The works of Professor A. S. Smykalin on canon law and state-confessional relations: ad deliberandum.

Sekretaryov Roman Viktorovich PhD in Philosophy Associate Professor at the Department of Private Law of Vladivostok State University 690014, Russia, Primorsky Krai, Vladivostok, Gogol str., 41, sq. 5502 rvsvldv@mail.ru Other publications by this author

Introduction

In our opinion, currently state-confessional relations in Russia are not regulated in the most optimal way, which requires not even point corrections to the current legislation, but a rethinking of the very paradigm of the realization of the right to freedom of conscience and freedom of religion in a secular multi-confessional state.

One of the leading locomotives developing these problems at the theoretical level and offering practice-oriented solutions is Professor A. S. Smykalin.

            In a significant number of publications of the scientist, various topical issues of both secular legislation on freedom of conscience and the norms of canonical (ecclesiastical) law are analyzed in detail. Back in 2005, the professor reasonably drew attention to the fact that church law is an independent branch of knowledge in the system of legal sciences, since it cannot be attributed to either private or public law ^[1]. In 2007, in collaboration with Professor V.P. Motrevich, an assessment was given of the legal aspect of the relationship between the Russian Orthodox Church (hereinafter — the ROC MP) and the modern Russian state ^[2]. The same problem, only much more schematically, was devoted to the publication of 2008 ^[3]. In 2012, the professor analyzed a landmark period for Russian Orthodoxy (1917-1941) ^[4].

In 2013, the scientist raises a very acute and urgent question about the possibility of teaching canon law in secular universities in Russia ^[5]. This article, with obvious and obvious advantages, in our opinion, is not free from a number of methodological shortcomings. Thus, the statement that "the relationship between the Church and the State has always been the focus of attention of any society" seems to be an unnecessarily broad generalization. It is hardly correct to mediate these social relations through the definition of "Church", since the religious experience of mankind is not limited to Christianity. Moreover, if we take into account the factors of time and space, Christianity will turn out to be far from the most widespread religious teaching in the history of mankind (if we contrast it with all other religious traditions). Chronologically, the oldest world religion is Buddhism, which is not too concerned with the problems of the "Church".

In the laws of Genghis Khan, reconstructed by A.Y. Gribov, there was no place in the form of a separate paragraph for the legal norms regulating the status of religion, which, in our opinion, indicates the relative insignificance of the legal regulation of religious beliefs for the Mongols of the Genghis Khan era (compared with other branches of law - criminal, military, labor, trade and other similar) ^[6].

In addition, the use of the term "Church" in relation to Article 14 of the Constitution of the Russian Federation ("Although, according to Article 14 of the Constitution of the Russian Federation of 1993, the Church is separated from the State, ...") seems fundamentally incorrect for two reasons. Firstly, it is not the church that is separated from the state, but religious associations. And in the preamble of Federal Law No. 125-FZ of 26.09.1997 "On Freedom of Conscience and on Religious Associations" (hereinafter — Federal Law No. 125-FZ), respect for Christianity, Islam, Buddhism, Judaism and other religions that form an integral part of the historical heritage of the peoples of Russia is declared. And even the recognition of the special role of Orthodoxy in the history of Russia does not call into question the fundamental impossibility of reducing the general concept of "religious associations" to the particular concept of "church". Secondly, the theological tradition (and, following it, the logic of using the norms of canon law) requires distinguishing between the concepts of "Church" and "church".

When it comes to quite earthly organizations that have the term "church" in their brand name, the use of a capital letter should follow both the general norms of the Russian language and the requirements for scientific and educational literature, which, in our deep conviction, in this case have a clear priority over the requirements of the actual church office work and etiquette. 

Based on the above, we believe that the professor's systematic use of the term "Church" to an ordinary legal entity is not entirely correct. It was possible to talk about the separation of church and state during the period of the Decree of the Council of People's Commissars of the RSFSR of 23.01.1918 "On the separation of Church from state and school from church", but this Decree was canceled in 1990. The noted remark applies not only to the cited work, but also to other publications of the scientist.

In 2015, the professor very scrupulously reveals the legal aspect of the concept of "religious mystery", making a tangible contribution to the theoretical understanding of the phenomenon of important interdisciplinary significance ^[7], and also carries out a historical and comparative analysis of the modern judicial system of the Russian Federation and the ecclesiastical courts of the ROC MP. When comparing the secular and ecclesiastical judicial systems, the author comes to the following, in our opinion, very accurate and reasonable conclusion: "The analysis of the presented document on the legitimacy of the ecclesiastical court in the life of secular society, its legal status calls into question the principle of separation of Church and State ... " ^[8]. 

Of course, the topic of secularism of the state is very, very extensive, there are a significant number of publications on this subject, including monographs, by both domestic and foreign authors. Professor A.S. Smykalin's remark is valuable for us because the scientist clearly identifies the problem and gives it a proper legal assessment. Without delving into the further development of the topic of secularism of the state, we will give an example available in the non-commercial online version of the SPS "Consultant Plus", namely, Order No. 927 of the Moscow Department of Health of 30.10.2019 "On Amendments to the Order of the Moscow Department of Health of 29.12.2016 No. 1064" (hereinafter — Order No. 927). The appendix to the specified order contains the release of medical organizations behind the pathology and anatomical departments for autopsies and free preservation of the bodies of the deceased.

In the second note to the emancipation, it is indicated that the direction of the bodies of deceased clergy and monastics of the ROC MP (in our opinion, the logical, formal-legal, systemic or any other interpretation of this order says that it refers specifically to a religious organization with TIN 7704277940) is carried out strictly in accordance with the emancipation established by order No. 927, to the pathology department of the ANO CCB of St. Alexy, regardless of whether death occurred at home or in any medical organization located on the territory of the city of Moscow. Thus, the departmental order of the Moscow Ministry of Health explicitly and unambiguously divides the clergy of different religions into two categories — mentioned and not mentioned in it, creating different grounds for the emergence of civil rights and obligations for subjects of civil legal relations. At the same time, the question remains unresolved, but what about the bodies of those Orthodox clergy who are not under the jurisdiction of the ROC MP? (We mentioned more about the problem related to the legal status of various Orthodox jurisdictions earlier ^[9]). And the next natural question is to which hospitals should the bodies of deceased clergymen of Muslims, Jews and representatives of other religions be delivered? In which hospitals should, according to the logic of the Moscow Ministry of Health, deliver the bodies of clergymen of religious groups under the name "Russian Pastafarian Church of the Macaroni Pastriarchy"?  (official website — https://www.rpcmp.ru /, accessed 14.09.2023). According to paragraph 3 of Article 7 of Federal Law No. 125-FZ, religious groups have the right "to perform divine services, other religious rites and ceremonies, as well as to carry out religious education and religious education of their followers." Why are members of such religious groups discriminated against at the level of departmental orders of state health authorities?

To find answers to these questions, you can refer to the second part of the professor's article devoted to a comparative analysis of the modern judicial system of the Russian Federation and the ecclesiastical courts of the ROC MP, in which the author presents his opinion in more detail and indicates: Russian Russian Orthodox Church's Basic Social Concept states that the Church should not assume functions belonging to the state, which means that the existence of a church court by the fact of its existence contradicts the Constitution of the Russian Federation and the Social Concept of the Russian Orthodox Church" ^[10].  This conclusion, made in 2016, clearly does not fit into the current trends of state-confessional relations in Russia, therefore, is of increased interest to readers.

We believe that the acute questions about the legitimacy of church courts raised by the professor in the named publications of 2015-2016 do not lose their relevance over time. Moreover, their relevance is increasing. This thesis can be very clearly illustrated by a reference to the trial of Protodeacon Andrey Kuraev. According to the results of this process, Protodeacon Andrey Kuraev published a monograph ^[11], the study of which, in our opinion, will be very interesting to the same target audience for which the professor's textbook on canon law is designed ^[12].

The study of this textbook will be very interesting for both practicing lawyers and a wide range of readers interested in state-confessional relations. However, it should be noted that the discourse used in this textbook would be more appropriate in a confessional-oriented textbook, i.e. designed for study in spiritual educational institutions.  The style of presentation and the method of presentation of the material sometimes differ very significantly. Some paragraphs are written from theological rather than legal positions; confessional-oriented information is presented in a positivist way, without paying due attention to the available critical literature. Sometimes the author presents the material in a style more characteristic of a secular religious scholar.

For example, "the divine will" is indicated as one of the sources of church law, with reference to the 1997 PhD thesis of M.Y. Varyas. We believe that the textbook lacks a legal commentary on this thesis. The situation when the law enforcement officer needs to understand the exact content of the will of the legislator is by no means rare in law. A search in the non-commercial online version of the ATP "Consultant Plus" showed that this phrase occurs in decisions of higher courts more than 400 times, in decisions of the Intellectual Property Court — at least 20 times, in judicial acts of arbitration courts — more than 10,000 times, in judicial acts of courts of general jurisdiction — more than 2,300 times.  

The reconstruction of the "will of the legislator" does not raise doubts about the permissibility of such practice, since draft legal acts are developed by lawyers, in compliance with the rules of legal technique. But any legislation is far from ideal, since it regulates social relations that are in dynamics and, therefore, does not always correspond to these relations, which entails for law enforcement officers (primarily judicial authorities) the need to clarify the legislative will. And at the same time, the legislator has a variety of actions — to change the legislation at his discretion, which entails a corresponding change in law enforcement practice, or to recognize the validity and significance of the structures proposed by the courts and incorporate them into the current legislation.

In the situation with canon law and the establishment of the "divine will", the situation is completely different. In practice, the opinion of persons endowed with administrative power and having the opportunity to literally condemn those interpreters whose opinion does not coincide with their own is issued for the "divine will". The canonical law of the ROC MP is very confusing, completely unadapted to modern realities and therefore allows for significant subjectivity of the law enforcement officer. Speaking about the "divine will" as a source of law, it will not be superfluous for lawyers to recall the classic that is still relevant today: "Weak Peruvians willingly believed Manco Capac that he was the son of the sun and that his law expires from heaven" (A.N. Radishchev. "Journey from St. Petersburg to Moscow", chapter "Vydropusk"). 

We believe that when presenting religious content for law students, it is more appropriate to use the tools of such a secular science as religious studies. According to the fair remark of Professor A.P. Zabiyako, "the diversity of religion is adequately reconstructed only through a system of definitions. At the same time, each of the possible definitions of religion should be operationalized in relation to a specific context of use, to cultural and historical realities and research objectives" ^[13].

In our opinion, the short dictionary of Church Slavonic terms given in this textbook is not free from a number of essential shortcomings, however, we consider it inappropriate to develop this topic within the framework of the article. At the same time, the very attempt to create an up-to-date glossary of Church Slavonic terms for lawyers can only be welcomed.

The study of the historical and legal aspect of the role of religion in the XVII century in the relations between Russia and Ukraine seems very relevant from 2023 ^[14]. The author clearly articulates his position, justifiably pointing out that the factors of religious and church life in the events under consideration were closely intertwined with the factors of interstate relations.  

The professor's article in question is also interesting for its historical texture. Speaking about the methods of countering Catholic propaganda, the author notes the resolute attitude on the part of the Orthodox: "When in 1624 the Kiev Uniates, with the assistance of the local voit Fedor Khodyka, began to seal Orthodox churches, Metropolitan Job Boretsky turned to Hetman Kallinik Andreyev in Zaporozhye for protection. The Cossack detachment that arrived in Kiev from Zaporozhye in January 1625 opened the churches. Khodyka was drowned in the Dnieper, and the Cossacks cut off the head of the Uniate priest Yuzefovich." The author does not give the legal validity of such countermeasures in the interfaith dialogue, apparently leaving the answer to this question at the discretion of the reader.

In addition, in the article under consideration, the author somewhat one-sidedly, in our opinion, describes the activities of Bogdan Khmelnitsky, putting forward a religious motive for the first (if not the only) plan. We believe that the personality of Bohdan Khmelnytsky and the assessment of his contribution to history deserved a more detailed assessment. In our opinion, fairly balanced assessments are given in the publication of Professor M.V. Zherebkin, who notes that Bogdan Khmelnitsky "by chance and circumstances led the general protest of Cossacks, peasants, representatives of the urban lower classes, who had different goals and interests. The lack of an idea that forms the goal is largely explained by the subsequent political shies of Khmelnitsky" ^[15].

            Also of great interest to readers is the professor's article on the mystery of confession ^[16]. The article contains minted legal formulations that demonstrate the essence of the problem with crystal clarity. The scientist gives a concise in scope, but deep in content review of the available research; clearly and clearly formulates the subject composition in relation to the phenomenon of religious mystery, its subject, object and purpose of education, thereby justifying both the need for the existence of the named legal institution and its place in the mechanism of legal regulation. Further, the actual content of normative legal acts that regulate religious secrecy in a broad sense and the secret of confession in a narrow sense is revealed.

            But there is an inaccuracy in the professor's article under review, which, in our opinion, arose due to not sufficiently critical quoting of other lawyers. Commenting on the Basics of the social concept of the ROC MP, the scientist states: " ... in exceptional cases, the priest can "reveal the identity of the confessor," which contradicts even the CPC and the CPC of the Russian Federation." We consider it necessary to refer to the original source, i.e. the official text of the document posted on the official website of the ROC MP: "... the priest must call the professed to true repentance, that is, to renounce evil intentions. If this call does not take effect, the pastor can, taking care of the secrecy of the name of the confessor and other circumstances that can reveal his identity, warn those whose lives are in danger" (http://www.patriarchia.ru/db/text/419128.html , date of appeal 14.09.2023). That is, there is no question of the right to disclose the identity in the official document, which corresponds to both a software installation Fundamentals, and corresponding norms of civil and criminal legislation.

            In the article devoted to the peculiarities of state-confessional relations in the USSR in the 1920s ^[17], the following fragments are noteworthy, in our opinion. The professor points out that until 1923 the Orthodox Church did not recognize the Soviet government. Here it would be interesting to know the opinion of a scientist how such a political position correlates with direct biblical instructions - Rom.13:1-2 and 1 Pet.2:13-14, in particular, "there is no authority not from God; the existing authorities are established from God."

            The author also notes that "the situation was aggravated by the fact that the Church took a negative position not only with regard to the religious policy of the socialist state, but also with regard to its entire domestic and foreign policy. Thus, the Patriarch condemned the government's desire to withdraw from the war and conclude a peace treaty with Germany." There are different opinions among historians on the validity of the conclusion of the Brest Peace. In our opinion, the interpretation of these events proposed by modern historians, Director of the Digital History Research Foundation E.N. Yakovlev and A.I. Fursov deserves attention. (Public lectures are available at the following addresses: Ph.D. A.I. Fursova — https://www.youtube.com/watch?v=0BTrxZL14SU (date of address: 14.09.2023), Candidate of I.N. E.N. Yakovleva - https://www.youtube.com/watch?v=p_1-tFzXrvo (accessed: 09/14/2023)). It is hardly surprising that the new leaders of the state reacted negatively to attempts by religious figures to interfere in foreign policy issues.

            In addition, the above-mentioned article does not mention the Declaration of Metropolitan Sergius (Stragorodsky) of 1927, although in its influence on the fate of Orthodoxy in the XX century, this document was of very serious importance.  

            The professor also paid attention to state-religious relations in the USSR during the Great Patriotic War, highlighting the key historical facts of this period ^[18]. Noteworthy is the scientist's remark about the following. About a year before Stalin's historic meeting with Metropolitans Sergius (Stragorodsky), Alexy (Simansky) and Nikolai (Yarushevich), a request was sent to Stalin to allow the church to open its own bank account for depositing collected donations. And this, as A. S. Smykalin believes, actually meant that the church de facto received the status of a legal entity. In our opinion, the opportunity to have a bank account for patriotic purposes did not mean too much for adherents of Orthodoxy in the realities of that time and did not fundamentally affect the change in the existing situation.

            Another important program article of the professor on the subject of state-confessional relations is devoted to modern legal religious studies ^[19]. In it, the author gives a thorough historical overview of the intersections of secular legislation with various phenomena of the religious sphere.

            The question of compliance with the norms of labor law in religious organizations is particularly noteworthy. Limited by the format of the article, the professor sets out the norms of positive law in their historical development, without delving into the analysis of individual incidents and without drawing conclusions about how the norms of labor legislation are actually applied in religious organizations. We believe that the issues raised by the scientist are very important and need further theoretical development on the example of the analysis of specific court cases.

            What has been said convinces us of the correctness of the professor, who consistently promotes the thesis on the development of legal religious studies, on the need for serious scientific discussion on state-church relations, on the training of qualified legal personnel capable of applying not only legal skills, but also working in an interdisciplinary field, taking into account and adequately comparing information from law, history, religious studies, sociology and, on this basis, make informed judgments about certain phenomena of social life.

            Based on the results of the study , the author came to the following conclusions:

1. For the purposes of further improvement of state-confessional relations in Russia, the works of Professor A. S. Smykalin are of undoubted interest, since the author indicates in them a lot of legal relations that are currently not settled in an optimal way and suggests ways to solve existing problems.

2. In our opinion, special attention should be paid to the issues of respect for the rights of citizens working under an employment contract or without it in religious organizations; the legal status of existing "church courts" (it is necessary to more clearly and unambiguously prescribe the possibility of appealing decisions of church courts in courts of general jurisdiction if the labor rights of citizens are affected).

3. Judicial religious studies deserves special attention, these courses should be more widely included in the curricula of law students. In our opinion, the training of lawyers with specialization in the field of state-confessional relations should be significantly expanded.