Mikhail Antonov is a Professor of Law associated with the Law Faculty of the National Research University Higher School of Economics in Saint Petersburg
Similar changes in the world today urge different religious denominations to respond similarly. In recent years it was not uncommon for the Catholic Church and the biggest Orthodox Church—the Russian Orthodox Church (the ROC), all their theological differences notwithstanding, to come to close conservative conclusions in the matters of church-state relations, human rights, religious freedom, and some other key problems of political and legal philosophy.
As their credos presuppose the Absolute—the source of absolute truths and values—it comes as no surprise that both churches demonstrate their distrust with ideas and conceptions based on religious pluralism and ethical relativism which are often associated with liberal democracy.
The definition and justification of absolute values are one of the central problems both for secular and religious ethics and, after all, is a matter of existential choice of each human being (and collective entity). It is quite natural that religious conceptions which strive to what John Rawls called a “well-ordered society” (relatively homogenous in its principal moral beliefs and based on a broad agreement about what constitutes the good life) can turn out to be incompatible with political liberalism that defends the plurality of incompatible and irreconcilable religious and ethical doctrines.
However, when this hostility towards relativism is asserted in the field of human rights, this cannot but provoke concerns. These rights are based on the principal assumption that each individual is free to choose her way in this world, including in religious matters—to choose between good and evil and between different religions. This relativism underpins the conception of religious freedom, as it was articulated in the European legal tradition, and finally has been enshrined in the Universal Declaration of Human Rights and the European Convention on Human Rights. This freedom is intrinsically connected with liberal democracy which rules out the absolutism of values or opinion and protects individual choice in all the fields where this choice does not endanger the freedom of other individuals and the well-being of society.
The Catholic Church actively engages in discussions about the problem of balancing individual freedom with societal interests. In 2019, the Church published a document that contains several important approaches to religious freedom and its limits. The Religious Freedom for the Good of All. Theological Approaches and Contemporary Challenges (Theological Approaches) reveals an evident discontent with the full dissociation of Church and State and the ensuing moral neutrality of the latter. The authors of the Theological Approaches believe that this development might lead to a “secular parody” of the theocratic conception of religion (para. 63) and might result in a “soft totalitarianism” of the State committed to spreading a nihilistic ethic in the public domain (para. 5). Such sharp formulations alone imply the question of whether there can be new theocratic ambitions behind the homiletic passages of the Theological Approaches. My impression is that certain passages can confirm such suggestions, while others cannot.
The Theological Approachesupdates the 1965 Dignitatis Humanae, which was tuned to a liberal wavelength and endorsed the equal protection principle (DH, para. 6). What is wrong with contemporary liberalism so strongly chastised in the Theological Approaches? The liberal State is guilty of adhering to the ideology of neutrality that “selectively excludes the freedom of a transparent testimony of the religious community in the public sphere, opens the way for the fake transcendence of an occult ideology of power” (para. 64). Countering this ideology implies “a return of religion to the public arena” (para. 6). To put it clearly: Catholic theologians are irritated by the fact that the State ignores or pays insufficient attention to the voice of the Catholic Church on issues where it may want to have its say.
This is confirmed at the beginning of the Theological Approaches in the eloquent passages about the “on-going post-modern removal of the commitment to truth and the transcendent” (para. 7). Albeit the Theological Approaches speaks of “a just integration between the personal and communal application of religious freedom” (para. 12), the preference for the latter is evident in the following paragraph where “the common forms that interpret social bonds in view of the common good” are solemnly praised. The Theological Approaches’ authors show their propensity to ethical absolutism and openly criticize the liberal state which is suspected of promoting relativism and individualism. These authors are undoubtedly right in their contention that political liberalism relies on a pluralism of opinions, ideologies, beliefs—shortly, on what might be philosophically labeled as “relativism.” Human rights, as they are formed in the post-World-War-II international community, would make little sense if completely detached from the “sinful individualism” that leaves to each to decide his or her own way in the world.
This narrative somewhat mirrors the ROC’s illiberal agenda declared in the 2000s in two principal documents—the Bases of the Social Concept and the Bases Teaching on Human Dignity, Freedom and Human Rights—which targeted the liberal order accused of promoting ethical nihilism and agnostic multiculturalism. My principal concern as an Orthodox believer is whether such attacks against the liberal State and its legal foundations do not make my Church look retrograde and undermine the principle of church-state separation to the detriment of the Church itself? It seems that the Catholic Church in many ways follows in the steps of the ROC in its criticism of liberal principles, and there might be common illiberal tendencies that unite both Churches. The 2016 meeting of the Pope and the Patriarch of the ROC was symbolic in many aspects, including that of their common anti-globalist and illiberal stances.
In para. 4, the Theological Approaches draws the sharp distinction between the language of the modern liberal state and the “reflection drawing upon Christian principles of the dignity of the person and the close connections between human beings.” The Theological Approaches do not deny the value of human rights and civil liberties directly, but this distinction as such seems to suggest that the “humanist rhetoric” is based on principles somewhat different from those to which the Catholic Church adheres.
Following the Dignitatis Humanae, the Theological Approaches prudently repudiates every attempt to instrumentalize political power for proselytism (para. 8), but already in para. 10 it warns of certain “signs of the times” which call the Church to abandon her neutrality and to participate more actively in political matters. This is not said expressis verbis, but if one suggests that “the link today between religious freedom and human dignity is politically important” (ibid.) and that the Church must nowadays be as active as in the first years of Christianity (when “the Church was first called to sow and flourish,” ibid.), this conclusion is implicit. This activity cannot but involve a kind of political proselytism (in the sense of propagating the Church’s ethics), a struggle to reconcile or even replace the agnostic and morally neutral conception of human rights with the religious teaching about human dignity based on certain absolute truths.
This hidden ethical proselytism relies on the conviction that certain ethical and spiritual values are shared and universal and that underpin justice, unity, and peace (para. 25). Here, the Theological Approaches touches on one of the central problems of political philosophy: is it possible to establish such values objectively, and who is empowered thereto (except God)? The authors suggest that one needs a dialogue between all for the common good (ibid.). This suggestion makes sense in terms of Dignitatis Humanae which, in a beautiful formulation, stressed that “the truth cannot impose itself except by virtue of its own truth, as it makes its entrance into the mind at once quietly with power” (DH, para. 1). It implied quite a more liberal idea that personal dignity and human rights are already unconditionally inscribed in membership of humankind and do not depend on the content of the values and beliefs of each individual.
This liberal conception of human rights conceived of as rights equally belonging to everyone fades away in the Theological Approaches: “A juridical conception of the equality of individuals turns out to be too abstract and formal,” so that, finally, the limit of human rights depends on “the differences that structure the human condition of the will of personal inclinations” (para. 44). Catholic theologians target here the “ethical authoritarianism” (para. 62) of the liberal legal orders which guarantee equal protection to heterosexual and homosexual marriages and to other practices that are condemned by the Church. What is implied here is that equal protection shall be granted only to “good things” and there can be no equality between pious and sinful practices, so no freedom can be granted to human persons to choose evil. This does not directly deny equality between human beings, but this denial can be read indirectly from the Theological Approaches. Individuals are different from each other in their capacity to recognize good and evil, truth and untruth, which depends on how deep each person’s belief is and if that belief is true. This conclusion can theoretically be transferred from a theological perspective into a legal one.
Human beings are not equal to each other, as there are some people “who have already conquered more freedom” so that ordinary people should “learn from those who are more free” (para. 49). This suggests that freedom is not an absolute, but a relative right dependent on the possession of a supreme knowledge by subjects. It sounds very similar to what Plato and other “enemies of the open society” (Karl Popper) spoke about different measures of freedom. Is it not a hidden denial of the principle of equal protection with a view to degrees of such knowledge? In other places of the Theological Approaches, such a denial is ruled out and freedom is considered an absolute and unconditional principle (e.g., para. 42). However, one may wonder how these uncareful formulations could have crept into the 2019 document. I cannot but notice the striking similarity with the conception of the ROC which affirms that human freedom will inevitably disappear if the choice is made in favor of evil so that human freedom is possible only insofar as it is compatible with the moral dimension of life and the freedom from sin (para II.2 of Bases Teaching on Human Dignity, Freedom and Human Rights).
Clearly, two main tensions discussed throughout the Theological Approaches are between individualism and communitarianism in matters of social organization and between relativism and absolutism in matters of ethical values. These tensions become apparent in the discussion about the recognition of human rights and freedoms. It turns out that they are not unconditional, as their end lies in its consistency with human dignity (para. 50) and their utilization presupposes “the interconnection between respect for the personal dignity of the individual and the participation of the individual for the edification of the whole community” (para. 38). One can doubt whether this approach will put a sword in the hand of the Church whenever it pleases to decide to “convincingly correct the individualist visions of the subject” (para. 39).
These doubts are only strengthened when one reads about “communities of belonging (family, nation, religion) [that] precedes the individual” (para. 43) and creates the framework for “reciprocal integration between freedom and truth” (ibid.). This precedence does not necessarily mean prevalence: one may argue that the community precedes individuality at least temporarily. However, this argument about temporal precedence of collective experience has frequently been utilized by conservative political thinkers from Plato and Aristotle to Hegel and Schmitt for the justification of ethical and legal prevalence of the community over the individuals. Who may decide on the limits of individual freedom? Certain “intermediary bodies play a mediatory function between personal rights and the State government” (para. 52), and the Catholic Church that stands above these bodies as their “principal animator” (para. 53). One cannot then neglect the risk that one-day individual religious freedom will be overruled in favor of “the right of the community to religious freedom” (para. 4).
As compared with 15 paragraphs of the Dignitatis Humanae, the Theological Approaches considerably expanded to 87 paragraphs and has consequently lost its briefness and unambiguity. If its authors did not intend to write “a systematic treatise” (para. 13), their strategy remains unclear. At many places they touch on the key problems of political and legal philosophy (the limits of human freedom and their justification, balancing the communal and the personal, reconciling relativism and objectivism of ethical values, and so on), but provide only short and inconclusive remarks based on the outdated ideas of natural law or the political ideals of the past. For a “declaration” such remarks are unnecessary; for a “theological doctrine” they are rather shallow. In my understanding, this style is more appropriate as a statement of a political agenda—and it is in this way that I read the Theological Approaches. The illiberal tonality of this agenda is worrisome.