The Pope’s litigation against a German magazine

The following is certainly not really a matter of IT-Law but I bet you will find it interesting anyway.

This post is about a law suit Pope Benedict XVI. started against Titanic (nice case reference, isn’t it?), a well-known German satire magazine. We all expected today a hearing to take place at the Hamburg Regional Court – but it was canceled just last night, as the Pope had withdrawn his petition.

It has already been written a lot on whether this case is an example for censorship or some kind of litmus test for the freedom of speech in Germany. I don’t think that this really what makes the case so interesting. I believe that the question we should discuss is whether a pope should defend his personality rights by going to a civil court.

This question is not as abstruse as it may sound. The implications of the very head of the Roman Catholic Church taking proceedings against a newspaper before a civil court thus far have not been discussed in sufficient depth. Which may be surprising because it turns out that a pope seeking help from an ordinary civil court is from an original ecclesiastical perspective a veritable revolution

It was Saint Augustin who in his well-known work “De civitate Dei” established the distinction between “civitas dei” and “civitas terrena” – the kingdom of god and the kingdom on earth. Since the Council of Chalcedon in the fifth century the Roman Church has taken the view that the King’s authority is subordinated under the authority of the church. This view was based on the scriptures, for example Luke 22, 38: “The disciples said, ‘See, Lord, here are two swords.’ ‘That is enough,’ he replied.” According to the church this meant that God gave the Pope not just the key to heaven (cf. Matthew 16: 18-19), but also two swords, the secular and the spiritual. One of them, namely the secular, is borrowed to the King by the Pope. This is why since the coronation of Charlemagne by Leo III. in the year 800 every German King has been crowned by the Pope, and the Pope even claimed temporarily the right to approve the King’s election (as Pope Innocent III. in the Bull “Venerabilem” in the year 1202).

Also in the book of Acts we read: “We must obey God rather than men.” (Acts 5, 29), and the canon law says that secular laws have to be observed, “where they are not contrary to divine law, and unless otherwise provided in canon law.”

In great clarity Pope Gregory VII enunciated in his “Dictatus Papae” (1075) the priority claim of the papacy over the King. He said not only that the pope may remove the King from power, but also that nobody can judge the Pope at all: “Quod a nemine ipse iudicari debeat”. Based on this doctrine Pope Boniface VIII demanded in his bull “Unam Sanctam” (1302) the King’s submission under the authority of the Pope.

Of course nowadays, there is not much left of the Roman papacy’s claim to take precedence over all secular power. Nonetheless one principle applies until today: The Pope is subject to no secular jurisdiction. This is nothing but a result of international law: The pope (the “Holy See”) is the only natural person in the world who is a subject of public international law at the same time.

He has a status that otherwise only the States and a few other atypical subjects of international law have. As a subject of public international law, however, he cannot be cited before any court. He is immune.

Taking this into account, it seems all the more strange that the Pope voluntarily participates in, even starts legal proceedings before a civil court. This means nothing else than that the Pontifex Maximus of the roman church accepts the judgment of a civil court, whatever its outcome will be. I don’t think that any other pope in history went to a civil court before. I don’t want to judge, however, whether this was a wise decision.


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