Hacia Ia tutela de Ia libertad de conciencia y de la libertad religiosa (1869-1931)

Abstract

This study centres on the iter which leads from the protection of the religion of the State to the protection of freedom of conscience and religious liberty. The protection of the State Religion, understood as defence of the State Religion, has already been outlined in a preceding work. This was occupied with the abuse of the Catholic religion as a method of checking the various events. Tracking the course of a tendency that begins with a State defending itself by means of the extreme defence of the State Religion, to a State that defends Religious Liberty as the normative principle and as a fundamental right. This article analyses a second period which, for chronological reasons, is initiated with the Constitution of 1869 and lasts until the Second Republic. This, as is well known, constitutes as moment of special significance in dealing with Church-State relations at the beginning of the twentieth century. For reference the juridical borders are sketched: Constitutions and Constitutional proposals, Concordatory Legislation, Criminal Law, legislation pertaining to Public Order and the policing of cults, and Canonical Legislation. The evident result being the close relation between spiritual unity and national unity as an ideological and cultural foundation which you cannot ignore in an analysis of questions concerning the religious problem in Spanish Law. As a consequence this becomes, on occasions, the defending of the Catholic Religion, as a State Institution, not of religious liberty or conscience. After a brief introduction the following are analysed: the Penal Code of 1870 with its different typographical suppositions; a series of observations on how it breaks with the Spanish Penal Tradition by not speaking of the Religion of the State; Jurisprudential interpretations which are fundamental to the understanding of the application of the law in concrete; certain connected questions such as how education and culture work together in the understanding of the sit