Works By John Courtney Murray, S.J.
on Religious Freedom
Several important articles have recently appeared, dealing with the urgent contemporary problem of religious freedom and the relations between Church and state. I shall attempt here to give their substance, with some few comments and developments.
Jacques Leclercq, of the University of Louvain, initially calls attention to a certain alteration in the perspectives in which the problem is viewed.1 The nineteenth and early twentieth centuries were occupied with a defence of the thesis; thereafter ensued a period of preoccupation with the various hypotheses, in consequence of which there has developed a certain pragmatism or even utilitarianism, which seeks the good of the Church in concrete circumstances, without being greatly embarrassed about theories.2 However, this latter period has come to an end. A contributing factor has been the rise of contrefaçons of the nineteenth-century Catholic thesis, that are hostile to liberty and intolerant of forces divisive of national unity. Nazism and Communism have proclaimed a doctrine of intolerance based on a dogmatic concept of the common good that allows no contradiction. At the same time the Franco victory in Spain has resulted in the reaffirmation by Spanish Catholics of the old thesis, thus formulating a sort of agreement in principle with the Communists.3 And the confusion has been augmented by the disconcerting spectacle of Hitler's Germany persecuting religion within its own borders and lending its assistance to the Franco movement which presents itself as a crusade directed at the restoration of Christian principles!4 In this situation the question of the thesis, and what it is, assumes a new actuality. In particular, the question is, whether a century of controversy and political experiences unprecedentedly abundant and rich have not introduced some new elements of thought.5 Leclercq finds three such elements.
The first is the new principle to which, he considers, Leo XIII first drew attention in Libertasthat of the independence of the Church in the face of political forms.6 The immediate occasion for its proclamation was the attempt of the French monarchist Right to identify the fortunes of the Church with those of the monarchy. However, the principle itself is doc-
trinal. And its absolute character is strengthened by a reflective look at history: Hardly a case is known of a state officially Catholic or even simply benevolent towards the Church which has not made the Church pay for its benevolence by demanding in return an unconditioned support. And this fact leads us to a deepening of the meaning of the thesis.7
The second new element, corresponding to the first, is a more exact notion of what the truly Catholic attitude of the state to the Church should be. The so-called classic Catholic state was considered to exist when the government officially recognized the Church and endowed it with the constitutional status of religion of the state, to the exclusion of other cults. The situation of fact, supporting this embodiment of the thesis, was a Christian people, determined to be such by a rough mathematical calculation. Furthermore, it was considered a matter of course that the rulers took the people under tutelage and imposed upon them their own point of view.8
However, in the full implications of Leo XIII's new principle, this situation of thesis is seen to be a very crude description. The full thesis requires more than official status for the Church; it means submission to the moral magisterium of the Church and the recognition of her full independence of political forms,9 even those which favor her. These characteristics, Leclercq rightly says, have been historical rarities; the run of Catholic rulers has been like the run of rulers in generalmen pursuing the interests of power, and anxious to have the Church employ her spiritual forces in the service of their politics. And normally they had the support of national clergies which, with a certain naïveté, tended to consider that government good which supported the Church, whatever might otherwise be its adventures in international injustice or its domestic politics. As examples of Catholic regimes that violated the principle of the independence of the Church (and that are sufficiently removed in history to be talked about without raising passions) Leclercq naturally cites the Spain of Philip II and the France of the Bourbon Restoration with its union of Throne and Altar. It is this experience, he suggests, that has led to the recent papal insistence on the principlean insistence so emphatic as to create the impression that, if a Pope in our day were to publish a new Syllabus, he would insert in it the condemnation of a proposition declaring that the Church can be bound to a political form.10
Correlative with this new emphasis on the freedom of the Church and on its political corollary, Leclercq sees (as the third new development) a heightened emphasis laid on the freedom of personal faith, and on its politico-moral corollarythe rights of sincerity,11 or perhaps better, the rights of men
of good faith or good will.12 This principle, that within the limits of public order everyone ought to be free to orientate his life according to his conscience, has always been the traditional counterbalance of the principle of the rights of truth. However, two developments have given it a particular resonance in our times.
The first is a certain shift in viewpoint. The more metaphysical and social viewpoint characteristic of the Middle Ages, and sustained beyond them, was inclined to regard every deviation from prevailing beliefs as evidence of bad faith, and for that reason intolerable. It is otherwise now that a more personal and psychological viewpoint is established: In our days more and more account is taken of the fact that the knowledge of truth requires an ensemble of delicate social and psychological conditions; however convinced one may be of the truth of a doctrine, one understands that others may not perceive it. To say this is not to assent to any relativism of truth. Truth itself is not relative, but the knowledge of truth is relative to a total spiritual milieu.13
The traditional desire of the Church has been for conditions within the state and society that would favor the truth. This desire is still active; but one may believe that the concept of conditions favorable to the truth exhibits an altered content. It was once considered that conditions favorable to the truth were established by guaranteeing to those who possess the truth the exclusive right of free speech. And there was no great concern lest adhesion to the truth should be a constrained or mechanical act. Now, however, the Catholic principle of the freedom of personal faith receives a new definition in the light of the secular mystique of personal liberty that is characteristic of our times. Admittedly, the historical demand for personal freedom was part of a great struggle against the Church and Christian truth. Nevertheless, the demand is a fact; and what is more important, its erroneous historical origins do not vitiate it in se as a human aspiration. In any event, it is highly relevant to the question, what are the conditions favorable to the truth and what is the function of the state in creating them?
Recognizing the difficulty of the problem and the danger of rigorous formulas, Leclercq ventures the assertion that, if one wishes to formulate the thesis in complete fashion, let it be simply said that the duty of the state
to favor the truth ought to be interpreted in the sense of the formation of social conditions favorable to this end, that its citizens may find the truth.14 Such conditions, he implies, are those which assure that large measure of autonomy in the face of the state which is consistent with the concept of citizen as recently evolved by Pius XII: In a people worthy of the name, the citizen feels within himself the consciousness of his personality, of his duties and rights and of his own freedom; and he joins to it a respect for the freedom and dignity of others.15 Conditions favorable to the truth therefore are conditions favorable to freedom personally to find and live the truth: a social order which humiliates certain people and makes life difficult for them, as likewise an order that bans discussion; is not favorable to the spread of truth, whatever else it may be.16
The second development, that bears on the problem of protecting the principle of the freedom of faith, is a new understanding of intolerance as a form of social pressure: We now realize that in point of fact every social milieu tends to intolerance, by virtue of natural propensity and the tendency inherent in man toward self-enclosure.17 Inevitably this intolerance is a threat to human sincerity; consequently, one comes to the idea that the right of sincerity ought to be protected.18 In particular, one may raise the question, whether, in view of the natural intolerance of human communities, the state in a land of homogeneous population ought not rather to take measures to protect dissident minorities and safeguard their right to live according to their convictions, rather than to protect the common opinion, which spontaneously reacts against, and despises, dissidence. No exception would be made save in the case of aggressive dissidence.19
In conclusion Leclercq asks whether support for this view of the matter is to be found in papal documents.20 The answer, he admits, is negative, save for the great modern texts in which the Church speaks of the freedom of the citizen as a necessary prolongation of human dignity in the face of temporal power. However, he goes on, this negative answer does not necessarily invalidate the conception he proposes, for the reason that in discussing the problem of the state and of liberty the papal point of view is different. The concern of the Church has been to proclaim the essential principles, first, that human freedom does not entail any right to disregard the law of God, and second, that no state can endure if it be not based on the law of God. There was too the concern to assert the freedom of the Church in the
face of the attack on it, launched in the name of a rationalistic concept of freedom. But these, Leclercq adds, are different questions. For the rest, he points to another aspect of the Church's doctrine and action:
A similar strain of thought appears in two other articles. One is by a layman;22 and I select it for the reason that lay opinion in this whole matter deserves careful attention. It may be supposed that in seeking the right measure and quality of favor and aid from the state the Church has not in view the protection of the faith and morals of her bishops and clergy but of her laity. And (to adapt a famous sentence of Cardinal Gibbons) prudence suggests and even the dignity of the Church demands that the laity should not be offered a protection which they do not ask for, and of which they may believe they have no need.
Kühnelt-Leddihn says quite rightly, as well as forthrightly, that the whole question of tolerance toward men of other faiths has nothing to do with relativism and indifferentism in matters of faith.23 Nor, he adds, is the problem settled by the facile axiom that error has no right to existence; from this elementary generalization no conclusion can be drawn with regard to the suppression of error. This is the question in view, and it is more properly situated if one speaks rather of the rights of the human person who is in error. This immediately brings into the question the law of love, which sets bounds to any attempts to limit, even in the name of a protection of the common good, any activity that is prompted by conscience.24
However, it is not predominantly from this point of view that the author approaches his subject; his major concern is with the problem of constraint in matter of religion. And the data of his argument are largely experiential. He notes, as a fact, the healthy doubt that largely prevails in the United States with regard to the efficacy of constraint, and the disposition to trust the methods of liberty. And he adds: Experience is on their side.25 He
notes too the whole series of not always unavoidable misunderstandings aroused by Cavalli's article,26 now famous through the Protestant and secular press in the U.S. Not least of them is the suspicion that the opposition between Rome and Moscow is simply a rivalry between two absolutist and totalitarian systems.27 Furthermore, the notion that there is a latent kinship between these opposing systems has been nourished by the Ryan-Boland thesis with regard to the `double attitude' on the matter of religious freedom,28 which is supposedly basic Catholic doctrine.
With his wonted boldness the author writes: At the beginning of the Church there stood not only the triple denial at the cock's crowing, but also the sword that cut off the ear of Malchus. This eternal wound of Malchus can only be healed by Christ Himself, what time Peter's swordstroke remains a permanent temptation for the Church.29 There is no doubt that a certain trust in the sword was nourished by the medieval experience with the Albigensians, as well as by its precedent, the earlier experience with the Donatists. And it is chiefly to these experiences, and not to any principle inherent in Catholicism, that the author traces the inclination to the use of constraint that is visible in the history of the Church. For the rest, his own general verdict on the efficacy of constraint is negative. (He makes well the point that efficacy is the prime determinant element, joined with the factual circumstance of the presence of bodies of sectaries that have a good chance seriously to injure the Church; the question then is whether the methods of constraint will efficaciously avert this danger.)
Moreover, the verdict supposes a view of things in long perspective; the immediate result is not decisive: In fact, the question arises, whether a unity of faith which in the past was preserved by such means did not in the end labor under an inner natal defect, which in later centuries under all manner of disguises and forms broke out in symptoms of sickness which are perhaps `tertiary' results of these shocking inner wounds.30 There are, for instance, the phenomena of scepticism, unbelief of the cynical kind, loss of confidence in the Church, even a sort of uremic poisoning within the Church itself by the forced retention of those who were in reality unfaithful, and finally the sort of religious apathy that results from over-protection.
Carrying the point further, Kühnelt-Leddihn says frankly:
One might add that the Fascist corruption of public life in Italy was bad enough, too.
With regard to the ordinary grounds advanced in justification of legal intolerance, Kühnelt-Leddihn makes two points. The first concerns the quantitative principle put forward, e.g., by Cavallithe principle that a Catholic majority is the determinant factor. It raises curious problems; for instance, at what increase in percentage does the shift from tolerance to intolerance take place? In fact, is even a majority necessary, on the supposition that Catholic majority means simply adequate power? This might be possessed by a ruling minority. However, the chief difficulty with the quantitative principle is its similarity to an essential aspect of the Communist line: Thereby nolens volens a confusion is set afoot, that can only be damaging to the common good, which is always a world-wide thing.32
The second point concerns the factor of danger. The author makes the judgment: Protestantism can hardly again become dangerous. Its dynamic revealed itself for the last time in its various secularised derivates in the nineteenth and early twentieth centuries. . . . The Protestant era is at an end.33 This is a fact in regard of Europe, though the author recognizes that, in accordance with the principle of the cultural lag, secularised Protestantism is still a force in the United States, whose material energies still stand in the service of a set of ideas that elsewhere have a predominantly historical significance. He further comments that, where Protestantism is still able to exert a religious appeal in lands traditionally Catholic, we Catholics, clergy and laity, ought to ask ourselves whether a full share of blame does not fall on us.34 For the rest, he attributes the measure of success that various Protestant offensives in the last century have achieved to their political appeal; so, for instance, the Los-von-Rom movement in Germany. (I should add here immediately that this factor of political appeal is immensely significant in the U. S. at the moment; it is quite the total support of the ag-
gressive Protestant polemic in the matter of Church-and-state relations.) The conclusion is that from the standpoint of the actuality of religious danger one can hardly construct a case for discriminatory legislation.
This is particularly true if one takes a clear look at the total world situation, under abdication of an ancient Catholic ghetto-anxiety, and realizes the spiritual eminence occupied by the Churchgained, he suggests, not so much by her own efforts as by the sheer paralysis or collapse of the religious and cultural forces that were dominant in the era now closed. Her situation on this eminence, he concludes, has thrust on the Church a new function:
The third article deserving of notice is from the gifted pen of Max Pribilla, S.J.,36 from whom we have all come to expect great acuteness and breadth of observation and high wisdom of judgment. The premise of his thought in the present article is the fact that the ancient lands of Christendom are once again missionary countries; this fact, together with the increase in religious heterogeneity, causes the old thorny problem to rise again with new sharpness and partially in a new formwhat should be the relations between the different religious confessions within the same territory?37 A clear answer is needed. Moreover, it ought to be taken by Catholics as their urgent task to achieve in this matter an agreement in theory and practice; for up to the present such an agreement has not been had, at least in what concerns the more difficult points of application.38 And lack of agreement injures Catholic unity and renders more difficult the defense of the Church.
Pribilla begins with the undisputed point that religious indifference or indifferentism cannot be the basis of social peace and religious freedom in the civil order. The Church rejects this tenet of the Aufklärung; and
Pribilla cites several interesting testimonies of Protestants who likewise reject it. On the other hand, after the assertion of the principle of dogmatic intolerance, so called, the question of the relation in practical life between the different religious communities and their members remains wholly open.39 And it is, he adds, a disputed question to which no entirely satisfactory answer will ever be given; the fact of religious disunity among men, in despite of God's will that they should all be one in the truth, permanently tends to create difficulties in civil relationships, that allow of no perfect solution. At all events, the problem of civil tolerance is not so much a question of dogma as a question of justice, prudence and love.40 It is also a matter of patience, as the very word tolerance indicates.
With regard to study of the question, Pribilla makes this observation:
A primary importance therefore attaches to the history of this whole question, as Pribilla insists. And there is the duty of historical judgmenton the Inquisition, for instance, which Pribilla himself (with all, I take it, Catholic writers today) regards not as a substantial and permanent element of ecclesiastical discipline but as a special historical phenomenon.42 There remains, however, the more fundamental question, whether or not the principle of persecution, whose highest illustration was the Inquisition, is somehow inherent in the Church. Harnack put the question in classic form (and I translate the citation, because it is the question being asked all round the lot in the U.S. today, more than twenty years after Harnack asked it):
To this Pribilla adds: In all honesty one must admit that at times even Catholics have expressed themselves in a similar order of ideas. (Perhaps another reference to Cavalli?) If this view of the Church be warranted, her apostolate and her appeal in the world in which we live today collide with a formidable obstacle; for we are approaching a time in which the whole of civilized mankind is on principle renouncing coercion in spiritual and especially in religious matters, and is tending to class the use of force in this respect with that barbarism against which the people of Western culture are uniting their resources.44
Pribilla points out, of course, that Harnack's view rests on a misconception of the nature of the Church. It likewise fails to reckon with the element of historical experience as an influence on the Church's action. It is, he says, a lesson of history that the use of external coercive measures in spiritual things is unfitting and in the long run inefficacious. It is true that in certain countries and regions the Catholic religion was preserved or restored by the methods of the Inquisition; but in the course of doing this there was exerted a coercion on conscience whose injurious consequences are discernible to the present day.45 Indeed the Inquisition itself is a dark shadow on the Church. There is too the lesson that spiritual movements can only be overcome from within. Suppression only sends them underground, whence they break out with increased power at the first favorable instant.
To these lessons of experience there is added an inner reason: Since the Middle Ages there has arisen an extraordinarily sharp sense for the significance and for the rights of conscience, even of the erroneous conscience.46 Moreover, the traditional distinction between the material and the formal heretic has likewise assumed new clarity; and the inquisitorial presumption, that a human tribunal can make the distinction in the concrete case of individual men, seems increasingly unwarranted. In our present situation, the better, in fact the only thing to do is to look at, and make use of, the
new state of affairs, which is not freighted solely with disadvantages.47 Pribilla's judgment is:
There is too, he adds, the practical reason deriving from the new meaning of the Church's universality: What happens in one country finds echo in all the countries of the earth. Consequently, the Church cannot demand freedom for herself in one state, as a human right, and deny it in another state, according as Catholics are in a minority or a majority.49 What is needed is a broadening of the principle asserted by Gregory IX in 1233: Christians must show towards the Jews the same kindness that we wish to have shown towards Christians who live in pagan lands.50
In this case what happens to the famous Proposition 77 of the Syllabus? With masterful understatement Pribilla remarks: This was uttered in 1864, actually in 1855; since that time certain events have taken place which have not indeed renewed the face of the earth but have altered it in very substantial fashion.51 At all events, from this proposition and others similar to it one cannot prove that a Catholic majority must deny the free exercise of religion to non-Catholic confessions52 There could be no justification for repeating such an iniquitous violation of right as was the revocation of the Edict of Nantes.
Moreover, Pribilla disallows the objection that the same rights are not to be granted to error as to truth. The objection is irrelevant, since the question is not the protection of error but of the erring man: But the defense of the erring in the exercise of his duty or in the preservation of his right is itself something good. The man in error has undoubtedly the right to be persuaded of his error by objective arguments, instead of being hampered in his personal freedom.53
For the rest, while admitting the dangers of religious freedom, Pribilla chooses rather to see the new possibilities that it opens. It is not for the
Church here below to seek to be a triumphant Church, whose faith is unchallenged and whose rights are secure. The challenge and the insecurity; are themselves stimuli to a more intensive apostolate. There is hardly room today for St. Thomas's simplices in fide, kept such by external protection; the order of the day requires each Christian to be diasporafähig. And the contemporary ideal is that of a spiritual struggle with only spiritual weaponsa lofty ideal indeed. However, it is made imperative by the very crisis of the timesthe threat from outside being now directed against the rights of God and the rights of man.
Pribilla concludes with an injunction that will be recognized as characteristic by those who know the ensemble of his work. The area of interconfessional relationships, he says, is a delicate one, and in it sensitivenesses abound; one of the sore points concerns religious freedom. Its discussion therefore must indeed move in the clear air of theory, but it must also keep close to this earth, on which individual men and peoples must live peacefully with each other despite all their differences in religious faith.55
What the foregoing exposés perhaps chiefly reveal is a common realization that the problem of religious liberty and of the relations between Church and state has once more altered in the manner of its position. The concrete problem that confronts us is not precisely that which the Church faced in the nineteenth century. The problem then was relatively simple. Its framework was the Continental nation-state. The enemy was Liberalismthe religious, philosophical and political forms of autonomous rationalism: this enemy was acting as a solvent within nation-states traditionally Catholic. The basic categories of argument were thesis and hypothesis. And the practical question was, whether this or that nation-state was in the situation of thesis or of hypothesis. If the latter, a constitutional guarantee of religious freedom was the rule; if the former, the constitutional concept, religion of the state, had to apply. And there you were.
Three factors, and their implications and consequences, have powerfully contributed to alter this problematic: first, the dechristianisation of society (not so much the fact of it, which was far advanced in the nineteenth century, but the realization of the fact); second, the emergence of the threat of the totalitarian state; third, the corresponding struggling effort to validate the right of the human person to be the center, source and end of the social order. The first two factors are of course damnably evil, but their consequences on the thinking of the Church have been good. The consciously accepted fact of the dechristianisation of society has brought a realization of the need of a spiritual effort exerted on society from the bottom up, so to speak, rather than an influence brought to bear on it from the top down, through the state and government. The nineteenth-century problem of Kirchenpolitik has now only a secondary importance. Moreover, there is the corresponding realization that the new effort from below, in the direction of spiritual and social change, must be carried on through the processes of freedom.
Secondly, the totalitarian threat is dispelling certain naïve illusions which Catholics are perhaps prone to cherish with regard to the whole fact and concept of power, especially in its relations to the things of the spirit. More importantly, it has brought new clarity of meaning to the ancient principle of the freedom of the Church, in a twofold sense. There is her freedom from any sort of enclosure in the state or subordination to the purposes of the nation of which the state is the political form; there is also her freedom to enter the state, as it were; that is, her right not to have the state closed against her, either hampering her spiritual mission to men or inhibiting the repercussions that this mission, remaining always solely spiritual, necessarily has on the structures, institutions and processes of society.
Furthermore, the totalitarian threat has made it clear that the freedom of the Church is intimately linked to the freedom of the citizen; where one perishes, so does the other. It is through the freedom of the citizen that the freedom of the Church is actively and effectively defended. In turn, the freedom of the citizen finds its surest warrant in the freedom of the Church; for where the state closes itself against the Church, it likewise closes down on the freedom of the citizen. Finally, the totalitarian threat of its nature is such that it can only be met by the united effort of all men of good will; this fact gives new meaning to the problem of interconfessional relationships. The post-Reformation concept of Catholic-Protestant relations as being solely in terms of rivalry or even enmity cannot longer hold. A common Christian good has appeared, that does not indeed blur or bridge differences in religious faith, but that does make necessary a common striving
for a common purpose in the temporal order; this in turn supposes positive relationships.
Thirdly, the twentieth-century experience has resulted in a sense of the significance of human personality more acute and profound than the nineteenth century knew. This is a broad phenomenonand, if you like, a confused one too. Insofar as it is relevant here, it entails three things: first, a sensitiveness with regard to the rights of conscience; secondly, a concept of a living personal faith as the goal of the apostolate (the nominal Catholic is something of a social menace), to which is allied the notion of Christian society as a qualitative, not a quantitative designation; thirdly, a more exact appreciation, and likewise distrust, of the methods of constraint and coercion, in the light of fuller experience of their sociological and psychological effects. Briefly, the principle of the freedom of faith has assumed new sharpness of definition and breadth of implication.
If then the contemporary problematic of religious freedom has been significantly alteredaltered, I should repeat, in part by factors that are evil in themselves but that have stimulated reflection on principles, which is very goodan important question arises. It is suggested by Leclercq when he speaks of a deepening of the meaning of the 'thesis' "; it is more strongly suggested by Pribilla when he distinguishes what is permanently obligatory doctrine and what is the theoretical echo of a passing historical situation. Both authors thus imply that we confront here a problem in the development of doctrine. In other words, we see rising in this area the same problem that is central in all other areas of theological thought today; for I take it that the central problem of today is not faith and reason but faith and history. It is not so much with the essential categories of philosophy as with the existential category of time that theologians are today preoccupied.
I am inclined to think that neither of the two authors cited quite grasps the nettle where the bristles are sharpest. The primarily crucial question is simply put: Does the dogmatic concept, the freedom of the Church, entail by necessary consequence the constitutional concept, the religion of the state, in such wise that, where the latter concept does not obtain, an inherent right of the Church is violated and the constitutional situation can therefore be the object only of toleration, on grounds of factual necessity, the lesser evil, etc.? Or on the contrary, is this constitutional concept, as applied in the nation-state, simply a particular and contingent, historically and politically conditioned realization of the dogmatic concept, the freedom of the Church, in such wise that, even where it does not obtain, all the inherent exigences of the freedom of the Church may still be adequately
realized and the constitutional situation may be the object of approval in principle as good in itself?
It is the constitutional concept, religion of the state, that is properly in question. Is it, or is it not, in all the elements of the content that it has exhibited in the historical era of post-Reformation Europe, a permanent and necessary part of the thesis? Or are perhaps some of these elements dispensable without damage to the thesis, as being the product of passing situations of political fact, accidental situations of national feeling, time-conditioned situations of religio-political necessity, etc.?
In order further to specify the question, one should distinguish the two general lines of content historically exhibited in the concept, religion of the state. First, there is the concept of harmony between the legal order of society and the moral and canonical norms of the Church, in all the matters on which the state is competent to legislate; these matters are chiefly those which concern the structure and processes of domestic society.
In itself, this harmony is not the exigence solely of the constitutional concept, religion of the state. It is a general exigence, valid in any political society, whatever its form, and regardless of whether its constitution embodies the concept of religion of the state. However, in regard of this harmony one thing seems to be specific of the constitutional situation characterized by the religion-of-the-state idea, as it has been historically known. This specific thing concerns the manner in which this necessary harmony is to be achieved. It has been considered, namely, that it is to be achieved through the agency of a jurisdiction of the Church over the state itself. In other words, to the concept, religion of the state, there has been related a particular concept of the so-called indirect power that is Bellarminian in its connotations. This was the more natural in that all the states that have exhibited this constitutional concept were states constructed on authoritarian or even dictatorial lines; and there is no doubt that the Bellarminian theory of the indirect power is the fit counterpiece of the theory and practice of centralized authoritarian government.
The only question that remains is whether either of these theories properly merits the title of thesis. Or conversely, whether the thesis with regard to the special question, how the harmony between the legal order of society and the religio-moral order is to be achieved and preserved, should not rather be based on another, more fundamental principle. I mean the medieval principle that the community, not the prince, is the source of law, and that the legal order is the expression of the sense of justice resident in the people. From this principle one would logically come to a concept of the indirect power (as a means of harmonizing state law with canonico-moral
law) that would be rather on the lines of the school of thought of which I have elsewhere pointed to John of Paris as a representative;56 for in these perspectives the action of the Church would be rather on the conscience of the community than on the actual bearers of governmental authority. There is too the further question, whether the notion of a jurisdiction of the Church over the state itself, as a means for achieving harmony between the legal and religio-moral orders, could actually be made operative in a society politically organized on democratic principles (the division of powers, institutionalized political responsibility of the citizen, etc.); and if not, whether it can in any proper sense be called thesis. I am supposing that the thesis is independent of political forms and therefore applicable in any of them.
The second content-element in the constitutional concept of religion of the state is the more specific and crucial one. As it has historically appeared in the nation-states of post-Reformation Europe, this concept asserts that the state itself, the organized political community does more than recognize the juridical personality of the Church as a visible religious society in her own right, with autonomous powers and definite rights over her members; by itself this recognition would not make the Church the religion of the state. The concept also asserts that the state as such makes public profession of Catholicism as its own one and only religion; and by consequence it asserts that no citizen may make public profession of any other religion. In further consequence, the coercive power of the state is brought to bear to inhibit the public profession or propaganda of other religions. This constitutional concept therefore is the legal premise of civil intolerance in greater or less degree (there has always beenin Spain, for instancegreat argument over what public profession means in the concrete).
A number of questions could be asked about this constitutional concept. For instance, one could inquire whether it is a piece of pure constitutionalism (as, for example, is the principle of the legal limitation of government), or perhaps a piece of constitutional nationalism, so to speak. This would be to ask how far it is tributary to the nationalist idea that what is alien to the nation can have no rights within the state. Insofar as it is at all tributary to this idea it cannot claim the name of Catholic; for it moves in an order of ideas essentially inferior to the universal, supranational order of the thought of the Church. Again, one could inquire whether it is related by a process of organic development to the constitutionalism of the Middle Ages, and whether it can claim parentage in medieval principles of religio-
political organization. Conversely, one could inquire whether it be simply a Catholic adaptation of the territorial principle canonized in the Treaty of Westphalia over the protests of Innocent Xa principle whose parentage is definitely not medieval. (As such an adaptation it would not, of course, be unrightful; but its rightfulness would be relative to the situation to which it was an adaptation.)
However, the cardinal questionnot indeed unrelated to the foregoing onesconcerns, as I said, the relation between the constitutional concept, religion of the state, and the dogmatic concept, the freedom of the Church. The standing of this constitutional concept within the framework of Catholic doctrine turns on the nature of this relation, whether it is necessary and absolute, or conditioned and historical. Admittedly, this concept may be a means to the preservation of a particular national unity or to the maintenance of the integrity of a particular national culture; as such, however, it cannot claim the patronage of the Church or of Catholic doctrine; for national unities and cultures do not rank as ends or values proper to the Church, nor is her doctrine a means to them. The only proper point of reference is the freedom of the Church, which is the single necessary end that the Church directly seeks in her relations with political society. Consequently, only insofar as the constitutional concept, religion of the state, is a means to this end can it claim any doctrinal standing. The question then is, what kind of a means is it? Is it a permanently necessary means apart from which the freedom of the Church cannot be properly secure? If so, it becomes a constitutional ideal by this relation to a dogmatic ideal, and can claim to be thesis, as the freedom of the Church is thesis. If not, it sinks to the rank occupied by other constitutional institutionalizations of principlethe rank of a relative, not an absolute, a valid and valuable institution that can be defended in a context but that need not and cannot be proclaimed an ideal.
One could suggest an analogy here. Historically speaking, as Prof. MacIver has pointed out, the growth of democracy was the growth of parliamentary institutions, that is, responsible and representative legislative institutions wherein the medieval principle of popular consent to law and government was institutionalized. However, he goes on, we must not assume that the free play of public opinion must register itself in parliamentary forms. Historical evolution may reveal an endless train of yet undreamed-of modes of government, adaptations to changing needs and changing demands.57 The point of the analogy is that the dogmatic principle, the freedom of the
Church, might very well receive constitutional embodiment in institutionalized forms other than those historically implied in the concept of religion of the state.
I do not here propose further to argue the question, but merely to insist that it is the crucial question. The dogmatic concept, the freedom of the Church, is not of itself the premise of any kind of civil intolerance; it becomes such only through the mediating concept, religion of the state, which is not a dogmatic but a constitutional concept. As such, it is open to discussion. And it can hardly be maintained that freedom for its discussion has been abolished by various papal approvals of it in the past. In fact, one of the purposes of free discussion would be exactly to define the bearing of these approvals. Do they canonize this constitutional concept as some sort of transtemporal, suprahistorical ideal, beyond which there is no going, and to which there must be a return? Do they assert that the Church does not possess her inherent rightful freedom unless the state lends its coercive arm to a program of civil intolerance? Do they represent the mode of religio-social organization visible in post-Reformation Europe as the ultimate in the Church's adaptation of herself to the political life of humanity? In a word, have we been instructed by the Church to look beyond horizons for another return of the Bourbons, bearing with them the old thesis, about which nothing will have been learned and nothing forgotten?
What gives actuality to this question is, of course, the Spanish situation. This is a highly delicate subject, that ought to receive sympathetic treatment from Catholics. None the less, certain issues have been raised that need frank discussion, apart from which it will be impossible to reach that unity among Catholics that Pribilla has pointed out as highly necessary.
In the third installment of a series of articles entitled, La democracia como regimen politico christiano, Pablo G. Lopez, S.J., takes up the problem of religious freedom.58 For the most part the article is a bitter attack on M. Jacques Maritain, who is tagged with these epithets, among others: este gran maestro de la tergiversación y apostol de un morboso filantropismo ajeno a la fraternidad cristiana (!).59 Of Maritain's ideas the author says darkly: It would not at all surprise me to learn that M. Maritain has received, or will at an early date receive, the duly authorized advice and warning that his ideas are not those of the Church.60 (This was written in September, 1946.)
The author's argument is too long for summary, but its outline is simple enough. The premise is the thesis-hypothesis dichotomy. A regime of religious freedom is tolerable only where there is no Catholic unity, i.e., in the hypothesis. But Spain is not in a situation of hypothesis (this denial is made rather wrathfully). Protestants in Spain are absolutely insignificant in numbers and quality (una absoluta insignificancia en masa y en calidad);61 there are no other religious groups, and there are very few atheists; hence the moral totality of Spaniards are Christian and Catholic, or at least are not anti-Catholic.62 In this situation the thesis applies; and the thesis essentially includes the notion of Catholicism as the religion of the state, which itself essentially requires, among other things, that government is obliged to see to it that nothing is done in public contrary to the interests of the Church, either in the way of propaganda, manifestations, etc. In Spain therefore there is the ideal Catholic regime.63 In fact, for the past four centuries there has rarely been in history a harmony between the civil and ecclesiastical powers more conformed to the Catholic ideal than obtains under the present regime.64 Moreover, the freedom of the Church, as well as her protection by the state, is perfect; there is no enfeoffment to the regime. And if there is
The general conclusion therefore is:
The author has the rare honesty to deal with the objection against his initial premisethe Catholic unity of Spain—that has bothered the rest
of us: If this situation of thesis actually exists, how does one explain the electoral victory that resulted in the anti-Catholic Second Republic, and how does one account for the civil war, especially for the apocalyptic hatred of religion unleashed during it?67 Do these things happen in a situation of thesis? The author answers that the elections were dishonestly managed; and anyway, the national reaction expressed in the crusade showed that these manifestations of impiety did not represent the Spanish people, still less show that it had lost its ancient Christian faith.68 As for the civil war, it is explained by the deception practised on numerous masses of unconscious Catholics, especially the workers, and by the enduring absence of Christian life in which they had for years lived.69 Nevertheless, they were at bottom Catholics; see, for instance, how even hardened criminals died Christian deaths; and at any rate, very few of them were convinced of the falsity of the Catholic faith."70 What the ideal Catholic regime has to do is to forge, or better, restore the Catholic unity that was always there.71
A more recent article by E. Guerrero, S.J., is likewise deserving of study, though again it is too long for summary here.72 Its occasion was the International Catholic Conversations at San Sebastian in September, 1948, where there had been a discussion of the meaning for our times of papal utterances concerning the modern liberties. The author runs through these utterances, from Gregory XVI to Pius XII (whose thought is rather scantily presented, with little attempt to get at its implications). His conclusion, in brief, is that the religion-of-the-state concept still obtains, with all its implications of civil intolerance of dissenters, as the Catholic ideal, though it is only realizable in a Catholic society. In fact, he adds, the greatest possible restriction of religious tolerance is the more necessary in proportion as a nation that is juridically Catholic is less vitally Catholic. 73 The author likewise deals with those aspects of the problem that are in the nature of difficultiesthe problem of the conscience in good faith, that of the double attitude, the requirements of international community, the dangers of the religion-of-the-state idea, the value of past persecutions, etc. On this last point the author emits the following remarkably round and resounding historical judgment:
I am inclined to think that in the climate of opinion which made possible this last judgment, there are those of us who could only gasp for breath.
Finally, I should note, as characteristic of the author's exposé, his close intermingling of the religious and the national-political, in the course of his apologia for the suppression by the Spanish regime of Protestant propaganda. Apart even from its irritating and scandalous effect on Catholics, such propaganda introduces seeds of national disunity, and finally, is wont to serve as the instrument of vile, foreign, antinational influences . . . [and as] the arm of the enemies of the Church and our country.75 In fact, freedom of religious propaganda would open the door to international Jewry and Masonry, anti-Catholic and anti-Spanish, which would reduce Spanish culture to the level of the materialist and pagan Anglo-Saxon spirit.76
It is this last point that raises the first of the issues of which I spoke. A recent sympathetic observer77 has sketched the highly peculiar background of the Spanish situationthe perennial Spanish problem of national unity; the historical fact that the only bond of national unity has been religious unity; the fact that this religious unity was historically established during the Reconquest by an armed crusade, and preserved during the Counter-Reformation by the coercive methods of the Inquisition; the fact that today national unity is imperilled, not least by weakness in religious unity; the fact of the contemporary need of dikes set up by government, behind which the Church may work at the long-neglected task of the religious education of the masses and their economic betterment; the fact, in fine, of the sort of substantial union between the existence of Spain as a nation and her Christian and Catholic vocationa union that this people, intransigent, rigid in its conception of truth, inclined to fanaticism, has historically maintained by strong methods of coercion, and wishes still to maintain by the same methods.
One understands all this. Nevertheless, the doctrinal issue remains, and it is causing increasingly vocal concern on the part of French, German, English and American writers; for it is an issue that concerns the universal
Church. Moreover, it is an issue that deeply concerns the future of the Church, not merely the defense of her past. The issue is whether the Spanish constitutional concept of the religion of the state, in all its presently operative consequences, actually is that inherent exigence of Catholic faith which Spanish apologists maintain it to be. Does Spain in point of principle represent the ideal Catholic regime? Does the Spanish constitutional method of realizing the freedom of the Church so necessarily relate to the tenets of Catholic faith that it would somehow automatically become an obligatory method as soon as a nation is able to assert, in the sense that Spain asserts, We are morally a Catholic nation? This is the question that, in the U.S. at least, has become rather urgent. It is a quaestio de futuro, and by the same token it demands an answer in principle. Moreover, it should be emphasized that the question is doctrinal. It is not a matter of passing judgment on the merits or demerits of the Spanish regime; the Spaniard is rightly sensitive of such judgments passed by foreigners (as Anglo-Saxon political society is somewhat sensitive of Spanish judgments passed on it). I simply raise the question here, and leave it: Is the Spanish constitutional concept of religion of the state permanently and unalterably part of the Catholic thesis, obligatory from the nature of Church and state in any Catholic society? (Were I to give an answer, it would, of course, be no.)
The second issue concerns the theory of civil intolerance proposed by Spanish theorists as, in their judgment, the Catholic theory. Essentially involved in it is a theory of the state, its competences and functions. The theory is curious by reason of its admixture of abstract and concrete elements. The starting point is the fact on which the Spanish continually insistthat Protestants are an absolutely insignificant minority in Spain. A booklet circulated by the Spanish Embassy states that the percentage of communicants to the total population is 0.023 percent and that of the Christian Community [the name used for themselves by Protestant Spaniards] 0.08 percent.78 Moreover, after elaborate calculations the booklet gives the number of foreign Protestants as 44 percent of the whole Christian Community. One would suppose that these figures would conclusively prove that Protestants are not a danger to religious unity in Spain, especially since Spaniards since Balmés have loved to insist that Protestantism makes no appeal in Spain; Spaniards are either Catholic or nothing. One would then expect the further conclusion that no restrictions should be placed on them by government, since they are not a danger to the public welfare. As a
matter of fact, however, an opposite conclusion is drawn: precisely because Protestants are such a tiny, unpopular minority, government may and should suppress their public activities. On this showing, therefore, the Spanish state acts on a theory of abstract religious intolerance; that is, it exerts its coercive power even in the absence of any serious danger to religious unity. It coerces simply because it is possible to coerce, not because it is necessary. If one then inquires what manner of political philosophy supports this concept of state function, the answer seems to be another abstraction: Error has no rights. Therefore, it ought to be suppressed by the state, where possible. On this showing, therefore, the Spanish state further acts on a theory of abstract civil intolerance; that is, it represses religious error simply because it is error, apart from any formality of danger to the state.
However, the question rises, whether this theory of abstract civil and religious intolerance can claim to be a Catholic theory. Certainly it has no support in medieval doctrine or practise. In the Middle Ages heretics were never exterminated by the prince formally because they were heretics, men holding erroneous religious beliefs; they were punished because they were a serious danger to public order (so indeed the Albigensians were). Moreover, they were exterminated, not because it was possible to exterminate them, but because it was necessary. For my part, I had supposed that the theory of abstract intolerance was a Protestant invention, not a Catholic one, and that its first illustration was the burning of Servetus by Calvin. Moreover, I had supposed that in Catholic political philosophy the action of the state was determined by the exigences of public order; it is to do what necessarily must be done to preserve civil peace, not what possibly can be done without disturbing civic peace.
This is the abstract part of Spanish theory, as far as I understand it. However, alongside of it there is a concrete part. Side by side with the constant assertion that Protestants are a negligible minority there stands the likewise constant assertion that they are a serious danger to the public welfarereligious and national unity. The two assertions are not reconcilablesave perhaps in the concrete. What perhaps reconciles them is the concrete fact of the weakness in religious and national unity. In this situation religious freedom, as an institution, would be a menace, and very largely a political menace, since it would afford a focus for political protest. The only remedy therefore is recourse to the methods of governmental constraint, in whichas Guerrero's judgment, cited above, readily showsthe Spaniard has great trust. Here the Spaniard seems to embrace the opposite of the Liberal illusion. The Liberal theory maintained that everybody would stop being bad as soon as government stopped trying to make them good. The
Spanish theory seems to hold that everybody will begin to be good as soon as government stops being bad (i.e., Liberal).
This is, of course, a way of looking at things. And if a people decides on an experiment in the forging, or restoration, of national and Catholic unity of this view of the relation between government and goodness, the decision is theirs. However, the issue remains, whether this abstract theory of religious and civil intolerance, projected from such a concrete basis, is actually Catholic thesis.
1 Jacques Leclercq, Etat chrétien et Liberté de l'Eglise, Vie intellectuelle, Février, 1949, pp. 99–111.
2 Ibid., p. 99.
3 Ibid., p. 101.
4 Loc. cit.
5 Loc. cit.
6 Ibid., p. 102.
7 Ibid., p. 103.
8 Ibid., p. 104.
9 Ibid., p. 105.
10 Ibid., p. 106.
11 Ibid., p. 107.
12 Ibid., p. 108.
13 Ibid., p. 108; highly to be recommended is the treatment of this change in perspectives given by R. Aubert, Le Problèmes de 1'acte de foi (Louvain, 1945), troisième partie, ch. I, Problématique médiévale et problématique modeme, pp. 647 ff. Whatever may have been the dynamics behind this change, the author asserts that the change itself has resulted in a legitimate development and more profound understanding of the doctrine of the act of faith, especially from the criteriological and psychological viewpoints.
14 Leclercq, art. cit., p. 110.
15 Christmas Radio Message, 1944; cf. Atti e discorsi di Pio XII, 1944 (Roma: Istituto Missionario Pia Società S. Paolo, 1945), p. 169.
16 Leclercq, art. cit., pp. 109–10.
17 Ibid., p. 108.
18 Ibid., p. 109.
19 Ibid., p. 110.
20 Ibid., p. 111.
21 Loc. cit.
22 Erik von Küihnelt-Leddihn, Katholische Toleranz?, Wort and Wahrheit, IV (1949), 342–53.
23 Ibid., p. 353.
24 Ibid., p. 346.
25 Ibid., p. 343.
26 Ibid., p. 344; cf. F. Cavalli, La condizione dei Protestanti in Spagna, Civiltà Cattolica, XCIX (1948), 29 ff. It is probable that nothing has been written in decades better calculated to produce in the U. S. a blind reaction of total hostility to all things Catholic than the author's ruthlessly simplifying paragraphs on the Church's unblushing intolerance.
27 Kühnelt-Leddihn, art. cit., p. 342.
28 Ibid., p. 344.
29 Ibid., p. 348.
30 Ibid., p. 347.
31 Ibid., pp. 352–53.
32 Ibid., p. 350.
33 Ibid., pp. 351–52.
34 Ibid., p. 352.
35 Ibid., p. 353.
36 Max Pribilla, Dogmatische Intoleranz und bürgerliche Toleranz, Stimmen der Zeit, CXLIV (April, 1949), 27–40. Incidentally, I have often wondered who first coined the horridly unhappy phrase, dogmatic intolerance, and why we go on using it, since its primary effect is to create misunderstanding and prejudice.
37 Ibid., p. 28.
38 Ibid., pp. 28–29.
39 Ibid., p. 30.
40 Ibid., p. 36.
41 Ibid., pp. 30–31.
42 Ibid., p. 33.
43 Loc. cit.
44 Ibid., p. 35.
45 Loc. cit.
46 Ibid., p. 34.
47 Ibid., p. 35.
48 Loc. cit.
49 Ibid., p. 36.
50 Quoted, loc. cit.
51 Ibid., pp. 36–37.
52 Ibid., p. 37.
54 Ibid., p. 39.
55 Ibid., p. 40.
56 Cf. Theological Studies, X (June, 1949), pp. 204 ff.
57 R. M. MacIver, Leviathan and the People (Baton Rouge, 1939), pp. 68, 69.
58 Pablo G. Lopez, La democracia como regimen politico christiano, III, Razón y Fe, 134 (1946), 148–71.
59 Ibid., p. 153.
60 Ibid., p. 154.
61 Loc. cit.
62 Ibid., p. 166.
63 Ibid., p. 159.
64 Ibid., p. 160
65 Ibid., p. 166.
66 Loc. cit.
67 Cf. ibid., pp. 155–57.
68 Ibid., p. 156.
69 Loc. cit.
70 Loc. cit.
71 Ibid., p. 157.
72 E. Guerrero, El problema de la libertad religiosa, Razón y Fe, 138 (1948), 518–39.
73 Ibid., p. 539.
74 Ibid., pp. 536–37.
75 Ibid., p. 536.
76 Ibid., pp. 534–35.
77 E. Chavat, La Situation du protestantisme en Espagne, Vie Intellectuelle, XVI (1948), 6–36; M. L'Abbé Chavat was sent to Spain by Mgr. Charrière, Bishop of Geneva, to study the question with a view to greater Catholic understanding and unity.
78 Manuel Maestro, Spanish Problems (Spanish Embassy, Washington, D. C.), p. 19. An English translation of Cavalli's article, mentioned above, was likewise circulated by the Spanish Embassy.