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Religion and Society

Remarks on the History of the notion "Freedom of Religion"

Prof. Nikolaus Lobkowicz

This is the unabridged version of the lecture given on June 23 in Amman by Prof Nikolaus Lobkowicz on the occasion of the Oasis Scientific Committee.

 

To say something reasonable about the history of religious freedom within the limits of half an hour is far from easy. On the one hand, although the notion of religious freedom did not emerge until the 17th century, the issue is as old as the history of religion. On the other hand, the meaning of this notion is more complex than at first it may seem.

 

Let me begin by saying something about the second point. Today we understand by "religious freedom" the legitimate and therefore legally recoverable claim at any time to choose - without incurring any disadvantage - one´s religious convictions, that is, publicly to confess, and to live according to the religious creed one has decided for. Usually, this claim is guaranteed by the constitution, since mainly it is addressed to the state. Most modern constitutions and/or administrations of justice therefore also severely limit the right of the government to meddle with the internal affairs of a recognized religion. There may exist political or social communities without any formalized constitution; in this case, the claim is addressed to the community and whatever institutions it has developed, in particular the courts. It is important to see that this claim or right has limits some of which are heatedly disputed today in the Western World and may differ from country to country. One reason is that no constitution defines the notion of religion. Thus in the United States Scientology is recognized as a religion (simply because it claims to be one) while in many European countries this creation of the science fiction author L. Ron Hubbard is considered a potentially criminal organization and therefore is closely observed by the institutions responsible for internal security. More generally, religious freedom is considered a basic human right only to the extent that it does not in an obvious way disturb the public order as defined by the constitution. Dignitatis humanae mentions this restriction several times by referring to a "just public order". In France Muslim girls are not permitted to wear a scarf in public schools, including universities, since the laicist laws of 1905 prohibit any influence of religion upon public institutions; until recently, the same applied to Turkey, where Ataturk´s laicism became an element of the constitution. In Germany, Muslim teachers of public schools are not permitted to wear a scarf in classroom, since they are civil servants and a German civil servant is committed to religious neutrality while in action. To what extent the wearing of the scarf is a religious requirement or only a Muslim identity symbol is another question. In some European countries, for example in Germany, the slaughter of animals according to Jewish or Muslim rites is disputed since it is in conflict with the idea that animals should be kept from unnecessary suffering; in Austria it is permitted for birds but not for mammals. As you see, there are many aspects of religious freedom with respect to which, as the German saying goes, the devil is hidden in the details. Some of these details probably will continue to bother constitutional courts and politicians for some time and, incidentally, are in the Western World an illustration of the constantly progressing secularisation. As you may remember, according to a recent British verdict schoolbooks should speak only of parents, not of mother and father, since the latter expression discriminates against "parents" of the same sex. Daily I am expecting in some Western country a successful legal complaint against the Roman Church for not wanting to admit a homosexual or for that matter a woman to priesthood. The human right of religious freedom increasingly risks to get into conflict with other human rights, particularly the right to equality and the right not to be discriminated against because of something considered irrelevant. Or to put it in another way: one of the problems of modern Western countries is the vociferation of venomous tiny minorities that want to have their way.

 

Let me come, however, to the specific subject of my statement, the history of religious freedom. Polytheistic cultures such as that of ancient Greece or of the Roman Empire prior to the so-called Constantine turn implicitly granted religious freedom; there were many divinities and one was free to choose the ones that one venerated or felt the need to pacify. Even Aristotle who - together with Plato - had developed a basically monotheistic view, without hesitation demanded the executor of his last will to offer up a cock to a minor divinity that he particularly appreciated. There was only one exception: the accusation of as?ße?a (what literally means something like „lack of pious awe") that induced several Greek thinkers to flee abroad and did cost Socrates his life. According to Xenophon, the latter was accused of not venerating the gods the p???? venerates, that is, of introducing new divinities, as well as of ruining the young by seducing them to turn away from e?seße?a. ?seße?a and impietas seem always to have had a political connotation, in the sense of an outrage of the rejection of the divinities of the p????; the accusation was addressed by conservatives against too radical opinions about religion. Something of the same kind applies to ancient Rome: the Christians and to a lesser extent Jews were persecuted for ignoring the politically relevant religious traditions. An accusation they had to defend themselves against and which even Origen comes back to in his Contra Celsum is "novitas", which in this case does not mean "renewal" but rather "an extraordinariness offending the sense of tradition".

 

The German Egyptologist Jan Assmann who until recently taught at the university of Heidelberg has argued that among the religions only monotheism is potentially violent and thus inimical to religious freedom. This claim obviously is inspired by Assmann´s studies of the Pharaoh Amenhotep IV. who called himself Echnaton, "the servant of the only God Aton", and his monotheistic revolution about thirteen centuries B.C. Assmann´s suggestion has a certain initial plausibility. If there is only one God, the veneration of all other supposed divinities is a scandal and has to disappear. Or to put it in another way: monotheism introduces into religion the idea of truth, the distinction between truth and untruth. In a way, Pius XII. still argued along these lines when toward the end of his reign he argued that although for the sake of peace one may have to tolerate non-Catholic confessions and non-Christian religions, these errors cannot appeal to a right, since error has no rights. The extraordinary quality of the declaration Dignitatis humanae consists in that is shifted the issue of religious freedom from the notion of truth to the notion of the rights of a human person. Although error may have no rights, a person has rights even when it is wrong. This is of course not a right before God; it is a right with respect to other people, the community and the state.

 

The issue was since the beginning complicated by what one uses to call the "alliance of the throne and the altar". Already Echnaton´s monotheism that resulted in the removal of many religious dignitaries of the usual Egyptian polytheism was the faith proclaimed by a ruler. Thus inevitably it had political implications; the ruler´s faith and the unity or identity of the Egyptian Empire became connected. Until Constantine the Great Christian faith was at most a tolerated, often persecuted, religion. The Christians could only hope for religious freedom. But as soon as Christianity became the religion of the Roman Empire, it no longer was tolerant of other religions. What in this case "it" means is of course ambiguous. It means neither the Church alone nor the emperor alone. The rulers were interested in the foundations and the unity of their empire, the Church was interested in winning the hearts of the people. But in spite of the difference between their interests the two co-operated. Politics became an instrument of religion, religion as the only true view of reality became an instrument of politics. This does of course not mean that heralds of this alliance immediately and constantly persecuted those committed to another faith. At first, one simply pushed them against the wall; only officials such as bishops who were considered heretics sometimes had to flee. But the latent violence was present even if neither the political nor the Church authorities explicitly promoted it. A famous example is the Alexandria stoning of one of the last Neoplatonics, the women philosopher Hypathia, by a fanaticised Christian crowd in 415. This unpleasant event which in more recent times became the subject of an English and of a German novel is an early example of what one often can observe during the Middle Ages: in many cases the violence stemmed neither from the Church nor from the State but rather was due to primitive and superstitious believers whom the authorities preferred not to get in conflict with (the beautiful Hypathia was suspected to be something like a witch).

 

One form of violence was forced baptism. Since St. Augustine´s dispute with the Donatists it often was justified by the words compelle intrare, "force to enter", in Christ´s parable about the heavenly banquet in the 14th chapter of the Gospel according to Luke. If the only way to save someone from damnation consisted in baptizing him, it seemed sort of natural, almost an act of charity, to baptize him even if he did not want it. The Church never explicitly approved of this practice but unambiguous and explicit condemnations of it were rare and did not turn up until quite late (e.g. in a papal letter to a Bulgarian prince in 866, or in 1065 in the letter of Alexander II. to Prince Landulf of Benevent, in this case concerning the forced baptism of Jews). As unpleasant as it may be foe us Christians an honest Church historian will have to admit that especially during the Middle Ages there were times during which some Muslim rulers and religious authorities were in this respect more enlightened and tolerant than Christian authorities. Enforced baptism often was aggravated by the suspicion that the converts secretly continued to stick to their former faith; think of the issue of the marranos in Spain and Portugal or of the fact that even Saint Ignatius of Loyola precisely for this reason seems not to have wanted converted Jews in his order.

 

There is another aspect of the issue that slowly will lead me to the emergence of the idea of religious freedom. Today, we are horrified when we hear about Muslims who, due to several surahs of the Koran and some Islamic traditions, were condemned to death and killed only because they became Christians. But we should not forget that this was the way Christianity for a considerable time dealt with its own heretics. The conversion of Christians to another religion, especially to the Islam, used to be rare and almost never happened within the limits of the Christian World. But heretics accompanied Christianity since its earliest times. I cannot say who was the first heretic executed because of his opinions (probably Priscillian of Avila in the 4th century; St. Martin of Tours who sympathized with him was horrified when the Emperor had him executed). Yet obviously the practice was considerably older than the Inquisition, was common until the 16th and in some countries until the 17th century, and was in no way restricted to Catholic parts of the world (think of Michael Servetus, the discoverer of blood circulation, burned 1553 in Calvin´s Geneva because of his denial of the Trinity, or of Thomas Müntzer, executed 1525 in the already Lutheran Mühlhausen (close to Erfurt) because of his rebellious Anabaptism). The burning of heretics was executed by the political authorities but it was the Church authority that condemned them and handed them over to the state. Those who like myself cherish Aquinas and consider him one of the greatest Christian theologians might be surprised to hear that this enlightened man without reservation agreed to this practice. In the third article of the eleventh question of the Secunda secundae he asks himself whether heretics ought to be tolerated. His answer is unambiguous: no, of course not. After all, one condemns to death e.g. money forgers who damage nothing but temporal life. To damage faith that is the life of the soul is a much more serious crime. Therefore, if there is no more hope that they would retract their false opinion, heretics have to be excommunicated and thereby delivered to the secular authority in order to be excluded from the world by death: sunt a mundo exterminandi per mortem. Of course "exterminare" does not mean to exterminate something like one uses to speak of an extermination of rats or vermin; it simply means to banish. Also one should not overlook that at the same time Aquinas a few pages earlier categorically rejects the idea that gentiles and Jews should be forced to accept the Christian faith. They should only be prevented from obstructing faith as well as punished for blasphemies and evil seductions, crimes that even justify wars against them. In other words, Aquinas makes a clear distinction between those who never accepted faith and those who accepted it but later deviate from it. Only the latter are etiam corporaliter compellendi ut impleant quod promiserunt et teneant quod semel susceperunt. Although he may have been aware of it, he does not discuss the possibility that the accusation of heresy might be a pretext for devious motives, as it e.g. was the case when 1307 Phillip le Beau destroyed the Order of the Templars in order to get hold of its enormous wealth.

 

If one considers this tradition it is in a way puzzling that the idea of a freedom of worship emerged nowhere else but precisely within the confines of the Christian universe. It was a complicated process. On the whole the Church usually was against an enforced conversion; one of the earliest examples is a letter of St. Ambrose who already was aware of the marranos-problem: ne fictos catholicos haberemus quos apertos haereticos noveramus, he writes. During the Middle Ages one often notices a concern about the libertas ecclesiae in face of a political embrace; usually, however, it amounts to the demand for a supremacy of the Church over the secular ruler. In the 14th and 15th century humanists such as Marsilius of Padua and Lorenzo Valla begin to argue against the Church´s supremacy over public affairs. The discussions about the relative authority of the Pope and a Church Council as well as the efforts towards a reunion with the Church of the East lead to a new awareness of the fact that at least some of the differences of the creed might not be an issue of orthodoxy but concern only tradition and rites (Nicholas Cusanus, one of the towering figures of the Council of Florence, argues this way in De pace fidei). Humanists such as Erasmus of Rotterdam begin to study the early Church Fathers and rediscover a more subject-oriented faith free from all political implications. The same applies to Luther and the early reformation; but as the reformers look for political recognition similar to that of the Roman Church, their efforts result in a new schism. While Western Christianity hardly noticed the rupture with Constantinople of 1054, since the middle of the 16th century due to the Reformation and Rome´s reaction to it even the Western Christian universe is divided. There no longer exists the Christianity but several Churches slandering and fighting each other.

 

When one reads Malcolm Lambert´s fascinating book, published 1992 in Oxford, Medieval Heresy, a history of "Popular Movements from the Gregorian Reform to the Reformation" one almost gets the impression that after the Constantine turn the idea of religious freedom could not pop up until neither the Emperor nor the Church were able to suppress a heretic rebellion. This happened the first time in the 15th century in Bohemia due to the movement started by Jan Hus who was burned in Basel at the stake in 1415. The next dramatic event was the 16th century Reformation in Wittenberg, Zurich and Geneva. The long-term consequence was the Thirty Years´ War that devastated great parts of the European continent and which nobody really won. Again of course the religious issue was closely connected with issues of power. As you may remember, the war was ended in 1648 by the Peace of Westphalia and its principle cuius regio, eius religio. The king, the duke or whoever was the ruler could declare his personal religious denomination as the recognized, i.e. state, religion of his realm. He was not permitted to persecute believers of another denomination but in general such believers would be forbidden to exercise their creed in public. There was a number of exceptions, for example, that if the ruler was an ecclesiastic authority (e.g. a bishop), he had to resign when he changed his confession. Surely, it is a peace treaty but one that no longer could be interested in truth. One of its implications was that adherents of the non-official denomination could leave the country and take along whatever they owned, of course not real estate. About two hundred thousand non-Catholics, many of them members of the lower aristocracy, had to leave or in any case did leave for example Bohemia recaptured by the Catholic Habsburgs, among them the great scholar Jan Amos Komenský, or Comenius, who ended his life as bishop of the Moravian Brothers in Amsterdam. This early form of ethnic cleansing, a religious cleansing, traumatized the Czechs for centuries and certainly was one of the reasons why already decades before the communist seizure of power Czechoslovakia was one of the least religious countries in Europe.

 

Traditionally, Catholics have considered the Peace of Westphalia a scandal because it handed over large regions of Europe to heretics. But one should not overlook that it also was a first step on the one hand towards democracy, on the other hand towards religious freedom. For the sake of peace it rearranged the Holy Roman Empire without any reference to a unique creed. Religion no longer was and in any case soon ceased to be the legitimization of political power. Not individuals but at least countries could peacefully co-operate in spite of different creeds. For scholars such as the philosopher Leibniz, for example, it was no longer a problem to be first in the service of a protestant and then of a Catholic ruler. Rulers were free to decide which creed and which religion to which extent they would tolerate. Generally, Catholic countries tended to be less tolerant, at least unless they were not in conflict with Rome like France. One striking exception was the aristocratic republic of Poland; already long before the Peace of Westfalia it had been extremely tolerant towards religious minorities including Jews which explains why it became the European country with the greatest number of Jewish citizens. That today Poland is the European country in which anti-Semitism flourishes like nowhere else is a phenomenon that is as puzzling as it is painful, in particular, since only a tiny number of Polish Jews survived the holocaust (the Polish philosopher Leszek Kolakowski used to speak of an "anti-Semitism without Jews").

 

Another important development took place on the British island. Contrary to the European continent England and Wales where not particularly pestered by heresies during the Middle Ages; one of the few exceptions was in the 14th century John Wicliff whose ideas later influenced Jan Hus, but his theology was not declared heretic until more than thirty years after his death. After the break of Henry VIII. with Rome, however, there emerged in England numerous dissenters, i.e. groups that in one or another respect disagreed with the meanwhile Anglican hierarchy. The Toleration Act of 1689 ended their persecution (though not that of Catholics). But meanwhile many of them had emigrated to the New World, to North America, which thereby became that part of the World where freedom of worship was not only for the first time constitutionally codified but in a way perfectly natural. The Founding Fathers of the United States were the descendants of people who had left Britain for a largely uninhabited part of the world in order to be free to confess their faith und to live according to it just as they felt it to be right. Catholics at first had difficulties in this New World; they were considered to be particularly intolerant. Moreover, the first British Americans, in spite of the numerous religious differences among them, were passionate Protestants who detested Catholicism. But already 1634 the State of Maryland in a special Toleration Act recognized all trinitarian confessions as equally legitimate, and within a short time also Catholics could reach the highest offices.

 

It is interesting in this respect to compare the French declaration of human rights of 1789 and the Virginia Bill of Rights of 1776. The French declaration says in article 10 that nobody should be disturbed because of his opinions, including religious ones, as long as he does not disturb the public order as determined by laws. Article 16 of the Virginia Bill of Rights, on the contrary, explicitly refers to a respect for the Creator, declares that all people are equally entitled to confess their religion according to the voice of their conscience and share in the common duty of Christian patience, love and compassion. This difference illustrates well the different inspiration of the French and the American revolution, although both are contemporaries. The French revolution is addressed against something: the old order, the king, the Church. The American revolution, on the contrary, guarantees freedom in a new world, as if mankind´s history could be started afresh - and its spirit is deeply Christian. Alexis de Tocqueville, a decently Catholic French aristocrat faithful to his post-Napoleonic king, was deeply aware of this difference when in 1835 he published the first volume of his famous book, De la démocracie en Amérique. Coming from France he had expected that the United States would be a completely secularised country because of its strict separation of state and religion. To his surprise he discovered something completely different: a country that was deeply religious precisely because of this separation. Of course it was not a Catholic religiosity but unambiguously one that was inspired by Christianity. The young Karl Marx who had read de Tocqueville´s book and who like all Left Hegelians considered religion a perversion, argued less than ten years later that religion will not, as his friend Bruno Bauer had argued, disappear when it is no longer supported by the state. It would disappear only when the most basic evil, the exploitation of man by man made possible by private property, disappears. Contrary to the later Soviet Marxists, Marx and Engels were therefore always opposed to a forced abolition of religion. It would, they believed, wither away as soon as the "proletarian revolution" was successful. To forbid religion would only result in a prolongation of its dying. Although he was not a socialist, the founder of positivism, Auguste Comte, was of the same opinion. All religions were superstitions that would disappear when mankind became more enlightened by accepting whatever science teaches it.

 

The American emphasis on religious freedom was strongly influenced by John Locke´s Letter on Toleration first published in Latin in 1689. As he was afraid that the intolerant Catholics might recapture the British Island Locke argued that a government should consider religion a private affair of its citizens. The task of a government, he felt, consists in the protection of the life, the freedom and the property of the citizens. It has no competence as far as religion is concerned and after all the bible nowhere says that people should be forced to accept a religious creed. That he did not extend this defence of a freedom of religion to Catholics he explained by arguing that the obedience to the pope undermines the obedience to the secular ruler. That a political community has to be ruled by someone is obvious; but the citizens should not be confronted with two authorities that might contradict each other. Nor should, however, a government tolerate atheists, since without the faith in a Creator the moral convictions presupposed by an orderly state would not long survive.

 

In a way, it is quite understandable that he Catholic Church for a long time detested such assertions. Since the Catholic version of the Christian creed was the only true one, it expected from a government or ruler that they do whatever they can to promote the Catholic faith. For the sake of peace one might have to tolerate the presence of a few non-Catholics or even non-Christians. But a Catholic should not feel that this is an ideal state of affairs. Even in the United States many Catholics thought this way. As late as about 1940 some American Catholics, noticing that their number is constantly growing, argued that their country would and should become a Catholic State as soon as they reached a majority.

 

In the 17th and 18th century the Church largely ignored the ideas developed in England and in America and e.g. in France supported by Rousseau in his novel Émile. One could not bother with silly ideas advanced by protestant heretics or an immoral anarchist born in Calvinist Geneva. But as in the beginning of the 19th century such ideas began to spread among Catholics (think e.g. of Lamennais or for that matter of Charles de Montalembert whom Pius IX. preferred not to condemn since he was a layman, not a priest), the Church felt that it had to react - and its reaction was a categorical "No". Already in 1814 in a letter to a French bishop Pius VII. had given vent to his displeasure about article 22 of the recent post-Napoleonic constitution which not only guaranteed the freedom of all cults but even suggested that the government should protect and support them. Eighteen years later Gregor XVI. in the encyclical Mirari vos called the idea that everybody should be free to follow his conscience an error of epidemic proportions and indeed a deliramentum, a madness. The thrust of this encyclical was directed against what at that time was called "indifferentism": the idea that, especially with respect to salvation, it makes no difference which propositions one considers true and which values one upholds. Another expression was "tolerantism" (Leo XII. had used it 1824 in another, earlier encyclical), today one probably would prefer the expression "relativism". The problem, however, was that the Church authority still was not able to distinguish between how a Catholic should think and what the civil law even in the eyes of a Catholic should permit. The idea that ultimately only a Catholic state was legitimate simply was too strong. The lack of this distinction became even more obvious when Pius IX. in 1864 in the encyclical Quanta cura repeated the rejection of the deliramentum and the infamous Syllabus enumerated a number of propositions that a Catholic was not permitted to agree with: that everybody should be free to confess the faith he considers true (15), that the state and the Church should be separated from each other (55), that non-Catholic creeds could legitimately be a state religion (77) and that religious freedom does not ruin morals and does not seduce to the "pest of indifferentism" (79). Leo XIII. in the encyclical Libertas praestantissimum of 1888 emphasized that not only justice but simply reason prohibit that the government pursues the policy of granting the same rights and privileges to all confessions and religions. Although later the tone became more moderate, on the whole this was the way in which even Pius XII. still thought and argued, when in 1953 he addressed a conference of Catholic law specialists..

 

As you certainly know it mainly was this 19th century tradition that induced the former archbishop of Dakar, Marcel Lefèbvre, to break away from Rome after the overwhelming majority of bishops - 2308 of the present 2386 - had in 1965 voted for Dignitatis humanae; he and his followers considered the declaration on religious freedom a straightforward heresy. It is in fact not easy to say whether and to what extent Dignitatis humanae is a document that contradicts what the 19th century popes had maintained. It certainly is not a dogmatic constitution like e.g. Lumen gentium and its subject is not the Church but the civil community. Although it is almost unthinkable that the Church ever would retract what it declared in 1965, the complications that I mentioned at the beginning of my lecture make it likely that one day it will have to specify one or another passage. But it is an unambiguous break with a tradition the origins of which go back if not to the times of Constantine the Great then in any case to the year 380 when Theodosius I. declared the Christian creed the religion of the Roman Empire. Some commentators have suggested that the situation had changed, i.e. that the 19th century Church authorities would have agreed with Dignitatis humanae had they still lived in the second half of the 20th century. But can one really maintain that the Church adapts its teaching, and be it only the social teaching, to different times and situations? This was and still is the accusation of the Lefèbvrists and other traditionalists: that the Church had succumbed to the spirit of the times and one if its most outspoken ideologies. Though the way Dignitatis humanae argues is strictly theological, indeed christological, it is obvious that the authors and the voting bishops were also influenced by how meanwhile "the World" thought. Perhaps the best way to deal with such questions was advanced by Hans Urs von Balthasar, though not exactly (or only) in the context I am dealing with. In modern times, he argued, the Church occasionally overlooked that what it condemned in its real or supposed antagonists could be, and perhaps really was, something like a lost splinter of its own heritage. Balthasar used to justify this observation by St. Augustine´s interpretation of the exspoliatio Aegyptiorum as advanced in De doctrina christiana: whatever is true and genuinely valuable comes from God and the Christian should not be afraid of accepting it even if it was promulgated by a pagan. As it often happened during the history of the Church, it took the latter a considerable amount of reflection and time to discover and to acknowledge that Jesus Christ himself certainly would have voted for a freedom of religion as a principle of human cohabitation. When in 1948 the United Nations passed its Universal Declaration of Human Rights many Catholics felt that it was time that the Church, too, supports the article 18 that said: "Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance". At that time the Church still was not ready officially to subscribe to such ideas. Countries that understood themselves as a Catholic state certainly no longer persecuted non-Catholics; but often they did not grant them to confess their creed publicly. This was the case e.g. in Franco´s Spain. It says something for this "disreputable fascist" that two years after the publication of Dignitatis humanae he had the Spanish constitution changed so that since 1967 it guaranteed a protection to all religious creeds. Though the notion of a privileged state religion does not by itself contradict the declaration of the Second Vatican Council, even Italy gave it up in 1984, so that today the only remaining European "Catholic states" besides the Vatican seem to be mini-states Andorra, Liechtenstein, Malta and San Marino.

 

Let me try to come to an end. The history that I have tried to sum up is in a way embarrassing for us Catholics, especially when one considers the 19th century. But then, on the one hand, "progress" certainly is not and should not be a central issue for the Church and in fact for any faithful Christian. To preserve the depositum fidei is substantially more important. On the other hand, though it took the Church a considerable time to sort out what in the modern call for religious freedom was legitimate and what could no be accepted, Dignitatis humanae is an expression of something like a "spirit" of the Vaticanum secundum: though it unambiguously insisted on truth, the Church no longer wanted to lay any claim to any form of power but only reach the hearts of people, just as Jesus Christ had done it..

 

 

 

 

 

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