Works By John Courtney Murray, S.J.

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For the Freedom and Transcendence of the Church

There are several views expressed or implied in Fr. Connell's recent article, "The Theory of the Lay State," which call for some critical consideration.1

I

The first criticism must bear upon this statement: "The right of the Catholic Church to preach the Gospel independently of every civil power implies an obligation on the state imposed directly by Jesus Christ to permit the legitimately delegated preachers of the Gospel to enter its territory and to announce their message to the people."2 This statement contains two implications which (doubtless unintentionally) violate the law of Christ stated by Pius XI in Quas Primas, when he said that the Church has "a natural and inalienable right to complete freedom and immunity from the power of the state."

The first implication is that the state somehow possesses a juridical empowerment to "permit" the Church to preach the Gospel.3

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It does not help to say that the state is obliged to grant this permission. The point is that the permission itself, an act of authority supposing a measure of jurisdiction, is put within the duty, therefore within the competence, of the state. But this is profoundly to misunderstand the principle of the freedom of the Church. By the will of Christ, the mission of the Church is directly to all men, as men. And it is the law of Christ that the Church should have direct access to all men, "independently of every civil power," as the canonical phrase has it. The phrase means that the civil power does not and may not stand between the Church, as herald of the Gospel, and any of the peoples of the earth. The state is not empowered either to permit or to prohibit the preaching of the Gospel. Nor is the Church in the slightest degree required to go to men through their civil rulers.4

The whole point of the principle of the freedom of the Church is that the prophetic, pastoral, and priestly mission of the Church is of a higher order than the power of the state; and it is altogether beyond the power of the state either to permit or to prevent the exercise of this threefold mission. In principle, it is almost as injurious to say that the state must permit the Church to preach as it would be to say that the state may prevent her from preaching. In both cases the jurisdiction of the state is extended beyond the

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limits set by the law of Christ which prescribes that the immunity of the Church from the civil power is to be "complete." Her immunity would be less than complete if there is conceded to the state a juridical empowerment to permit her preaching. Even granted that the permission must be given as a matter of obligation, this would imply a measure of dependence of the Church on the civil power that would be violative of the perfect independence of the Church. Indeed, it would also imply a dependence of the human person on the civil power in violation of a fundamental freedom with which the human person has been endowed by the law of Christ—the freedom to hear the word of God directly from the Church, without benefit of state permission. This is the freedom that Leo XIII described when he said that "within the political community a man is free to follow the will of God and do what it commands, out of a moral sense of duty, without having obstacles put in his way."5 Surely a previous permission of the state, however obligatory, would be a most intolerable obstacle.

There is another implication in Fr. Connell's statement. If civil rulers are under an obligation to permit the legitimately delegated preachers of the Gospel to carry their message to the men subject to their rule, this obligation carries with it (as Fr. Connell greatly insists) the further obligation to examine the credentials of the preachers and judge "whether or not their doctrine bears the seal of divinity." Notice that this obligation, imposed on civil rulers as such, is distinct from the obligation incumbent upon all men, as men, to investigate the teaching of the Church and examine the signs that attest its divine origin. It is an obligation that is made to rest upon the civil ruler formally as ruler, precisely by reason

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of his possession of political power. This is Fr. Connell's point of emphasis. But there is a further consequence. This obligation to make a judgment on the doctrine of the Church, imposed directly upon the civil ruler in his official capacity, supposes that the civil ruler as such is empowered to make such a judgment, and to conduct the examination that must precede it. Moreover, this empowerment, or right, derives directly from the fact that he is ruler; it is an attribute of the political power as such, vested in the man who exercises the function of political government. But here again this theory violates the Church's perfect freedom and immunity from the power of the state.

Endowed with a freedom that is a prolongation of the freedom of the Incarnate Word Himself, the Church proposes herself to all men, for their free acceptance by faith, a gift of grace; but she does not submit herself to judgment by the civil power as such, nor does she admit any empowerment of the civil ruler as such to enter into judgment upon her claims, with a view to granting her access to the people under his rule. The civil ruler, precisely inasmuch as he is a man, is obliged to investigate the truth of the Church, in order that he may personally, as a man redeemed by Christ, accept the Catholic faith, if God's efficacious grace of faith is given him. For this task every man, as a man, is empowered by nature and by grace. But no civil ruler possesses an empowerment, in virtue of his political office, to conduct an investigation into the claims of the Church, in order that he may thereafter pronounce public and official judgment on them and by governmental act grant permission to the legitimate ministers of the Church to preach the word of God. To maintain or imply this theory is again to place the Church in a position of dependence on the civil power that is quite out of harmony with traditional Catholic principle.6 Moreover, it is to imply that the civil power as such, or the civil ruler in virtue of his office, is somehow a competent

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judge of religious truth, in contradiction of the central principle for which the great apologists of the sixteenth century (notably Bellarmine and Suarez) fought, against the theory of the king by divine right.

The conclusion at this point is that Fr. Connell's effort to exalt the Kingship of Christ over civil rulers results in an exaltation of the civil ruler over Christ the King, whose doctrine is made subject to judgment by the civil power. A desire to enforce the authority of the Church results in a serious diminution of her freedom and that of the people, in whose service her authority stands. And a wish to urge the obligations of the state to the law of Christ results in such an increase in the functions and competence of the state that the Church is made dependent on the state in a manner contrary to the law of Christ.

These results are paradoxical indeed, but not inexplicable. It would seem to be more than a question of correcting a manner of expression; the difficulty is more profound. There seems to be a lack of breadth, depth, comprehension, and clarity about the very perspectives in which Fr. Connell views the whole problem of Church and State. However, it is not the purpose of this article to analyze the manifold reasons for this falsity of perspective, though one reason for it will appear in the course of making a second criticism.

Before passing on to this second point, the occasion may be taken to point out a certain rationalism involved in the following statement: "and since civil rulers could not be expected to yield in this matter without examining the claims of the Church, it is within the scope of their official duty to find out whether or not the Church is authorized by God to demand certain rights. In other words, the state may not (to use Fr. Murray's phrase) `know nothing' of the Church's divine commission,7 but must investigate the validity of its credentials. And since only the Catholic Church among all religious organizations has received the divine commission and can give adequate proof of its divine authorization, the state is bound per se to yield to the claims of the Catholic Church

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alone in those matters which involve a limitation of the state's natural law authority."8

In this argument there are four steps: (1) the state is obliged to investigate the proofs for the Church's divine authority; (2) these proofs are per se adequate; (3) therefore the state per se will accept them and believe in the Church's divine authority; (4) and consequently the state is per se obliged in certain matters to yield to the Church's authority. This I take it, is the full argument. The third step, omitted by Fr. Connell, is necessary in order that the fourth may follow. How would the state, per se or any other way, be obliged to yield to the Church's authority, unless it previously acknowledged this authority as divine?9

Let us waive the false supposition that "the state" as such is somehow capable of making an act of faith. The point here is that it is difficult to understand how the third statement can escape the qualification of rationalism, or in theological terms, Pelagianism. Because the proofs of the Church's divine mission are in themselves adequate, it does not at all follow, per se or any other way, that one who considers them will come to believe in her divine mission. The act of faith is dependent on the grace of God, which is freely given. In what concerns the grace of faith, in whose granting the initiative belong to God's selective love which lies beyond all human meriting, there is no such thing as "speaking per se," about what ought to happen. Ultimately, that will happen which God wills; and in the matter of an efficacious vocatio ad fidem His will is most inscrutable. To draw a straight and continuous line from a consideration of the proofs for the authority of the Church to an acceptance of that authority is to introduce an element of rationalism into the genesis of the act of faith.

II

The second criticism bears upon the conceptualism visible in Fr. Connell's thought. One might also speak of a certain logicism. By conceptualism is meant a habit of thought that uses terms (e.g., "the state") to which there corresponds only a mental construct

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of some kind, but no identifiable reality a parte rei. By logicism is meant the achievement of a pseudo-consequence by a concatenation of propositions that represent mere conceptualizations. This conceptualism and logicism come to light when one realistically analyzes the insistent statement that it is an official obligation of "the state" to investigate the truth of Catholicism. The notion of "the state" underlying this proposition appears as a pure piece of conceptualism; and the obligation affirmed in the proposition rests for its affirmation upon the logicism described.

If this obligation rests upon "the state" as such, it must be one that can actually be imposed upon, and fulfilled by, any manner of state. The affirmation of the obligation is made absolutely, as deriving from the very nature of the state as such, independently of the particular political form it may assume. No special "hypothesis" of a particular form of state or kind of population is required in order that the obligation may find concrete application; for this obligation derives from one of the "laws laid down for all states under the Christian dispensation—whether they be Christian states or not—by Jesus Christ, as King over civil rulers." Therefore this obligation ought, for instance, to be applicable to, and explicable in terms of, the concrete political reality presented by the United States of America, which is most certainly a state. However, it is not so applicable or explicable.

First, it is impossible to locate this obligation. Upon whom does it rest—the Federal government, or the State government, or county, municipal and township governments—or upon all (or perhaps only some) of the hundreds of thousands of men in this country who hold political office and therefore may qualify as "civil rulers"? No one could possibly say. If we suppose, for the argument, that the obligation rests upon the Federal government, upon which branch does it rest—the executive, the legislative, or the judicial—or upon all (or only some) of the hundreds of men who hold various kinds of Federal office? Again, no one could possibly say.

If we suppose, again for the argument, that the obligation rests upon all American "civil rulers" (whoever they are), another difficulty appears. It is part of the genius of the American political system that the "civil ruler" is constitutionally inhibited from passing judgment in matters of religious faith and by the same token

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from conducting investigation into the proofs that the Catholic Church offers in support of her claim to be the one true Church. "We, the People," by a formal act of constitutional consent, have decreed this limitation of the powers of government and the functions of civil rulers.10 What then? In order to maintain his theory, would Fr. Connell say that "We, the People," have no right thus to limit the powers of our civil rulers, because Jesus Christ Himself directly imposes upon "the civil ruler" as such (apparently quite independently of any wishes of the people whom they govern) the obligation and the consequent right of investigation and judging the claims of the Church? Would he say that, since this obligation and right derive directly from Jesus Christ, "We, the People," are not empowered to nullify them by any act of free popular consent? Would he say, in other words, that, the American system of constitutional government, wherein the powers of the civil ruler are limited by act of the people, is directly in contradiction to the law of Christ? This would indeed be a ferocious bit of logic, ending in political nonsense—in a denial of the essence of Western constitutionalism, the doctrine of consent that is at the center of Christian political philosophy and that has received its legitimate development in the Anglo-American political tradition.

Leaving aside for the moment the very bad political implications of Fr. Connell's theory, and supposing, for the argument, that no constitutional inhibitions stood against an investigation of the truth of the Church by American political authorities, one is at a complete loss to see how the obligation to conduct this investigation could possibly be discharged. It has to be borne in mind that the obligation is made part of "the official duty" of the civil ruler; it is not simply a personal obligation which he might discharge in his private capacity. Therefore the obligation would have to be met by some governmental act. It would not be sufficient, for in-

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stance, for each member of Congress quietly to read Dieckmann or Tromp or Zapelena in the privacy of his own study at home, after the day's official work was done. The investigation must be conducted by "the state" as such ; hence it must be public. Supposedly, after the customary manner of state investigations, some official agency would be set up. Would the President create a Department of Theology in his Cabinet? Or would both Houses of Congress appoint committees? Or would the Supreme Court take the matter in hand? Or what would be done? Obviously, a group would have to work on the project (in the U.S. there is no one "civil ruler" competent to undertake the task). Suppose the group disagreed in their conclusions, as they inevitably would? Or even suppose a miracle of agreement was wrought by God, what would be the consequence for the state? These are legitimate questions, and there are no answers to them. In fact, the mere asking of them displays the unreality in the theory.

The fact is that this theory of an obligation on "the state" to investigate the claims of the Church collapses completely when it is put to the practical test of application. The conclusion from the fact is that there is no warrant for asserting that this is an obligation deriving from one of the "laws laid down for all states under the Christian dispensation—whether they be Christian states or not—by Jesus Christ, as King over civil rulers." We may take it that Christ the King did not make any laws for civil rulers as such—laws that are absolute, as based on the very nature of civil rule—that civil rulers would be incapable of fulfilling. The asserted obligation is a chimera.

Whence then did Fr. Connell derive it? The impression is inescapable that he started with a notion of "the state" that was a pure piece of political conceptualism, and then was caught in his own logic. The argument would run thus. The state as such is obliged to obey the law of Christ and accept the authority of the Church. But the state cannot be obliged apart from a previous official investigation into the law of Christ and into the titles for the Church's authority. Therefore the state is obliged to conduct this official investigation. The logic is impeccable; the conclusion is absurd. And the reason is that the whole argument hangs in the air, suspended from nothing—from a notion of "the state" that is an empty conceptualization, unrelated to political reality.

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Or is it so unrelated? In all fairness, it ought to be said that there is an alternative explanation. Perhaps Fr. Connell is not a conceptualist in his political philosophy. Perhaps when he speaks of "the state," he may actually, if unwittingly, mean the unlimited monarch, the king in the tradition of the French classical monarchy, who was also "Father of the People," possessed of the total ius politiae, and therefore the single source of law and governmental decision.

This supposition is strengthened by Fr. Connell's constant identification of "the state" and "the civil ruler." "L'Etat, c'est moi." The supposition is further strengthened by a revealing turn of phrase. Civil rulers, it is said, are obliged to allow the preachers of the Gospel "to teach their people the truths of salvation." Only one who was, perhaps unconsciously, thinking in terms of absolute monarchy would speak of the civil rulers and their people; the phrase is straight out of the vocabulary of the eighteenth century, the age of the enlightened despot. In this universe of discourse the personal pronoun was appropriate, as corresponding to the special concept of the political relationship that obtained in that historical context, when the people were both subjects and children of the king—properly his people. On the other hand, how silly it would be to speak of "the President of the U. S. and his people"!

Clearly, if the term, "the state," really means a regimen regale in the technical sense, a monarchic state governed singly from the top down, with unlimited power centered in the hands of "the civil ruler," the king, it might become possible to make sense out of Fr. Connell's theory of the obligations of "the state."11 The obligation to investigate the claims of the Church and to permit her to preach could be exactly located—in the king; for nothing that concerns the state lies outside his official duty, and there are no limits to his functions. Moreover, the obligation might be successfully discharged; if in these mysterious matters a conjecture is permissible, one might think it more probable that the grace of faith should reach one king than that it should reach all the members of a Congressional committee.

Actually, if one considers the matter carefully, it becomes evi-

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dent that only in the political hypothesis of this particular form of "the state," an unlimited monarchy, could Fr. Connell's theory of the obligations of "the state" be rescued from sheer conceptualism and given concrete and practical, and therefore moral, meaning. The point need not be developed; it is enough to suggest that his article be reread with this point in mind.

This leads to an important conclusion. In the logic of Fr. Connell's theories there is inherent a denial of the transcendence of the Church to political forms—the principle that occupied so central a place in the doctrine of Leo XIII. The workings of this logic are easily displayed. In a political hypothesis where there is a dispersion of political responsibility and power among a variety of institutions and men, whose functions of rule are constitutionally limited, an obligation to investigate the truth of the Church is impossible either to understand or to apply. Consequently, such a political hypothesis cannot per se be admitted by the Church, since it would render meaningless what is asserted to be a law of Christ the King, an essential right of the Church, and an essential obligation of "the state." With similar consequence that form of state becomes per se obligatory and necessary in which political power is so centralized as to become susceptible of the asserted obligation and effectively subject to the law of Christ the King and to the authority of the Church. The conclusion is that the per se valid concept of the Church-State relationship can only obtain between the Church and a constitutionally unlimited monarchy. Per se therefore the Church is bound to this particular form of state; other political forms (e.g., a democratic republic with division of powers and government by the people) can only be tolerated per accidens. The Church therefore is not really transcendent to political forms and "indifferent" to them (provided they be just). By the logic of her own doctrine concerning her authority over the state and the obligations of the state to Jesus Christ, King of civil rulers, she must regard monarchy of the unlimited kind as the only per se valid and therefore per se obligatory form of government. It is the only form of political organization which can actually discharge the obligations of "the state" and contain "the civil ruler" in proper subjection to the authority of Jesus Christ and His Church. In a word, the Kingship of Christ requires as its per se ideal earthly counterpart an enlightened Catholic despotism. Vive le Roi Soleil!

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From another point of view this same conclusion appears. If one attentively considers Fr. Connell's discussion of several knotty points of application of the principle of concordia legum,12 it will be seen that he supposes an unrecognized premise—a particular concept of the legislative process that recalls Dryden's phrase, "He who possesses the king possesses the laws." Fr. Connell wants the harmony between human law and positive divine law to be achieved in a special way—by the action of a centralized monarchy with unlimited power, acting under the directly exercised jurisdiction of the Church.

This last sentence makes a fair statement of what Fr. Connell must wish to take out of the text of Quas Primas. At least, this is the only way in which I can understand his meaning in such wise as to bring me into the disagreement with Pius XI that he asserts to exist. For the rest, his interpretation of the Encyclical is obscured by oversimplification, by the divorce of texts from their doctrinal and historical context, and by a rather baffling mode of dialectic argument.

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Fr. Connell puts himself instantly outside of the perspectives of the Encyclical by paying no heed to the fact that it is directed against a specific error, named in the text, "the plague of our age—laicism, as it is called." (The more familiar American term is "secularism," although American secularism and Continental laicism are two significantly different things.) The essence of laicism is its contention that religion is by definition a res privata; therefore it has nothing to do with the res publica. Religion is simply for the private good of the individual in his private life; it is irrelevant to the public life of organized society and its common good. Laicism is not in the first instance a doctrine of the state and the functions of government; it is a doctrine of the commonwealth (the "great society"), and of religion, and of the relation, i.e., the unrelatedness, of the two.

This is why the Encyclical deals extensively with the respublica or the civitas (often erroneously translated "the state" or "the nation," as in the Husslein edition). It deals only incidentally, in obliquo, and per consequentiam with the magistratus and gubernatores.

The essence of its doctrine is in this statement: ". . . his [Christ's] royal dignity demands that the whole commonwealth be organized in harmony with the commandments of God and with Christian principles, in its legislation, in the administration of justice, and also in the forming of the minds and souls of youth to sound doctrine and purity of morals" (regia eius dignitas id postulet, ut respublica universa ad divina mandata et christiana principia connponatur, cum in legibus ferendis tum in iure dicendo, tum etiam in adulescentium animis ad sanam doctrinam integritatemque morum conformandis).13 The passage expresses the dominant preoccupation of Pius XI's pontificate, which was not with

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the state or with civil rulers but with the whole order of human society, the institutional organization of the commonwealth or the City—realities that are broader than the state. Moreover, the word, "componatur," is an echo of Leo XIII's "concordia."

Fr. Connell contracts, and to this extent perverts, the intent and bearing of the Encyclical by drastically simplifying its substance to the statement that it "ascribes to civil rulers the obligation to obey the positive law of our Saviour in their official acts." (Actually, there is only one reference to the obligations of rulers; the only three other occurrences of the term, "ruler," are in a context dealing with the origin of civil authority, not with its functions.) This contraction of perspective may be due to the confusions in Fr. Connell's political thought and vocabulary; but it owes something to an apparent assumption that the whole order of the commonwealth is established by the official acts of the ruler—an assumption that Pius XI, genial author of an institutional theory of society, would energetically reject.

In any event, in this narrow perspective the problem dealt with in the Encyclical is itself narrowed to the point of falsity. Pius XI's partial problem is that of legislation and the order of law (as part of the larger problem of the order of society); Fr. Connell's single problem is that of the legislator and the legislative process. If one can at all understand his meaning, what he wants is that the Church (i.e., the ruling Church) should possess, by the law of Christ, a direct jurisdiction over the legislator, the civil ruler in his official capacity—in a word, over the civil power as such. By the exercise of this jurisdiction the harmony of the two laws is to be assured. But this is to resurrect the ancient theory of "the two swords," in at least one assertion made by that outworn theory, from which even the books de iure publico shy away. (A direct jurisdiction over the civil power as such is quite a different thing from the commonly held potestas indirecta in temporalibus. This power indirectly touches the temporalia; directly, the res sacra in temporalibus; it does not at all touch the potestas temporalis. It is not a power over another power, but a power over the sacred things in the temporal order which, as sacred things, are not under the temporal power, whose competence is only in the profane.)

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Crowning all this confusion, generated by oversimplification, is the further assumption, implied in the theory that the Church should assume direct jurisdiction over the legislative power and direct control over the legislative process, that there is only one per se valid form of this process—the centralization of the law-making function within the state in the hands of a civil ruler with unlimited power. Only in the hypothesis of such centralization can the theory of the Church's direct and authoritative control of the legislative process be made intelligible. But here again there is a collision with the principle of the transcendence of the Church to political forms.

The contrast of positions here may be restated thus. Pius XI, and Catholic tradition in general, say: "The whole of public life and all its institutions, the whole order of the commonwealth in all its aspects, must be brought into harmony with the law of Christ as taught and administered by the Church. In particular, the legal code must be in harmony with the commandments of God, and the laws of Christ concerning the freedom of the Church, and the res sacrae in temporalibus—the marriage contract, the family, education, etc. How is this to be done, i.e., by what special set of political institutions? That is not for me to say. The creation of these processes and institutions is left to the dynamisms of reason and history, operating in the peoples of the world. What I oblige to, in the name of Christ, and in the name of the unity and integrity of the Christian conscience, is the goal, concordia; it is not for me to prescribe the means to the goal."

On the other hand, Fr. Connell says, in effect: "The civil ruler in his official acts is directly subject to the law of Christ, and by consequence directly subject to the jurisdictional authority of the teaching and ruling Church. This direct subjection of the civil power to the spiritual power is the divinely ordained means whereby a harmony of human law and divine positive law is to be achieved. In order that this means may be effective the civil power is to be centralized and unlimited in its scope. This particular form of the legislative process, this particular institutionalization of governmental power, the rex populo solutus, is the necessary counterpart of the direct subjection of the civil power to the law of Christ and the jurisdiction of His Church."

The contrast of positions is indeed striking, once both have been fully clarified.

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There is obviously something wrong with theories that lead to such unacceptable conclusions.14 The point of this article has been simply to indicate how unacceptable are the conclusions to which certain of Fr. Connell's theories lead, lest perhaps the specious simplicity of their seeming orthodoxy (i.e., their sincere desire to defend the rights of Christ the King and His Church) should deceive the unwary. I hope it is not disrespectful to suggest that Fr. Connell himself may be among the unwary. The thought comes to mind at the spectacle of a theologian who starts out on curialist premises, and then slips into regalism; who begins by eschewing concrete political thinking, and turns out to be a crypto-monarchist.

I have not here undertaken to defend any of my own theories, because I cannot see that they have been touched. But one remark is necessary. Fr. Connell credits me with the intention of trying to "smooth the way toward a better understanding of the Catholic Church on the part of non-Catholics in America," by a process of compromising Catholic principles, or concealing them, or understating them. The suggestion is mistaken and injurious. I reject it.

What is more important, it betrays a blindness to the present-day problem. The fact is that the Church in the twentieth century is being obliged to confront the Church-State problem in a new form. The precise form of the Church-State problem (the problematic, if you will) has continually undergone change; it has always been set by the particular kind of state with which the Church sought an orderly relationship. And the Church has never consciously and adequately faced the problem, theoretical as well as practical, put to her by a state organized on the constitutional and political lines proper to the tradition of Anglo-American democracy. The practice of Church-State relationships, and therefore to some extent their theory, has been conceived in function of the European Continental political tradition. In fact, one could say

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without great exaggeration that for centuries the problem of Church and State has been the problem of the Church and France. And "France" here means two things—royal absolutism and the Revolution, both of which, after the French example, became international phenomena. (One would, for instance, more accurately understand certain portions of Leo XIII if one were to substitute the word, "France," where he used the term, "the state.")

This secular struggle between the Church and French (and Italian and Spanish) regalists and French (and Italian and Spanish) Revolutionaries has inevitably left its mark upon the theory of Church-State relationships. The mark is clearly visible in the current treatises on public law. Their categories of discussion are (1) separation of Church and State understood according to the

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theory of Continental Liberalism, which was absolutist, and (2) union of Church and State as understood in the so-called "Catholic states" of post-reformation Europe, which were likewise absolutist. These books never consciously conceive the problem of Church and State in terms of a state not organized on the monarchic and absolutist lines familiar to Continental politics. Nor would one gather from these books that there is any such thing as the "liberal tradition," which political historians are accustomed to distinguish from Continental Liberalism, its deformation. The essence of this tradition lies in its freedom from the vice of political absolutism, in its idea of constitutional (i.e., limited) government, and in its sound concept of "the people" as an organized and self-conscious body of equal citizens with rights of self-rule, and not (as in the absolutist tradition, both regalist and revolutionary) an undifferentiated mass of "subjects," who simply are ruled.

Catholic theorists on Church and State could for a long time afford to overlook the problem presented by a state organized according to the principles of the liberal tradition and its concept of constitutionalism and of free political institutions, because the lands in which this manner of state developed were predominantly Protestant, and consequently the problem of an orderly relationship between the Church and these states was not an urgent one. Moreover, the struggle with Continental Liberalism was so intense, prolonged and bitter that it quite absorbed the energies of Catholic thinkers. However, the new problem has become urgent in the twentieth century, which has seen the death of Continental Liberalism, and is witnessing the struggles of the liberal tradition to be reborn; in birth-pangs induced by the pressure of worldwide totalitarian Communism—a threat to all that both the Church and the liberal tradition stand for.

This is the problem with which I have been concerned. The problem has not been solved. And it is not soluble in terms of that formulation of Catholic doctrine which was achieved in the course of the Church's conflict with nineteenth century Continental absolutist liberalism. The problem does not turn on the purely factual distinction between a "Catholic majority" and a "Catholic minority." It turns on a whole theory of society, the state, the government, the body politic and the people. So much so that the problem itself would perdure even in the case of a "Catholic majority."

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Certainly we in the United States should see this clearly, even though the vision of some European thinkers may be obscured by the still unsettled dust of controversy or by a nostalgia for the dear dead days of the "Catholic state" on the monarchic or dictatorial model. (Actually, many contemporary European thinkers are puzzled at the tenaciousness of the so-called "classical thesis" in the United States, the country where it never had, and never will have, application, where a new and genial political tradition was inaugurated, and where, they tend to suppose, a newly creative solution of the Church-State problem, under all fidelity to Catholic principles, might take its rise.) Since the historical distinction, "Catholic majority" vs. "Catholic minority," is not really relevant to the problem, the distinction of "thesis" and "hypothesis" affords no starting point for a viable theory. Moreover, at this distance from the controversy into which the distinction was thrust, it is permissible to raise the question, just how "traditional" is this distinction? For my part, I have not been able to discover any deep roots for it, or see how it is a prolongation of any Catholic principle.

This much has been said in order to indicate that I consider myself to be dealing with a speculative problem. Fr. Connell also says that he is dealing with a speculative problem, although he gives no idea of what it is. His article in part deals with a false problem (is the state subject only to the natural law?) and in part it takes hold of a real problem by the wrong end—the problem of concordia, which is not properly a speculative but a practical problem, having to do largely with the legal and political institutions through which concordia is to be achieved. My speculative problem is very real, as real as the political context from which it takes its rise. There are those who do not see it; nonetheless, it remains as visible as it is real.

Curiously enough, among those who see it are some of those "fair-minded" non-Catholics who Fr. Connell with illusory confidence expects to be quite satisfied with the thesis-hypothesis disjunction. They see quite clearly the fact to which Fr. Connell is seemingly blind—that the hypothesis, as understood in this disjunction, is not the American hypothesis. They would like to know why the Church's condemnation of a "freedom of religion" based on the religio-political ideology of Continental Liberalism (which they likewise condemn) should be operative against the freedom

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of religion guaranteed by the First Amendment, which is not based on the ideology of Continental Liberalism. Fr. Connell underestimates their capacity for reason and logic, while putting too great a strain on their fairmindedness. The fact is that they do not consider the current attitude of the American Catholic Right,15

[p. 48]

which condemns the First Amendment in principle and praises it in practice, to be either intellectually or morally respectable. What these men think is indeed quite secondary to the prime problem—the truth of the matter. But the fact of their thought must be registered, as a fact. There is no excuse for being blind to the fact; still less, for being bland about it.

JOHN COURTNEY MURRAY, S.J.

Yale University

New Haven, Conn.


NOTES

1 This article directs against me the same criticism which a previous article, "Christ, the King of Civil Rulers" (AER, CXIX, 4 [Oct. 1948], 244–53), made of John of Paris. The two articles are identical in substance, and the adversary is the same—a theory of the "lay state" which would maintain that the state is subject only to the natural law and not subject to the law of Christ. The second article manifests no understanding of the content of my position, just as the first article manifested no understanding of the historical significance of John of Paris. I have never proposed any such bald theory of the "lay state." Nor have I ever denied that commonplace of Catholic thought on which Fr. Connell laboriously insists—that a part of the minoratio naturae effected by the introduction of the supernatural was a diminution of the power that the state would, or might, have had in an economy of pure nature. Quite recently (cf. AER, CXXIV, 5 [May, 1951], 327–33), I made it clear that there are three principles, deriving from the law of Christ, that are obligatory norms for the action of the state—the principle of the freedom of the Church, of concordia legum, and of co-operation between Church and State. (Incidentally, the cited article will not be continued in AER but in Theological Studies.) Dear old John of Paris is a handful of grey ashes, long long at rest, not to be disturbed by irrelevant criticisms. But my own ashes are still animated, and hence I must point out the irrelevance.

2 AER, CXXV, 1 (July, 1951), 13.

3 In the context of Fr. Connell's thought the "permission" in question is more than a mere forbearance of prohibition, or a simple recognition of a lack of governmental competence, or the guarantee of protection for a freedom possessed aliunde. There is implied a distinct element of official approval, sanction, authorization. The permission is authoritative: "The civil rulers have the obligation to permit the Catholic Church to teach its doctrine to the people, whether baptized or unbaptized. In the event that the Gospel is being announced for the first time, the rulers have the right and the duty to investigate the claims of the preachers before giving positive approval" (AER, CXIX, 4 [Oct. 1948], 249). Notice that the obligation to permit founds a right to investigate; therefore the act of ensuing "positive approval" has a juridical character comparable to that of the investigation itself. Both assume a manner of jurisdiction.

4 Fr. Connell objects to my theory of the Church (understood as an order of law) reaching the state (again understood as an order of law) through the people who are subject to both orders of law. Apparently he does not understand the theory; in fact, he seems to make me out a juridical positivist, as if I were saying that that ought to be law which the people believe ought to be law (which is only a half-truth). My theory has its origins in a key concept of Leo XIII, that a concordia legum ought to prevail between Church and State, "quia utriusque est in eosdem imperium." It is also an effort to apply strictly the Catholic principle that the power of the Church (understood as a supernatural authority) over the State (understood as a human authority) is indirect, i.e., of another order than that of the state. The theory is sound. Altogether unsound is Fr. Connell's implied theory that the Church must reach the people through the state. This theory did indeed prevail under the "union of Church and State" proper to the absolutist era, when the Pope could not reach even his own bishops, much less the people, save through the king. Does Fr. Connell hold this theory to be a part of Catholic tradition?

5 Libertas, in Leonis Papae XIII Allocutions, Epistolae, Constitutiones (Paris: Desclee, 1893), III, 114.

6 Fr. Connell cites the example of missionaries who were wont first to "seek governmental confirmation of their mission `from' pagan rulers." The example proves no "right" of government to investigate and pass judgment on the Gospel. The missionaries faced a situation of sheer fact created by the despotic powers of these pagan rulers. Moreover, the procedure was dictated by the fact that in primitive societies the example of the ruler was obligatory on his subjects. Something like the territorial principle, "Cujus regio, eius et religio," operated. If the chief was converted, so too was the tribe.

7 The phrase is not mine. Bellarmine cites it, with approval, from Durandus. Fr. Connell quite mistakes its meaning. Actually, it denies what he affirms—that the civil power is a competent judge of religious truth.

8 "The Theory of the Lay State," p. 11.

9 The passage is obscure. But it is clear that Fr. Connell is not simply distinguishing objective and subjective obligations. He is describing a process, some sort of ideal process—what ought per se to happen.

10 Notice that this basic American political idea, which is the fundamental inspiration of the First Amendment, is an exact transcription of 'a basic Catholic theological idea. It cannot be too often emphasized that the First Amendment, in its purpose or ideology, has nothing in common with the French Law of Separation of 1905, the climactic expression of Continental Liberalism. The political theory that underlies the First Amendment was not the Continental Liberal theory against which the Church fulminated in the nineteenth century. I do not know any book de iure publico which recognizes this fact. This is a good reason for American insistence on it.

11 I mean a sort of formal logical sense. It would still remain true that the assertion of this obligation is, in its tendency, injurious to the freedom of the Church.

12 It may be noted in passing that none of the three examples (marriage impediments, the Pauline privilege, ecclesiastical immunities), cited by Fr. Connell to disprove a supposed theory of mine, in reality touches any theory of mine. I have stated emphatically enough the principle of concordia legum and the primacy of the spiritual. What is interesting is the genius for the peripheral that Fr. Connell seems to manifest in his discussion of the Church-State problem. He has contributed perhaps more than anyone else in the U.S. to a centering of the problem—quite falsely to its proper perspectives—on the "right" of "Catholic governments" to repress heresy. And when he does (almost unwittingly, one thinks) approach what is the core of the problem in Leo XIII's understanding of it—the problem is one of concordia and importantly, concordia legum—some instinct for the peripheral asserts itself. He cites three "hard cases"—the kind of hard cases that make bad laws, as the saying goes. Admittedly, they are cases that would in the end have to be met; but could we not agree to meet them in the end, not at the beginning? They are extreme dislocations of the natural moral order produced by the elevation of the marriage contract to sacramental status. (Ludicrously enough, the Pauline privilege first became an actual issue in a Catholic country, Ireland, where the legal statute against divorce was drawn so tightly as to exclude it.) There is such a thing as ordered discussion. And the progress of this discussion is bewildering indeed. First I am told that I hold a theory of the lay state which I do not hold. Then I am asked how, in the theory which I do not hold, I would take account of three highly specialized cases, of which I have already, in principle, taken account in the theory which I do hold. This, I confess, is all very confusing.

13 AAS, XVII (1925), 609. As the word, "componatur," indicates, this is a statement of the principle of concordia, so greatly emphasized by Leo XIII. In the preceding paragraph Pius XI had stated Leo's primary principle, the freedom of the Church. Liturgical honors accorded to Christ's Kingship would recall to men, he said, that the Church "by native right, which it cannot abdicate, demands complete freedom and immunity from the civil power; in discharging the function, divinely committed to it, of teaching, ruling, and leading to eternal blessedness all those who are of the kingdom of Christ, it cannot depend upon any other judgment than its own" (nativo sane iure, quad abdicare nequit, plenam libertatern immunitatemque a civili potestate exposcere, eandemque, in obeundo munere sibi commisso divinitus docendi, regendi et ad aeternam perducendi beatitatem eos universos qui e regno Christi sunt, ex atieno arbitrio pendere non posse).

14 Another of these theories is that underlying the celebrated right of Catholic governments to repress heresy (cf. "The Theory of the Lay State," p. 17). The theory is that the whole of the common temporal good, including the "supernatural blessings" that are a necessary part of happiness in this life, falls under the power of the state, in such wise that the state is by nature empowered to award off all influences that might injure the citizens in their "supernatural temporal happiness." Literally understood, this theory would lead to an extreme form of the Kulturstaat and Polizeistaat which Catholic thought not only does not sanction, but forbids by its insistence on the principle of subsidiarity. Behind the theory lurks the historical spectre of the Father-King, who possessed within the nation, the magna familia, an authority of the same nature and scope as that of the father within the family. His subjects were only subjects, not citizens; their only duty was to obey, not to share in rule. They were the untutored multitude, both spiritually and politically immature—the King's children, over whom he exercised a comprehensive "police power" (in the technical sense), a tutelage both spiritual and political, because he was to them, as Louis XIII to his French enfants sujets, "le Pere du Peuple." This is not the place to argue the abiding validity of this concept of the political relationship, whose shadow is not wholly absent from the thought of Leo XIII, as the mediaeval dream of the "one principle" was not absent from the thought of Boniface VIII. But apropos of the "right" of government to ward off baneful spiritual influences, asserted to be some part of a Catholic "ideal," one question may be asked. Suppose a Catholic people, universally educated, politically mature, and dynamically religious, should decide by an act of constitutional consent that the functions of civil government in regard of the supernatural blessings which are recognized as needful for their temporal happiness are to be limited to the protection of the freedom of the Church in her proper task of procuring these supernatural blessings—suppose, I say, that this Catholic people were thus to deny to its government the right to ward off baneful spiritual influences or to repress heresy by coercive measures, what then? Would such a Catholic people offend against some immutable principle of Catholic tradition? Would such a government have to be denied the epithet, "Catholic"? Would it, as a government, be deprived of some essential right inherent in the essence of the political relationship as such? Would such a people sin against the nature of the state or the nature of the Church, or against some per se obligatory "ideal" of Church-State relationships? Would such a Catholic people be living its political life in thesi or in hypothesis?

15 The term is used without prejudice; cf. the interesting article by Y. Congar, "Mentalite 'de droite' et integrisme," La vie intellectuelle, June, 1950, pp. 644–66. As a "man of the Right," Fr. Connell instinctively conceives the problem of Church and State in terms of the Church understood solely as the spiritual power, not as the communitas fidelium, the Christian people. In this respect he is false to the general perspectives of the thought of Leo XIII, part of whose grand historical achievement was the transformation of the problem from that of Church and State, i.e., the relations of the two powers, to that of the Church and human society, i.e., the dynamic relation of Christian doctrine and Christian law to all the aspects of the organized life of the respublica, the commonwealth (this, against the virus of laicism). Again, as a "man of the Right," Fr. Connell instinctively conceives the problem solely in terms of the power of civil government, not in terms of the freedom of the people and the freedom of the Church understood as the Christian people. Here again he is most particularly false to the perspectives of the thought of Pius XII, with whom "the people" and their freedoms have moved firmly into the center of Christian thought and concern, and in whom a certain healthy Christian distrust of centralized government is visible, aroused by the dangers of a totalitarian age. Once again, as a "man of the Right," Fr. Connell sets the focus of his partial problem on the "right of Catholic governments to repress heresy." His thought moves in simple abstract lines: the Catholic Church is the one true Church; therefore no one (i.e., no individual and no "state") has any right to be other than Catholic; therefore, if some people happen to be other than Catholic, the state, as part of its paternal spiritual function of procuring and protecting "supernatural blessings," has the right to "exterminate" them—mildly, in this twentieth century—from public life. Under whatever manner of juridical and dialectical argument, the dynamism behind this manner of thought is that characteristic of the "man of the Right." This, I repeat, is said without prejudice. The mentality of the Right is a permanent phenomenon within the Church. "Such an attitude," P. Congar says, "is characterized by a certain distrust of the subject, of man, and by a tendency to put emphasis on the determination of things by the way of authority. By instinct it stands for what is 'finished' and defined, what needs only to be imposed and received; it stands against what aspires to be, what has not yet displayed all that it will be, what must still be searched for. It has no great liking for what comes from below; its sympathies are for what is imposed, ready made, from above" (art. cit., p. 660). The mentality appears clearly in Fr. Connell. His single concern is for the powers of the powers, not for the freedoms of the people. And he considers the theory and practice of Church-State relations to be “all finished.” There is no more problem; it has been solved. Leo XIII said the last word. The theologian’s task is that of repetition of what has been said. He has not to search, explore, explain, develop; he has simply to impose the finished formula.

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