Text of Jesuit Father John Courtney Murray on doctrine of religious liberty

This is the text of the conference on the development of the doctrine of religious liberty given by Father John Courtney Murray, S.J., of Woodstock College at the Dutch Documentation Center in Rome on Sept. 15, 1965.

The schema [on religious liberty] does not explicitly raise the issue of the development of Catholic doctrine, though there are allusions to it. It does, however, consciously base itself on the term of a development that has occurred over the last century. The doctrine in view here is, in the first instance, the philosophy of the Church — moral, political, legal — which forms part of what is commonly and broadly referred to as the “social doctrine of the Church.” Since the issue of development is thus implicitly raised, it is necessary to define what precisely the issue is.

  1. The preliminary fact. — The fact that a development of Catholic doctrine, in the areas noted, has occurred — between, say, Leo XIII and the present moment — is commonly admitted and is hardly open to question. Mater et Magistra clearly represents a progress of thought over Rerum Novarum. Again, for instance, Pius XII’s Christmas discourses of 1941, 1942 and 1944 (from which Pacem in Terris draws the main lines of its doctrine) are evidently a development beyond Immortale Dei and Libertas. The Church has been faithful to the famous injunction of Vincent of Lerins, which was solemnly reiterated by Vatican Council I (cf. DB 1800).

It would be a lengthy task fully to describe the development and to explain its fidelity to the fundamental law — namely, that growth and progress should be eodem sensu eademque sententia (consistent in sense and sentiment). Several aspects of the progress were rapidly noted above, in the discussion of the political issue. Several other aspects may be even more rapidly noted here.

First, Leo XIII’s dominant conception of government was paternal; it was adapted to the historical conditions of his time. Pius XII’s conception of government is simply political; it represents a return to tradition (to St. Thomas, for instance) and a clarification of the tradition.

Second, Leo XIII’s paternal conception owes much to the historical fact of the formless “illiterate masses,” the “imperita multitude” of Immortale Dei. Pius XII’s political conception is a return to the traditional idea of “the people,” a structured concept at whose root stands “the citizen (who) feels within himself the consciousness of his own personality, of his duties and rights, of his proper freedom as joined with a respect for the freedom and dignity of others” (Radio Discourse, Christmas, 1944). This return to the tradition was likewise a progress in the understanding of the tradition.

Thirdly, in Leo XIII the traditional distinction between society and state is largely lost from view, owing to the circumstances of the political world in which he lived.

Pius XII revived the distinction and made it a pillar of his whole doctrine on the juridical organization of society — that is, his concept of the juridical state which, as has been indicated above, represented one of his major contributions. In these instances, as in others that might be brought forward, the term of the development has been a doctrine more pure in its manner of conception and statement, more fully traditional, less historically conditioned.

The question at the moment, therefore, is not whether the doctrine of the schema is simply a faithful literal reiteration of the doctrine of Leo XIII. If it were this, it would be infected with the fallacy of archaism that was condemned in Humani Generis (cf. DB 2313-14) — that is, the will to return to earlier formulations or systematizations of doctrine, under rejection of later formulations that present the earlier doctrine in a more advanced state of understanding, less obscure, more differentiated, less time-conditioned, more transtemporal.

The precise question, then, is whether the doctrine of the schema is in harmony with the philosophy of the Church in its present more fully developed form, in the more differentiated mode of understanding, conception and statement to which it has been brought by the reflection of scholars and by the sanctioning utterances of recent Roman pontiffs. The answer to this question can hardly be in doubt. It is explicit in the foregoing explanation of the schema. Briefly, the declaration of the human and civil right to religious freedom, in the sense of the schema, is not only harmonious with, but also required by, four truths of the rational order, which are altogether traditional, but which have come to be newly and more fully understood, in themselves and in their exigencies in the social order, in the contemporary thought and teaching of the Church.

There is the truth of the dignity of the human person, a heightened consciousness of which pervades the whole doctrinal work of Pius XII. There is the truth of man’s endowment with natural rights and duties, which was articulated by John XXIII in Pacem in Terris, more fully than ever before, though in evident dependence on Pius XII. There is the truth of the juridical nature of the state — its primary commitment to the protection of the exercise of man’s rights and to the facilitation of the performance of his duties — which was Pius XII’s historic contribution. There is, finally, the truth of the limitation of the powers of government by a higher order of human and civil rights, which John XXIII elaborated, again in dependence on Pius XII, but with greater detail and emphasis.

In English, one would use here the phrase, “constitutional government,” that is, a regime composed of organs and offices whose powers are defined and limited by a written constitution, a fundamental law that incorporates somehow a Bill of Rights and directs and controls all the processes of government. This is the notion which was signed with approval by John XXIII for the first time in the history of papal documents (cf. Pacem in Terris, pp. 278-279), though it had long been inherent in the political tradition of the Christian West and owed its origin importantly to Christian thought.

It is in terms of its relation to these four truths, in their present state of possession by the Church, that the doctrine of the schema is to be judged.

Two particular questions remain; both are germane to the issue of development of doctrine. One concerns past papal doctrine on civil tolerance; the other, the historic conception of the Catholic state.

  1. The Issue of Tolerance. — Tolerance has to do with evil. Strictly speaking, only God may be said to tolerate evil, though “tolerant” is a frightfully bad epithet to use of the God and Father of our Lord Jesus Christ, the Father of mercies and the God of all comfort (2 Cor. 1, 3-4). Only God, who “knows what is in man” (John 2, 25), is the judge of truth and error, good and evil; only God has the power to prevent error and evil, if He so willed; only God has the finally valid reason for permitting evil, because only God can bring good out of evil. Man is not the judge of the heart of his brother; he has very little power to prevent evil, even if he wished; and his only valid reason for permitting evil is his helplessness to do otherwise without causing greater evils. In any case, it would be far better to drop the notion of tolerance and to set forth Catholic doctrine in terms of the distinction made by John XXIII between error and the man who errs (cf. Pacem in Terris, p. 299-300). However, the vocabulary of tolerance is still current in some quarters. The important thing is to distinguish two quite different issues, one moral, the other civil. If the two are confused, discussion becomes embroiled and useless.
  1. a) Tolerance as a moral issue. The issue here concerns men in their relation to one another in a world in which errors and evils are current, but over which the order of truth and morality holds sway. The forbidden thing is that man should call error truth and evil good. In the unfortunate vocabulary still current, error and evil can be no more than the object of tolerance. No one may positively approve them, authorize them, propose them as the basis of human action. All this is obvious. Obvious too is the further truth on which the schema is based: namely, that what is evil or erroneous cannot be either the object of a right or the foundation of a right. The juridical order may not be disjoined from the moral order.
  1. b) Tolerance as a civil issue. The issue here concerns government in its relation to society. One element of it can be dispatched immediately. No government may lay upon its citizens a positive mandate, or give them a positive authorization, to teach or to do what is contrary to truth and morality (cf. Pius XII, Ci Riesce). It remains to note that in the case of religious freedom as a civil right and a legal institution, there is no slightest question of any positive governmental mandate or legal authorization of error or evil when this right and institution are understood in the sense of the schema.

It has already been pointed out that things were different in the days of Leo XIII and the Continental laicist state. As emanating from this kind of state, the source and origin of all rights, the statute of “liberty of cult” pretended to be a positive juridical authorization, and an equal social authorization, given both to truth and error in religious matters, on the rationalist premise that religious truth and error were solely matters for the individual conscience. The condemnation of this theory was in the mind of Leo XIII when he said: “Revera si divini cultus varia genera eodem iure esse, que veram religionem, Ecclesia judicat non licere” [Indeed if various types of divine worship (are held) to enjoy the same rights as true religion, the Church condemns this (opinion)] (Immortale Dei). And when he also said: “Vetat igitur justitia vetat ratio atheam esse, vel, quod in atheismum recideret, erga varias, ut loquuntur, religiones pari modo affectam, eademque singulis iura promiscue largiri” [Therefore justice forbids, reason forbids that it (the state) be atheistic; or, on the condition that it is lapsing into atheism, is disposed, as they say, toward various religions in equal measure, that it bestow the same rights indiscriminately on each]. (Libertas. Note in the text Leo XIIl’s frequent confusion of society and state, inherent in the word “civitas,” a pre-Christian word, from the age of pagan antiquity when society and state were confused. These condemnations do not touch the doctrine of the schema, which has absolutely nothing in common with Continental laicism, either with respect to the notion of religious freedom or with respect to the notion of the state.

Here a further distinction is necessary. It may be put in the form of two propositions. First, a theory of civil tolerance by the state of religious error is indeed to be found in Leo XIII; it is coherent with the conception of the state. Second, the Leonine conception of the state has been transcended today by the progress of Catholic doctrine; hence the schema, whose premise is this progress, transcends the Leonine theory of civil tolerance by its doctrine of religious freedom.

  1. i) Leo XIII. — The student of Leo XIII can hardly escape the impression that his theory of civil tolerance is not the most luminous aspect of his total doctrine. Two sources of difficulty are evident.

First, there seems to be a confusion of two orders, the purely doctrinal and the doctrinal-historical. Is he affirming, in the pure order of political theory, that the state as such may tolerate religious error for the sake of a greater good — in other words, that tolerance exactly describes the proper attitude of the state as such toward religious error? Or is he affirming, in the order of history, that he himself — the Church of the 19th century — is prepared on occasion to tolerate the Continental laicist state for the sake of a greater good? In a word, who is tolerating what? This confusion appears in the text cited above from Immortale Dei, considered in its context, and also elsewhere.

Second, nowhere in the whole corpus Leoninum is there a full discussion of the philosophy of human law and jurisprudence. Leo XIII was always the moralist. His concern was to insist that the juridical order of society must recognize the imperatives of the higher objective moral order. This emphasis was necessary against the moral anti-nomianism of Continental laicism. In consequence of this polemic necessity, Leo XIII did not greatly concern himself with the juridical order of society itself. This was to become the preoccupation of Pius XII. Leo XIII was not the jurist. In further consequence, his theory of civil tolerance, which is a problem of the juridical order, does not emerge with any great clarity. In any case, its coherence with his conception of the state is clear enough and easily stated.

For Leo XIII, the ruler, the “prince,” was pater patriae, whose power was a patria potestas. As prince and father, he can and he is obliged to know what is true and good — the imperita multitude of Immortale Dei and the miserum vulgu of Rerum Novarum — to what is true and good. His consequent function is to protect them against religious error and moral aberration, since they are helpless to protect themselves, notably against the “sects” which were busy propagating errors and aberrations. As prince and father, who knows the true and the good in themselves, and also knows what is good for his children-subjects, his attitude toward what is religiously false and morally evil can only be one of tolerance, practiced of necessity for the sake of the higher good which is the peace of the community.

This is a coherent theory. Given its premises, its validity can hardly be gainsaid. Its social premise was the cultural state of society at the time. Its political premise followed with some logic: the paternal conception of rule, joined with the ethical conception of the state and its finality. Its historical premise was the decadence of Catholic political and legal philosophy that was the damnosa haereditas of the ancient regime. The fact, however, is that the premises of the theory of civil tolerance render the theory itself time-conditioned, not a pure statement of Catholic doctrine.

  1. ii) The Schema. — The premises of the schema are not those of Leo XIII. They are the four truths stated above, in the developed form in which the Church today possesses these traditional truths. The Leonine theory of civil tolerance is coherent with each of these truths and with all of them together — with the dignity of the human person, with man’s endowment of rights, with the juridical conception of the state, with the purely political nature of limited constitutional government. This is why the schema puts aside the post-Reformation and 19th-century theory of civil tolerance and, in consonance with the progress of Catholic social philosophy, proposes its doctrine of the human and civil right to religious freedom. It is not that the Leonine theory was in any sense false. Today, however, one must say of it, quite gently, that it is archaistic. The Catholic doctrine today is the doctrine of the schema.

It may be necessary to note here that Pius XII, in the allocution Ci Riesce, does not reaffirm and revalidate the Leonine theory of civil tolerance. In fact, he departs from it — or at least from the subsequent canonical development of it — in one important particular. That is, he denies the validity of a rule of jurisprudence which would assert that civil intolerance is to be practiced whenever possible, and civil tolerance practiced only when necessary. In this respect, Ci Riesce marks a progress in doctrine. For the rest, though Pius XII still uses the vocabulary of tolerance, his doctrine of non impedire must be seen in perspective as a sort of halfway house, that is, a step forward from Leo XIII to the doctrine of the schema. Finally, this doctrine, as has been shown, is altogether in harmony with the doctrine of Ci Riesce with regard to the relation between the moral and juridical orders, namely, that only what is true and good, not what is erroneous or evil, can be the foundation and the object of a right.

  1. The Issue of the Catholic State. The discussion of this issue had been greatly muddled by the failure to distinguish between society and state. It is one thing to discourse on the relation of Christianity as a divinely revealed faith which is also the inspiration of a rational social philosophy, to human society in all its orders of personal and corporate life — economic, social, cultural, academic, etc. It is quite another thing to discourse on the relation of the Church, as a religion and an institution, to the state — that is, to the order of constitutional and statutory law and to the organs and offices of public administration. The first of these two distinct subjects of discourse is not pertinent here, since the schema enters upon none of the questions that it raises. The second is pertinent, but only insofar as it falls within the limited scope of the schema. It was not the intention of the schema to deal with the whole range of questions usually raised under the rubric “Church and state.”

Historical realizations of the notion of the Christian state have been many and varied; since the days of Constantine and Justinian, none of them lacked ambiguity. Only one calls for attention here. It defines the Catholic state in terms of two correlative legal institutions. First, the Catholic religion is formally recognized by constitutional law, or governmental edict, as the one religion of the state. Second, from this legal institution of “establishment” there follows the legal institution of intolerance. The link is both logical and juridical. If Catholicism is the only religion that has legal title to public existence and action within society, it follows that the force of law and the police power of government may and should be exerted to deny public existence and action in society to any other religion.

These two characteristics may be stated in another way. On the legal premise that Catholicism is the one religion of the state, the rulers recognize the duty of an exclusive care for the Catholic religion. This duty goes beyond a care for the freedom of the Church, the protection of her independence and autonomy. It extends to legal and governmental care for, and protection of, the Catholic faith itself. The state becomes defensor fidei. It follows, therefore, in logic and law, that the state also recognizes a duty to use coercive force to put other religions beyond the boundaries of public life, and to confine them to the private sector to the family and home, and perhaps to the private school. These other religions are a danger to the Catholic faith in society; against them, therefore, the function of the state as defensor fidei is invoked. The condition of Catholicism is therefore a condition of legal privilege. Only Catholicism is entitled to the protection of the law. No other religion may claim this protection. On the contrary, it would be illegal for government to afford it, since it would be a breach of the duty of government toward the one religion of the state.

This conception of the Christian state may be regarded as the later juridical transcription of the Leonine conception of the state — that is, the “principles” as endowed with the patria pesetas of the pater patriae. It seems, in fact, to have been elaborated out of this latter conception and out of the historical tradition that lay behind it — the tradition of the ancient regime in Continental Europe and its view of the religious prerogative of the absolute monarch.

The question is whether this conception of the Christian state is consistent in all respects with Catholic doctrine — political, legal, social — in its present state of development, that is, in the present state of the Church’s understanding of the four truths, noted above, out of which the doctrine of the schema naturally flows.

The schema itself makes the necessary distinctions. The legitimacy of the legal institution of “establishment” is recognized. At the same time, the legitimacy of the legal institution of intolerance is denied, as inconsistent with the four controlling Catholic truths on which the schema is based.

Therefore the historical link between these two legal institutions is broken. And with the breaking of this link the concept of establishment, the legal institution of the one state religion, must be refined to meet the exigencies of the four truths. In particular, the Christian state may no longer assume to itself the prerogative of defensor fidei. In accord with Catholic principles, its essential role with regard to the order of religion in society is to protect and foster the freedom of the Church and to protect and foster the freedom of the human person in religious matters. This role has dignity enough to warrant for the state the appellation “Christian.”

The schema goes this far and no farther. Therefore it leaves open many questions of the practical order, for instance, the practical ways in which the state may lend financial or other assistance to the Church and facilitate the free exercise of religion in society. There is also a further concrete problem in that the formless masses, the imperita multitudo, seem still to be a lamentable fact in certain regions of traditionally Catholic culture. The fact has nothing to do with the doctrinal notion of a Christian society, with which it is at variance. It is merely a fact, which creates a practical problem.

In these historical and cultural circumstances, may the state invoke patria potestas, the power of the government to act ad instar parentis in the religious interests of those who are considered to be ad instar puerorum? It is a nice question.

The schema, however, does not touch it. The basis of the question is a fact, and from facts no conclusions of principle may be drawn. Moreover, the question itself is exceptional. It presents what lawyers call a “hard case.” And there is a maxim in jurisprudence which says that hard cases make bad laws. In any event; the case is outside the reach of normal political principle, with which alone the schema is concerned.

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