Monisme ou dualisme du droit des cultes dans la France concordataire

The monism/dualism divide refers to two doctrinal perceptions of religious law during the Concordat period (1801-1905). For monists, religious law can be reduced to unity; the State does not tolerate churches outside an organised system of "surveillance protectrice " (Portalis) and the enjoyment of all the rights granted to religions, particularly freedom of worship, is only possible within the framework of the Concordat. This view, which favours a monist conception, did not receive complete and unanimous support from jurists specialized in religious law throughout the Concordat period and beyond. In fact, a minority of jurists, who held a dualist conception, considered that, in the relations it established with the churches, the concordat State had recognised the existence of “free” religions, a kind of experiment in separation prior to the 1905 Separation. If the monist conception of the religious regime dominated the doctrinal field of legal liberalism, it was because it was the legal expression of its majority tendency, regalian liberalism, which included jurists such as Lanjuinais, Hello, Foucart, Serrigny, and Dupin aîné. This current, to which Guizot lent his authority, spread throughout Orleanism, finding, in appropriate forms, a new vitality of domination under the Second Empire and the Third Republic, regimes that perpetuated a neo-Gallican type of liberalism that was that of the concordat State. On the other hand, the dualist conception is linked, in a symmetry whose nuances must be emphasised, to the minority tendency of french liberalism, the liberalism of the subject (Jaume), embodied by tutelary figures such as Constant and Laboulaye, whose principles would influence the legal conceptions of Carnot, Chauveau, Hélie, Batbie, etc. By working on significant positions regarding the primacy of the individual and his rights and obligations of obedience to the State, the sovereignty of the latter and of society, the modalities of guaranteeing public freedoms, the limited scope of the normative conception of the Constitution, the social utility of religion, etc., this almost invisible issue of doctrinal conflicts developing in the world of jurists significantly sheds light on the tensions, sometimes escalating into conflict, within liberal families.