland being a secular state. He has taken no trouble to disguise it as his private belief.

This text I am then starting where I have finished the previous one, in order to explain how the shield of human rights, originally conceived of as a protection of individuals against the excesses of state authority, was made into an assault weapon: a sword in the hand of another authority, namely the Church; with that sword it goes to war with the state and its law.

[quote align=’left’]The acknowledgment of freedom of creed and conscience is more of a threat to the religious authority than it is to the secular one.[/quote] On its way to the achievements of the Second Vatican Council, the Roman Catholic Church had to revise its historically shaped (strategic and tactical) assumptions of its own tradition in two respects: its relations with secular authority, and its attitude towards freedom of conscience as enjoyed by individuals. The former is about competition (or support, depending on the current power structures) of two systems operating on the same territory and the same population. It is then about a horizontal relationship between the secular authority and religious authority. The latter is a vertical relationship: between the Church as an authority and individuals subordinated to it (its followers and the ones who are considered as its followers).

The acknowledgment of freedom of creed and conscience is more of a threat to the religious authority than it is to the secular one. Nothing but tolerance is required from the latter within the notion of freedom of conscience. In a more advanced version, also a certain level of protection to forms of expressing the world view or creed. The respect that secular authority shows for freedom of conscience and creed as well as for other human rights, does not implicate the loss of “power of the state” over the ones who make use of freedom. On the contrary: the state authority guarantees freedom while keeping its power over the whole population. It is different with Church authority, founded on the “power over souls.” Here freedom of conscience conceded to individuals means not only tolerance for dissenters that are forever outside. Freedom enforces also consent for secession, escape from the Church authority, heresy or apostasy, which arises from the notion of individual autonomy. Individual autonomy within freedom of conscience and creed threatens then the very essence of Church authority, depriving it of power over the ones who decide to escape. It explains the arbitrarily more hostile attitude of the Church towards the secessionists than towards other, “natural born” infidels.

The rigidity of an early established role of the Church in the society based on the extra ecclesiam nulla salus principle and the approval of coercion in matters of faith were then fully manifest in the attitude towards the dissenters. It was legitimized, intellectually and axiologically, by the Augustan tradition (enim est peior mors animae, quam libertas erroris), which turned out to be very persistent, as is reflected by numerous political documents of the Church (e.g. the bull Zelo Domus Dei issued by Pope Innocent X, Gregory XVI’s encyclical Mirari vos or the famous Quanta cura by Pius IX, with Syllabyus Errorum, a catalogue of views considered dissenting by the Church).

Whereas until the Second Vatican Council the strategy had been invariably hostile to liberalism, in the 19th century some tactical elasticity was admitted. Namely, a permanent assumption (thesis) was adopted about the superiority of Catholicism as the only ‘real’ religion, which would validate the aspirations of the Roman Catholic Church to a special place among other Churches and creeds, and to the support of the authority of the state for the orders of the ‘God’s law,’ understood as consistency with the axiology of the Church. For tactical reasons, in turn, situationally, tolerance for diversity of creed was admitted (hypothesis) (Leo XIII’s encyclical Immortale Dei, 1885 and Libertas praestanissiumum, 1888).

The dialectics of strategic and tactical aims led to a distinctive ambiguity of the standpoint of the Church. Michał Pietrzak (Prawo Wyznaniowe, Warsaw 2013), relating cardinal Ottaviani’s views formulated in 1953, writes: “Where Catholics are the majority, they should proclaim the concept of non-secular state with an obligation for everyone to follow Catholicism. Where they are the minority, they should demand for themselves the right to tolerance and freedom of creed.” Thus human rights that were intended to serve as a tool for the protection of individuals from the arbitrariness of the authority, and that in the middle of the 20th century became an important factor in international governance, were at the same time implemented in the religious dialectics of the thesis and the hypothesis. An important remark here: we are discussing human rights as a legal system on the basis (for Europe) of the Convention for the Protection of Human Rights and Fundamental Freedoms and the case law of the European Court of Human Rights.

The Second Vatican Council in 1965 resulted in a fundamental change of the attitude of the Church to freedom of conscience, and in the acknowledgement of freedom for atheists and nonbelievers. In effect, the Council (at least in its documents, yet not necessarily in the consequent permanently set practice) declared to quit aspiring to the support of the secular authority for the Church. Neutrality and cooperation from that point on were to become an assumption and the duality of the thesis and hypothesis were to be forgotten. As the ideological backlash of the last 25 years in Poland testifies, they are right, who call into question the actual internalization of the rules set by Vatican II in Poland. Observation prompts one to conclude that the way of transformation of the relationship between the state and the Church in Poland since 1988 until now rather reflects the dynamic dialectics of the 19th-century doctrine differentiating the strategy of thesis and the tactics of hypothesis: from minimalistic demands at the beginning of changes to maximising them with time and subsequent concessions made by the state. [quote align=’right’]Universalistic demands are raised for the sake of protection of freedom of conscience, yet interpreted not as “live and let others live,” but “live the way I want you to.[/quote]

For an external observer particularly interesting is the very process of appropriation of a modern tool for human rights protection, i.e. the institutionalized human rights, by an institutional Church (which actually has power over individuals protected by human rights), for use as an offensive tool against secular authority. The Church appears as a collective depositary and plenipotentiary for individual freedoms of its actual followers as well as those whom it just considers to be its followers. Also, referring to ‘human rights’ and demanding respect for them, the Church assumes that their content will be affected by its axiology and not by state law, the European Convention and common interpretational legacy (wide common denominator) shaped by it.

Universalistic demands are raised for the sake of protection of freedom of conscience, yet interpreted not as “live and let others live,” but “live the way I want you to. “Consequently, the shield of human rights is used as an arm in the hand of the Church, which considers itself to be the only depository of freedom of conscience, the which freedom, modelled after the Church’s own fashion, it in turn presents as a universal freedom independent of an individual’s world view. Distinctive here is an honest presentation of the view by an outstanding representative of the integrist ideas Marek Jurek: “A conflict between our legal-natural philosophy of common good and the liberal religion of Human Rights is inevitable. A conflict with false religion claiming to be the religion de facto is inevitable. (…) It is a religion that has its fundamentalists, who in their own feelings, and not in the codified rules of their creed, look for the absolute rules. These fundamentalists strive to overthrow democracy (sovereignty of a nation) and to establish an ideological rule of supranational institutions. (…) Taking into account the fact that Human Rights are an attempt on the life of Christian civilisation and its institutions, Christian National Union stood up in the parliament against acknowledging by Poland the application of the European Court of Human Rights case law to deciding about the validity of Polish laws and Polish courts’ sentences (“Sprawa Polska”, 1993).

It should be noted that the fact that the Church refers to human rights when defending its own axiology causes a characteristic shift of an image of the Church as an actor on the legal scene. When talking about the division of power, assets, negotiations with the state – it functions as an institutions. When standing up in defence of the religion or its followers – it moves to the context of human rights representing freedoms of individuals belonging to the religious community. This gives it an opportunity to appear as a different entity when negotiating with the state, making use of its status for self-defence and for exposing its own axiology if not as the “only right” one then at least as “majoritarian”. The preamble to the Constitution says that “the Polish Nation” consists of “all citizens of the Republic of Poland, both those who believe in God as the source of truth, justice, good and beauty, as well as those not sharing such faith, but respecting those universal values as arising from other sources, equal in rights and obligations towards the common good – Poland.”

Figures (Church sources) show a decline in people’s participation in the everyday religious life of the Church; the number of active members has dropped to 40 per cent. The Church is losing its followers. Since 2003, 2 million have gone missing. It means that 60 per cent of the population of Poland do not aspire to be represented by the institutional Church. Thus, the universal preamble to the Constitution demands that an adequately wide common denominator be created, one able to embrace – according to its content – both those who believe in God and those who do not. And it is on the basis of this denominator that Polish law should be shaped. There is no reason for expecting the state and its law to be built according to the axiology of any Church or creed. I say this to those who, participating in debates on axiological matters, keep trying to present their demands for changes as the binding law, claiming that their being in “majority(counted in what way?) legitimizes their empowerment, and who interpret human rights as a licence for absolutization of their own world view.



Translated by Dominika Dymińska, edited by Mikołaj Denderski. Photo by Kevin Dooley, cc,

Originally published in Dziennik Opinii, July 19th.


Professor of Civil Law. In the years 1977-1987 Head at the Legal Studies Institute of the Polish Academy of Sciences. From 1987 to 1992 the Commissioner for Citizens’ Rights and, from 1999 to 2002, a judge of the Supreme Administrative Court. A correspondent member of the Polish Academy of Sciences and Arts, a member of the Académie de Droit Comparé in Paris, of the Helsinki Committee (membership suspended), and the International Commission of Jurists (Geneva).