Works By John Courtney Murray, S.J.
The Problem of "The Religion of the State "*
In a recent issue of this Review, courteous objection was raised against my suggestion that the legal establishment of Catholicism as the religion of the state need not be considered a permanent and unalterable exigence of Catholic principles governing Church-State relations.1 Since this suggestion was a detail in a more comprehensive view of the whole problem, it may be well first to state in outline this larger view. I do this simply in order to keep the present argument from getting stalled in some dialectical cul-de-sac.
Some study of the history of the problem and of all the pertinent magisterial documents has led me to regard as tenable the theory stated in the following propositions.
(1) The permanent purpose of the Church in her relations with the state is to maintain her doctrine of juridical and social dualism, under the primacy of the spiritual, against the tendency to juridical and social monism, under the primacy of the political, which is inherent in the state, to a greater or less degree, whether the state be pagan, Christian, or secularized in the modern manner.2 Moreover, the traditional effort has been not only to main-
tain this doctrine as a doctrine but also to give it such institutional embodiment within every particular historical context as will make it operative within that context.
(2) More concretely, the Church asserts three principles as permanently controlling in her relations with the state. These principles are of themselves transtemporal, being rooted in the nature of things; they are therefore necessarily exigent in all temporal situations. The first is rooted in the nature of the Church; the second, in the nature of man as presently situated in a supernatural order; the third, in the nature of civil society as a naturally necessary sphere of human life and development toward the perfection of human personality.
(a) The first principle is that of the freedom of the Church.3 The formula has two senses. There is the freedom of the Church understood as the spiritual power—her freedom to teach, rule, and sanctify, with all that these powers imply as necessary for their free exercise. And there is the freedom of Church understood as the Christian people—their freedom to hearken to the doctrine of the Church, obey her laws, receive at her hands the sacramental ministry of grace, and live within her universal fold their integral supernatural life.
This principle is rooted in the nature of the Church as a spiritual power and a supernatural society independent of the state in origin, end, and function, the unique means and milieu of man's eternal salvation, which as such claims the primacy over the order of man's terrestrial life and all its social forms. Therefore the principle of the freedom of the Church asserts the principle of the primacy of the spiritual.4
(b) The second principle is that of the necessary harmony between the two laws whereby the life of man is governed,5 and between the whole complex of social institutions and the exi-
gences of the Christian conscience. This harmony establishes a unity of order in human social life, based on the distinction of orders (ecclesiastical and civil) in which man must live, and on a recognition of the primacy of the spiritual order and the law which governs it.
This principle derives from the nature of man as called in the present dispensation to be at once citizen and Christian and one human person. Hence he has a right to demand that a unity of order should prevail in society, in order to protect the integrity of his personality, his spiritual freedom, and his full possibilities of self-fulfilment.
(c) The third principle is that of the necessary co-operation of the two powers and societies—a co-operation that is ordered and bilateral. The Church suo modo is to co-operate with the state, and the state suo modo is to co-operate with the Church. Each acts towards its own distinct end, which is ultimate in its own order; but since these two ends, temporal and spiritual, are ordered ends of man, the operations of Church and state must be ordered into a co-operation, to the end that the ordered good of man may be achieved.
This principle springs from the nature of civil society as an expression of the social nature of man and a sphere of human perfection.6 For the run of men the Christian life of faith and grace is morally impossible apart from those conditions of free-
dom, justice, order, social charity, and a sufficiency of material goods and cultural opportunities, to whose creation society and in its own sphere the state are by nature committed. On the other hand, the creation of these conditions of social order is impossible without religion and the Church. Hence the ordered bilateral co-operation of both state and Church is necessary towards an end which is under different aspects common to both. And this co-operation must be ordered. It is not the direct function of the Church to create a social order, any more than it is the direct function of the state to save souls. The contribution of each to the work of the other is indirect but indispensable; the Church creates a Christian spirit within the temporal order, and the state aids in creating a temporal structure that may be a proper milieu of the Christian spirit.
(3) These three principles,7 in order that they may be summoned from the sphere of abstraction and made effectively regulative of Church-State relationships in the actual world of human life, require concrete application. Practical questions rise: how is the freedom of the Church to be guaranteed? How is the distinction of orders to be successfully maintained and the primacy of the spiritual effectively asserted? By what manner of action is the harmony of laws and institutions to be achieved? What forms of co-operation are concretely practicable, prudent, necessary, good? In the course of answering these questions, which are directly related to the order of prudence rather than to the order of truth as such, the principles receive embodiment in law or custom or modes of organized action—in a word, in institutions.
But by their embodiment in institutions the principles, without ceasing to be transtemporal as principles, become temporal as applications of principle. Their institutionalization takes place on
earth at a particular time; it invests them with an historical character. And the structure of the institutionalization inevitably reveals the influence of historical circumstances. In the course of their application the principles must undergo a vital adaptation to the realities given at the moment. Only this vital adaptation gives the principles teeth, so to speak, with which to bite into the human stuff of history.
(4) What necessitates changing applications of principle and this vital process of adaptation is the changing character of "the state." The principles of the Church in the matter of her relation to the state do not change; but the reality to which she must relate herself is a variable, not only in its institutional forms and processes but also in the idea that men make of it. There are indeed absolute principles of politics, universal in their application; but their application is relative to complex historical factors, and even the theoretical statement of them is subject to revision in the light of enlarged political experience. For instance, the idea of the political relationship ("governors-governed") is permanently valid as an idea, a necessity of nature and reason. But its institutionalization, and the concept held of it, shows enormous variations, as realized in the ancient patrimonial or patriarchal state, in a feudal regime, in the city-state of the late Middle Ages, in the classical French monarchy, in a modern dictatorship, in a republic on the Revolutionary model, in a democracy in the Anglo-Saxon tradition. The forms of political life are never permanently fixed, and the formulas of political philosophy are never perfectly finished.
What therefore the Church must seek, and has sought, in every age is such a vital adaptation of her principles, such an institutional embodiment of them, as will make them operative in particular temporal contexts towards the permanent ends, human and supernatural, which she has always in view. The history of Church-State relations is the history of this manner of adaptive application. It records many compromises, but no ideal realizations.
(5) The legal institution known as the state-church, and the later embodiment in the written constitutional law of territorial states of the concept of Catholicism as "the religion of the state," represent an application of Catholic principles (and of the medieval tradition, itself an adaptation) to the complex political, social,
religious, and cultural conditions prevailing in the modern state, as it appeared on the dissolution of medieval Christendom, took form in the era of political absolutism, flourished in the era of "confessional absolutism" (to use Eder's phrase)8 under the royal governments in the "Catholic nations" of post-Reformation Europe, and sought reinstatement in the monarchic restorations of the nineteenth century. As a necessary adaptation of principle this legal institution was at first tolerated by the Church; later, in the circumstances of fixed religious divisions, it became the object of more positive acquiescence; still later, in the circumstances created by the French Revolution, it was defended against the laicizing monism of Continental Liberalism, which destroyed the institution of the state-church in consequence of its denial of the Catholic thesis of juridical and social dualism, under the primacy of the spiritual, of which the institution was, however defectively, an expression. In the course of this defense the application of the thesis became identified with the thesis itself—an identification, however, that was never canonized by the Church.
(6) Since the institution of the state-church was an adaptation to a particular historical context, it does not represent a permanent and unalterable exigence of Catholic principles, to be realized in any and all historical situations in which there is verified the general hypothesis of a "Catholic population." This legal institution need not be defended by Catholics as a sort of transtemporal "ideal," the single and only institutionalized form of Church-State relationships which can claim the support of principles, the unique "thesis" beside which all other solutions to the Church-State problem must be regarded as "hypothesis," provisional concessions to force majeure.
Where the conditions of its origin still more or less prevail, the institution of the state-church is still the object of defense.9 But the long history of the Church's adaptation of her permanent
principles to perpetually changing political realities has not come to a climax and an end with this institution, in such wise that the only valid present effort must be in the direction of a restoration of what existed in a particular epoch of the past—the national state-church by law established, with legal disabilities for dissenters.
On the contrary, the Church can, if she will (and if Catholic thinkers clarify the way for her), consent to other institutionalizations of Church-State relationships and regard them as aequo iure valid, vital, and necessary adaptations of principle to legitimate political and social developments.
(7) Such a development is presented by the democratic state. The term does not designate the special type of state which issued from French Revolutionary ideology and Continental Liberalism. The term refers to the political idea of the state derived from "the liberal tradition" of the West, which has been best preserved, though not guarded in its purity, in the Anglo-Saxon democratic tradition. Continental Liberalism was a deformation of the liberal tradition; it was in effect simply another form of absolutist state-monism, to which the liberal tradition stands in opposition.
Democracy today presents itself with all the force of an idea whose time has come. And there are two reasons why it is the present task of Catholics to work toward the purification of the liberal tradition (which is their own real tradition) and of the democratic form of state in which it finds expression, by restoring both the idea and the institutions of democracy to their proper
Christian foundations. First, this form of state is presently man's best, and possibly last, hope of human freedom. Secondly, this form of state presently offers to the Church as a spiritual power as good a hope of freedom as she has ever had; it offers to the Church as the Christian people a means, through its free political institutions, of achieving harmony between law and social organization and the demands of their Christian conscience; finally, by reason of its aspirations towards an order of personal and associational freedom, political equality, civic friendship, social justice, and cultural advancement, it offers to the Church the kind of co-operation which she presently needs, and it merits in turn her co-operation in the realization of its own aspirations.
(8) Consequently, the theological task of the moment is not simply to carry on the polemic against Continental Liberalism. It is also to explore, under the guidance of the Church, the possibilities of a vital adaptation of Church-State doctrine to the constitutional structure, the political institutions, and the ethos of freedom characteristic of the democratic state. To this task the theologian is urged by Pius XII's affirmation of the validity of the democratic development and the new concept of "the people" that it has brought into being. The concept of "the people" is the crucial one in this present day, as it was in the past age that saw the birth of the institution of the state-church, which was itself based on a particular concept of "the people."
The political teaching of Pius XII (and of Pius XI) represents considerable progress over the political teaching of Leo XIII;10
and this progress invites to a commensurate development of the theory of Church-State relations. In order that this development may be organic in the Catholic sense, a work of discernment has to be done on tradition—the rational political tradition of the West, the Church's theological tradition, and her tradition of practical conduct in the face of the changing realities of the political order. It is not a matter of debating the "thesis" versus the "hypothesis"; these categories are related to a particular and predominantly polemic state of the question. The doctrinal problem is to discern in their purity the principles that are at the heart of tradition. The categories of discussion are "principle" and "application of principle," or (what comes to the same) "ideas" and "institutions."
Certainly in the conditions of the twentieth century, when a new revolutionary movement has violently altered the nineteenth-century state of the question, it would be an abdication of the theological task, if the theologian were to remain simply the literal exegete of Leo XIII, as if somehow the total doctrine and practice of Church-State relations had reached their definitive and ultimate stage of development in the Leonine corpus. Such an abrupt closure of development would be altogether untraditional. It would be to repeat the mistake of the fourteenth- and fifteenth-century canonists, who supposed that with the "traditional" theory of society expressed in the Bull Unam Sanctam and with the "traditional" canonical doctrine of the direct power, Catholic tradition had received in every respect its permanent and unalterable statement. Leo XIII did not fall into this mistake; if he had, Immortale Dei would never have been written.
(9) Concretely, the present problem concerns the provision guaranteeing "the free exercise of religion" that has become characteristic of the democratic state constitution. At least, this is usually conceived to be the major aspect of the problem. In
fuller form the problem may be stated as follows: can the Church accept, as a valid adaptation of principle to the legitimate idea of democratic government and to the historically developed idea of "the people" (to which democratic government appeals for its legitimacy) a constitutional system of Church-State relations with these three characteristics: (1) the freedom of the Church is guaranteed in a guarantee to the people of the free exercise of religion; (2) the harmony of law and social institutions with the demands of the Christian conscience is to be effected by the people themselves through the medium of free political institutions and freedom of association; (3) the co-operation between Church and state takes these three forms: (a) constitutional protection of the freedom of the Church and all her institutional activities; (b) the effort of the state to perform its own function of justice, social welfare, and the favoring within society of those conditions of order and freedom necessary for human development; (c) the effort of the Church, through the action of a laity conscious of its Christian and civic responsibilities, to effect that christianization of society in all its dimensions which will enable and oblige the state, as the instrument of society, to function in a Christian sense.
This lengthy question is not to be transformed into a brief tendentious one: Can the Church at last come to terms with Continental Liberalism? The answer to that nineteenth-century question is still the nineteenth-century answer: No. But when the nineteenth-century question has been given its nineteenth-century answer, the twentieth-century question still remains unanswered. To it, as put, I am inclined to answer in the affirmative. The Church can, if she wishes, so permit her principles to be applied to the political reality of the democratic state. The application of each of the three principles (freedom, harmony, co-operation) can be justified in terms of traditional Catholic thought, political and theological.
The resulting system would not indeed be some "ideal" realization of Church-State relations, some sort of "new thesis." The point is that no "ideal" realizations are possible in history; no application of principle can claim to be a "thesis." For instance, in the series of Concordats beginning with the Council of Constance (1418) and ending with the Concordat with Francis I (1516) the Church first undertook to assume an historical attitude
to the emerging modern state; in these Concordats were likewise laid the juridical foundations for the institution of the state-church in the ancien regime. Yet no one would say that the system of Church-State relationships set forth in these Concordats, and the institutions through which the system operated, represented some "ideal" realization of principle—least of all an ideal realization of the principle of the freedom of the Church. In every respect principle was adapted to political reality—to a political reality, it should be added, that was much less justifiably Christian, because absolutist, than is the contemporary democracy of the liberal tradition. One should therefore expect the Church's attitude toward democracy to be only what her attitude towards absolute monarchy wasa valid and vital, because purposeful, application of principle. Not an "ideal," not a "thesis."
With regard to the special problem of religious freedom one remark may be made. There would seem to be a valid analogy between the constitutional provision for religious freedom in the democratic state and the legal institution of the state-church in the post-Reformation monarchic states, in the sense that both represent an analogical adaptation to analogous situations. The latter institution was an adaptation of principle to two facts: (1) the emergence of the modern state as a "person," as autonomous, with an autonomy that extended to state determination and tutelage of the religion of the people; with this fact is allied the concept of "the people" as purely passive in the face of government, whose purposes are determined apart from consultation of the people; (2) the religious division of universal Christian society into separate and autonomous Catholic and Protestant nations and states. The former institution is an adaptation to two analogous facts: (1) the emergence of "the people" into active self-consciousness, into a spiritual autonomy that extends to a rejection of governmental determination or even tutelage of their religion; with this fact is allied the concept of "the state" as the instrument of the people for limited purposes sanctioned by the people; (2) the religious division within territorial states between persons of different religions. When they are viewed in this historical perspective, it is difficult to see why one institution is any less, or more, an adaptation of principle than the other, why one should be
considered more valid and vital than the other, why one has a greater right to claim the support of principle than the other.
Actually, from the standpoint of principle the crucial point is not the fact of religious unity or disunity, with the former basing a "thesis" and the latter an "hypothesis"; for both situations are predicated on a disruption of Catholic unity in the proper sense. The crucial question is whether the concept of the state and the concept of the people that undergird the legal institution of the state-church are any more rational than the concept of the state and the concept of the people that undergird the legal institution of religious freedom. The answer would certainly seem to be that the latter concepts are more rational and better founded in Christian thought.
The foregoing propositions set forth, simply in outline, the major points of a theory of Church-State relationships which may, I think, be considered tenable in the light of the full Catholic tradition of thought and practice in the matter.
* * * * *
Fr. Shea's difficulty lies with statements (5) and (6). Against them he advances an argument drawn from the ethical thesis on officium sociale religionis, as prolonged by the dogmatic thesis that in the present dispensation "religion" is the Catholic religion. Against them he also alleges the authority of Leo XIII.
The second consideration seems to be put forward as the decisive one. The first argument is, I suspect, assumed to be conclusive because it is found in Leo XIII, who is presumed to have used it, not simply to disprove the French Revolutionary thesis that the state ought by nature to be atheist (and for this reason ought to treat all religions alike, as being all equally true or equally false), but also to prove a Catholic thesis that the state ought by nature to be Catholic (and for this reason ought to establish Catholicism by law as the official religion of the state, beside which no other religion is entitled to public existence).
Since this is the real structure of the case, it might seem better to begin with Leo XIII, with what he really said and really meant. However, I prefer to begin by scrutinizing the proposed ethical and theological argument. This is a necessary prelude to an understanding of Leo XIII. After all, an argument is, to coin a phrase,
only as good as it is. Not even papal authority can stretch an argument beyond the native reach of its premises. If then it can be shown that the proposed argument falls short of the conclusion drawn from it, we shall have a good reason to suppose that Leo XIII did not intend to draw this conclusion from it. His use of it must have had another bearing.
After a brief development of his argument,11 Fr. Shea says:
The language of the conclusion would seem to betray some hesitancy about its firmnessa hesitancy that is justified. The real difficulty lies in understanding why the premise advanced should call for the conclusion drawn. In fact, the conclusion clearly goes beyond the premises. This can be shown in two steps.
First, the obligation imposed by the officium sociale religionis extends only to the position of religious acts. It is adequately met "by official participation [on the part of administrative officials of the state] in acts of worship properly so calledof adoration, thanksgiving, supplication, and the like" (Fr. Shea's words). By these religious acts the body politic, represented by governmental officials, fulfills its duty "to acknowledge its dependence on God by appropriate acts of worship." Moreover, in a "Catholic society" (the term is ambiguous, but let it stand for the moment) these acts will obviously be inspired by Catholic doctrine and offered in Catholic liturgical forms, e.g., the Red Mass. Hence they will be of their nature an "acceptance" of Catholicism, a "profession" of Catholic faith. And this profession will be exclusive; this "Catholic society" will obviously not invite a Unitarian (supposing that there are Unitarians in a "Catholic society") to open the legislature with a prayer to the Architect of the Universe. By these religious acts, performed on "state occasions," all the requirements of the ethical thesis, and its theological prolongation, will be adequately met.13
My friendly critic does not seem to agree that all the requirements of his thesis would be adequately met by these religious acts. He wants his premise to yield a further conclusion, and impose a further obligation on "the state." This further obligation is not to a religious act but to a political and legal one—to the making of a constitutional law, with the political consent of the people, that Catholicism should be established as the official state-religion. My second suggestion therefore is that the proposed ethical and theological argument does not reach this conclusion; it cannot create an obligation to this political and legal act. This suggestion is prima facie true; the onus of proof is on those who may wish to contest it. However, two arguments in support of my suggestion are readily available; one is from principle, the other from history. Taken together they are, I think, conclusive.
First, an immediate illation from the order of ethical and theological truth to the order of constitutional law is, in principle, dialectically inadmissible. If such an illation is to be made, it depends for the validity of its conclusion on the mediation of an historico-social middle term. This is the first point that I shall develop. It throws our argument into the field of history. Secondly, therefore, I shall say that the institution of the state-church did not appear in history as the triumphant product of an
enthymeme: "The Catholic Church is the one true Church; therefore it ought to be the state-church." On the contrary, when the institution first appeared in history, the argument moved in reverse: precisely because the true Church is one (i.e., universal), it ought not to be a state-church, the church of a limited territorial entity. Only later, when the rise of Protestantism had shifted the problematic from the defense of the true Church that is one (i.e., universal) to the defense of the one (i.e., only) Church that is true, did the institution win more than toleration from the Church. And only later still, when the problematic had further shifted to a polemic against the Liberalist proposition (religion is a purely private matter, irrelevant to public affairs; the state is atheist; it acknowledges no officium religionis, regardless of the traditional faith of the nation; the secular power is entitled to define the status of the Church in society), did acceptance of the institution turn into defense of it. The point of this historical argument will be to show that the institution of the state-church owed its origin to a particular historical situation (concretely, to a prevailing concept of the state and of the people), and that the Church's attitude towards it (whether of toleration, acceptance, or defense) was determined by this situation. Principle was of course involved; but the historical middle term was decisive. It determined the application of principle.
Before moving onto this historical ground, there is an introductory argument to be made. It rests, first, on the fact that the establishment of a state-religion is an act of positive law, and secondly, on the principle, cardinal in Scholastic jurisprudence, that positive law has a twofold criterion, not only moral and religious but also social.
The fact needs a bit of emphasis. It seems sometimes to be supposed that the act of establishing Catholicism as the state-religion is a religious act, a profession of Catholicism by the state, an act of faith in the one true Church.14 This is not so. The
institution of the state-church is a juridical institution, and the act of its establishment is a legal act—therefore an act of reason, not of faith. By divine law the Church is universal, the religion of mankind; if and when it becomes incorporated into the legal structure of a territorial state, this status is acquired by human positive law. I am rightly supposing that constitutional law in itself, or as modified by concordatary arrangements, is positive law.
For instance, when the Concordat of 1803 between Pius VII and the Italian Republic declared that "The Catholic, Apostolic, and Roman religion continues to be the religion of the Italian Republic,"15 this declaration was not a dogmatic decree on the part of the Holy See, nor was it an act of faith on the part of the state—least of all on the part of Citizen Bonaparte, President of the Italian Republic. The enactment simply established the public status of the Catholic religion in Italy on a footing of positive law, and obliged government and citizens to respect this status in external act. By this time, and even before, Concordats had become instruments of international law.
Secondly, in Scholastic jurisprudence positive law is governed by a twofold criterion. Constitutional law in particular has a social as well as moral and religious reference. Constitutions, as Burke
said, are not puddings concocted from receiptseven, one may add, from receipts formulated in the untroubled atmosphere of ethical and theological principle. They must have regard for contingent social fact; they are made from the bottom up as well as from the top down.16 This traditional principle hardly needs development. It was deposited in the famous dictum of Isidore of Seville, the great canonist who mediated Roman legal concepts to the Germanic world. St. Thomas transformed his description into the classic definition wherein the two aspects of law are exhibited. Law is an act of reason, whose obligation derives from its conformity to the order of reason. Law is also for the common good; it has a purpose which is only achieved by a right measure of adaptation to the concrete circumstances of time and place, national character, existent traditions and customs, etc., within which it must pursue its purpose. All this is obvious.
It will, of course, be said that the argument for the state-church does not pretend to be an immediate illation from ethical and theological principle—from the nature of the Church and the nature of the state.17 It takes account of a social criterion. It
supposes the hypothesis of a "Catholic people"; it is predicated on the conditions of a "Catholic society." In this hypothesis and under these circumstances the institution of the state-church, it is said, becomes theologically necessary. But this unexamined, ill-defined hypothesis, which supposedly gives the argument its decisive point, is precisely the source of its weakness.
One cannot suppose that the argument wishes to move in a circle: in the hypothesis of a "Catholic society," the institution of the state-church is theologically necessary; but a "Catholic society" is, by hypothesis, one in which the institution of the state-church exists. Nevertheless, this petitio principii seems to lurk beneath the argument, especially as used by writers who identify "society" and "state." The danger of begging the question is created by an attempt to transform an historical polemic argument into an abstract speculative one. The nineteenth-century polemic bore, as I shall say, upon a defense of the state-church in the historic
"Catholic nations" (or "states"—the terms were used interchangeably), which were considered such precisely because in them the Church was established by law.18 The polemic argument did not beg the question, because it knew what the question wasan historical one. The risk of circular argument arises when one evacuates the term "Catholic society" (or "state" or "nation") of its complex, concrete, and historical meaning, and attempts to give it a pseudo-abstract meaning by surrounding the term with a mist of indefiniteness.
Fr. Shea uses the term, "Catholic society," some five times; but he does not explain what he means by a "society" and what further meaning is brought to the term by the qualification "Catholic." Only one thing is clear: the term "society" is not used in its proper sense. Properly "society" designates a structured order of human relationships (familial, civic, economic, religious, etc.) which is constituted in view of an end. A society is not constituted by a mass of individuals but by a patterned ensemble of purposive human associationsin a word, by institutions. It is a structured social entity (or better, a social action, a conspiratio) whose structure is determined by institutions. In this sense a "Catholic" society would be one whose institutional structures were shaped by those dictates of nature and reason which derive from consideration of the social aspects of human personalityfor instance, the
principles of justice (in its three forms), social charity, the "subsidiary function," personal and associated freedom. Further, a "Catholic" society would be one whose institutional structure revealed effective application of the three ethico-theological principles governing Church-State relations—the freedom of the Church, concordia, co-operation.
This meaning of "Catholic society" is evidently not intended as the social criterion to which the argument for the state-church makes reference. This is not the hypothesis of the "thesis." If it were, the institution could not be historically justified; for it has obtained in societies in which these principles were not only violated in practice but also denied in principle. For instance, in the France of the ancien regime, from Francis I to Louis XIV, the cardinal principle of subsidiarity was in principle denied by the institution of absolute monarchy—an institution which was not Catholic on any showing of Catholic political principle. Likewise denied in the ancien regime was the principle of the freedom of the Church; Francis I half-cynically conceded that he would probably be damned because of the bonds in which the Concordat of 1516 confined the Church of France and the Holy See. Yet it is to the ancien regime and its imitators, the Restoration monarchies, that the books de iure publico point when they are developing the "thesis" about "Catholic societies."
The supposition therefore must be that by "Catholic society" the argument means simply "a territory with a Catholic population," a physical multitude of individuals in each of whom individually there resides the gift of Catholic faith. This statistical concept is in fact the social term of reference that apologists of the state-church have in mind when they speak of its theological necessity in a situation where "Catholics are in the majority," or "in an overwhelming majority," or a "quasi-totality." None of the apologists are kind enough to determine the exact percentage-point at which the state-church, from being theologically non-necessary becomes necessary, and vice versa. Nor are they bold enough to attempt a justification of this procedure of making an argument, which wishes to appeal to principle, depend for its validity on a mathematical process of counting Catholic noses, or (what is perhaps worse) on the process of power-politics connoted by the term "majority." The discerning theologian, who knows history,
will understand that the Church herself, in accepting or defending the institution of the state-church, never relied on such dubiously valid premises.
My argument here is that this statistical concept, a "Catholic population," is a pseudo-abstraction which, as an hypothesis of argument, is unreal and invalid. Again the argument moves in two stepsone theoretical, the other historical.
In theory, constitutions are not adaptations to sheer facts of population. A statistical concept is not a valid term of reference for any human law. The proper term of reference is "the people," which is not a statistical concept but a truly social-ethical-historical concept, concrete, living, and dynamic. A population is only a shapeless mass, an arithmetical sum of individuals, existing in that lowest form of sociability created by coexistence in the same territory. A population is a material concept; "the people" connotes an historically developed form. Even the qualification "Catholic" does not transform a population into a people. The common possession of the faith does indeed create a spiritual bond between individuals; to this extent it creates a community. The concept of "the faithful" is a social concept, but only in an ecclesiastical sense—in the sense that the faithful have a common life which itself has a form, being organized in the institutions of the Church and directed toward the ends of the Church. But the social term of reference for public law is not an ecclesiastical concept of the people.
A common faith does indeed enter strongly into the constitution of a people, as a bond of unity and the remote inspiration of a culture. However, the faith does not of itself define historical destinies, or create any particular social system, or inspire any particular institutional structures of common temporal life; these are not the functions of religious faith. And the differentiating characteristic of a people (even among the heterogeneity of "Catholic peoples" that history has known) is furnished precisely by the institutionalization of common temporal life, as this is effected under the shaping influence of secular history and all the forces active in it—environment, national consciousness and temperament, an inheritance of common experience, familial and political traditions, gradually built-up patterns of feeling, fixed customs and established loyalties, the wisdom and heroism (or stupid
vulgarity) in the songs sung by generations, various solidarities of almost instinctual origin (as among peasants and farmers), other solidarities of more rational origin (the influence of social, juridical, and cultural institutions), a pervading ethos whose origins often defy analytical investigation, and, last but not least, the powerful impact of "great men," creative personalities whose achievements live in popular memory, and who, by making history, make peoples.
A population merely inhabits the physical soil of a country; a people grows out of the moral soil of the country's history. "We, the People," is a human thing, of flesh and blood, ensouled by a community of ideas and purposes; it has a common life, organized in myriad interlocking institutions, slowly built up in time, which impart to this life a structure and a form. A population is a mere collectivity; a people is an individuality. It has a style of life, good or bad or both. And all that is implied in this style of life finds reflection in the laws which furnish the basic vertebrate structure of a people, whether they be public law, private law, customary law, or group regulations.
When therefore we seek the social term of reference for the positive law whereby a state-religion is established, we shall not find it in the pseudo-abstract statistical concept of "the population" (even as qualified by the term "Catholic") but in the concrete social concept of "the people." This concept includes both rulers and ruled and their political relationship, the whole contingent, historically conditioned order of organized human associations, the total institutionalization, similarly contingent, of public, private, and group life, and the individual genius that in the course of history always comes to be stamped upon every genuine people.
What theory asserts, history confirms. In fact, as St. Thomas taught and many forget, in what concerns that branch of moral science which is the science of law, history makes the first affirmations.19 Here then is the place to make the decisive historical argument. The general proposition will be the one already stated above (on pp. 333–34) and repeated (on pp. 343–44). It asserts that the legal institution of the state-church and the later consti-
tutional concept of "the religion of the state" did not come into being as pure deductions from the nature of the Church and the nature of the state; nor did they have their origin in a situation characterized by the sheer fact that the population, rulers and ruled, were Catholic. They owed both their origin and their justification to a necessary effort on the part of the Church to apply her permanent principles in the new historical situation created, first, by the emergence of a new political reality, the modern state, with—its new concept of the relation between "the power" and "the people," and secondly, by the new fact of a religiously divided Christendom wherein the old religio-political concept of the Empire had to cede place and power to a multiplicity of nation-states and minor principalities, all erected on the new model of the modern state, and all postulating the new concept of "the people." Insofar as the Church later defended the juridical concept of "the religion of the state" against the monistic ideology of the French Revolution, it was making a legitimate and at the time necessary defense of a particular institutionalized form of Church-State relationships (the "union of Throne and Altar") which it judged to be still valid in the circumstances, certainly in contrast with the historical alternative, the institution of religious freedom, theoretically predicated on the premises of rationalist Continental Liberalism (with its absolutist concept of "the sovereignty of the people"), and practically converted into an engine of war upon the freedom of the Church, the principle of legal and institutional concordia, and historically traditional practices of co-operation between State and Church. These, in brief, will be the lines of my historical argument. After thus setting the question in proper historical perspective, it will be possible to grasp the structure and meaning of the teaching of Leo XIII and its place in the development of the Church's doctrine on Church, state, and society.
JOHN COURTNEY MURRAY, S.J.
* Original Editor's note: In its Sept. 1950 issue, The American Ecclesiastical Review carried an article in which Fr. George W. Shea stated and explained his unwillingness to accept certain theses on Church and state contained in the writings of Fr. John Courtney Murray, S.J. Thus, since Fr. Murray's teachings on the subject have not been published previously in the Review, the editor considers it only fair to allot him space to present his own views and reasons on the pages of this magazine. The Editor likewise believes that it is only fair to add that he does not share Fr. Murray's views on the subject of this article.
1 Cf. George W. Shea, "Catholic Doctrine and `The Religion of the State,'" AER, CXXIII, 3 (Sept. 1950), 161–74.
2 The first classic statement of the Church's fundamental thesis was in the chapter Duo sunt of Gelasius I in 494; cf. LoGrasso, Ecclesia et status, fontes selecti (Rome, 1939), p. 45, n. 96. The text explicitly states the doctrine of the two powers; implicitly, the doctrine of the two laws. Implicit too is the doctrine of the two societies, in the phrase, "mundus hic regitur"; at the time the Roman Empire was still a distinct social magnitude. In the Middle Ages it became customary to substitute for the term, "hic mundus," the term, "Ecclesia," as the two societies of earlier times gave way to the one society, "the Church," within which the two powers were enclosed, distinct only as functions of the one corpus christianum. So, first, the Synod of Paris in 829 LoGrasso, n. 184); Hincmar of Rheims (+ 882; ibid., n. 219); Hugh of St. Victor, the first theorist of the so-called direct power (+ 1141; ibid., nn. 325 ff.); St. Bernard (+ 1153; ibid., n. 329, the famous "two-swords" text); Innocent III (+ 1216; ibid., n. 385, the famous "two-luminaries" text); Boniface VIII (+ 1303; ibid., n. 433). After Boniface VIII the doctrine that "Ecclesia continet imperium" and that a direct power in the temporal is included in the papal plenitudo potestatis lived on in the canonists, until Bellarmine disposed of it, at least in principle; cf., with caution, Ullmann, Medieval Papalism (London, 1949), ch. IV.
3 I have counted 81 occurrences of the phrase, "libertas Ecclesiae," or its equivalent, in some 60 or more documents of Leo XIII. It is his key concept, as it is the traditional one. For instance, in St. Peter Damian's description of the imperial coronation as done in the eleventh century (there are those who set great store on argument from ancient coronation oaths), the first step was that the emperor "manu propria iurat libertatem Ecclesiarum" (LoGrasso, n. 245). Leo XIII was holding to the focus of the Church's effort, traditional since the day when St. Ambrose withstood Auxentius, when he wrote in 1887 to the Archbishop of Cologne, "Right from the beginning of our pontificate . . . we formed the resolve to make every effort to restore by all possible means peaceful tranquillity together with a just freedom for what is Catholic (nomini catholico)" (ASS, XIX, 465). In 1892, writing to the French Cardinals he speaks of the "principe fondamental de la liberté de l'Eglise" (ibid., XXIV, 646; the Latin text has "principio ex praecipuis, quod est Ecclesiae libertas"). The centrality of this principle needs some emphasis, now that the impression has somehow been created that the central principle of the Church is the right of "Catholic" governments to repress Protestant sects. It is perhaps significant that this peripheral point of predominantly historical interest should have become the focus of debate in the United States. For centuries the central issue in the Church's struggle with the state has been the freedom of the Church in the face of the monistic tendencies of the state. The Church in the United States, even in the absence of public legal status, enjoys a freedom that she never had under their Most Catholic or Most Christian Majesties; some study of Mercati's Raccolta di Concordati would establish the point. It seems therefore that we can afford to indulge in the luxury of a debate on peripheral issues. One unfortunate result has been that in the popular mind the Church, which is the home of freedom and the last bulwark of the rights of man, has become identified, not with freedom but with governmental coercion.
4 This primacy does not imply that the temporal power is somehow instrumental to the proper ends of the spiritual power or the Christian people; nor does it have per se connotations of an ecclesiastical jurisdiction over the temporal. Primacy per se asserts superior dignity; it also asserts influence, whose manner of exercise will be in accord with the kind of dignity and superiority asserted. This is principle; beyond this one is in the realm of applications of principle, institutionalized forms of influence.
5 The word "concordia" occurs so often in Leo XIII that I gave up counting; it is his favorite word, the watchword of his pontificate. The word also occurs in some of the earliest Concordats; in fact, a Concordat simply tries to give juridical form to something more essential than itself, an existent vital concordia (often enough, unfortunately, not existent).
6 Here is the place to define four terms which, if left undefined, lead to much muddled argument.
These, I submit, are the categories of reality and thought in which, for the sake of intelligibility, one must recast such resounding generalities as, "The state is a creature of God," or "The state must worship God," etc. Obviously, Leo XIII did not always heed these categories; for the purposes of his argument against Continental Liberalism it was not necessary for him to observe the niceties of political vocabulary.
7 It need hardly be mentioned that these three principles are not adequately distinct; they interlock, and mutually complete one another. For instance, the freedom of the Church as the Christian people implies a right to such political and social institutions as will further the establishment of harmony between social fact and Christian law; the promotion and protection of such institutions by the state is a form of its co-operation with the Church (the Christian people); the Christian use of these institutions is a form of co-operation on the part of the Church with the state.
8 Karl Eder, Geschichte der Kirche im Zeitalter des konfessionellen Absolutismus, 1555–1648 (Wien: Herder Verlag, 1949); cf. pp. 1–8 for the justification (valid, I think) of the term.
9 However, I should like to except from this whole discussion the special question of Spain, because it seems to have become impossible rationally to discuss it. Perhaps the reason is that for the Spaniard the question fundamentally involves a matter of prestigethe prestige associated with the assertion, "Spain is a Catholic nation." You touch a neuralgic spot when you presume to suggest that the religio-political structure of Spain, traditional since Ferdinand and Isabella, may possibly be more intimately related to the peculiar political and historical experience of Spain than to any abstract Catholic principles. In saying this you are implying that Spanish politics and history may perhaps be something less than Catholicand that implication seems to be intolerable. Again, there is the special meaning of the Spanish axiom, title of a famous book, Liberalismo es pecado. The specialty of the meaning can be seen, for instance, in the fate met by M. Maritain's books in Spain and South America. If you make an argument in favor of the method of freedom in political and economic life, you are immediately convicted of the sin of Liberalism and invited to enter, not further argument but the confessional. In these circumstances argument is discouraging. Besides, one has no wish further to wound religious and national susceptibilities already exacerbated by much unjust criticism.
10 Leo XIII was primarily the theorist of the political relationship insofar as it asserts that political authority is ultimately of divine origin and that the citizen is subject to it; this aspect of the matter was to the fore in the heyday of the "sovereignty of the people" in the rationalist sense, anarchism, and political and social unrest. But this is not yet a total theory of the political relationship. There are the further aspects of citizenship, namely, active participation in the institutional organization of civil society (Pius XI's emphasis) and in the political process itself whereby the state functions (Pius XII's orientation). In his social theory Leo XIII did indeed urge Christian democracy in the sense of beneficent action on behalf of the people; but in his political theory he never really answered the great question, raised for the first time in the nineteenth century, "Who are the people?" Actually, the first great historic answer to the question was given in the United States; but the din raised by the conflict with Continental Liberalism was too great to permit the voice of America (ironically, a deist and Protestant voice giving a Catholic answer) to be heard in European canon-law classrooms. In fact, to this day European authors of textbooks de iure publico seem unaware that there is any difference between Jacobin democracy and Anglo-Saxon democracy, or between "the sovereignty of the people" in the sense of the men of '89 and "government of the people, for the people, and by the people" in the sense of Lincoln. Hinc illae lacrimae, spilled by an American on reading books de iure publico.
11 The argument is not entirely free from the conceptual difficulties that center around the vexing question: What is the state? Fr. Shea seems at least once to take "the state" to mean "the civil authorities." His more consistent definition considers the state as "the body politic of a people." For my part I now (after more study than I had given the matter when I wrote the passages quoted by Fr. Shea) insist on the distinction between "state" and "body politic"; I note that in his latest book, Man and the State (Chicago: University of Chicago Press, 1951), M. Maritain likewise insists on the distinction. He also, like myself, identifies "body politic" with "the people." True enough, these distinctions do not greatly matter in the relatively simple question of the "worship" of God by the state. However, the distinctions are of great importance in the broader, more difficult, and historically complicated question of cura religionis as devolving on the state. Your answers to this question will depend on what you mean by the state, and what kind of a state you mean, i.e., how you conceive the political relationship: do ruler and ruled stand to each other as father to child, or as absolute monarch to passive subject, or as functional institutions to equal citizens actively participating in rule?
12 Art. cit., pp. 167 f.
13 This whole matter of officium sociale religionis ought to be brought into perspective. An initial distinction is necessary between the service of God and His worship in the proper narrow sense. Continental Liberalism laid down as a first principle that religion is a purely private matter, irrelevant to society. The opposed first principle of the Church is that man in all his forms of sociality is obliged to serve God; the great society and all its subsidiary forms, political society, the state, and government are all subject to the law of God. That is, each form of sociality is bound to observe the norms of goodness inherent in its "idea," deposited there by God, the author of nature (Liberalism contended that an autonomous human reason created its own norms, "under no regard whatsoever for God," as the third proposition of the Syllabus has it). This was the main ground of conflict. But the question of social worship of God, in itself peripheral, assumed preponderant importance for a very good reason. Jacobin democracy in France (and elsewhere as the Revolution spread) had abolished all the traditional Catholic rites of religion on public occasions; in fact, the public cult of reason was introduced. This break with tradition was a symbol of the new "atheism of the state"; it publicized a national apostasy, in part effected, in part to be enforced by governmental action. In itself, of course, the fact that governmental officials appear on state occasions at religious functions conducted by the Church is of no decisive importance. It does not guarantee that government will be good; for all its High Masses the ancien regime was about as bad a government as history has seen. However, despite their rationalism the men of '89 understood the value of symbols. They understood too that, precisely because it is the highest function in the body politic, the state is more than this. It is a symbol. In this respect it ranks with the national flag. It is a focus of popular sentiment; and the atmosphere that surrounds its action creates a climate of feeling in society. It is this symbolic character of the state that makes its appearance (in the person of governmental officials) at divine worship important. What was really at stake therefore was something non-rational in the sense that symbols are non-rational, because they are suprarational. This fact gave the issue its enormous importance: which symbolism was to prevail, and by its prevalence color the national atmosphere? True enough, one would hardly guess that this was the real issue from reading the learned books. Their fiercely rational arguments that "the state is a creature of God" obscure the real point, that the state is a creative symbol of popular feeling. In a curious way the nineteenth-century philosophers who brought into being the "separate ethics" and installed in it the thesis de officio sociali religionis were more rationalist than Robespierre and the Jacobins when on Nov. 10, 1793, they abolished the worship of God in France and substituted the cult of Reason.
14 Fr. Shea four times speaks of "the state" as "a creature of God"; the formula does not occur in the citations he gives from Leo XIII nor in any other texts that I know of. What does it mean? In the United States, for instance, in what sense are the institutions of the Presidency, the Congress, and the Supreme Court "creatures of God"? And in what sense can the state, as a set of institutions, a function, an agency, make an act of divine faith or profess a religion? Is the state a subject of the lumen fidei? It is clear that Fr. Shea has an hypostatized concept of the state which makes plausible this manner of speaking. In my concept, which is demonstrably sound, the state is not an hypostasis. You may, if you will (the expression is misleading), say that it is a "moral person," but only in the sense that it is human action which, as such, must be guided by intelligence and will. But the fictive quality of "person" that the state has by a sort of attributive analogy does not make it capable of an act of faith. As I shall later say, the state, as a set of institutions, must have a cura religionis; it may not act "as if there were no God"; and, as already stated, its officials, mindful of the symbolism of the state, ought at times to participate in acts of religious worship. But the state, I repeat, cannot make acts of faith.
15 A. Mercati, Raccolta di Concordati (Rome, 1919), p. 566. This is the first occurrence, as far as I can find out, in an official document of the formula, "the religion of the state" (the text actually has the equivalent, "religio reipublicae"). As a formula, it belongs strictly to the nineteenth centurya fact which hardly can be said to bestow on it the status of "traditional." I shall later say that in its connotations it reflects the characteristically nineteenth-century state of the question.
16 The very notion of a constitution involves the notion of a political act of popular consent. This is true of all forms of constitutionalism, Roman, medieval, and modern, however much they otherwise differ (cf. Mcllwain, Constitutionalism, Ancient and Modern, Ithaca: Cornell University Press, 1947). It is even true of the so-called octroyed constitutions of the nineteenth century, in the sense that they were obtained, or extorted, from the absolutist monarch by popular demand. Moreover, the political act of consent to the fundamental law is the primal condition of citizenship. Those who refuse to "uphold the Constitution" are eo ipso barred from the body politic, whose very being as a body is founded on this law par excellence. The Jew, for instance, was not a citizen of the medieval respublica christiana. Only during the absolutist era of the rex legibus solutus whose despotic will was the sole source of law did this ancient and Christian concept of law disappear. And it is doubtless not without significance that the institution of the state-church and the later constitutional concept of the religion of the state flourished in the absolutist era and in the absolutist revivals of the nineteenth century.
17 The phrase, "the nature" of the state, as used in this whole question, has a certain misleading glibness about it. It can of course be rightly understood, but often it connotes a transference of the state into the order of substance. One would better say that the state has certain natural functions, certain forms of activity proper to it by nature, by the natural law to which it owes its origin. The problem that has always vexed political philosophers is to know precisely what these functions arehow far the functioning of the state should extend. In the era of New Deals and Fair Deals everyone is aware of this problem. Certain functions are inherent in the very "idea" of the political relationship itself, but their formulation can only be very general, e.g., the tutela ordinis iuridici. Other functions are contingent, e.g., upon defects in the great society: in proportion as society is unjust a function of justice devolves upon the state. The cura religionis is certainly a function of the state; but the question is to know what forms this cura must take by nature. What forms are inherent in the "idea" of the political relationship? What forms have contingently been assumed by the state itself in consequence of its own special idea of itself (e.g., the cura religionis assumed by the absolute monarch in consequence of his theory of a spiritual mission inherent in his office as held by divine right)? What forms have been historically delegated to the state by the Church (e.g., to the medieval Emperor, who stood within the Christian Commonwealth in a unique relationship to the Pope)? What forms have been conceded by the Church as privileges (e.g., in the ius patronatus)? And what forms have merely been tolerated by the Church (e.g., the regium placet, etc.)? I am inclined to say that the only form of cura religionis on the part of the state that is inherent in the idea of the political relationship is the cura libertatis religionis, which, in the hypothesis of the founding of the Church, must extend itself to a cura libertatis Ecclesiae. Everything else is history. History does indeed validate other forms, but it does not make them eternal, essential, any more than the Fair Deal (as some people hope) is essential or eternal. Nor need one suppose that a society is the more Catholic in proportion as the state assumes greater supervisory care of the Catholic religion. If the analogy between society as religious and society as just is valid, the contrary would obtain.
18 Moulart makes this statement: "Today there no longer exists anywhere a Catholic state in the true sense of the word. Those which in these latter days have borne the name no longer justified it in reality. The last vestiges of the ancien regime disappeared with the fall of the throne of Isabella, Queen of Spain" (L'Eglise et l'Etat, 3rd ed., 1887, p. 353). The ill-fated daughter of the ferocious Bourbon Ferdinand VII (one of those who came back, having learned nothing and forgotten nothing), was forced to flee the country, and was declared deposed, in September, 1868. The question is whether Moulart is simply stating a fact or expressing some nostalgic yearnings. Is the Catholic ideal the return of absolutism? Did the Catholic "thesis" go out with the Bourbons? And do we now hover in midair, as it were, clutching our principles to our collective bosom, unable to make any application of them (save where there is dictatorship on the Bourbon model, as in Spain), and condemned to find our way through the contemporary world into the future (which belongs, I hope, to democracy) touching only on the precarious footing of expediency, what time we look back over our shoulder at the diminishing figure of Isabella II? What an extraordinary posture for the universal Church!
19 "But a young man has no knowledge of the things that pertain to moral science; for these things are for the most part learned by experience" (Eth., I, 3). What is true of the individual is even more true of mankind as a whole.