Folia Theologica 9. (1998)
Józef Krukowski: The Issues of the Negotiations of Concordats
THE ISSUES OF THE NEGOTIATIONS OF CONCORDATS 29 4. Concordat and the Legal Situation of Other Churches At the stage of negotiations the problem should be made explicit whether concordat conclusion will not cause any infringement of the principle of equality of churches in a democratic state. Opponents of the concordat in some countries, including Poland, put forward a primitive objection that concordat conclusion breaks the principle of equality of Churches, and hence threatens the secular character of the state, and even gives it a denominational Catholic character, which in turn causes discrimination of other churches. These charges are objectively without any foundation as they follow from a lack of differentiation of the form of regulation of relations between Church and state, which is the concordat, from its content, that is the subject of the concordat. The absurdity of the objection first of all results from identifying the fact of concordat conclusion with the principle of equality of churches in the field of respecting the religious freedom. In a sense generally accepted in the constitutional law of the contemporary democratic countries, the principle of equality of churches means the same treatment of these churches in view of such attributes which are common to all of them (for example public expression of cult), and at the same time it means a different treatment in view of such attributes with which they differ. In particular, the state should consider the differences which exists between the Catholic Church and all other Churches and denomination which lies in the fact that it is only the Catholic Church which has the juristic personality ins Law. This personality means the possibility of concluding international agreements. That is why the State can sign concordat only with the Holy See as the subject of public international law, but it can not conclude it with the authorities of another Church, for example the Orthodox Church, which is not a carrier of those rights. Therefore, concordat conclusion does not mean infringement of the principle of equality of churches. Here, the state keeps the fundamental principle of justice, which says that “suum cuique tribuere”. As for the guarantees of religious freedom which are included in the concordat, a democratic state should extend it onto other Churches which have legalised their position. It should be done by way of an analogous legal instrument which is a statute or a national agreement. In this way
