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Catholic Theology in Croatian Universities: between the Constitution and the Treaty - a Policy-oriented Inquiry

The intellectual impetus that Božidar Bakotić gives to his students has been all too often in the shadow of his magisterial care. This paper is meant to be a tribute primarily to to what may well be the tenet of his teaching. This is the idea that legal problems worthy of study – not merely of international law but of any legal system – are trans-systemic. Major participants of church and state relations in Croatia entertain perspectives that are barely articulated, analysed even less in Croatian scholarship, and usually distorted in the Croatian media, but which are nonetheless often conflicting. These conflicting perspectives are the major practical problem of this inquiry. Jurisprudential silence on the problem is the theoretical one. This inquiry postulates the basic public order goals recommended by Lasswell and McDougal, that is, the basic values of human dignity or a free society, which imply “demands for the greater production and wider sharing of all values and preference for persuasion over coercion”. These values are either identical to or compatible with the values of social democracy on the one hand, and contemporary Catholicism on the other. The basic values of POJ coincide with the principles of the UN Charter and of the Universal Declaration of Human Rights. POJ principles also coincide with basic UN and European human rights instruments and the Constitution of the Republic of Croatia. Clarification of relevant public policies, that is, of Croatian constitutional provisions and decisions, a Croatian university counts as an institution of Croatian civil society even if it is founded and funded by the Republic of Croatia, provided the university is autonomous. It follows that a theological school of a religious community may participate in a Croatian state university provided the following requirements are met: A) The state university enjoys the autonomy guaranteed by Art. 67 of the Constitution. B) If the Croatian Parliament passess a law ensuring that theological schools of all the religious communities within the Croatian legal order are equal before the law concerning participation in state universities pursuant to Art. 41(1) of the Constitution., the law should be organic, pursuant to Art. 82(2) of the Constitution. C) Conditions of participation should be laid down by the university’s autonomous general legal act, pursuant to Arts. 67 and 41(1) of the Constitution. D) A theological school that is a candidate for participation in an autonomous state university: da) belongs to a religious community that counts as a religious community within the Croatian legal order ; db) meets the scholarly (research, educational, information, etc) criteria expected by the scholarly community from a university school (faculty, department, etc.) ; this may be the most controversial of all the constitutional requirements since it implies that a theological school may, but need not, comply with scholarly requirements for reasons that are closer to what is conventionally termed culture than to science in the sense that the term is understood by natural scientists ; dc) enjoys status compatible with the status of a university department or faculty, while the teachers of a religious school enjoy status compatible with the status of university teachers, both explicated in Section 2. E) the mode of participation of a school in a state university (stated ad C) corresponds to the degree in which the school fulfils the requirements stated ad D). F) The university alone determines, on the basis of its general legal act stated ad C and within the limits of the organic law stated ad B, whether the theological school meets the requirements stated ad D, and if so, what mode of participation is open to it. The process of decision has included the following major legal enactments: 1. The expulsion of the Catholic Theological Faculty (CTFZ) from Zagreb University by a government decree in 1952 and reinstatement of the CTFZ in the University, also by a government decree, in 1990. ; 2. Reintegration of the CTFZ into the University by Croatian legislation in 1993 and a contract based on the legislation in 1996 ; 3. perpetuation of the membership of the CTFZ in the University by a treaty between the Holy See and the Republic of Croatia in 1998 ; 4. the status of catholic theological schools in Split, Đakovo and Rijeka. The complexity of potential conditions in this inquiry can be reduced by asking whether past decisions and future – inconvenient and preferable – decisions on the participation of a theological school of a religious community would have happened had a certain prima facie condition not taken place, or is likely to happen if that condition does not obtain. A counterfactual identification easily eliminates a number of events as probable future conditions although they have been prima facie conditions of past decisions. Thus, the experiment easily eliminates illiteracy, peasantry, communism, Yugoslavia, urbanisation, industrialism, etc. as conditions of future decisions. However, there are at least two series of events that cannot be eliminated: a strong allegiance of the Croatian population to Catholicism ; at the same time, a long-lasting tension between clericalism and anti-clericalism. The probable but avoidable future decisions on the participation of Catholic theological faculties in Croatian state universities will primarily affect the cultural component of Croatian universities. This is now pluralistic and tolerant. However, ethical codes adopted by the University of Rijeka in 2004 and the University of Zagreb in 2007 promulgate political correctness, which is inimical to belief in absolute values and by implication to Christianity. The implementation of political correctness will insulate theological faculties as reserves of religious aboriginals. An alternative is that Croatian Catholic theological faculties are integrated in Croatian public universities on in accord with Croatian law. All that may be required is that the vote of a Catholic theological faculty in the senate of a state university (usually one of twentyfive or even seventy votes) counts in decisions on scholarly matters (appointments and advancements to scientific grades, approval of curricula and research projects, etc) as an advisory opinion. The concluding remarks explicate why this study is a policy-oriented inquiry and nonetheless easily accessible even to traditional European legal scholars who operate within the inherited – chiefly German 19th century – legal dogmatics and have a disregard for more recent theoretical frameworks, most notably for Lasswell and McDougal’s POJ.

Catholic Theology, Croatian Universities, Constitution, Concordat, Policy Oriented Jurisprudence

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