Ombretta Fumagalli Carulli

The Church has, at various times in its history, been described as a communitas perfecta, a perfect and supreme society that has as its goal the promotion of salvation of humanity. Like any organization, the Church is governed by rules that enable it to achieve its end, and this is the most basic function of canon law...

...

The 1983 Code of Canon Law is mainly the result of evolutive interpretation in the light of the Second Vatican Council “aggiornamento”. The convergence between pastoral and law in the field of marriage – as consequence of such evolution – arises thank to some very important novelties: the definition of marriage as a “matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole of life and which is ordered by its nature to the good of the spouses and the procreation and education of offspring”; the widening of the object of consent from “ius in corpus” to the persons of the spouses; the pastoral care and those things which must precede the celebration of marriage; the new concept of “good of the spouses” and also the new canons about the incapacity of contracting marriage or the marriage deceived by malice. Between open problems: “defectio formalis ab Ecclesia”, “intentio contra sacramentalem dignitatem”, “intentio contra bonum coniugum”.

This paper deals with two aspects of the religious freedom, with specific focus on the experience of the Catholic Church. The first aspect concerns the individual, comunitarian and institutional freedom of religion. This freedom is demanded by the Catholic Church in front of the political community according to an old dualistic principle dating back to the catholic predication and which is opposite to the monistic principle. The Italian experience is paradigmatic of the State’s attempts to revive a variation of the pagan monism. A special attention is also paid to the European détente process, in which the Christian Churches became «sage midwifes» of democracy while the international charters are reluctant to recognize the institutional freedom of religion. This paper also refers to the horizontal application of human rights as to one of the new challanges. The second aspect concerns dealt with by this paper is the freedom of the single believer within the Catholic Church. This freedom is strengthened by the Codex Iuris Canonici currently in force and only partially corresponds to the Human Rights ratified by International Charters. If the right and duty of communion is the lintel, the believers’ freedom of opinion and the other specific freedoms which are granted to laymen and laywomen are the walls of the new constitutional architecture of the Catholic Church. A comparison with Islam is then mentioned as one of the most relevant questions. Islam does not regard human rights as natural rights, but looks at them as divine gifts founded on the Shari’a. Such view is based on the theologic-juridical primacy of the law on the person. This idea is the opposite of the primacy of the person over the law, a foundational value which was brought in the Western Culture by the Christianism.