Works By John Courtney Murray, S.J.

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Leo XIII and Pius XII:

Government and the Order of Religion1

John Courtney Murray, S.J.

This was the last of six distinct articles, written between 1952 and 1955, throughout which Murray tackled the problem of Leo XIII. Leo XIII had encouraged the church's reappropriation of Thomism—with Thomas's distinction between the natural and the supernatural orders and his recognition of the relative independence of the natural order. This notion of relative independence had been, and would remain, important to Murray's argument. The entire series and particularly this last article were based on the principle of Gelasian dualism or Christian constitutionalism.

Yet Leo XIII was a problem because he had also endorsed establishment and intolerance, giving them a more systematic—and thereby more compelling—grounding than had Pius IX. Here Murray attempted to separate Leo XIII's reclaimed focus on social dualism from his endorsement of establishment and intolerance.

The entire series offers an intimate look at the way Murray's mind worked—its probing, testing, exploring, rejecting, deepening. The first articles set out in directions that were eventually rejected. Much of the material that Murray had earlier touched upon he later transformed within newer perspectives.

For the clarity of Murray's argument, however, the article included in this volume stands in its own. In it, Murray pulled together his distinctions between Continental and American Liberalism, church/ state/society, the people as an inert mass vs. morally active agents. By way of the editorial notes that accompany this text I offer references to themes that Murray developed in the earlier articles—Editor.

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The difficulty inherent in the present subject, which concerns the relation of religion to government and to the order of human law, is apparent at first glance. There is no doubt that the care of religion stands high among the functions and purposes of government. However, the mode of action proper to government in the pursuit of all its purposes is the mode of law. And human law is, in St. Thomas' definition, "the discipline that is coercive through fear of penalty" (disciplina cogens metu poenae) (I–II, q. 95, a. 1 c). Law is indeed a form of moral discipline, directed to a moral end, which is civic virtue. But law is also a social discipline, directed to the common good of the body politic, which is primarily "the unity which is called peace," in St. Thomas' phrase. More specifically, law is a coercive discipline, whose specific mode of action is "through force and fear" (per vim et metum). Hence the question arises, what is the full body of principle which governs the use of legal coercion and constraint in the service of religious truth and moral action? How are these principles to be applied in practice—under what safeguards, to what extent, within what limitations? This is the general question.

The more concrete question concerns a particular legal institution—the institution of "establishment," as it is usually called in English—whereby Catholicism is erected by human law into "the religion of the state." The specific juridical significance of this legal institution lies in the fact that it furnishes the premise of legal intolerance of dissenters.2 That is to say, the institution of legal establishment creates a juridical situation within the state, in which it follows by logical and juridical consequence that the force of law is to be used to "exterminate" all manner of dissent from the official state religion.

Whether dissent is to be "exterminated" by forcibly thrusting dissenters beyond the horizons of physical life, as in the days of the Spanish Inquisition; or by forcibly inviting dissenters to depart from the territorial boundaries of the state, as in the practice of the ius emigrationis in post-Westphalian Europe; or by more gently, but still forcibly, outlawing manifestations of dissent from the order of public existence and confining them to the order of private life, as in the practice of present-day Spain—these are secondary questions. They merely concern the lengths to which penal law in its various historical stages of development is prepared to go in the process of "extermination." In all these cases, and in other conceivable intermediate cases, the substantive issue is always the same. It is the issue of legal intolerance and of its juridical premise, the legal institution of a "state religion."

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LEO XIII's POLEMIC INTENTIONS

It is no derogation of the authority of Leo XIII's encyclicals to say that they were, rather importantly, tracts for the times. And in situating his teaching within the historical conditions of its utterance one is not diminishing its import; one is—such is the hope—simply trying to make its import clear. A historical fact therefore calls for some brief preliminary consideration. The fact is that Leo XIII fashioned his doctrine in the face of sectarian Liberalism, an ideology that was a burning issue chiefly in the historic "Catholic nations," so called, in Continental Europe. This fact fixed Leo XIII's polemic intentions; and these intentions influenced to a considerable degree the contours of his doctrine.

The essence of sectarian Liberalism, as Leo XIII lengthily analyzed it, consisted in two related doctrines. They were put forward by the sectarians as proper dogmas, ultimate truths, universal in their import. They were also put forward as the foundations of a "new order, the progeny, they say, of an age come to adulthood, born of the progress of freedom" (Immortale Dei). The new dogmas inspired and were embodied in political and legal institutions, especially in the institutions of "freedom of religion" and "separation of state." These institutions were proclaimed to be "the highest glory of our age and the necessary basis of the constitution of civil societies, in such wise that, if they were to be missing, the ideal government (perfectam gubernationem) could not even be conceived" (Libertas).

The first dogma was a piece of religious philosophy, the theory of conscientia exlex, the absolutely autonomous individual conscience which recognized no law higher than its own subjective imperatives.3 This philosophy of the "free conscience" inspired the legal institution of "freedom of religion," whose conscious and deliberate purpose was to effect a complete divorce between society and traditional religion. This law embodied, and enforced upon society, the theological judgment that religion is a purely subjective and private matter; that all religions are inherently equal in value; that religious faith and worship are "alien and of no interest" (Immortale Dei) to society; that, whatever private value the name of "God" might or might not have for the individual, for society God does not exist.

The companion dogma was a piece of political philosophy, the theory of principatus sine modo, sine lege, government as subject to no law higher than the will, itself lawless, of the Sovereign People. This concept of government as "a master whose power knows no limits" (Im-

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mortale Dei) was the political projection of the concept of the individual conscience as itself sine modo, sine lege, a power of subjective decision unlimited by any measure or law. This philosophy of government inspired and was embodied in the institution of "separation of Church and state," whose conscious and deliberate purpose was to effect a complete divorce between the order of human law, which is the state, and the law of God—both the natural law and the law of the Gospel.4 The law of separation was intended to constitute a monist society, surrounded by the impregnable wall of a juridical monism, and subject to a single power whose sovereignty was absolute, total, ultimate, and motivated in its exercise only by the old raison d'etat in its new form, the General Will in the sense of Rousseau. In the theory of separation there was one society, one law, and one power.5

Leo XIII's adversary was therefore at once a religious and political philosophy and also a kind of polity. It was a radically new idea about the whole purpose of human life; it was also a new concept of law (novum ius), a new kind of state (genus id rei publicae), minutely described in Immortale Dei. On the face of them "freedom of religion" and "separation of Church and state" were legal institutions; but in the Leonine analysis of them these laws were inextricably linked to the allegedly universal principles of sectarian Liberalism. He saw these laws as power-instruments consciously designed to effect a thoroughgoing cultural change in the Catholic nations, so called, by destroying their traditional religion.

In the face of this adversary Leo XIII had to validate three broad principles which had been systematically discarded. The first principle was that society, no less than the individual, is subject to the sovereignty of God; hence his development of the theme of public religion in a twofold sense, to be explained. The second principle was that the state—the order of human law, and government as its effective author—is part of the moral universe, subject to the law of God; hence his theme of the divine law as "the principle of the whole juridical order" (principium universi iuris: Libertas). The third principle was that society,6 is part of the present Christian economy, subject to the law of Christ; hence his central theme, the traditional thesis that there are two societies, two laws, and two authorities, with all the implications of this thesis.

Something will have to be said about all three of these principles. However, the purpose is to set forth Leo XIII's doctrine on the relation of government to the order of religion. Consequently, the expo-

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sition that follows does not pretend to be complete. The major effort will be to follow the contours, so to speak, of Leo XIII's doctrine and to observe how the logic of contradiction, always necessary in a polemic, operated to shape it, at the same time that its main lines remain always true to the tradition.

 

PUBLIC RELIGION

Here there are two questions. The first concerns the public profession of faith in God and public worship of God by organized societies of men; this is "public religion" in the strict and narrow sense. But there is a broader sense to the term. The faith and cult of a society are intimately linked to its culture and civilization. Hence there is the broader question of "the philosophy of the Gospel" (to use Leo XIII's phrase) as the inspiration of all human civilization and culture.

Public Faith and Worship

From the standpoint of Catholic doctrine the question of public religion in this strict and narrow sense presents no difficulties. The question is put simply in terms of ethical and theological principle; is society, as well as the individual, bound to profess faith in God and to worship Him; and if so, what should be its faith and its manner of worship? The answer to the question is given in similar terms.

The first premise of the answer is the rational truth that society, no less than the individual, owes its origin to God. God is the author of man's nature; and man's nature is essentially social. Consequently man in his social life is not less under the dominion of God than man in his individual life. From this premise it follows that man's primary social duty is obedience to the First Commandment of God. The mandate which heads the Decalogue binds the individual to the cult of the one true God, through faith, adoration, thanksgiving, and prayer. This mandate likewise binds society. Negatively, it forbids idolatry—specifically, in the text of Leo XIII, the idolatry inherent in the political religion of laicism with its cult of reason and of the political power. Positively, this law commands that the faith of society should be the true faith, the one faith which God in the present economy has certified to be the true faith.

Here the theological premise enters: in the present economy God has certified the Catholic faith to be the one true faith. Therefore this

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faith and this faith alone is by divine law to be the public religion of mankind—the faith of individual men and the faith of organized societies. And the social duty of worship is to be rendered in the form that is pleasing to God, that is, according to the rites and forms of Catholic worship.7

This first question and its answer present, I say, no theoretical difficulties. And in the practical order, under normal circumstances, the question tends to solve itself ambulando. A society that is, and knows itself to be, genuinely Catholic will spontaneously recognize and fulfill its duty of public worship in Catholic forms. A society that is religiously pluralist, but that knows itself to stand within the Judaeo-Christian tradition, will still recognize its duty of public worship, and will fulfill it in a manner suited to its pluralist texture. I say, under normal circumstances the question of public worship presents no great practical difficulties. However, Leo XIII was not dealing with normal circumstances. He faced the fact that a militant quasi-religious sect, the sectarian Liberals, had abolished all manifestations of Catholic public religious cult in the nations of historically Catholic culture, as a symbol of their determination to destroy the ancient culture itself and to substitute a "new order" in which society would be professedly atheist. Hence the question of public cult came sharply to the fore, as a social duty, and as a symbol of society's more comprehensive duty of obedience to the law of God.

Two specialities of this public duty of faith and worship must be noted. First, inasmuch as it is incumbent on organized human societies, on men in their civic capacity, this duty is not exactly the same duty that is incumbent on the faithful within the community of the Church, on men in their ecclesiastical capacity, so to speak. Men in this latter respect are bound, for instance, by the ecclesiastical law which further specifies the divine law and makes attendance at Mass obligatory on Sunday. In contrast, the duty of public worship which is incumbent on organized societies is not subject to this ecclesiastical specification. The body of the faithful go to Mass on Sunday formally as the faithful, not as the citizenry. The citizenry formally as such offers its due tribute of worship on what are called "state occasions," occasions on which organized society gathers, at least in the persons of its representatives, for the performance of public actions that are properly the actions of the temporal community and not the actions of the Church community. On such occasions, especially the more solemn ones, the social duty of making acts of faith, thanksgiving, petition, etc., becomes operative.

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Secondly, it is supposed that compliance with this duty on the part of the citizens and their governmental representatives is spontaneous. That is, it is motivated simply by an understanding of the divine law; it is not enforced by human statutory law under pain of sanction. If it be a matter of liturgical services, the initiative comes from the Church, which alone possesses the right to organize the public liturgical worship of society. If it be a matter of proclaiming a day of thanksgiving, or a day of prayer in times of emergency, etc., the initiative will be taken by governmental officials. In neither case will there be question of the intervention of civil law, making such observances legally binding on the body politic. It is beyond the competence of civil government and beyond the rightful power of human law to coerce or constrain the citizen to make acts of religious faith or worship.8 Indeed, there would be no justification in Catholic doctrine for anything like the Edwardian or Elizabethan Acts of Uniformity, by which attendance at church service on Sunday at the parish church was rendered compulsory, under pain of punishment.9 In what concerns public acts of worship the proper function of government is to assist in providing the occasions on which the citizenry and public officials may freely fulfill the obligation imposed upon them by divine law. If government were to go farther, it would transgress the line of distinction between Church and state.

Christian Culture and Civilization

The question of public religion in the strict sense concerns the social observance of the First Commandment as it binds men and societies of men in the present Christian economy. However, Leo XIII's wider concern was the observance by organized society of all the laws of God, both natural and evangelical, that are pertinent to the political, social, economic, and cultural life of man.

In this sense I have elsewhere distinguished between the worship of God by society and the service of God by society.10 Whereas the obligation of worship is occasional, the obligation of service is constant. It is also comprehensive; it bears upon all the institutions of society and upon all the organized forms of action which society may undertake. Leo XIII points to this comprehensive obligation when he speaks of "the most important duty," incumbent on societies as upon individuals, "to embrace in mind and in manner of life (animo et moribus) the religion" which God has revealed.

The encyclical in which this phrase occurs, Immortale Dei, is usually

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given the title, "On the Christian Constitution of Societies." The word "constitution" is not to be taken here in the modern, more strictly legal sense, as if Leo XIII were chiefly discussing the structure of formal written law, constitutional or statutory, that ought to prevail in a Christian society. The word has rather its broader and more ancient sense, visible in Aristotle, of "a common way of living." In this sense the word denotes the whole pattern, order, and style of life that obtains in a society in consequence of the beliefs and convictions that are commonly held and that express themselves in a total complex of institutions, customs, conventions, mores, social usages and attitudes, traditions, habits of thought and action.

Whether any or all of these things have the sanction of human law or not is a secondary question. Unless one is to fall into the rationalist and individualist fallacy of cultural voluntarism, which asserted that men could "make" or "alter" culture at their own arbitrary will, supported by force, one must maintain that human law does not "make" a Christian culture or civilization. The famous phrase of St. Ambrose, "Lex non facit ecclesiam, sed fides Dei" ("Faith in God, not the law, constitutes the church"), might here be adapted. However difficult it may be to define what is meant by culture, it is at least true to say that any culture is the product of an inner form, the development of an entelechy, a dynamism operating from within, which shapes the thinking, the behavior, the climate, and all the creative activity of a society and of its members. It is this inner form or dynamism—what he calls in Immortale Dei the "species et forma" of a Christian society—that Leo XIII is constantly seeking to define or describe.

The descriptions and definitions are given, not in terms of legal experience, but in terms of "the Christian philosophy," whose principles are as broad as they are imperious. They demand institutionalization in order that they may be effectively operative in the life of society; but they do not necessarily demand institutionalization in this or that precise historical form. Leo XIII indicates the all-encompassing breadth and the delicate temper of the Christian philosophy in a brief reference to earlier times, less troubled than his own: "There was once a time when the philosophy of the Gospel governed societies. In that age the virtue and influence of Christian wisdom had penetrated into the laws, the institutions, the customs of peoples, and into all their social relationships." The sentence does not enshrine a sheer piece of nostalgia for a vanished Golden Age. Still less is it a summons to return to the past and to its institutional forms, as if the Christian effort today were to seek the restoration of a feudal

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society, or of the medieval regnum and imperium, or the papal suzerainty over political rulers, etc. The sentence implicitly defines, if you will, an "ideal," the ideal of a Christian society. A society whose constitution—that is, whose common way of life, however it may be politically and legally institutionalized—is permeated and shaped by the virtue and influence of Christian wisdom, is the Christian ideal.

This ideal, precisely in order that it may be an ideal, is defined in broad terms. Moreover, the definition, though it is suggested by medieval society, does not suppose that the Christian ideal was actually realized in the medieval period; Leo XIII was certainly enough of a historian to recognize the defects and imperfections, the immaturities and indeed the evils that marred the medieval achievement. What he is interested in is the principle, first stated in Inscrutabili and endlessly repeated thereafter, that the doctrine of Christ, the wisdom of the Gospel, the Christian philosophy in its full articulation of natural and supernatural truths and laws, furnish the inner form and dynamism of a style of social life which will be fully human because it is Christian. Therefore these truths and laws ought to permeate the whole fabric of society and animate all its institutions. As the Christian faith ought to be confessed by the mind (animo), so it ought to be confessed in action (moribus).11

It is not possible or necessary here to develop further this dominant Leonine theme, that the wisdom of the Gospel ought to be the inspiration of human culture and civilization. My purpose was simply to note the fact that this is the dominant Leonine theme. It encloses, and subordinates to itself, all that he has to say about the secondary question, the relation of religion to government and to the order of law. Obviously, the Christian society needs a good structure of law. However, Leo XIII set only a relative and inferior value upon human law as a means toward a good social order.

One might further say that, in proportion as a society approaches the Christian ideal, law becomes less and less important. If Leo XIII seems to emphasize, at least at times, the value of governmental and legal action, the reason lay in the fact that the "Catholic nations" in his day had departed very far indeed from the Christian ideal, not indeed primarily in point of their legal structure (there were still many Concordats in legal effect) but rather in point of their profession of the Catholic faith animo et moribus. In any event, the cardinal and indispensable creative principle of the Christian ideal was stated by Leo XIII when he said that "the truth, once it is brought out into the full light of day, is by its nature wont to send its rays streaming far

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and wide, gradually permeating the minds of men," and then in turn permeating their common manner of life (Immortale
Dei
).

 

A DISTINCTION OF QUESTIONS

This is the place to note a simple distinction whose importance can hardly be overemphasized, since it is fundamental to Leo XIII's whole doctrine on Church and state. It is the distinction between the order of divine law, natural and revealed, and the order of human law; between ethical and theological principle and legal rules; or, if you will, between principles and their application. This distinction is simply an aspect of Leo XIII's fundamental principle in this matter, namely, the distinction between the Church and state, between the Christian community and the political community, between the spiritual authority of the Church and the secular authority of government, between the Christian law and the civil law.

The purpose of divine law, natural and revealed, is to make man good as man, to make men virtuous by obliging them to conform their whole lives, personal and social, to the intentions of nature and to the higher intentions of Christ. Divine law further requires that man should act "in the way that a good man acts" (I–II, q. 96, a. 3, ad 2), that is, out of an inner right intention. The sanction is eternal. In contrast, the specific purpose of human law is to make a society good as a society, to create an order of social rectitude that is the necessary condition of man's pursuit of his goodness as man. What human law formally and proximately envisages is not man as man but man as citizen. Even in so far as human law applies to society the precepts of natural justice, "it is sufficiently (fere) the function of the legislator to make the citizens obedient through the application of a common system of control (communi disciplina adhibita), coercing those who are wicked and prone to crime, with a view to deterring them from evil and getting them to strive after what is right, or at least with a view to making sure that they commit no offense or injury against society" (Libertas).

In other words, the function of human law is to assure those minimal conditions of actualized morality within society which are necessary for the coexistence and cooperation of the citizens "toward the common good of justice and peace" (I–II, q. 96, a. 3 c). Human law can compel men to do what natural law prescribes and to avoid what natural law forbids, since this is necessary if men are to live together

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peacefully. But it cannot oblige a man to do good and avoid evil out of a motive of virtue. This manner of virtuous action "does not fall under the precept of law, although it is the end to which the legislator intends to lead" (I–II, q. 96, a. 3, ad 2), since law is a discipline that is ultimately moral in its purpose as well as in its origins.

However, the moral purposes of human law are not coextensive with those of the eternal law; much less are they coextensive with the sanctifying purposes of the law of Christ. Again the reason is that law is also a social discipline, coercive in its action. Consequently, "human law falls short of the eternal law" (I–II, q. 96, a. 2, ad 3). Given the sinful condition of mankind, a gap inevitably separates quod semper aequum et bonum—the things that man ought to do because they are right and good in themselves—and quod possibile et utile, the things that man can be compelled by law to do because they are necessary for the publica utilitas, the public advantage of society.

It is not necessary here to develop further the differential character of divine law and human law, of true theological principles and good legal rules. It is sufficient to say that the distinction between moral and theological questions and questions of human law derives from the fact that the former raise only one issue—the issue of truth and right, whether natural or revealed; whereas the latter raise two distinct issues. Legal questions do indeed raise an issue of truth and right, the quaestio iuris, the relation of the proposed enactment to the order of moral and theological principle. But they also raise an issue of prudence, the quaestio facti,12 the relation of the proposed enactment to the common temporal good of the society for which it is proposed. Legal questions therefore depend for their right solution, not only upon general principles of the moral or theological order, but also upon an intermediate set of norms, the norms of jurisprudence and political wisdom. The goodness of human law is judged by a moral and theological norm; it is also to be judged by a juristic norm, the exigencies of the common good in determinate circumstances. Both norms together govern the application of principles in given situations of fact.

The traditional doctrine has always exhibited these two complementary concepts of human law. There is the concept of human law as reflective of the universal order that ought to exist, in consequence of God's holy will; and there is the concept of law as directive of the historical order that actually exists, in consequence of man's sinful condition. Human legislation therefore raises problems in ethics and theology; it cannot bypass questions of truth and right. Human legis-

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lation also raises problems of prudence; it cannot be detached from questions of social fact—questions of concrete "possibility," as St. Thomas calls them, and similarly concrete questions of publica utilitas.

Moreover, the jurist is conscious of the limitations of his instrument; he is aware of the distinction between what men ought to do or avoid in virtue of divine law, and what men can or cannot, ought or ought not to, be compelled to do or avoid in virtue of human law, disciplina cogens metu poenae. Both the science and art of jurisprudence and also the statesman's craft rest on the differential character of law and morals, of legal experience and religious or moral experience, of political unity and religious unity. The jurist's work proceeds from the axiom that the principles of religion or morality cannot be transgressed, but neither can they be immediately translated into civilized human law. There is an intermediate step, the inspection of circumstances and the consideration of publica utilitas, the public advantage to be found, or not found, in transforming a moral or religious principle into a compulsory rule for general enforcement upon society. And there is a distinct set of norms which govern this transformation, this legalization of moral or religious principle; these norms mediate between the order of ethical and theological principle and the order of human law, whether constitutional or statutory.

This traditional doctrine furnishes, I say, the key to the doctrine of Leo XIII. It is true that he gave to the tradition a particular manner of statement, a distinctive configuration, a special impostazione, to use the indispensable Italian word. His polemic intentions were controlling. He had to join together what sectarian Liberalism had put asunder, divine law and human law. In consequence, his emphasis had to fall so heavily on the moral and theological norm of law that the nice balance between this norm and the juristic norm, which is characteristic of the tradition (as stated, for instance, by St. Thomas), is disturbed. Nevertheless, it goes without saying that the substance of the tradition remains intact; this will appear in what follows. Meanwhile, in connection with what has just been said about public religion one illustration of the distinction between questions of divine law and questions of human law may be mentioned here.

There is the question, whether the Catholic faith, the one true faith, ought by divine law to be the public religion of all human societies, embraced by them animo et moribus; with the theologically consequent question, whether any other religion may claim public existence within human society on equal title of divine right. And

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there is the question, whether the Catholic faith, the one true faith, ought by human law to be established as the official "religion of the state"; with the juridically consequent question, whether any other religion may claim public existence within this particular state on equal title of legal right. These two questions are distinct, with the distinction that obtains between divine law and human law. The first raises only the issue of revealed truth; the latter also raises the issue of the public advantage of a particular political community.

There is no text in Leo XIII which would warrant the identification of these two questions. On the contrary, their distinction is sufficiently marked. For instance, the leading text in Immortale Dei distinguishes clearly enough between the duty of public religion itself and the duty of caring for the public religion. The first duty is laid upon "civil society" as a whole; it is a matter of divine law by reason of the origin of civil society from God through nature. And the duty is discharged by appropriate public acts of the virtue of religion—acts of faith, worship, and thanksgiving—performed by citizens and public officials. The text further indicates that these public acts on "state occasions" are to be the expression of a vital Christianity that pervades the mind of the community and informs its whole manner of common life. The text then addresses itself to a distinct subject. The duty of caring for the public religion (cura religionis) is laid upon government (principes) by reason of the special responsibility of the public power to the common advantage (communi utilitati) of the citizenry. It is discharged by appropriate acts of legislation (religionem . . . auctoritate nutuque legum tegere). The appropriateness of these legislative acts must be judged in the light of all the traditional canons of good human law. These canons will determine the special question, whether the care of the public religion ought or not to include the legal institutions of establishment and intolerance.

It might also be noted that an act of legislation is not formally an act of the virtue of religion; it is not an act of faith, worship, thanksgiving, or petition. Its formal effect is not an increase of grace in citizens or public officials, but the creation of a juridical situation within the state. It is therefore clear that the question of the care of the public religion by government through the coercive agency of law is to be distinguished from the question of the public profession of religion by society in free acts of faith, worship, and service.

The same distinction of questions may be put in another way. By divine law the Church, as a perfect society in her own right, has an inherent right to public existence within the human community, ev-

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erywhere and always. Moreover, the Church is the only religious society that can, under valid appeal to divine law, claim the right of public existence; for she is the uniquely authorized religious society in which the sacred order of man's salvation assumes social and public form in the present Christian economy. All this is a matter of theological principle; it is cardinal in Leo XIII's exposition of the Gelasian thesis. There is then the further question, which concerns the Church's mode of public existence. Should the public existence of the Church, which is her right by divine law, also assume the modality of legal existence, which would accrue to the Church by right of human law within a particular political community; and further, should the exclusive nature of the Church's divine right to public existence assume a legal modality in a human law which would deny public and legal existence to all other religious associations? This is the same distinction of questions, theological and legal, now applied to the existence of the Church as a society.

In his general doctrine Leo XIII is at some pains to distinguish matters of ethical and theological principle from matters of public law. For instance, he distinguishes between the theological principle of concordia and the legal institution of a Concordat. Harmony of action between Church and state (ratio concors in agendis rebus: Libertas) is presented as an absolute value; the value of a Concordat is presented as relative to circumstances: "Situations sometimes arise in which another manner of harmony also has value for peace and freedom. . . ."

The principle of concordia rests simply on moral and theological premises; it is a universal and transtemporal principle which requires application everywhere and always. As a principle it is validated independently of any consideration of factual historical circumstances. In contrast, a Concordat, as a legal technique for the actualization of the principle of concordia, makes further appeal to a juristic norm; its specific appeal is to the necessity or utility of this legal institution in determinate circumstances, as a means to an end. The necessity of a Concordat, like the necessity of any human law; is not unconditioned; it is related to circumstances. In contrast the necessity of concordia is, strictly speaking, unconditioned; it is born immediately of the coexistence of the two societies, as each comes into existence by divine law, respectively natural and evangelical. Harmony between the two societies is an intrinsic demand of the Christian order itself in its very idea. The formalization of the principle of harmony in legal and contractual form adds something to the principle itself. The addition must

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therefore be justified, not solely by appeal to the intrinsic necessities of the Christian order in its idea, but also by appeal to the contingent necessities created by the facts of a particular historical situation.

What has been here briefly said about the distinction between general principles and their application in human law as fundamental to the doctrine of Leo XIII, will receive further confirmation in what follows. We may turn now to his second great theme.

 

THE STATE AND THE MORAL ORDER

Sectarian Liberalism said that the Sovereign People, "as it is singly under the rule of itself alone, so it lays imperatives upon itself, all by itself"; its own arbitrary will, as the expression of the supreme sovereignty of reason, is "the sole source of the whole order of law and right" (omnium iurium: Libertas). In its legislative action the Sovereign People does not need to take account of any objective canons of truth and justice; in the sectarian Liberal universe there were no such canons. Consequently, into the legal order, which is the state, all manner of commands, prohibitions, and permissions may enter at the will of the multitude; and they all enter on exactly the same title, in that all of them are equally expressions of the sovereign, lawless, popular will. What is true and what is false, what is good and what is evil, what is right and what is wrong—all enter the state eodem iure, and all find equal footing within the state. Everything is equally legal and therefore equally moral, which has the sanction of the popular will. Human law is good by one criterion alone: it is freely made by a power which submits its acts to no measure or law higher than its own will.

This was the thesis that Leo XIII contradicted. His counter-thesis was that the state, the order of human law, is subject to the law of God, which, antecedent to any human legislation, determines what is to be done and avoided. Human law must be related to the law of God as to the transcendent principle of its origin, content, and efficacy: "The force of human laws lies in this understanding of them: that they have their source in the eternal law, and may not give sanction to anything which is not contained in it as in the principle of the whole juridical order" (Libertas). It was this understanding of human law that formed the whole burden of Leo XIII's argument against the Revolution; necessarily so, since it was precisely the rejection of this understanding that furnished the chief content of the Revolution, and explained why it was a Revolution. It destroyed the classic

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and Christian concept of human law which underlay the concept of the state as "the rule of law."

From this basic premise Leo XIII directed a sharp polemic against the sectarian Liberal thesis that asserted, in the Leonine translation of it, that "what is false exists on the same juridical footing as what is true" (falsum eodem iure esse ac verum: Libertas); in other words, that the distinction between truth and error, right and wrong, is irrelevant to the juridical order, whose sole function is to register the fact of a majority decision and to enforce all majority decisions aequo iure.

In contradiction, Leo XIII insists that the legal equation of truth with error and of right with wrong violates the principle of the whole order of law, which is precisely the distinction fixed by the moral law between truth and error, right and wrong. This distinction does not derive from the will of man, and it cannot be obliterated by the will of any multitude of men, and it is binding on the legislative action of the state as upon the individual actions of men. From this principle it follows that truth and error, right and wrong, do not gain entrance to the juridical order of society on the same title, nor do they hold place there eodem iure. Within the order of law, which is the state, the true and the good gain place on title of right; the evil and false can gain place only on title of toleration. For human law, like the human conscience itself, is forbidden to command what is wrong, to affirm what is false, or to favor what is evil.

This is the doctrine that is sometimes digested—one might perhaps better say, disguised—in the dictum, "Error has not the same rights as truth," or in the even less illuminating dictum, "Error has no rights." What these dicta attempt to state, rather badly, is nothing other than the principle, central to the Western and Christian civilizational tradition, that the order of human law is subject to a moral norm. Part of the essence of constitutionalism, which is itself the essence of the political and legal tradition of the West, is the doctrine that the state is a form of moral action; that it is bound on the law of God; that its legislation must reckon with the unalterable distinction fixed by divine law between truth and error, justice and injustice; that the human legislator is faithful to his function when he commands what is good and forbids what is evil; that he may never command what is evil; that the sanctification of evil is always wrong even when the legalization of evil is necessary. The whole doctrine is rational: "Falsum eodem iure esse ac verum, rationi repugnat" (Libertas).

This is the constitutional principle that Leo XIII opposed to the sectarian Liberal dogma that the state is beyond good and evil; that it

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is a law unto itself; that it may, on the principle that it is itself the Divine Majesty, "separate" its legal enactments from the order of divine law. The issue here was crucial; it touches the very nature of political society. In this governmental claim to omnipotence Leo XIII saw not only an appalling blasphemy against the majesty of God but also a great menace to the freedom of man: "In public affairs the power of government is separated from its true and natural principle, whence it draws all its effectiveness for the common good. The law which determines what is to be done or avoided [i.e., the moral law] is made a matter of the free decision of majority opinion. This is a path that slopes precipitously downward to the rule of tyranny" (Libertas). Indeed, if the power that fashions the order of human law is not bound to any objective canons of truth and justice, there is an end both to the rule of law and to the rights of man in the traditional sense. The state has become the amoral rule of force wielded by a statistical majority or by the party in power. "Nihil praeter vim relinquitur," says Libertas, succinctly, ominously. Then no human freedom is safe.

In contrast, Leo XIII insists, only when "the king is under God and under the law" (Bracton's phrase, which aptly sums up Leo XIII's doctrine) is a free society possible: "So the way to tyranny is barred. Government may not gather everything to itself. The rights of individual citizens are safeguarded; so too are the rights of the family and of all the orders of society. There is assured to all a true freedom, which consists, as We have said, in the empowerment to live according to the laws of right reason" (Libertas).

When he has said this much, Leo XIII has fulfilled his polemic intention, which was to restore the state to its proper place as part of the moral order. But he has not yet said everything there is to be said about the order of human law. He has laid down only one norm for the legal order, the moral norm. Solely from the principle that the moral law is the necessary norm of all human legislation, only one conclusion is permissible—the single one which Leo XIII himself draws, that human law "may not give sanction to anything that is not contained in it [the eternal law] as in the principle of the whole juridical order." The conclusion is negative. It is a "thou shalt not" spoken to the state in the name of the sovereignty of God. Its effect is to constitute human law in its true character as a moral discipline, and thus to confront the legislator with an imperious quaestio iuris: is his contemplated action in accord with the eternal law? Confronted with this question the legislator knows that his power is limited.

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But for the moment this is all he knows. The further question, what are the positive empowerments and duties of government and how far do they extend, still remains to be settled. For instance, from the doctrine that human law may not give sanction to what is false or evil it would be a long step to the proposition that human law ought to give sanction to everything that is true and good. And it is a still longer step to the proposition that what is erroneous and evil ought always to be suppressed by force of law. These steps are much too long for logic or good legal philosophy to take. Certainly Leo XIII does not thus speedily take them. His doctrine, as so far set forth, fulfills his polemic intention, which was to make clear that human law is not simply a rule of action but also a pronouncement on the value of action; that it ought to indicate what is good and what is evil; that good and evil are the conditions of legal obligation. The effect of this doctrine is, I say, to set definite limits to the power of the state, not to give full definition to its duties and empowerments.

There remain the further questions: what imperatives of divine law ought to be translated into legal rules for society? What further specification of principles inherent in the order of truth and justice ought to be effected by positive human legislation? What evils and errors should law undertake to exterminate? Questions such as these are not instantly answered by appeal singly to the moral norm of law, to the concept of law as a moral discipline. Certainly Leo XIII did not attempt thus summarily to answer them. In particular, his doctrine as thus far set forth—that human law has its sanction in the eternal law, and that it may not itself sanction what the eternal law refuses to sanction—does not by itself settle the second, concrete problem with which we started—the problem of the twin legal institutions of establishment of the truth and intolerance of error. In what concerns this problem only one conclusion may be drawn from that part of Leo XIII's doctrine which we have so far seen—the conclusion that law may not establish error and be intolerant of truth. This is precisely what sectarian Liberalism proposed to do, and did. In so doing, it violated the moral norm of law; and on this ground alone it merited summary condemnation.

The question, whether the law should establish the truth and be intolerant of error, admits of no such summary answer. It demands prior consideration of the two further characteristics of law. Law is a communis disciplina, a social discipline directed to the purpose of justice and peace in the community; it is therefore subject to a juristic norm—the general and particular exigencies of the common good,

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the needs and the advantages of the community. Law is also a disciplina cogens, a coercive discipline ultimately effective per vim et metum, through force and fear; it is therefore subject to a political norm, the norm of wisdom in the use of force. The particular laws of establishment and intolerance must find their justification in terms of these two norms. An appeal solely to the moral and theological norm of law is not enough.

 

THE STATE AND THE CHRISTIAN ECONOMY

To the constitutional principle, rooted in reason, that the state is part of the moral universe and that the power of government is limited by the eternal law of God, Leo XIII organically joins the principle of Christian constitutionalism, derived from divine revelation, which asserts that society13 is part of the Christian economy and that the power of government is further limited by the law of Christ. In developing this theme his polemic intention is directed against the social and juridical monism which lay behind the formula, "separation of Church and state."

The formula is misleading in one respect. As a society the Church was not separated from the state but incorporated into it, made part of its legal structure, in a new way. The juridical effect of the law was to establish the Church, by law, as one of several voluntary associations of a religious character, all of them legally equal as associations, all of them entirely enclosed within the monist state and surrounded by its supreme law. All of them owe their corporate existence and their freedom of action to the state; all of them are subject to the superior sovereignty of the state. This was "union of Church and state" of a new kind. The juridical essence of the whole arrangement lay in the assertion that, "if the Church possesses any rights or any freedom of lawful action, she is said to possess these rights and freedoms by gracious concession of governmental officials" (Immortale Dei).

This violent "union" of Church and state into one society, effected by the politicization of the Church, was the premise for the real "separation," the separation of the two laws. The order of human law was divorced from the order of divine14 law in principle—that is, on the sectarian Liberal principle of juridical monism. Civil law is the highest and only law; the Sovereign People is the supreme and single legislator. Therefore religious truth and morality, and ecclesiastical legislation, are to be positively excluded from all influence on the

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order of public law, even in those matters to which the laws of the Church had traditionally been regarded as relevant—the affairs canonically known as mixti iuris.15

Leo XIII consistently defined sectarian Liberal separation in terms of this conclusion and its premise: ". . . in public affairs it is a matter of obligation (fas est) to abandon the commandments of God and to have no regard for them when it is a question of making civil laws. From this premise there follows the disastrous conclusion that the affairs of state and Church must be separated" (Libertas). The premise was the theory of society as monist, under the undivided power of an omnicompetent religio-political power; the conclusion was the theory of law as monist and as endowed with an unlimited reach into all the affairs of society, including religious affairs. (Elsewhere I have called attention to the regalist character of the whole theory.)16 The separation of the two laws followed on the "union" of the two societies. The essence of separation of Church and state lay in this complexus of a social and a juridical monism—in the theory that there is one society, one law, and one power.

Against this theory Leo XIII invokes the solemn principle:

The Son of God, Creator and Redeemer of human nature, is King and Lord of the earth, and He possesses supreme authority over men, individually and in their lawful associations. . . . Therefore the law of Christ ought to have full vigor (valere) in human social relationships, in such wise as to be the leading guide not only of private life but also of public life (Tametsi futura, 1900).

The same encyclical defines the law of Christ:

By the law of Christ We mean not only the natural precepts of morality and the commandments received from God in the Old Testament to which Jesus Christ gave new perfection, definition, interpretation, and sanction; We also mean all the rest of His doctrine and all the institutions expressly established by Him. The first of all these institutions is the Church; indeed all the institutions which have Christ as their author are contained within the Church in all their rich abundance. . . . Wherefore the law of Christ is to be sought and found in the Church. . . .

From this premise Leo XIII condemns both the violent "separation" of the two laws and the no less violent "union" of the two socie-

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ties proposed by sectarian Liberalism. The larger subject, to which more extensive development is given in the Leonine corpus, concerns the harmony of the two laws; but here I shall deal with it only briefly. The theological principle is clear: the law of Christ, as declared by the Church, is the necessary norm for human legislation in all those matters in which the spiritual authority of the Church is competent. Three such matters receive lengthy treatment: domestic society (the marriage contract and matters of domestic morality), the organization of education (the respective roles of Church, family, and state),17 and the Social Question (the whole socio-economic institutionalization of society, as a moral as well as a technical problem). To these three a fourth may be added, public morality in its most general sense.

There is no need here to go into these matters in detail. I would, however, emphasize the leading characteristic of Leo XIII's doctrine: he constantly presents the law of Christ as a principle that limits the scope of human law and government. His argument is always for constitutionalism, for limited government, against the principatus sine modo, sine lege, of the sectarian Liberals. His quarrel with the theory that separated the two laws was precisely on the ground that this separation left government unlimited in its power. With the law of Christ and His Church rejected as a limiting norm of political rule and legal enactment, there are no longer any sacrednesses left in society; everything is liable to profanation by the rough hand of government. A juridical monism which leaves government totalist in its scope is a form of tyranny, whether power is in the hands of a man, a party, or a majority.

Leo XIII is no less sharp in his condemnation of the social premise and principle on which the separation of the two laws rested. I mean the theory that society is monist in its structure; that no institutions exist by native right intermediate between the individual and the state; that no institution may exist apart from the state, much less above it; that all free associations within the state have their existence and their rights solely on title on governmental concession; that the Church is simply one of these free associations, subordinate in its existence and action to the political power, as are all the rest.

If one is to understand why Leo XIII condemned "separation of Church and state" in principle, it cannot be too strongly emphasized that this legal institution, which violently effected a juridical "union" of Church and state through a subordination of the Church to the state, was consciously intended to be the vehicle of a theological judg-

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ment on the nature of the Church. In sectarian Liberal theory government, as the political projection of the autonomy of reason, was fully entitled to be the supreme judge of religious truth. Theological judgments lay within its competence because it was omnicompetent. Like reason itself, government was "the highest principle and source and judge of truth" (Libertas).

Consequently, against this aspect of separationist theory—the juridical "union" of Church and state by the law which ruled that the Church is a voluntary religious association chartered by the state—Leo XIII emphasized two principles essential to the law of Christ. The first is that the Church exists as a society in her own right, a divine right; that the Church is a spiritual and supernatural community sui generis; that the Church is governed by an independent authority. From this premise Leo XIII consistently draws, as his first conclusion, what he calls "the principle of principles," that is, the freedom of the Church.

The principle includes the freedom of the Church as a spiritual authority, its independence in the exercise of its divinely given legislative, judicial, administrative, and disciplinary authority. The principle also includes the freedom of the Church as a spiritual community; this freedom is the prerogative of each of its members, of the Christian family, and of all the institutions within the Church, as, for instance, the religious orders and congregations. Moreover, the spiritual freedom of the Church as a community importantly includes a civil freedom, an empowerment in the face of civil society—the freedom "to follow the will of God and do His bidding within society, and not to have obstacles set in the way" (Libertas). This is, in Leo XIII's favorite phrase, the freedom to be "at once a Christian and a citizen," a man subject to a dual allegiance, but undivided in the inner unity and integrity of his conscience by any conflict between the two authorities, ecclesiastical and civil, to which he owes obedience.

The second principle which Leo XIII opposes to separationist theory is the exclusive right of the Church to be the judge of religious truth and moral practice. To make judgments on religious truth and morality is to point out to men the way to eternal salvation; but "man's guide to heaven is the Church, not the state; this is the office committed to the Church by God, that she should exercise discernment and decision (videat ipsa et statuat) in the things that have to do with religion" (Immortale Dei). In this office the state has no share at all; for "the order of civil affairs, for all its value and seriousness, does not in any sense go beyond the confines of this earthly life" (Cum

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multa). The state is neither a theologian nor a pastor of souls. It would be "an injury to faith," says Sapientiae christianae, to deny that "the governance of souls has been committed to the Church alone, in such wise that the political power has no share at all in it." Here again Leo XIII is arguing for the principle of Christian constitutionalism against the omnicompetence of the sectarian Liberal state.

Having thus denied to government all right to make theological judgments, he proceeds to contradict the actual theological judgments which the sectarian Liberal state made and enforced upon society by the twin institutions of "freedom of religion" and "separation of Church and state." For the sake of emphasis I repeat that in Leo XIII's analysis the legal aspect of these institutions was indivisible from their explicit premises—the false religious philosophy that conceived conscience to be exlex, and the false ecclesiology that conceived the Church to be one among many voluntary associations of believers. The legal institutions were condemned in principle because their principles were theologically false. The condemnation goes straight to these theological falsities. The argument does not move on the plane of human law but on the plane of theological truth. It touches the plane of human law only in virtue of the principle, already set forth, that bad dogmas cannot make good law, or conversely, that laws cannot be good which positively sanction what is false.

The laws of the sectarian Liberal State embodied the theological judgment that "there is no difference between disparate and contrary forms of religion" (Immortale Dei), for the reason that all religions are simply manifestations, equally valid intrinsically, of a freedom of conscience that is equal in all men. In contradiction, Immortale Dei condemns the opinion that all religions are "equally acceptable, equally good, equally pleasing to God"; and Libertas elaborates the condemnation of its premise, the philosophy of the "free conscience" that is a law unto itself.

Second, the separatist laws embodied a consequent theological judgment that "society should adopt exactly the same attitude toward various religions and grant the same rights to each of them without distinction" (Libertas). Seen in its proper polemic perspective, the condemnation of this pregnant proposition comprises several interrelated assertions. (1) It is just as wrong for society to regard all religions pari modo as it is for the individual so to regard them; for society as well as the individual is bound, with the help of divine grace, to the acceptance of the faith which God has revealed to be the true faith,

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whose truth has been divinely certified by evident signs of credibility. A heterogeneity of religions within society is an evil; "the profession of one religion is necessary in society" (Libertas), with a necessity imposed by divine law. (2) It is an arrogant presumption on the part of government to say that it "grants" rights to this one true religion, embodied in the Catholic Church. The rights of the Church as a spiritual authority and as a religious community derive immediately from the law of Christ. It is for the state simply to recognize the existence of these rights and to observe the limits that they set upon its own authority. (3) The law of Christ, which is the only valid title on which any religion may base its right to existence, has not endowed all religions indiscriminately with the same rights and freedoms; all religions do not exist aequo iure and do not possess eadem iura. (4) Therefore a law based on the theological judgment that all religions inherently possess the same divine rights is as wrong as the judgment itself. Government has no competence to make this theological judgment; the judgment itself is false; therefore the legislation in which it issues is intrinsically vitiated. This kind of law is inadmissible, in principle, by the Church.

Taking its stand upon the law of Christ, "the Church judges that various kinds of divine worship are not entitled to existence by the same law as the true religion" (divini cultus varia genera eodem iure esse, quo veram religionem, Ecclesia judicat non licere: Libertas). The judgment of the Church is theological; it falls adversely upon an opposed theological judgment and by consequence upon the law which positively sanctions the falsity. In its exclusive office as the judge of religious truth and moral practice the Church "does not communicate the binding force of law to anything except what is true and good" (nihil impertiens iuris nisi iis quae vera quaeque honesta sint: Libertas). This, in another mode of expression, is the same principle which has already been set forth—the principle that human law may not give positive approval to what is contrary to the order of truth and justice.

Finally, the separatist laws embodied the ecclesiological opinion that the Catholic Church "is entirely similar to all the other associations contained within the state" (Immortale Dei), and therefore "the Church of God is to be subjected to the rule and control of government, just like any other voluntary association of citizens" (Libertas). Leo XIII contradicts with the assertion that the Church of God is an independent and autonomous society and authority in her own right. And from this premise it follows that it is a violation of the nature of

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the Church and of the law of Christ for government to establish the Church by law as one among many voluntary religious associations within the state. A law which thus defines the juridical status of the Church is an iniquitous law for the familiar two reasons: first, government has no power to define the nature of the Church, and second, this particular definition is false.

I would remark here that this whole argument still leaves unsettled the more particular problem with which we began—the problem of the twin legal institutions of establishment and intolerance. The argument is entirely theological. Its premise is the theological doctrine of the two societies, two laws, and two authorities. From this theological premise judgment is passed both on sectarian Liberal theory and also upon the legal institutions in which it issued. The judgment is theological, and negative. But one may not make this negative theological judgment the premise of immediate affirmative legal conclusions. For instance, it is not permissible to argue thus: because the twin separatist laws are illegitimate, contrary to the law of Christ, therefore it follows immediately that the twin legal institutions of establishment and intolerance are necessary, demanded by the law of Christ. This manner of argument cannot be found in Leo XIII. Moreover, the conclusion does not follow from the premise, if one has in mind the traditional distinction between matters of divine law and matters of human law.

It is one thing to make the judgment that a particular law is bad; this may be done immediately upon inspection of its relation to the moral and theological norm of law; the answer to the quaestio iuris is instantly controlling, by itself. It is quite another thing to make the judgment that a particular law is good; in order to do this one must also consider its relation to the juristic norm, publica utilitas, and to the political norm, wisdom in the use of force. The goodness of a law depends also upon the answer to the quaestio facti: is this law necessary or useful for the common good in the given circumstances? The morality of a law is not an immediate guarantee of its necessity or utility. Still less is the badness of one law an immediate proof of the goodness of its contrary. The argument stated above seems to labor under a methodological defect. There will be occasion to point out in what follows that an immediate passage from the order of legal necessity to the order of theological truth is invalid. By the same token the inverse passage is likewise invalid—that is, from the order of theological truth to the order of legal necessity. Correct method here is controlled by Leo XIII's fundamental principle—the distinction be-

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tween Church and state as it appears in the distinction between questions of divine law and questions of human law.

 

GOVERNMENTAL CARE OF RELIGION

In its own doctrinaire way sectarian Liberalism most assuredly "took care" of religion—with something of a vengeance. Leo XIII condemned this manner of care, as a violation of the essential structure of the Christian economy, which is constituted on the bedrock doctrine of the two societies, two laws, and two authorities. But there was another aspect of the controversy which is visible in this sentence: "When the sovereignty of God over man and over human society has been rejected, it follows consistently that there is to be no public religion in public life; there further follows a most complete carelessness (maxima incuria) about everything pertaining to religion" (Libertas). Leo XIII condemned this complete carelessness. The question now is the positive one: in what concerns the care of religion by the public agencies of law and government, what does Leo XIII require in terms of the full body of Catholic principles, theological, political, and legal? Within the larger answer to this general question we should find the answer to the particular question of establishment and intolerance.

Leo XIII rejects the principle of sectarian Liberalism that religion is a thing "alien and of no interest" to society and therefore to government. The text in Immortale Dei which affirms the contrary principle, that the care of religion is a duty of society and of government, lists the following concrete duties. "Rulers" are to hold sacred the name of God. Among their chief offices are those of extending favor to religion (gratia complecti), upholding it by their good will (benevolentia tueri), protecting it by the authority and force of law (auctoritate nutuque legum tegere). Finally, they are not to establish any institutions or make any administrative decisions (instituere aut decernere) which would be contrary to the welfare of religion.

The text indicates that the care of religion by government includes both positive and negative duties; but both kinds of duty are expressed with great generality. What is affirmed is simply the principle itself; its manner and extent of application are not determined. Moreover, the personal note in the text illustrates the way in which the long shadow of "the good Christian prince" still touches these late nineteenth-century pages; there seems to be a reminiscence of

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the days when the good of religion depended upon the personal "favor" and "good will" of the prince, rather than upon the cold text of law—or even, one may risk adding, upon the warm faith of the people.

More directly, Leo XIII's special problematic appears: as he conceived the problem, religion had fallen upon evil days on account of the hostility and ill will of governments which had been captured or influenced by the "sects"—by the Masons and their socialist, communist, and anarchist allies.18 The problem of religion in society had become to an enormous extent the problem of the will of the government, whether it was benevolent or malevolent. The situation was unhealthy from almost any point of view. Ideally speaking, the fortunes of religion should never become so entangled with the policies of government; but such entanglements are inevitable when politics becomes the field of ideological battles.

Leo XIII derives the social duty of faith and worship from the origin of society in the natural law. However, the governmental duty of caring for the public religion is derived from the purpose of government: "Those who rule over others rule only for one purpose, that they may further what is of advantage to society" (Immortale Dei). But true religion, so runs the further argument, is a thing of highest advantage to society; therefore the care of it counts among the purposes of government. Leo XIII's pages are full of descriptions of the advantages which true religion brings to society. However, what matters here is the basic principle. Human society is not an ultimate end in itself; it is called upon to serve the ultimate ends of the human person, whose destiny is eternal. This duty of service founds the duty of a public care of religion:

One and all, we men are destined by our birth and adoption to a good that is supreme and definitive, to be reached in heaven after this frail and fleeting life is ended. All our purposes must be centered on this ultimate purpose. Since the full and perfect happiness of men depends upon its achievement, this achievement is for every individual man so important that nothing more important can be conceived. Consequently, civil society, which is intended by nature for the common advantage, must in its service of the public prosperity have full consideration for the good of its citizens, to the end that it may never put any obstacle to the attainment of this most high and un-

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changeable good that they freely seek; indeed, to the end that it may offer the most favorable possible conditions for the attainment of this good. The first of these conditions is created by seeing to it that religion, which unites men to God, is preserved in its inviolate sacredness (Immortale Dei).

Here the care of religion is described as a general responsibility of "civil society"; it devolves upon all the orders of society, not merely upon the political order as represented by government. Again it is stated that the responsibility is both positive and negative; and again too the description is quite general. However, the central principle is firmly laid down. Human society must be an advantage, not an obstacle, to man in his pursuit of his ultimate purposes. Consequently, the care of religion is high among the functions of those who must care for the public advantage.

Furthermore, it is suggested that the care of religion is indirect rather than direct.19 What government directly serves is the public advantage, not the Church as such. Governmental care of religion does not terminate directly at religion itself—at the substance of religious faith or religious unity. These are sacrednesses which are to be preserved inviolate—even, and indeed especially, from government. Political action terminates at a political end, which is exactly described in the text; this end is the creation of opportunitates and facilitates—a favorable environment within the body politic— which may indirectly assist men in the pursuit of their eternal purposes. Since these purposes transcend the whole order of temporal life, the assistance rendered by government to men in their pursuit can only be indirect.

One further text may be cited, to focus more exactly the Leonine concept of the origin of governmental duties to religion:

It is the intention of nature that we should not merely be, but that we should also be moral. Hence man makes this demand upon the tranquility of public order which is the proximate purpose of the organized community—the demand that it should allow him to be a moral being, and what is more, that it should furnish him with sufficient assistance toward the perfection of his moral nature, a perfection that consists in knowledge and in the practice of virtue. . . . Consequently, in establishing institutions and laws attention must be paid to man's moral and reli-

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gious nature and its perfection must be kept in view (Sapientiae christianae).

The compass of this one general "demand" is indeed wide; it furnishes the basis for all the particular obligations incumbent on society to have regard for religious truth and moral principle in the whole manner of its social, political, and legal organization. The point is that this demand comes from the bottom up, so to speak—that is, it comes from the people, in terms of a natural and Christian right. This is the customary and characteristic Leonine perspective, in distinction from the frequent canonical perspective, which tends to regard the duties of the state toward religion as being imposed from the top down—imposed, that is, by the action of the authority of the Church directly upon government. Again in this text the negative and positive aspects appear: man is not to be hindered in his religious and moral life, and he is positively to be assisted.

So far all is clear, because so far all is quite general. The difficulty begins with the question, what are the precise empowerments and limitations of government, acting through the instrumentality of law, in the public care of religion? Here we touch what is always the central problem of theoretical as well as practical politics: granted that such-and-such a value is integral to the common good, what are the scope and limitations of government in its furtherance? What should the law undertake, or not undertake, to do? How far does its power extend and at what frontiers does it stop? This question is always difficult; it is particularly difficult when the social value in question is the delicate value of religion.

The difficulty is amply illustrated by history, not least by the history of the Christian ages. In those days popes and emperors shared the same one purpose—to establish right Christian order based on the true religion. But the record shows how sharply they often broke with one another on the question, in what respect does the care of religion fall to emperor, king, or prince; in what sense does it fall to pope, bishop, or priest? Where is the line to be drawn between the respective jurisdictions of imperium and sacerdotium?20 The passage of time, and all the transformations that time has effected, have not lessened the difficulty but augmented it.

The question then is, what principles does Leo XIII lay down for this question, the empowerments and limitations of government in the care of the public religion? In a sense he lays down only one principle—the distinction between Church and state and their neces-

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sary harmony, or in the more pertinent concepts, the distinction between the two laws, divine and human, and their necessary harmony. However, since this principle is complex, it may help toward clarity to distinguish four principles, all of them simply aspects of the great general principle.

 

THE PURPOSE OF GOVERNMENT

The text from Sapientiae christianae, quoted above, after speaking of the human person's "demand" that the order of society should be moral and Christian, goes on: "But right order is here to be observed: nothing is to be commanded or forbidden except in the light of the respective purposes of the civil society and of the religious society." The appeal is to the distinct purposes of Church and state, as the controlling principle in determining the respective roles of government and religion in the moralization and Christianization of society. For the moment it is a question of the political principle here asserted, that the function of government is always and only a political function directed to political ends—juridical order, political unity, social peace, right conditions of freedom, the general welfare. The function of government remains political, no matter what aspect of the public advantage may be envisaged by governmental action—religious, economic, cultural, etc. This principle is suggested clearly enough in Immortale Dei and Libertas. But it is still clearer in Rerum novarum (1891); and it is both legitimate and necessary to apply the doctrine of this later encyclical to our present subject. Principles that control the action of government control all manner of governmental action, regardless of the field in which it is deployed.

Rerum novarum, adhering to the Western Christian political tradition, makes it clear that government, strictly speaking, creates nothing; that its function is to order, not to create.21 Perhaps more exactly, its function is to create the conditions of order under which original vitalities and forces, present in society, may have full scope to create the values by which society lives. Perhaps still more exactly, the only value which government per se is called upon to create is the value of order. But the value of order resides primarily in the fact that it furnishes opportunitates, facilitates (the Leonine words, cited above) for the exercise of the freedoms which are the rightful prerogative of other social magnitudes and forces. These freedoms, rightly ordered, are the true creative sources of all manner of social values.

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It is therefore altogether in the line of Leo XIII's thought to say that the primary and indispensable care which government owes to religion is a care for the freedom of the Church. Religion, even as a social value, is not created by government but by the Church. The role of government is to see to it, by appropriate measures both positive and negative, that the Church is free to go about her creative mission; and likewise to see to it that such conditions of order obtain in society as will facilitate the fulfillment of the Church's high spiritual task. In the task itself, cura animarum, government has no share at all. But within limits it can make possible or impossible, easier or more difficult, the Church's exclusive task of caring for the needs of souls.

This care for the freedom of the Church means two things, in accord with what has been said above about the two senses of the formula. It means the assurance that the ministers of the Church as a spiritual authority will have the full freedom for their apostolic ministry in all its forms. It means also the assurance that the members of the Church as a spiritual community will have possession of their native freedom to live as Christians and citizens, to do the will of God within society without having obstacles put in their way. This latter freedom, as Rerum novarum makes particularly clear, creates a demand on government and on other social orders that they should provide proper conditions of social welfare and economic prosperity. Leo XIII struck a new note in his insistence on the economic and social conditions of spiritual freedom; the creation of these conditions is itself part of the care of religion.

Under ideal conditions within society, in the absence of serious disorders, this care for the freedom of the Church in the two senses mentioned would be, it seems, the only duty of government. The principle of Leo XIII here merits analogous application:

Without a doubt the intervention and action of these (public) powers are not indispensably necessary, when conditions in labor and industry reveal nothing which offends against morality, justice, human dignity, the domestic life of the worker. But when any of these values is menaced or compromised, the public powers intervening in proper fashion and in just measure, are to do a work of social salvation; for it falls to their charge to protect and safeguard the true interests of the citizens under their obedience.

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Analogously, the action of government in the interests of religion is not indispensably necessary when conditions in society reveal nothing that might injure or menace religious values, in so far as these are integral to the general welfare. In what concerns the care of religion, as in all other governmental functions, the criterion for legal or administrative action is its necessity for the common good. Leo XIII clearly states the principle: "If therefore any injury has been done or threatens to be done to the interests of the community—the kind of injury which cannot otherwise be repaired or prevented—it is necessary for public authority to intervene" (Rerum novarum). Evidently, the injury or threat must be so substantive, clear, and present as to constitute a social evil or the danger of a social evil. Government and law do not concern themselves with sin in general or with every manner of sin, every instance of private wrongdoing.22 An evil must assume substantial social proportions before government may take cognizance of it. There must be question, in the phrase of Libertas, of pernicies reipublicae, damage to the body politic; for government may not command or forbid anything except in the light of its own proper purposes, purposes that are always public—the pursuit of the general welfare or the persecution, if the term may be allowed, of what damages the public welfare.

Finally, as governmental action is prompted by necessity of circumstances, so it is confined to the minimal achievement that is necessary in the circumstances. Again Leo XIII states the principle clearly: "In all these cases [of social disorders] the force and authority of law ought obviously to be employed, within certain limits. These limits are determined by the same principle which demands the aid of law—the principle, namely, that the law ought not to undertake more, nor ought it to go farther, than the remedy of evils or the removal of dangers requires" (Rerum novarum). This is a statement of what I have called the political norm of law—wisdom in the use of force, which dictates that the use of force be minimal.

From all this it follows that governmental care of religion, like all governmental functions, will vary in its extent and limits, in accordance with the norm of necessity. Tillmann exactly expresses the substance of Leo XIII's thought:

The care and protection of religion and morality, the furtherance of popular education, and the promotion of science and art are the most noble office of the state. The Catholic view of things does indeed firmly acknowledge

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the independence of the whole area of human culture; nevertheless, since this view sees the function of the state as the furtherance of the common welfare, it also recognizes that the state has to a considerable degree a right of co-determination (Mitbestimungsrecht) in all questions of spiritual and moral culture (marriage, the family, the school, lower and higher education). In the order of concrete actuality it is of course most difficult to set limits to the intervention of the state. In any event, what must be recognized is that the special character of this whole area demands a large measure of freedom and independence, without which it cannot flourish. "The state should always, and especially in cases in which the discharge of great cultural functions falls to its account, hold itself prudently back; it should simply lay foundations, and bring into existence contexts and forms, which will make it possible for the free human personality and for various cultural communities fully to exploit their own religious, spiritual, and moral energies."23

It may be alleged that Leo XIII is not always faithful to this political concept of government. It may be said that in Immortale Dei and Libertas, for instance, he maintains a more paternal concept which permits and requires that government should exercise a more extensive police action in the areas of religion and culture than would be permitted or required by the political concept of government exhibited in Rerum novarum. If there is a difficulty here, it is more apparent than real. If his doctrine is closely analyzed, and if attention is paid to its polemic context, it will be seen that it is always in substance consistent with itself. It cannot be successfully maintained, for instance, that in Rerum novarum he holds the principle, "As much freedom as possible, as much government as necessary" (as he certainly does); whereas in Libertas he holds the principle, "As much government as possible, as much freedom as necessary" (as some seem to think he does).

There is indeed a certain difference between the two doctrines, but it does not touch the substance of principle. What makes the difference is the polemic context of Libertas—the sectarian Liberal aggression against the historic Catholic nations. The crucial fact here is not that the nations were Catholic, but that the masses within their borders were ignorant. What swings Leo XIII to a paternal concept

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of government is the fact of the imperita multitudo, the ignorant masses. His argument is simple. The ignorant masses are incapable of defending themselves, their culture, their faith, their identity as peoples, against the Revolutionary aggressor. Therefore it is necessary that government should defend them. It is necessary that government should take them under its parental tutelage, act towards them as parens patriae, use in their behalf its patria potestas. The defense of the patrimony of truth and morality that had formed the substance of their national tradition falls of necessity to government. Not only are the masses incapable of defending themselves; the Church itself cannot adequately defend them without the powerful assistance of government. The action of government is necessary in the circumstances to the action of the Church itself.

Therefore the criterion of governmental action in the care of religion is still the criterion of necessity. The measure of this governmental action, even when it goes to the lengths of quasi-paternal care, is still proportioned to the necessities of the situation, as created by contingent fact. In Leo XIII's mind and text it is not a question of what is ideal in principle, but of what is necessary in fact. No one will proclaim it as ideal that the masses should be ignorant, religiously illiterate and culturally backward, in such wise as to render necessary an extensive paternal program of governmental care of religion.

Not only is the canon of necessity still the criterion of governmental action; the evil which government is called upon to combat is represented as a social evil of substantial proportions. It is to be noted that Leo XIII does not authorize coercive action against the "sects" simply because of their errors but because of their activism. The "sects" do not fall under the cognizance of government because their doctrine was heretical but because their action was conspiratorial. The organized sects had, as it were, furnished false philosophy with feet, chiefly in the form of the legal institutions of "freedom of religion" and "separation of Church and state." It is this philosophy on feet that ought to be dealt with, "lest it creep abroad unto the ruin of the commonwealth" (ad perniciem reipublicae: Libertas). The conspiracy was against that true freedom and lawful order which are the very foundations of the state. And the judgment that the institutionalized doctrines of the sects constitute a social evil, present and grave, is not a pure theoretical position; it is the verdict of social experience: "It is already sufficiently known what sort of situation has been brought about within society (by the sectarian Liberal institutions); it is a situation which men of wisdom and integrity rightly deplore" (Immortale Dei).

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It ought therefore to be sufficiently clear that Leo XIII always consistently adhered to his political principle—that the action of government is singly toward the purposes of government, and that the motive and measure of its action are furnished by the necessities of the common good. The principle is invariable; its demands in different situations will vary according to the necessities of the situation. To his consistency Leo XIII joined realism, the pragmatic realism of the prudent jurist. There are times, he says in effect, when governmental care of religion may be a simple exercise of the police power, minimal in its scope. There are other times when it may be an exercise of patria potestas, which may indeed go to considerable lengths, but which remains actually minimal when looked at in the light of the needs of the situation.

 

THE PURPOSE OF THE CHURCH

"But here right order is to be observed: nothing is to be commanded or forbidden except in the light of the respective purposes of the civil society and the religious society." This central Christian constitutional principle also establishes the purpose of the Church as a limiting principle of governmental care of religion. The sacred order as such is exclusively in the care of the Church.

First of all, it may be well to mention—what is sometimes forgotten—that the new sharpness which Leo XIII gave to the distinction of Church and state had, as an important consequence, a clarification of the principle that in its care of religion the political power is not acting as the vicegerent, the functionary, the instrument of the Church. It is acting out of duty indeed, but it is also acting in its own autonomous right. It is not a case of gladius sub gladio; government is not wielding the material sword pro ecclesia, but pro republica; it is not acting ad nutum et patientiam sacerdotis, but ad nutum et patientiam populi (to use, and furnish antitheses to, the famous phrases of Unam sanctam). Schmidlin puts the matter well: "Thus Leo was the first Pope who relinquished in every form all residue of medieval ecclesiastical supremacy; he positively proclaimed the full qualifications and the relative autonomy or sovereignty of the politico-social power."24 Leo XIII put an end to all curialism or hierocratism—or whatever one chooses to call the right-wing medieval theory.

By the same token he put an end to regalism in all the forms it has assumed from Constantine to the last of the Bourbons and Haps-

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burgs. Governmental care of religion is not a care of "ecclesiastical affairs"; the Church cares for her own affairs. A fortiori it is not a share, however diminished, in the regimen animorum; the governance of souls is exclusively the function of the Church. From this it further follows that governmental care of religion does not mean care for the purity of faith in the members of the Church; this too is exclusively the function of the Church. Nor does it mean care for the spiritual unity of the Church, her unity of faith and discipline; the Church alone is responsible for her own unity and she has within herself all the means necessary to its conservation. Finally, along the same line, the duty of caring for religion does not authorize government to introduce a "crime of opinion" into its statute books. The theory of crimen opinionis— the theory that error may be repressed by government simply because it is error—has no footing in Catholic doctrine. Just because a philosophy is false it does not become, in its adherents, legally justiciable.

It is not permissible to distort in this sense Leo XIII's polemic against "the modern liberties." In the exercise of his supreme teaching office he condemned rationalist individualism as a spurious philosophy. But this condemnation does not make this philosophy, as a system of ideas, the object of legal intolerance. What Leo XIII protested against was the legal institutionalization of opinionum mendacia, fallacious opinions, in such wise that they became a social force—really a form of organized action, as all law is a form of action. His argument does not run thus: "These opinions are fallacious; therefore they ought not be permitted within the State." No such rapid conclusion is permissible in the light of his political principle, as already set forth. His argument is more subtle, and entirely true to his own principle. It is not, he says in effect, to the public advantage that the philosophy of rationalist individualism should be embodied in legal institutions ("the modern liberties" in the sectarian Liberal sense); that it should thus receive the authorization and backing of government; and that it should thus become an engine of war against traditional Christian faith and culture. To launch or sustain this legal institutionalization of error would be socially disastrous. Therefore it is wrong for government to embark on this program. We are very far here from crimen opinionis.

The care of religion therefore does not establish government as a Spiritual Father, a Schoolmaster, a Judge of Good Ideas, or an Inquisitor into Bad Ideas. One thing more is of some importance. The

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distinction of Church and state forbids government, in the name of a care for religion, to make religion a political end, or to make religious unity a means to the end of political or national unity. Religion is not part of the common good in the sense that it molds a nation into a unity and thus subordinates itself to the inferior unity that it molds. This is not Leo XIII's concept of the matter. He holds a loftier view.

He holds that religion is part of the temporal common good only in the sense that the order of civil life, although a proximate end in itself, must facilitate the passage of man to a higher life, which is that of the blessed in heaven; for this reason the common life must be impregnated with the values of religion; and therefore a responsible care for the common good must include a care for religion in the common life. Concern for national unity is no part of his perspectives. On the contrary, he depicts governmental care of religion as simply a witness to the fact that the purposes of society and government are not the highest purposes of man. They are only temporal and terrestrial purposes; therefore in their pursuit care must be taken not to hinder, but positively to further, the eternal purposes of man's immortal spirit. In this sense governmental care of religion ought to be disinterested; it should not look for political rewards, whether in the form of political unity or still less in the form of an allegiance of religion to the government that cares for it.

It may be maintained with some show of evidence from history that there is always a bit of danger in delivering to government the care of anything that is precious to man as man. It is especially dangerous to deliver the sacred things of the spirit into the keeping of the processes of power. As a principle, the duty of governmental care of religion is true; in practice, this duty has been made the pretext for actions and policies most damaging to religion. Perhaps the greatest danger in modern times is one that, curiously enough, Leo XIII never alludes to—the alliance of religion with nationalism, the idolatrous creed of modern government, into whose ambiguous service government is prepared to press even the sacred order of religion.

In any event, the distinction between Church and state is the essential principle that must confine governmental care of religion within its proper bounds, as these are set both by the nature of religion, which is transcendent to the temporal order, and also by the nature of the state, whose purposes never transcend the temporal order. All the abuses and ambiguities that history has seen have had their origin in some violation of this cardinal principle.

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THE PRINCIPLE OF PREFERENCE

The third principle which Leo XIII adduces in this matter is the principle of "favor and protection" for the true religion. This is simply an aspect of his fundamental moral principle that the objective order of truth and justice is the norm for all human action. As we have seen, he urged this principle against the subjectivist and relativist rationalism which maintained that "all ideas are free and equal." In contradiction, Leo XIII insists that truth inherently claims preference over error; good over evil; justice over injustice. In the face of these objective values neutralism or indifference are theoretically immoral attitudes. They are also practically impossible attitudes, since in practice they are equivalent to negation: "To make the judgment that there is no difference between disparate and opposed forms of religion has for its obvious result a refusal to believe in or practice any religion. And this is really atheism under another name" (Immortale Dei). Because the sectarian Liberal legal institution of "freedom of religion" pronounced and enforced upon society this false theological judgment, it was condemned.

A well-known text in Longinqua oceani illustrates the relation which the rule of preference for truth over error has to the order of human law, to the state. The text refers to an error tollendus:

. . . there is an error which must be done away with. No one is to think that it follows from this [from the debt which the Church owes to the American constitutional situation] that America furnishes the example of the ideal (optimi) status of the Church; or that it would be universally permissible or advantageous for the sacred and civil orders to be disjoined and set apart from one another after the American fashion. The fact that among you Catholicism is in a state of security (incolumis) and that it increasingly prospers and grows is altogether due to the inner riches which by divine endowment form the strength of the Church. If no one stands in the way of them, if no obstacle is put to them, they come pouring forth; nevertheless they would produce more plentiful results if, in addition to freedom, they enjoyed the favor of the laws and the patronage of the public power.

In the last sentence the Pope is not undertaking to predict, as it were, by hindsight what the history of the Church in America would

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have been, had it been other than it has been. Nor is he suggesting that the future would be more blessed, if America were to alter the constitutional situation to which the blessings of the past have been largely due. Nor is he in any sense implying that there is in the American constitutional situation, as it exists in America, an error tollendus, an error to be done away with. On the contrary, in the immediately preceding context he has said that the Church in America "owes a debt of gratitude to the justice of the laws under which America lives and to the whole character of a good constitutional commonwealth" (sua debetur gratia aequitati legum, quibus America vivit, moribusque bene constitutae rei publicae). Certainly there is no error in laws that are just and in a constitution that is good.

What Leo XIII has in mind is a theoretical error bearing on a point of principle. The error was on the part of those who wished to take the American constitutional situation, in which the Church does not enjoy the favor of the laws and the patronage of the public power, as the premise for a generalization to a universal principle. It should be said here that these men were not American Catholics;25 they were Europeans, who were either doctrinaire theorists, or simply desperate men, striving to break out of the impasse created by the confusion of religion and politics that had for so long been characteristic of the Latin countries. In either case it is highly unlikely that they understood the United States any better than Montesquieu understood England. These men, I say, wished to take the legal experience of the Church in America as the premise upon which to erect a definition of an ideal of legal experience that would be everywhere valid, everywhere permissible, everywhere advantageous. There was really a double error in this generalization.

First, there was the error of thinking that any form of legal experience can be universalized. This is the error of the doctrinaire, the man with the univocal mind, who does not understand the nature of law or—what is closely related—the nature of politics. Systems of law cannot be divorced from their Sitz in Leben, packed up and labeled, and made articles for export. A constitutional system, like a form of political regime (with which it is always closely allied), is good because it fits the necessities of the society for which it was devised; because it is reasonably in accord with what Ehrlich called "the living law" of the people; because, in a word, it is for the public advantage of this particular public. But "peoples" are not univocal entities, interchangeable at will. Nor are their political and legal systems sheer works of art, fashioned more geometrico; they are products of history,

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patterned by all manner of "prejudices," in the sense of Burke.26 There is therefore no type of legal experience which could be generalized to the point of saying that it would be ideal for all peoples, everywhere and always. This is the first error at which Leo XIII struck. Some men were saying that the American constitutional system would be good for all peoples because it was good for the American people. This was political and legal nonsense.

But there was a more dangerous kind of nonsense latent in the Continental generalization from the American experience. The men who made the generalization lifted their assertions out of the field of history into the field of theory, out of the contingent order of law and politics into the absolute order of ethics and theology. The premise of their argument was that it is good, in certain historical circumstances and in point of political and legal principle, that the res catholica does not have the favor of the laws and the patronage of the public power. From this premise they concluded that it is true, in full theoretical generality and in point of ethical and theological principle, that the res catholica should not have the favor of the laws and the patronage of the public power. The error tollendus was not in the premise but in the conclusion. More exactly, the error was in the consequence of the argument—in the precipitous passage from the concrete order of law and politics to the abstract order of ethics and theology.

First, this manner of argument offended against the distinction upon which I have already perhaps sufficiently insisted, as pivotal in the doctrine of Leo XIII—the distinction between the order of divine law and the order of human law. Leo XIII willingly admitted that American constitutional law is good law. What he will not admit is that the goodness of American legal experience can be made the basis for theoretical conclusions. What is good law is not therefore true dogma. What is defensible on grounds of the public advantage, which raises a quaestio facti, is not therefore demonstrable on grounds of ultimate truth, which raises only a quaestio iuris. The Continental argument was inconsequential, invalid, as an argument. It ignored the differential character of law and ethics, of legal experience and theological principle. It confused quod utile et possible with quod semper aequum et bonum. It erred in arguing from the pragmatic order of legal goodness to the speculative order of universal truth.

Secondly, this error of method was dangerous to another principle. Here as always it is the quaestio iuris that is Leo XIII's dominant

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concern. Here as always he speaks as theologian and moralist, not as jurist and statesman. And the quaestio iuris he has constantly in mind is this: are all ideas and religions and moralities free and equal; or is there an objective truth—a single true religion and a universally valid morality; and since the latter, does not this religious and moral truth have an inherent claim to preference over error; and since it does, is not this inherent right of truth a norm also for the legal order which is the state? The hasty Continental generalization from the American experience risked colliding with the endlessly repeated Leonine answer to this quaestio iuris.

American constitutional law provides freedom for the truth but not favor; it protects the freedom of the truth but not the truth itself. This law, said Leo XIII, is equitable in the circumstances; it properly forms part of the American respublica bene constituta. Nay more, said the Continental theorists in effect, the American Constitution is a perfect reflection of the inner constitution of the moral universe and of the Christian economy. In this generalized statement the error tollendus appears. One of the principles of the moral universe and of the Christian economy is the principle that the truth has an inherent right not only to freedom for itself but also to preference over error; that the affirmation of the truth is to be protected not only because it is free but because it is true; and finally, that these inherent rights of truth are a norm for the legal order of society, which is bound on the inner order of the moral universe and of the Christian economy. This was the principle whose denial was implicit in the hasty generalization of the Continental theorists. To put the matter very briefly, in elevating American law to the norm of universal truth, they denied that the universal truth is the norm of all human law.

The lesson in method which Leo XIII reads in Longinqua oceani has a further implication. If it be true, on the principle of the distinction between divine and human law, that good laws do not necessarily make true dogma, it is no less true on the same principle that true dogmas do not necessarily make good law. The line of distinction between the two laws may not be transgressed from either direction. One may not make a dialectical passage from the order of good human law to the order of true divine law without prior consultation of the single norm of divine law—the certified truth itself, whether rational or revealed. By the same token one may not make the inverse passage without prior consultation of the special norm of human law—the public advantage. This brings us to the next topic.

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THE PRINCIPLE OF TOLERANCE

Leo XIII's polemic preoccupations are perhaps most visibly revealed in his doctrine on the attitude of government and law toward the problem set by the social fact of religious division and moral incoherence in the community. One is immediately impressed by the brevity of his treatment. A small paragraph in Immortale Dei, a somewhat longer one in Libertas, and very little elsewhere in the corpus—surely this is not much space to devote to the problem that had been central in post-Reformation politics, indeed that is permanently central in world politics. Nevertheless, Leo XIII's treatment was adequate for his purposes as these were fixed by his special problematic—the sectarian Liberal aggression against the historic integrity of the so-called Catholic nation. Moreover, despite his brevity, he touches all the essential principles.

First, he touches ever so lightly the fact that error and evil, religious division and moral discord, are permanent aspects of our sinful human condition—a condition that is the object of a divine permissive will: "God allows evils to exist in the world" (Libertas).27 He concludes to the principle that "it is right for the rulers of society to imitate the ruler of the world." As the Scholastic axiom has it, tolerance is concerned only with evils (tolerari non dicuntur nisi mala). However, tolerance itself is not an evil. It is "right"; it is an imitation of God; it is an act of virtue—the virtue that distinguishes the jurist and statesman, political prudence. It is evil to will that evil should be done; it is unwise to will that evil should never be done; but to will to permit evil—that is good. Thus in St. Thomas' phrases Leo XIII sums up the matter. Thirdly, he asserts the principle that at once makes necessary the virtue of tolerance and also sets the limiting norm for its exercise, namely, the exigencies of "the common good," the public welfare, in given circumstances.

What is more important, he makes his whole doctrine hinge on his cardinal principle—the distinction between Church and state, between the order of ethics and theology and the order of law and politics, between the dogmatic judgments of the Church and the legal decisions of government.

The judgments of the Church on matters of doctrine are transtemporal, independent of circumstances. No quaestio facti enters into their making; and they are unalterable. They may collide with social fact—with indifference, skepticism, disbelief, opposition; but they make no concessions to fact. The Church does not indeed ignore the

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facts of history, since she must live in history. Moreover, there is a legitimate sense in which she is disposed to adapt herself to changing historical contexts. This adaptation is "a valid idea, if it be understood to mean a certain reasonableness of attitude which can be squared with the demands of truth and justice. That is to say, under the provision of some good the Church shows herself accommodating (indulgentem); she allows for circumstances to the extent that the sanctity of her duty permits" (Libertas). But there is a limit:

The case is otherwise with practices and doctrines which changing morals and fallacious opinions have ushered in, contrary to the dictates of religion. There is no holiday from religion, truth, and justice. And since God has commanded that these greatly holy things should be under safeguard by the Church, it is altogether foreign to her nature to expect her to dissemble—to put up with what is false and unjust or to connive at what is harmful to religion.

Here Leo XIII was squarely in his problematic, caught in the tragic impasse of his age. In these words he might well be summing up the pontificate of Paul IX. It was not possible for the Church to be "accommodating" in the face of the "practices and doctrines" of sectarian Liberalism, or to "allow for" the Revolution and the Risorgimento as if these movements were simply instances of legitimate historical change. For the Church to accept a "freedom of religion" and a "separation of Church and state" predicated on the dogmas of conscientia exlex and principatus infinite potens would not be to "allow for circumstances." It would be to betray the truth and abdicate a sacred duty. Leo XIII sustains Pius IX's prophetic protest—a rude protest, in the way that prophets are rude—against sectarian Liberal society, a protest whose justice and historical significance are only now beginning to be appreciated by scholars.

However, Leo XIII does not enforce upon organized society and its government the same single norm of judgment and action by which the Church must abide: "The Church does not impart the binding force of law except to what is true and good; nevertheless, she is not unwilling that the public power should tolerate things that are at variance with truth and justice" (Libertas). The distinction is sharply drawn. The state is not the Church; it is not Christ's Body Mystical but only the terrestrial body politic. Its actions, unlike those of the Church, are not governed by the single norm of what is true

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and just. Its actions are indeed subject to this norm; hence the state "may not and ought not to approve evil or to will it for its own sake" (Libertas). However, this is not the sole norm of the legal order; there are also "the precepts of political prudence" (Libertas). These precepts are truly mandatory on the action of the state, And at times they take precedence over what the abstract dictates of right and wrong might demand; they require that evil and error should be tolerated in the interests of the state's highest purpose, which is to secure, by prudent use of the instrumentality of coercive law, the public welfare of the whole body politic. Therefore the legal decisions of the state are governed by two norms, not by one.

This is the traditional doctrine. Nevertheless, it must be admitted that Leo XIII gives it a special impostazione. The juristic and political norms of law seem to enter almost as an afterthought, if the word is not too strong. Certainly the impression is created that appeal to them is permitted only grudgingly. The text does not breathe magnanimity. All this is understandable in the circumstances. Leo XIII's overwhelming concern had to be with the moral and theological norms of law; this was the point at which sectarian Liberalism had broken with the tradition.

There was another factor. In the face of this particular adversary, it could not but seem academic, not to say dangerous, to attempt to represent the nice balance which the tradition strikes between the moral and juristic norms of law. Part of Leo XIII's essential argument was that the sectarian Liberal laws could not possibly be for the common good—least of all within the historic Catholic nations. The dogmas of the lawless conscience and the monist totalist state could only issue in the common destruction. The "modern liberties" as predicated on these dogmas could only be the Augustinian libertas perditionis. To justify them in the name of the juristic norm of law would be nonsense. Genus id reipublicae that is described in its premises, ethos, and effects by Immortale Dei could be accepted by a reasonable man only under the pressure of dire necessity, lest some worse tyranny befall:

If a form of government anywhere exists, or can be imagined to exist, which aggressively and tyrannically persecutes Christianity, and if one matches it against the particular type of polity which we have been describing, the latter may appear the more endurable of the two. Nevertheless, the principles on which it rest are in them-

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selves, as we have said, of such a nature that no one ought to approve of them (Immortale Dei).

Who indeed will approve of the principle that government is the Divine Majesty; that its law is the single and absolutely sovereign law; that the order which this law creates is the Universe; and that within this man-made Universe there is no place for God?

Leo XIII's polemic context explains another specialty in his construction of the tradition, namely the terms in which he states the juristic norm of law. He speaks of the "common good," the "public welfare," "greater evils" and "lesser evils." This is customary language. What is special is the fact that he never alludes to the concrete political good and evil which St. Thomas ranks highest in the scale of political goods and evils and which therefore is essentially constituent of the juristic norm: "Now the welfare and security of a multitude formed into a society lies in the preservation of its unity, which is called peace. If this is lost, the value of social life itself is lost. Indeed by reason of its inner discords the multitude becomes a burden to itself. Therefore the chief concern of the ruler of a multitude is to insure the unity of peace" (De regimine principum, I, 17). For St. Thomas the greatest political evil was dissension, schism, rupture of the public peace. Peace, the work of justice, is the highest political end.

However, it is altogether understandable that Leo XIII did not adduce the exigencies of social unity and public peace as the concrete norm for governmental use or non-use of its police power in the field of religion and morals. The fact was that sectarian Liberalism had rent the unity and peace of the so-called Catholic nations; the further fact was that this unity and peace would not be restored to these nations by any concessions to sectarian Liberalism, even if such concessions had been doctrinally permissible. The "two Frances" and the "two Spains" and the "two Italies" stood over against each other, irreconcilable as the Revolution was irreconcilable with the Tradition. Unity and peace—so said both sides in the conflict—would come only by the triumph of one over the other.

In Leo XIII's own case the impasse was illustrated, curiously enough, by the toughness of the stand he took against the Italy of the Risorgimento, while he was disposed to be considerably more gentle toward the France of the Revolution. In either case, within the ideological and political realities of the time, and even apart from theological considerations, the "unity which is called peace" could not be

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an operative concept. Both parties to the struggle demanded unity and peace—but each on its own terms. Leo was no more intransigent than Lemmi. The ideological struggle had been projected into politics, beyond recall. Politics itself had become a controversy over the ultimate ends of man; and when politicians quarrel over such ultimate ends, instead of simply agreeing on the proximate ends of politics and then quarreling over the best means of reaching them, politics and society are in a state of decadence. Then you have "wars of religion." Then if the issue is to be decisively settled, the likelihood is that the settlement will come as it has in fact come in Spain (at least temporarily), by the triumph of the Tradition over the Revolution—a triumph won by force of arms under the leadership of a militant party, and sustained by force of law under the government of a dictator.

In Leo XIII's circumstances it would have been idle to suppose that a common meeting ground for the contending parties would be furnished by the concept of that unity which is peace—a unity of the political order, which is simply an instrumental unity, based on the rational shared consent of the whole community, both governors and governed, to cooperate toward the proper and proximate ends of the political community, even in the absence of agreement about the ultimate purposes of man and about the way that God has marked out for their achievement. Neither side in the conflict could envisage such a political unity; both wanted a religious unity. The sectarian Liberals wanted to establish political unity on the basis of their political religion, "a new religion, in which divine worship will be accorded to human reason, under contempt for the sovereignty of the immortal God."28

The contrary position was most visible in Spain, the typical "Catholic nation," where political unity apart from Catholic religious unity was grotesque in itself and impossible in practice.

Moreover, both sides recognized that their desired politico-religious unity could only be established by force of law. This is the key point. The great prize in the ideological struggle was control of government, with all that this control meant in the way of legal power to establish the desired institutions and ideas and to repress the repugnant ones, especially in the matters of public worship, marriage, and education. The operative premise was that government is to represent and enforce a truth proclaimed to be transcendental. The only question therefore was, what truth shall government represent—the truth of the Tradition or the "truth" of the Revolution? No govern-

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ment could represent both, either in theory or in fact. Not in theory, because the two were mutually exclusive. Not in fact, because in fact there were two Spains, Frances, and Italies, and the sectarian Liberals would no more admit that Italy, for instance, was still a Catholic nation than Leo XIII would admit that Italy was no longer a Catholic nation.

So, I say, "the unity which is called peace" could not be made an operative concept in the circumstances. No less inoperative were two other traditional doctrines of Western society.

The first of these is the political doctrine of representation, according to which government is not some sort of supra-societal representative of naked transcendental truth, charged with the task of making the people over, by force of law, into the image of a preexistent ideal of truth and virtue. On the contrary, government is the existential representative of the people, charged with a function of ministry rather than rule; or more exactly, charged with the duty of making its rule a ministry to the people, to the public advantage—a concept that is never an abstraction or an ideal, when considered as the political end of government. The former kind of representationalism was characteristic of sectarian Liberalism; the latter is Western and Christian. Secondly, there is the legal doctrine of consent, as thus expressed by the Carlyles:

There is really no doubt that the normal political judgment, whether practical or theoretical, of the Middle Ages down to the end of the sixteenth century was that the positive law was the expression of the will and consent of the whole community, including the king; and that the conception of writers like Bodin and Barclay that the king was the legislator represented an alien and intrusive principle.29

Certainly Leo XIII was no partisan of Bodin or Barclay. The doctrines of representation and consent are implicit, for instance, in his complaint against the sectarian Liberal laws on the ground that they were introduced "without any consideration of the people, even though they profess the Catholic faith" (Libertas). These doctrines are also implicit in his doctrine on tolerance, which requires government to take account of what is actually "there" in society, even though in terms of sheer divine law certain things have no authorization to be there. On the other hand, Leo XIII was in no position to make effective appeal to these two traditional ideas. In his polemic context—the

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defense of the Catholic nation against the sectarian Liberal state—the whole question of representation and consent had to be pretty much left out. Or rather, these doctrines were used, implicitly, in a special way. Leo XIII's factual supposition was that the Catholic nations were still Catholic; therefore they could not be existentially represented by a sectarian Liberal government. Again, the sectarian Liberal laws on religion were inherently vitiated by their premises; hence there could be no question of a Catholic people consenting to them. This was what had to be made clear; and this was about all.

There is a final aspect of the question of tolerance. In the text of Leo XIII tolerance appears as simply a matter of government withholding its arm, not actually striking at error and evil. The principle of tolerance is indeed presented as a principle that limits government. But it seems to impose limits only on the action of government in given circumstances, not on the powers of government. Such is the appearance. However, is this the whole of the matter? If the premises of the principle are more closely examined, does it not follow that this principle in given circumstances also imposes limits on the very powers of government? Does it not disarm government, instead of simply bidding it withhold its arm? Does it not deprive government of weapons, and not simply forbid their use? In the perspective of these questions the problem of tolerance is seen in a different light. It is one thing to say that government has a right to repress certain errors and evils, but is inhibited in the exercise of its right by given circumstances. It is quite another thing to say that in given circumstances government simply has no right to represses certain errors and evils. There is a difference between saying, "I can but I won't," and saying, "I won't because I can't." With these questions asked, this point made, we are finally prepared to tackle the secondary problem with which we started—legal establishment and legal tolerance.

 

LEGAL ESTABLISHMENT AND LEGAL INTOLERANCE

Concordatary literature amply testifies to the legitimacy of these two correlative institutions. What needs clarification is the foundation, in authority and in argument, upon which their legitimacy rests. There seems to be some difference of opinion. Briefly, one view holds quite simply that these legal institutions are necessary in virtue of divine law whenever and wherever they are possible in the light of religio-social fact. The other view holds more complicatedly that they

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are legitimate in terms both of divine law and also in terms of the canons of human legislation when they are necessary or useful for the common good of both Church and society.

Anatomy of an Anonymous View

The former view in its more extreme expositions has given rise to widespread belief that when Catholics possess the requisite political power they are obliged in principle to use the coercive force of government to repress other religious beliefs, more or less severely; whereas when they lack political power they suspend their principle, recur to expediency, and defend a general civil right to the free exercise of religion. In other words, Catholics are intolerant when it is possible to be intolerant; they are tolerant only when it is necessary to be tolerant. Intolerance is the ideal, justified by principle; tolerance is an evil, justified as a lesser evil by factual circumstances. If this popular belief is true Catholic doctrine, it is indeed good that it is popular. But if it is not true, its popularity is a scandal.

In presenting the first view I wish to make it clear that I am not attributing it to any particular author.30 The fact is that I shall deliberately sharpen its propositions, somewhat after the fashion in which Leo XIII sharpened the propositions of sectarian Liberalism. He did this in order to lay bare the inherent and official intentions of the movement in their pure doctrinal state, before they became obscured by the compromises that were necessary for political success on the historical scene. In the same way it is necessary to get at the official and inherent intentions of the Church in their pure doctrinal state before they descend into the arena of history.

In its sharpened form the view under consideration makes the following simple argument for legal intolerance. The leading principle is that error has no rights, certainly not the same rights as truth. Therefore it follows that error ought to be suppressed whenever and wherever it is possible to suppress it. It further follows that government has an inherent duty and a consequent right to repress error whenever and wherever possible. A parallel argument is made for the institution which creates the legal situation within the state, and also the alliance with government, that are the juridical premises of intolerance. The principle is that the Catholic faith has an exclusive divine right to be the public religion of men and societies. Therefore it follows that Catholicism ought to be established as the official "religion of the state," with all the juridical consequences that follow upon this

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legal status, whenever and wherever possible. It further follows that government has an inherent duty and consequent right thus to legislate, whenever and wherever possible.

Therefore this theory is disjunctive. Legal establishment and legal intolerance are called the "thesis"; they are matters of principle and they are the ideal. The absence of these institutions is called the "hypothesis"; it is a situation in which principle is suspended because it is inapplicable by reason of religio-social circumstances. It is therefore a situation that is evil, in itself and in principle.

The argument that justifies the hypothesis starts from a fact—the fact of religious pluralism within a given society. From this fact it follows, as a further matter of fact, that a governmental attempt at legal establishment and legal intolerance would result in disturbance of the public peace. Therefore the legal situation of the hypothesis, remaining evil in principle, appears as a lesser evil, in point of fact, than the evil of social dissension that would ensure upon an attempt to introduce the legal situation of the thesis. Therefore the situation of hypothesis is to be tolerated. The reason for toleration is necessity. Toleration is to last as long as the necessity for it lasts. Toleration is to end as soon as intolerance becomes possible.

Thus presented in its most naked form, this theory reveals three major characteristics.

First it assumes that the duty and right of assuring the exclusive rights of truth and of denying all rights to error within society, by governmental application of coercive restraints, is the ultimate political principle that must control the action of government. This duty and right are likewise the ultimate juridical principle that must preside over the construction of the legal order. The disjunction holds: per se government ought to repress error, because error has no rights; per accidens government may be excused from its duty, because error is sometimes irrepressible without damage to the public peace. In other words, the thesis is ultimately based on one duty of government—its duty to the truth. The hypothesis is based on another duty of government—its duty to the public peace. The implication seems to be that the latter duty is of a lower order than the former, as the hypothesis is of a lower order than the thesis.

Second, this theory asserts that the legal criterion for the induction of the thesis—legal establishment and intolerance—is "possibility"; whereas the legal criterion for recurrence to the hypothesis is "necessity." Therefore the jurist who works with this theory has only one question to answer: when and where it is possible for government

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to establish Catholicism and "exterminate" heresy? The conditions of possibility are variously defined. Some require simply an absolute majority of Catholics within a given region-state. Others require a totally Catholic population in the moral sense—in the sense that the percentage of dissenters is trifling. Others require a totally Catholic population in an absolute sense. In any case, the standard of judgment is quantitative.31

The quality of the Catholic population does not enter into the argument. That is, little if any attention is paid to the prevailing level of religious knowledge and practice, to the general educational and cultural level, to the level of political self-awareness—in a word, to the question whether laws are being framed for Catholic masses or genuine Catholic people, for an ignorant and apathetic Catholic multitude or for a Catholic body politic that is reasonably literate—religiously, politically, culturally. Moreover, in so far as this theory may appeal to the common good, the appeal takes the form of an abstract assumption—the assumption that whenever and wherever the population is Catholic the public advantage is inevitably served by legal establishment and legal intolerance. Catholic unity—so runs the argument—is the highest social good; therefore it follows that this method of preserving Catholic unity, by governmental coercion of dissenters, is both necessary and good, when it is possible.

Finally, the dominant characteristic of this theory is the manner in which it formulates the Catholic idea in the matter of the governmental care of religion. An enlarged content is ascribed to the ideal. It is not sufficient to say that the Catholic ideal is a society whose members profess their faith animo et moribus; whose manifold institutions are all permeated with the Christian spirit; whose public life includes duly occasional acts of public worship; whose government is obedient to all the traditional principles of rational and Christian constitutionalism; whose legal order exhibits a harmony between the divine law, natural and revealed, and the civil statutes in the crucial affairs that are mixti iuris—domestic society, education, socio-economic organization, and public morality. Even if all these elements were present, the situation would still not be ideal; for the ideal must include a special element of legal experience, the experience embodied in the twin institutions of establishment and intolerance. Unless Catholicism is established by law as the official religion of the state, unless all other religions are "exterminated" by law from public existence, the ideal has not been reached.

Establishment and intolerance are not ideals in a relative sense—

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in the sense that they serve the public utility in given circumstances of social and religious fact. They are ideals in an absolute sense. They are invested with an absoluteness of value that matches the absoluteness of the principle to which they make appeal—the principle of the exclusive rights of truth over error. Government is not to be intolerant to a greater or less degree because this particular measure of intolerance is a human imperative in accord with the full body of norms and rules that regulate human law. Government is to be intolerant because intolerance is a divine imperative which makes intolerant laws a religious ideal. Establishment and intolerance are not to be defended, at times and in given circumstances, because they are good law. They are always to be defended, in principle, because they are true dogma. They are not applications of principle; they are principles in themselves. The government that is not intolerant is not a Catholic government, ideally speaking. The state in which the legal premise of intolerance does not exist is not a Catholic state, ideally speaking.

If therefore, using this theory as the criterion, you would find the ideal Catholic state, do not look at contemporary Brazil, Ireland, Portugal, Bavaria, or the Rhineland provinces; or at the Austria of 1855, or at the Poland of 1925. In none of these Catholic countries are the abstract requirements of the Catholic ideal fulfilled. Look instead at the Kingdom of the Two Sicilies under Ferdinand I, at the Republic of Ecuador under Gabriel Garcia Moreno, at Italy under Mussolini, at Spain under Isabella II and under Generalissimo Franco. Only in these countries will you find the ultimate distinguishing work of the Catholic ideal—the legal establishment of Catholicism as the sole official religion of the state, and the legal exclusion of all other cults from public existence.32 Only in these countries, according to the theory under consideration, will you find the inherent and official intentions of the Church fulfilled to perfection. It is true that you may not find in these countries a Catholic people that intelligently and actively professes its public faith animo et moribus. You may even find a degree of religious dissension that erupts into assassination, as in the case of Moreno, or into a bloody civil war, as in the case of Spain. You certainly will fail to find the fulfillment of the Western Christian ideal of political life and government, which is certainly not dictatorship. No matter. You do find establishment and intolerance, and therefore you find the ideal Catholic state.

I repeat, I am here sharpening the argument. That there is an ideal of Christian Society professing itself as such, to which men in commu-

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nity are universally obliged, in virtue of a whole body of rational and revealed truth, is a proposition that I do not question.33 I am not questioning it, much less denying it.

The issue here being raised—indeed here being forced—concerns only the content of this transtemporal ideal. If it were simply a question of defending establishment and intolerance in situ, there could be no argument; for the Church has approved these institutions in situ. The argument begins when they are defended in abstracto, as inherently necessary to the ideal, which is fashioned antecedent to any consideration of historical situs. Then the question rises, does the Church so defend them? If, to speak concretely, it were simply a question of composing an apologia for contemporary Spain in terms of the full body of Catholic theological, ethical, jurisprudential, and political principles, again there would be no argument; for it is altogether legitimate to compose such an apologia. The argument begins when the apology for Spain is lifted into a loftier universe of discourse—the discourse of the universal Church; when it is elevated to a higher level of abstraction; when, in a word, an apologia for the Spain that exists is transformed into a definition of the Christian society that ought to be—a definition that pretends to be doctrinal, to appeal only to principle, to formulate the ideal, the norm, and the goal of all organized Christian political and legal effort.34 Then the question rises, is this passage from concrete apologia to abstract definition warranted by the requisite authority and argument?

Speaking more generally, if it were merely a matter of arguing that the twin institutions of establishment and intolerance were, or are, necessary and useful for the public advantage in the special religious, sociological, cultural, and political circumstances of the historic Catholic nation (the Ecuador of 1862, for instance), the argument would meet no challenge; for this is the manner of argument that Leo XIII would make—a complex, rounded argument that involves a quaestio facti. The difficulty begins when these institutions are extracted from their historical and sociological locus of implantation, and projected as metahistorical ideals; when in consequence it is asserted that their imposition is necessary whenever and wherever it is possible. Then the question rises, is this Leo XIII? Is this the tradition?

The Traditional View: Pius XII

The authority of Leo XIII cannot, I think, be claimed by the position outlined above in the naked form necessary to reveal its inner

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intentions (again I explicitly disavow any intention of attributing the position to any Catholic author, living or dead). Moreover, the argument made for this view does not follow the far more complicated and flexible contours of Leo XIII's argument. This point ought to be clear, if my lengthy exposition of his argument has been both clear and correct. However, the whole matter has been considerably clarified by the latest statement of the tradition, made by Pius XII on December 6, 1953, in a notable discourse to an audience of Italian Catholic jurists.35 The major question in the discourse was legal toleration of error and evil; but the principles outlined by the Pope are not without relevance to the question of legal establishment.

The problem explicitly raised by the Pope concerned "the practical living together of Catholic and non-Catholic communities" within an international society somehow juridically organized. Consequently, the question explicitly discussed was that of a "well-defined statute that would be valid for the entire territory of the individual sovereign states which are members of such a community of nations," a statute that would regulate the relations between government and the order of religion and morality. However, the Pope discusses these two related questions in terms of the traditional principles of the universal Church. It cannot therefore be successfully maintained that the principles of solution which he lays down are valid and applicable only and exclusively to the problem of toleration in the international community; that they are consequently irrelevant to the problem as it arises within individual nation-states or region-states. The doctrinal intentions of Pius XII were not thus restricted. His appeal is to universal principles, universally valid; valid therefore wherever and whenever the problem of toleration arises—anywhere on the face of the earth where there is government and where there are error and evil. This is in fact the initial outstanding significance of the discourse—that Pius XII confronts the problem in the full universality of its position; and in the face of it, thus confronted, he makes his statement of the tradition. His statement is in perfect continuity with the statement made by Leo XIII; obviously, both Popes were stating the tradition. However, Pius XII's statement marks a certain progress within the tradition.

The progress was occasioned and made necessary by the march of mankind's political history. This has always been the case when it is a matter of the Church's tradition with regard to the Church-State relationship. With no change in doctrine, but under development of doctrine, the Church must keep herself "related" to the facts of

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man's political life—whether they mark the decay of the imperium and the rise of the regnum and civitas; or whether, as is the case today, they mark the passing of the sovereign nation-state in the ancient modern sense (the adjectives are juxtaposed deliberately; the sovereignty of the modern state has become ancient to the point of anachronism), and the struggling emergence of a juridically organized international community.36 These political changes do not indeed change the doctrine of the Church; but they do "open" the problem—or reopen it, if you like—and in this sense they open or reopen the way to progress within the tradition.

Pius XII reveals his characteristic sense of the complexity of the problem. It ranks, he says, among the problems, "sufficiently difficult and complicated, which cannot be resolved with a simple yes or no." For instance, one may not brusquely ask: "Has a Catholic state the right to repress heresy? Answer—yes or no." The categories in which the question is asked, and in which the answer is demanded, are much too simple for the problem.

Leo XIII could indeed keep his problem relatively simple; for it was at bottom a simple problem—the issue of sectarian Liberalism within the historic Catholic nation. And since the doctrine and the intentions of the movement were quite simply wicked, Leo XIII could oppose to them a resoundingly simple No. Pius XII does not confront any such highly determinate adversary, within so tightly restricted a context, in an atmosphere so surcharged with polemic. His standpoint is that of the universal Church as it exists in the world of the nations as they presently fumble toward some manner of common family life. He confronts the international community, composed of peoples who are "divided into those who are Christian, those who are non-Christian, those who are religiously indifferent, or deliberately laicized, or even frankly atheistic." Consequently he confronts the condition of humanity itself, its tragic condition of error and ignorance, religious division and moral incoherence. The breadth of this view makes the problem exceedingly complex; but it also banishes all manner of particular polemic pressures and permits what was not permitted to Leo XIII—an altogether serene and balanced presentation of traditional principles. What is at stake is the common good of the universal Church, as well as the good of the Church within particular national contexts. Correlatively, what is at stake is the good of the common human life of the peoples of the world, as well as the good of individual peoples. The ground chosen is the highest possible.

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At the outset of his thought Pius XII fastens firmly onto a historical fact—what may rightly be called the twentieth-century fact—the hesitant emergence of a juridical community of nations. It is not simply a brute fact, from which nothing follows. It represents a political progress, indeed a moral progress, that corresponds to the intentions of nature. There is here "an ascent from the lower to the higher, that is to say, from a plurality of sovereign states to the highest unity," a unity that is within the designs of the Creator Himself. Consequently this kind of fact permits conclusions of a properly theoretical order. It leads to a "fundamental theoretical principle" that is decisive for political and legal action. The principle is thus phrased:

Within the limits of what is possible and licit, to promote that which assists unity or makes it more efficacious; to rule out that which would disturb unity; at times to put up with things that cannot be cleared away at the moment—things for the sake of whose removal the community of peoples must not be allowed to suffer shipwreck; for the reason that a higher good is expected from this community.

The breadth of Pius XII's problem enables him to rise to doctrinal perspectives in all their purity, and therefore to set at the center of his doctrine the principle which Leo XIII, as I have said, could not have made operative—the principle of "that unity which is called peace," the unity and peace which are man's highest temporal good37.

This is the tradition as stated by St. Thomas: "Therefore the chief concern of the ruler of a multitude is to insure the unity of peace." Moreover, with the restoration of this principle to its proper centrality as the guide of political and legal action, Pius XII's doctrine on human law shifts from the emphasis which Leo [X]III found polemically necessary, to the emphasis which is proper to the tradition itself when its statement is undisturbed. Leo XIII's emphasis fell upon the moral origins of human law; Pius XII's emphasis falls upon the political purposes of human law. That law ought to be reflective of the transcendental order of truth and justice as it exists in the mind of God; that law must be directive of the temporal community as it actually exists on earth—both these concepts are integral to the tradition, in Leo XIII as in Pius XII. But a choice of emphasis is possible; and Pius XII's is the more traditional choice, the choice dictated by the intrinsic necessities of doctrine rather than by the extrinsic necessities of polemic.

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In what concerns the general structure of his doctrine Pius XII exactly follows Leo XIII and the tradition. The structure is set by the distinction between Church and state; between the order of divine law and the order of human law; between the order of conscience as it confronts the demands of truth and right, and the order of government as it confronts the demands of the public advantage; between the order of theological judgment and the order of legal decision. These orders are to be kept distinct but not separated; they are to be related but not confused.

For the Church one norm of judgment is alone decisive: "the objective truth and the obligation of conscience toward what is objectively true and good." Therefore the Church is committed to "the unconditioned denial of everything that is religiously false and morally evil. In this regard there never has been and there is not now any vacillation on the part of the Church, or any compromises, either in theory or in fact." The echo of Leo XIII is clear. Still clearer is this almost verbal echo: "That which does not correspond to the truth and to the norm of morality has not, objectively, any right either to exist or to be propagated or to act." The quality of inner rightfulness is communicated to human action and utterance by their correspondence to objective norms of truth and justice. The basic questions of right and wrong, truth and error, are not left to arbitrary human answering. These questions have been answered by the law of God, natural and revealed. Man's part is to discover the answers, not to invent them. The ideas of "truth" and "right" are sacred; men may not tamper with their content or use them to cover their own wayward thoughts and wanton passions. This is pure Leo XIII, pure tradition.

No less traditional is Pius XII's teaching that, whereas the theological and moral judgments of the Church are controlled only by one norm, the legal decisions of the state are controlled by two. But here there is a difference between the two supreme teachers, in the sense that Pius XII adjusts more nicely the balance between the two norms of human law.

No less strongly than Leo XIII he insists that human law is subject to a moral norm: "Before all else it is important clearly to affirm that no human authority, no state, no community of states, whatever their religious character, can give a positive mandate or a positive authorization to teach or to do what would be contrary to religious truth or moral goodness." This is the doctrine of Libertas, that human law "may not give sanction to anything that is not contained in [the eter-

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nal law] as in the principle of the whole juridical order." Pius XII simply reaffirms the first principle of political morality, the central principle of Western constitutionalism, which limits the power of the state by subjecting it to the imperatives of the moral order.

However, within the context of his new and broader problematic Pius XII's attention is chiefly directed, as Leo XIII's was not, to the question of the positive empowerments and limitations of government, as these are defined in the light of the juristic norm which he has already laid down— the safeguard and promotion of the unity which is peace. His special question concerns the use of the coercive power of law against error and evil. Granted that government may not positively direct men to do or teach what is false and wrong, when and under what conditions may it or may it not forcibly inhibit men from such action or teaching? This is properly the jurist's question, and it is not an abstract question.

Pius XII states it with all clarity and concreteness: "Can it be that in determinate circumstances He [God] does not give to men any mandate, does not impose upon them any duty, does not even give them any right to restrain and repress what is erroneous and false?" This is a much more searching question than Leo XIII ever put. It goes directly and with all serenity to the heart of this difficult matter of the duties and rights of human government in this divided, sinful world. The answer is given with no less directness and serenity: "A glance at reality gives an affirmative answer." Yes, there are circumstances in which human authority has neither mandate nor duty nor right to use its coercive power against error and evil.

The "reality" which returns this affirmative answer is the reality of the world as it is—a world which is wholly under the omnipotent and wise governance of God, and yet a world in which "error and sin exist in ample measure; God rebukes them but He lets them exist." This is Leo XIII's argument, the traditional argument. But Pius XII draws out much more clearly than Leo XIII the conclusions that are implicit in it. There are two chief conclusions. The first bears upon a point of moral principle; the second, upon a point of political principle.

The first conclusion is this: "Therefore the affirmation ‘Religious and moral aberrations ought always to be inhibited, when inhibition is possible, because tolerance of them is in itself immoral,’ cannot be valid in its unconditioned absoluteness." In order to reveal its fallacy and to appreciate the concluding phrase, "in its unconditioned absoluteness," the affirmation here invalidated ought to be

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broken down into three propositions: (1) Toleration of evil is itself evil; (2) therefore it can only be justified as a lesser evil; (3) therefore it is immoral to tolerate evil when it is possible to suppress it (for in these circumstances the argument "from the lesser evil" does not hold).

None of these propositions are valid in their unconditioned absoluteness. Toleration of evil may be wisdom and virtue, as it is with God. It may not be simply a lesser evil but a means to a higher good, again as it is with God. The norm for coercive action against evil is not the "possibility" of such action. It is therefore false to assert, as a matter of absolute and unconditioned principle, that religious and moral aberrations ought always to be suppressed when it is possible to suppress them. God Himself does not adopt this norm of action. Neither does the Church: "With regard to . . . tolerance in determinate circumstances—tolerance even in cases in which it would be possible to proceed to repression—the Church has been led to act, and has acted, in accord with that [kind of] tolerance," throughout her history, "always for higher and more compelling motives." Pius XII clearly rejects the criterion of "possibility," proposed in the anonymous theory outlined above, as the norm for intolerant legal action. Whatever may have been the policy and practice of Catholic governments, so called, the doctrine and action of the universal Church stand against the idea that the Catholic thing is to be intolerant when possible, tolerant only when necessary.

Pius XII's second conclusion is this: "The duty of repressing moral and religious aberrations cannot therefore be an ultimate norm of action. It ought to be subordinated to higher and more general norms which in certain circumstances permit, and indeed even make it perhaps seem to be the better course, that error should not be inhibited, in order to promote a greater good." Here Pius XII correctly adjusts the balance between the moral and juristic norms of law.

Indeed the moral norm may never be violated by positive legal enforcement of what is evil. But when it is a question of deciding whether precepts of truth and right are to be transformed into compulsory rules of social behavior, and when it is a question of deciding whether error and evil are to be inhibited or not inhibited, it is the juristic norm that obtains the primacy. To say that the duty of repressing moral and religious aberrations is the ultimate norm of legal action is to misunderstand the purpose of government and the idea of law. It is, as it were, to turn things upside down. There are higher and more general norms which control the discharge of this duty. Indeed

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these norms in certain circumstances even cancel the duty itself and therefore deprive government of all right to legislate against religious or moral error. There are circumstances in which God, from whom all well-ordered authority ultimately flows, "does not give man any mandate, does not impose in any duty, does not even give him the right" to adopt intolerant legislation. In these circumstances government does not merely find its arm shortened; it is disarmed. It is not merely forbidden the exercise of jurisdiction; it is deprived of jurisdiction.

Here Pius XII goes a step beyond Leo XIII in clarity of doctrine. The reason for the progress is the consistent application of the traditional principle that the chief duty of the ruler, than which he has no higher duty, is to insure the unity which is called peace. The demands of social unity and peace, as they become concrete in determinate circumstances, are the highest and most general norm for the legislative action of government in what concerns the order of religion. By firmly asserting the primacy of this juristic norm Pius XII sets things right side up, so to speak. It is the traditional doctrine. It does indeed filter through the text of Leo XIII, but in an image of itself that is somewhat distorted by the prism of his polemic, which required such a heavy accent on the moral form of law. By reason of the great breadth and complete serenity of his perspectives Pius XII is able to let the accent fall where it more properly belongs.

This then is the nicely balanced structure of Pius XII's doctrine on the norms of human law as they bear upon the problem of tolerance and intolerance. This structure accounts for several noteworthy aspects of his doctrine.

Most striking is the emphasis on "circumstances," on the quaestio facti. Moreover, this question is presented with no shrinking from its breadth and complications. The jurist is given two sets of facts to consider.

First, there is the question of the religio-social facts of the situation that confronts him. And this situation itself is described as being twofold. There is the special situation within a particular national or regional community; and there is the wider situation within the international community. The jurist is first obliged to consider the facts of this twofold situation. He is then obliged to consider a second factual question: what will be the actual effect of the alternative courses of action—in the case, legal tolerance or intolerance—within this total situation? Here again both aspects of the situation command attention, and in due order. In his concern for the unity and

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peace of his own community this jurist may not blot out from his view the "fundamental theoretical principle" which is today supremely controlling—the unity and peace of the international community. Indeed, this latter is the "higher good," which he must consciously seek. His complex task is thus described:

In his decision he will let himself be guided by the damaging consequences which would result from tolerance [within his own state], as compared with those [other damaging consequences] which would be spared the community of states by the acceptance of the formula of tolerance; therefore [he will let himself be guided] by the good which, according to a wise prognosis, will flow to the international community as such, and indirectly to the state which is a member of it.

In consequence of this broad position of the quaestio facti, and in consequence too of the broad conception of the common good to which it leads, the Catholic jurist (or state) is forbidden all nationalistic narrowness, all isolation of national concerns from the higher concerns of the international community and the universal Church. The Catholic jurist (or state) is called upon to view the problem of tolerance vs. intolerance in the same perspectives in which the universal Church views it: "In individual cases the attitude of the Church is determined by the consideration of what will safeguard the bonum commune—on the one hand, the common good of the Church and of society within individual societies, and on the other hand, the bonum commune of the universal Church, of the reign of God over all the world," and the common good of the international community, wherein the reign of God is also to be established.

This broad definition of the common good, as the controlling juristic norm for the problem of toleration, is not to be found explicitly in Leo XIII; his problematic confined him explicitly to the nation-state. The broader definition marks a progress within the tradition. The facts of present-day political life, wherein the intentions of nature are revealed,38 have given new meaning to the traditional quaestio facti. In response, the traditional doctrine discloses its latent virtualities; it develops to meet the new demands.

A second accent falls on the autonomy of the jurist or the state in this matter of legal decision in so far as it involves the quaestio facti: "The Catholic statesman himself, before all else, will have to decide whether this condition is verified in the concrete case." The compe-

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tent authority on the question of fact is a lay authority. On his own view of the facts the layman will have to give a prudent answer to the question, which is the permissible legal course, the prudent political course, the better course all round—tolerance or intolerance? He will have to decide whether "the non-inhibition [of error and evil] can be justified in the interests of a higher and broader good." In affirming the autonomy of the lay authority of the state in matters of legal decision Pius XII is again fully in the tradition of Leo XIII, whose clarification of the traditional doctrine of the "two societies" had made this principle newly clear. Pius XII only applies the principle a bit more firmly to the matter of legal decisions that affect the relation of religion to the order of human law, that is, to the state.

The autonomy of the individual state is, of course, only relative. That is, it is subject to two limitations—one political, the other religious.

The political limitation derives from the fact that the international community exists (at least inchoatively) and that its common good is the higher good. In consequence, a limitation is imposed on the sovereignty of the individual state in its legal decisions. Pius XII indicates this limitation in his formulation of the probable international statute:

Within the confines of its own territory and for its own citizens each state will regulate religious and moral affairs by a law of its own. Nevertheless, in the whole territory of the community of states there will be permitted to the citizens of every member-state the exercise of their own ethical and religious beliefs and practices, in so far as these do not contravene the penal statutes of the state in which they reside.

The suggestion here seems to be that the writ of the international community should also run within the territories of all member-states. This tolerant writ, necessary and rightful within the determinate circumstances of the international community, would establish the "norm that the free exercise of a religious or moral belief and practice which has value in one of the member-states should not be inhibited by means of laws and coercive measures of state within the whole territory of the community." This norm of the international community would be likewise a norm within the individual states, in consequence of the obligatory concern that individual states must have for the higher good of the broader community.

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The second limitation, to be recognized by the Catholic jurist, is religious: "In what regards the religious and moral field he will also ask the judgment of the Church." Pius XII explicitly reserves this judgment to none other than the highest authority: "In such decisive questions which affect international life he alone is competent in the ultimate instance, to whom Christ has entrusted the guidance of the whole Church, the Roman Pontiff." Moreover, while reserving final judgment to the Holy See in the person of the Roman Pontiff, the Pope is at pains to make clear that he has nothing up his papal sleeve, as it were. It is not as if the Catholic jurist were to make his prudent judgment in the light of the given set of principles and norms, and then ask the judgment of the Church, only to find that the Church would alter his judgment in the light of some other hitherto unproduced principle. On the contrary: "For weighing pros and cons in the consideration of the quaestio facti there are no norms valid for the Church other than the norms which We have indicated as valid for the Catholic jurist and statesman, even in what concerns the ultimate and supreme judgment of the case."

In other words, the autonomy of the jurist or statesman is limited by the authority of the Church only in the sense that it is limited by the norms which Pius XII has just laid down in all their fullness. What the Church wants—all that the Church wants—is what these norms should be honestly applied by the jurist. The Pope does not reserve to himself the right to make the final legal decision for the jurist, or to substitute his own judgment for the jurist's judgment. The legal decision is squarely in the hands of the jurist.

But the Pope does reserve exclusively to himself the judgment as to what set of principles and norms the jurist is to use in coming to his legal decision. The jurist is not left to his own devices; nor is he to be guided by what are only received opinions39; nor is he to feel called upon to be more Catholic than the universal Church. Pius XII clearly tells the jurist three things, in effect: (1) that in matters of legal decision affecting the relation of religion to the order of law he, the jurist, is the competent lay authority; (2) that in reaching his decision he is to follow the traditional norms of the Church; (3) that he himself, the Roman Pontiff, has just stated these norms—all the norms there are; there are no others.

Explicit too in the whole Allocution is the assertion that its strongly structured doctrine presents the norms of the Church in their only correct and traditional impostazione. Here therefore a conclusion is permissible.

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In the anonymous theory sketched above legal intolerance was stated to be the "thesis"; legal tolerance, the "hypothesis." Will this manner of categorization stand in the light of Pius XII's doctrine? I should think not. The Allocution makes it clear that tolerance and intolerance are alternative modes of legal action, each of which must find its justification in terms of identically the same set of principles and norms. You would therefore more correctly say that both tolerance and intolerance are "hypotheses," subsumed under the one complex but unitary thesis. Each of the alternative hypotheses is an application of this unitary thesis to divergent circumstances. Both of them are legal decisions; neither of then is dogma. Both of them therefore must appeal for their validity to the same criterion. Each of them is valid if it represents a prudent answer to the papal quaestio facti, an answer given in the light of the moral and juristic norms of law, under due regard for the primacy of the latter norm. Intolerance may be good law; but so too may tolerance. Neither may claim to be ideal law in an absolute sense, but only in a relative sense; that is, each of them may claim to be ideal for the circumstances for which it was designed.

As legal decisions both tolerance and intolerance stand outside the category of "thesis"; for the thesis contains only general principles and universally valid norms. Within the ambit of the thesis you do not find legal intolerance performed as an ideal of legal experience, waiting only for circumstances in which the realization of this ideal may become possible. Within the thesis you do indeed find the principle of religious unity. You find, as an ideal, the Christian society which unitedly confesses its faith animo et moribus. This is the theological ideal; it is solely a question of religious principle. But the thesis itself does not automatically include the legal institution of intolerance as an ideal, even for the territory of a particular society which may exhibit religious unity. Before this institution can be validated a question of fact has to be resolved. The thesis itself does not answer such questions of fact; it simply presents the principles to be applied in answering them.

Pius XII's Allocution states the Catholic thesis; it does not canonize legal intolerance as an ideal. On the contrary, it suggests that you will find legal intolerance exactly where you will also find legal tolerance—at the end of a complex argument leading to a practical and prudential judgment. You will find both institutions outside the category of principle, inside the category of applications of principle. Therefore the Catholic doctrine is not disjunctive in the sense of the anonymous theory outlined above. It is disjunctive—indeed multi-

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junctive—only in the sense that the same set of norms may require diverse application in divergent sets of circumstances.

 

A UNITARY DOCTRINE

It would be pointless to argue the relative merits of the diverse applications—for instance, to argue the question, whether the constitutional law which governs 28 million Catholic Spaniards is "better law" than the constitutional law which governs 32 million Catholic Americans. The argument would be pointless because the situations are incommensurable. It would be like the famous drunken argument on the question, which is greater—St. Patrick or the Fourth of July? The more decisive thing is to know the right manner of argument for or against either of these legal decisions, for or against any legal decision affecting the relation of human law—that is, the state—to the order of religion.

This right manner of argument has been outlined by Pius XII. It is now possible for Catholic lay jurists—or, if you will, Catholic communities or Catholic peoples—anywhere in the world to begin with exactly the same set of principles and norms, and to argue the case for or against their regional or national legal decisions in terms of these same invariable principles and norms. They may reach different conclusions. For instance, the Spanish Catholic lay jurist may conclude to Article 6 of the Fuero de los españioles; the American Catholic lay jurist may conclude to the First Amendment to the Constitution of the U.S. But what matters is the identity of the norms of judgment. The point is that the American and the Spaniard would both be arguing from a unitary premise, complex in its content, which would be mutually shared as the doctrine of the universal Church. They would both be using a single complex standard and measure of judgment on the legitimacy, necessity, and utility of legal decisions for the public advantage. And at the end of their arguments each would be entitled to pronounce on his own legal decision substantially the same verdict: "This is good law—necessary and useful for the public advantage. This is not ideal law in any absolute sense. This is only man-made law; it is not God-given dogma."

The consolidation of Catholic doctrine in this unitary form would be a contribution to the comity of nations as well as to the unity of Catholic peoples throughout the world. The consolidation would be completed if Catholic doctrine on legal establishment, as the juridical

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premise of intolerance, were to be given the same configuration that has already been given to the Catholic doctrine on intolerance.

Pius XII did not explicitly touch the question of establishment in its classic modern legal sense.40 Speaking of Concordats, he says: "It is possible that in the Concordat the Church and the state may proclaim their common religious conviction." But this is not establishment in the sense, say, of the 1851 Concordat with Spain. As made by governmental officials, the proclamation that a particular national society shares the faith of the universal Church has only the value of its own truth: is this official utterance truly representative of the actual public faith of the people in whose name it is made? This manner of official utterance is indeed a witness to a twofold truth—to the social truth that the faith of the people is the Catholic faith, and to the religious truth that the Catholic faith of the people is the true faith. But this is only witness, not law. It has no juridical consequences in the form of legal intolerance of other religions. It does not create, in Pius XII's formula, a "constitutional situation." It does not of itself dictate the "extermination" from public existence of confessional groups who would say that the religious and social witness given by government did not represent their convictions. Consequently this is not the classic canonico-legal concept of establishment with which I am here concerned.

Pius XII also condemns separationism: "The Church cannot approve the complete separation of the two powers as a matter of principle, or as a thesis." Here again he is in the tradition of Leo XIII, defending the same principle, rejecting the contrary principle. But the context is significant. It has to do with Concordats, which are, he says, "an expression of cooperation between Church and state." The "two powers" are the spiritual authority of the universal Church, represented by the Holy See, and the political authority within a given regional or national society. Pius XII here preserves the perspectives of the entire Allocution, which are those of the universal Church as it confronts the individual states that are actual or potential members of an international community.

Therefore the "separation" here explicitly condemned is a separation between the Holy See and the multiple sovereign powers within the international community. Non-cooperation with the Holy See is condemned when it is proposed as a principle or thesis; when it is asserted therefore that the supreme authority of the universal Church is irrelevant, in principle, to the common life of the international community and its member-states; when it is asserted that the

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Holy See has, in principle, neither the right nor the duty to take measures, in concert with authorities of state, to safeguard the religious interests of Catholic communities everywhere; when it is asserted that authorities of state have in principle, neither the duty nor the right to lend their cooperation to such measures. The basic principle at stake, with Pius XII as with Leo XIII, is cooperation between Church and state; it is the Leonine principle of concordia.

But the context of its new assertion is not precisely Leonine. Pius XII is not explicitly concerned, as Leo XIII chiefly was, with collaboration between the religious authorities and the political powers within the nation-state. Indeed his concern is that these intramural collaborative measures should always be subject to the higher judgment of the Holy See to which, in its incumbent, he has explicitly reserved the final competence in matters affecting international life—and today all forms of intramural cooperation do affect international life.

Moreover, in a carefully phrased passage Pius XII makes it clear that not all the legal provisions of a Concordat, though they may be necessary or useful within a particular national context, receive with equal force the approval of the universal Church. When the Holy See consents to a Concordat, it sincerely consents to the whole Concordat. "But with the mutual acknowledgment of both of the contracting parties its intimate meaning admits of degrees. It can signify an express approval. But it can also mean a simple tolerance, in accord with the two principles which are the norm for the living-together of the Church and of her faithful with the powers and with men of another belief."

To put the same thing in other words, cooperation between Church and state admits of degrees, according to circumstances. Certain forms of it are essential—primarily, as the text goes on, the assurance of the freedom of the Church. Other forms of it—legal protection, financial subsidy, etc.—may be justified, or perhaps only tolerated, in the light of special circumstances. But there is no warrant for generalizing these latter forms of cooperation into an ideal. The expertise of the trained jurist comes into play. But in the final instance, if any generalizations are to be made, they may be made only by the ultimately competent authority, the Roman Pontiff himself.

Pius XII asserts the principle of cooperation in its highest terms—in terms of the supreme duty and right of the Holy See to insure that the essential purpose of the Church is fulfilled in all forms of co-

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operation between Church and state, intranational and international. He clearly states this purpose in stating the purpose of the instruments that are contractual acts of the Holy See: "Concordats therefore ought to assure to the Church a stable condition of right and of fact within the state with which they are concluded, and to guarantee to the Church full independence in the fulfillment of her divine mission." There is here the Leonine accent on the freedom of the Church in the full meaning of that traditional formula. The assurance of that freedom, by whatever measures are appropriate in the circumstances, is the essential cooperation that the political powers owe to the Church as a community and as an authority.

Does this whole doctrine lead to the conclusion, adopted by the anonymous theory outlined above, that legal establishment in the classic modern sense, with its juridical corollary of intolerance, is the ideal in an absolute sense—a matter of principle that requires realization whenever and wherever possible? Does Pius XII's specially accented condemnation of "complete separation of the two powers" impose this conclusion? To say that it does would certainly be to go beyond the text itself. What is more, this conclusion would seem to be out of harmony with the text. The more harmonious interpretation would construct a theory of establishment in the classic legal sense on lines parallel with the lines of Pius XII's doctrine on intolerance.

Legal establishment in this narrow sense, like intolerance, is a matter of human law. It is therefore to be judged "in accord with the two principles which are the norm for the living-together of the Church and her faithful with the political powers and with men of another belief." Legal establishment in this sense, like intolerance, is not "thesis," not an absolute unconditioned ideal. Its imposition is not justified by the criterion of "possibility." The judgment on its validity is not instant, rechts von oben; it must wait upon a prudent answer to the quaestio facti.

And the quaestio facti, in Pius XII's position of it, is not put thus: "Is there or is there not in this territory a Catholic majority—a Catholic unity, relatively or morally or absolutely speaking?" Rather the question of fact is put thus: "Is this legal institution necessary or useful for the common good—both of Church and state within a particular society, and also of the universal Church and the international community? What does a wise prognosis reveal with regard to its probable effects, good and bad, within a particular society, as compared with its effects upon the unity and peace which is the higher good, the unity and peace of the international community?"

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This view of legal establishment in the narrow sense is a prolongation, rather than an interpretation, of Pius XII's text. But the prolongation is, I submit, harmonious with the doctrine of the text. If therefore the full Catholic doctrine on establishment and intolerance were consolidated in this form, the constitution of a unitary Catholic position, permitting a variety of applications, would be complete.


NOTES

(1) Editor's Note: The galley pages, with editorial changes by Murray, for this article are to be found in Lauinger Library, Special Collections, Murray Archives, file number 7–536. Pagination here according to reprint in Religious Liberty: Catholic Struggles with Pluralism, edited by J. Leon Hooper S.J. (Louisville, KY: Westminster/John Knox), 49–125.

(2) Leo XIII uses the formula, "religion of the state," only once; it appears in a letter to the Cardinal Vicar of Rome (August 23, 1900) on Protestant propaganda in Rome, which is directed against "that religion which has been declared the religion of the state" (Acta Leonis XIII, Bonne Presse edition [Bayard: Paris. s.d.], 6, 144). The formula has canonical standing in a dozen or more Concordats from the days of Pius VII to 1929. The strict legal meaning which I adopt here, and shall return to later, is the meaning attributed to the formula by Pius XI in a comment on the Lateran pacts. It is to be understood, he says, "that according to the Statutes and Treaties the Catholic religion and it alone is the religion of the state, with the logical and juridical consequences of such a situation of constitutional law, especially in respect of propaganda" (Letter to Cardinal Gasparri, May 30, 1919; Lo Grasso, Ecclesia et status: De mutuis officiis et iuribus fontes selecti [Romae, apud aedes Universitatis Gregorianae, 1939], pp. 326–27). The essence of the matter is that establishment is an act of legislation on the part of government, which decrees that there is only one official public religion; whence it follows that the force of law is to be used to exclude all other confessions from public existence and activity. This is establishment in the proper legal sense; it is inherently related to intolerance as premise to conclusion. There are other milder, diminished concepts, from which no intolerant consequences flow, at least not in fact. But I shall be concerned only with the strict classic legal concept. It seems to be a modern concept. Whether it has medieval antecedents is a dubious question. Generally speaking, in earlier medieval practice and in later medieval theory it was rather the Church which established the state, i.e., the political power and the public law—whatever there was in the way of public law. The notion of the political power establishing the Church seems to be related to modern concepts of legal sovereignty, as they appeared on the European Continent.

(3) Editor's Note: This notion of the "outlaw conscience" permeated Murray's analysis of the problems that Leo XIII faced. For Murray's first treatment of conscience and law, see 1945b, "Freedom of Religion, I: The Ethical Problem," pp. 244ff. For its first appearance in the Leonine series, see 1952a, "The Church and Totalitarian Democracy," pp. 553–55—Ed.

(4) I consistently use the term "state" to designate the order of human law and of governmental acts—administrative, judicial, police—whereby the living action which is public order is established and sustained. The term "society" has a wider meaning. Editor's Note: For Murray's four-part division of social entities, see 1951b, "The Problem of the 'Religion of the State,'" Note 6, pp. 330–32.

(5) Editor's Note: Murray had earlier developed this monist reading of the Third Republic in 1953b, "Leo XIII on Church and State: The General Structure of the Controversy," and 1953c, "Leo XIII: Separation of Church and State." Monism came in two varieties, regalism and hierocratism, depending on whether the state or the church attempted to reduce the social order to a monism. By 1948 Murray had positioned John of Paris as an opponent of both forms of monism (1949b, "Contemporary Orientations of Catholic") and by 1954 had reinterpreted all of church/state history as temptations to monism (1954d, "On the Structure of the Church-State Problem."

(6) Editor's Note: Here and two other places in the galleys Murray edited out the word "state" and substituted the word "society." In all three instances, Murray's deepening sense that the principal target of the church's temporal concern is society as a moral reality, not the state, called for the substitution. Here, in the first and third principles, Murray has taken a problem that Leo described in terms of church and state and redefined the interaction to be between church and society, what Murray described as a "nicety" that Leo did not always observe.

(7) The duty of social worship binds human societies no matter what may be the form of their political regime—monarchic, democratic, dictatorial, etc. It would be false to say that this duty is not binding on a society organized of democratic bases.

(8) I am not concerned here with civil enforcement of a "Sunday rest." This is a matter that touches on the public order. Even here, strictly speaking, government does not enforce a religious duty. It simply creates the conditions of public order wherein the performance of the religious duty is facilitated.

(9) I also assume that there would be no warrant in Catholic doctrine for the famous Elizabethan "Bloody Question"; cf. Christopher Devlin, "The Failure of the English Inquisition," Month, Feb., 1955, pp. 101–9.

(10) See 1951b, "The Problem of `The Religion of the State,'" pp 342–43, note 13—Ed.

(11) Whether the Christian ideal also includes, as elements of the ideal in an absolute sense, the legal experience enshrined in the institutions of legal establishment and legal intolerance is a question later to be discussed. Other elements of the ideal will also appear later, notably the constitutional ideal of a society structured in accord with the distinction between Church and state and their necessary harmony of action.

(12) Editor's Note: Quaestiones juris and quaestiones facti are Pius XII's terms, which Murray adopts. At face value they resemble Murray's notions of theory and practical judgment, respectively. In this scenario, Pius XII develops a theory, quaestio juris (a set of principles), the laity apply them. Murray will equate quaestiones facti and lay practical judgment later on (p. 108–12). Here, under the label of quaestiones facti, Murray also appears to give the interpretation of the overall moral content of historical civil orders to the pontiff. But the overall moral content of the Anglo-American public philosophical tradition is precisely the moral content that is under contention. Murray claimed that it developed independently of the church, under the inspiration of non-Catholics, much less non-clerics. Here Murray is appealing to papal authority to back up his reading of the best of Western political development. The inadequacies of his earlier practical reasoning/theoretical reasoning distinction show through when applied to cultural contents that attain development in historical societies.

(13) Editor's Note: Another substitution of "society" for the galley term "state." See note 6 above.

(14) Editor's Note: Murray substituted this term "divine" for the term "Christian" in the galleys, suggesting that this separation was contrary to natural law theism as it was opposed to Catholic law.

(15) Editor's Note: Murray will later give a general description of these res mixti (matters over which civil society and the church share jurisdiction). Earlier he had listed the following:

. . . the husband-wife relationship, the parent-child relationship (including education), the political obligation, the human dignity of the worker, the equality of men as all equally in the image of God, the moral values inherent in economic life, the works of charity and justice which are the native expression of the human and Christian spirit, the patrimony of ideas which are the foundation of human society—the ideas of law, freedom, justice, property, moral obligation, civic obedience, legitimate rule, etc., etc. There is also the thing, sacred in its destination, whereby the Church occupies ground in this world, namely, her legitimate property" (1953c, 209).

These lists, of course, are rather comprehensive. They constitute the res sacra of human existence over which the natural order and the revealed order exercise authority. This res mixti exists because (1) the natural order has in its own right a spiritual or sacral dimension (the orientations toward the divine that built into human nature) and (2) the person's eternal salvation (within the order of redemption) is in part dependent on behavior in that natural order.

(16) Editor's Note: "Regalistic" refers to the civil power's attempt to destroy the dualistic structure of society by subjugating the religious order to itself. It is a type of "monism," the other type, coming from the church side, Murray calls "hierocratic." See note 5.

(17) Editor's Note: Murray maintained that the public educational system in the United States was not solely a creature of the state or government. Rather, it was a forum over which the three institutions mentioned here shared jurisdiction. For his argument see 1949d, "Law or Prepossessions"; chapter 6, "Is It Justice?: The School Question Today"; 1962b, "Federal Aid to Church Related Schools."

(18) Editor's Note: See 1952a, "The Church and Totalitarian Democracy," for a lengthier description of the conspiracy that Leo XIII thought he faced.

(19) Editor's Note: Murray's development of the direct/indirect distinction grew out of the question of the means that are proper to civil society and to the church (See 1948h , "St. Robert Bellarmine on the Indirect Power" and 1949b, "Contemporary Orientations of Catholic Thought."

(20) Editor's Note: Murray had tried to draw such a line in response to Pius XII's call for all people of good will to participate in post-World War II reconstruction. See: 1943b, "Current Theology: Intercredal Co-operation: Its Theory and Its Organization," 1944c, "Toward a Theology for the Layman: The Pedagogical Problem," and 1944d, "Toward a Theology for the Layman: The Problem of its Finality."

(21) Editor's Note: See 1953d, "Leo XIII: Two Concepts of Government." There Murray isolated a social order that Leo XIII recognized as possessing its own autonomy vis-à-vis the political order. He then moved on in 1954b, "Leo XIII: Two Concepts of Government: Government and the Order of Culture" to find why Leo XIII allowed as much freedom as possible in the economic order, but not in those of culture, communications, education, and religion.

(22) Editor's Note: A year after this was written, Murray developed an argument on the use of civil coercion in the support of public morality, focused on the censorship issue. That article (1956f, "Questions of Striking a Right Balance: Literature and Censorship" then became Chapter 7: "Should There Be a Law" of WHTT, pp. 155–74. The use of that argument against Catholics involved in a censorship campaigns led to 1956a, "The Bad Arguments Intelligent Men Make." For Murray's 1960 comments on the limits of civil law, see chapter 12, "The Doctrine is Dead: the Problem of the Moral Vacuum," WHTT, pp. 275–94.

(23) Fritz Tillmann, Handbuch der katholischen Sittenlehre, Vol. 4, Part 2: Die Verwirklichung der Nachfolge Christi: Die Pflichten gegen such selbst und gegen den Nächslen, pp. 441–42.

(24) Joseph Schmidlin, Papstgeschicte der neuesten Zeit, Vol. 2: Pius IX und Leo XIII (1846–1903), p. 356.

(25) I do not think I have myself ever made this generalization consciously and advertently; if I have ever given the impression of making it, I wish here to correct the impression. Certainly I do not erect the American fact of a religiously pluralist society into a principle, as if somehow society ought to be religiously pluralist. Nor do I erect the American constitutional law which deals with this fact into an ideal in some absolute sense. I have indeed maintained, and do maintain, that the First Amendment, within the American religious, political, and social situation, can be defended in principle—as will later appear, in terms of the two principles which Pius XII lays down as normative. But this is not to make a dogma out of American law, to transform a law that is good in situ into a principle that would be valid universim. Nor do I argue that full religious liberty ought to obtain within particular societies simply because they are democratically organized. Political forms do not alter theological or ethical principles, or invalidate the norms of human law that derive from traditional legal philosophy. Finally, I do not hold that the freedom of the Church ceases to be in principle a privileged freedom, simply because a democratic form of government obtains. Nor do I say that a general guarantee of freedom of religion is the absolutely sufficient and ideal way to guarantee the freedom of the Church. I do not hold that the case for American constitutional law—"no establishment" and "no intolerance"— can be legitimately made simply on the grounds that the U.S. is a democracy in the Anglo-American tradition. Anymore than I hold that the case for Spanish constitutional law—establishment and intolerance—can be made simply on the ground that a manner of religious unity obtains in Spain and makes possible these institutions. No such simplism of argument is valid. This question will recur when we deal with Pius XII's two principles that are normative in this matter.

(26) Law, says Fr. Gilby in dependence on St. Thomas, is an "act of art about contingent material" (Between Community and Society (London: Longmans, 1953), p. 286. The contingency of the material is decisive for the art.

(27) Editor's Note: This (almost proof-text) appeal to Leo XIII and the scriptural source behind it is new to Murray. He will appeal directly to the relevant scriptural texts in the documents written during his silencing (1958b, "Church and State: The Structure of the Argument," and 1959c, "Unica Status Religio," as well as in "The Problem of Religious Freedom.")

(28) Editor's Note: Cf. "Leo XIII on Church and State: The General Structure of the Controversy," Theological Studies 14 (1953), 5–6.

(29) R. W. and A. J. Carlyle, A History of Medieval Political Theory in the West, Vol. 6: Political Theory from 1300 to 1600, p. 511.

(30) Editor's Note: On March 2, 1953, Alfredo Cardinal Ottaviani delivered what was thought to be a repudiation of Murray's church/state position; see Ottaviani, "Church and State: Some Present Problems in Light of the Teaching of Pope Pius XII," The American Ecclesiastical Review 128 (May 1943): 321–34. On December 6, 1953, Pius XII delivered an address that Murray at least considered a repudiation of Ottaviani; see Pius XII, "Ci riesce: A Discourse to the National Convention of Italian Catholic Jurists. Official Vatican Press Office English Translation," American Ecclesiastical Review 130 (February, 1954): 129–38. On March 25, 1954, Murray delivered an address at Catholic University of America that dealt with both talks. Much of the following is contained in the notes of that last talk. For a discussion of these events, see Donald E. Pelotte, John Courtney Murray: Theologian in Conflict (New York: Paulist Press, 1976), pp. 37–54.

(31) Editor's Note: For Murray's earlier discussion of the Catholic majority argument, along with his beginning understanding of a Catholic people, see 1951b, "The Problem of `The Religion of the State,'" pp. 349–52.

(32) These are the only four countries in which by concordatary law a constitutional situation was created within which the Catholic religion was established as the single (sola, unica) "religion of the state," with the express added proviso that all other cults are excluded ("con exclusion de cualquier otro culto," as the 1851 Concordat with Isabella II puts it). In other Concordats the formula, "religio rei publicae," or some equivalent, appears: with Guatemala (1852), Costa Rica (1852), Honduras (1861), Nicaragua (1861), San Salvador (1862), Venezuela (1862), Colombia (1887), Serbia (1914); but the complementary formula, "exclusis aliis," or its equivalents, does not appear. The texts may be found in A. Mercati, Raccolta di concordati in materie eclesiastiche tra la Santa Sede e la autorità civili (Roma, 1919). The full text of the 1862 Concordat with Ecuador is given in English in S. Z. Ehler and J. B. Morrall, Church and State through the Centuries (London: Burns and Oates, 1954), pp. 273–80. In more recent Concordats, beginning with Pius XI, the initial provisions customarily deal, in one or other way, only with the freedom of the Church. It would be true to say that in latter years the "union" of Church and state chiefly envisaged in Concordats is a matter of juridical and diplomatic relations between governments and the Holy See.

(33) Editor's Note: The first part of this sentence, as it appeared in the galleys, read: "That there is an ideal of the Catholic confessional state, professing itself as such, to which organized political society is universally obliged." Here is another example of Murray's deepening control over the society/state distinction.

(34) All Catholics assert that the religious unity of the peoples of the world is the object of the will of God and the prayer of Christ: "Ut omnes unum sint." This ideal is qualified only by the mystery of the divine predestining decree. There are the profound words of our Lord Himself: "Do you think I have come to bring peace on earth? No, believe me, I have come to bring dissension" (Lk 12:51). Unity is the ideal; dissension is the actual condition of mankind—a condition that is not simply brute fact but theological fact, inasmuch as it is related to the mystery of predestination. The question that is not mysterious but merely troublesome concerns the actual religious unity of the historic "Catholic nation," as it has existed since the Revolution or even before. P. Guerrero, S.J., has thrown some light on this question in a discussion of Spanish fundamental law, which supposes, he says, the Catholic unity of Spain. His argument, briefly, is that you do not find in Spain a plurality of religions; what you find is a plurality of attitudes toward Catholicism, ranging from extreme fervor to extreme hostility. He distinguishes four kinds of "Catholics": "There are the good Catholics, more or less fervent. There are the sincere Catholics, who do not, however, practice, by reason of dissipation, carelessness, or enslavement to the passions. There are those who have been baptized as infants and have received the mark of some one or other contact with the Church; but who thenceforth have continually lived without the least spiritual culture, in absolute religious ignorance, to the point where all concern for the transcendental has more or less died in them, even though they have never conceived sentiments or ideas positively hostile to religion, or at least have not fundamentally assimilated such sentiments. Finally, there are those who at bottom (en el fondo) believe, because at one time in the past they had explicitly believed, and as a matter of fact have not consciously denied their faith; but by reason of their alienation from the Church, whose influence is lost on them for various reasons, and by reason of their subjection to factors of anti-Catholic influence which have inspired in them both adverse prejudices of a cultural or social kind and also diverse political and economic interests, they not only do not practice but even make war on the Church in general and especially on the clergy." This fourth class of anti-Catholic "Catholics," the author says, made the Civil War. The third and fourth classes are "those who most need the tutelage of a regime which would help to create the conditions of ideological health, Catholic culture, and social justice in which they might fully develop the seeds of faith and Catholic life which they bear in the depths of their souls because these seeds were once sown there and have never been eradicated" (Razon y fe 148 [1953], nn. 666–67, pp. 89). This is an honest argument; it is even reminiscent of the realism of Leo XIII. But what has it got to do with "ideals" in the absolute sense? Governmental tutelage that is "needed" may be justified by the need. Is it therefore to be erected into a universally valid theological ideal? It may be that in Spain government will be a power of salvation unto those who do not believe—except en el fondo. Time will tell. But is this a theological principle? P. Guerrero elsewhere abandons the plane of apologia, on which the above argument moves and has its validity, and soars to the heights of the theological ideal. We Spaniards, he says, "do not assert that our regime is a practical and viable ideal for all peoples; we only say that it is a theological ideal for everybody, inasmuch as God wills all nations to be Catholic and to be governed en catótico" (ibid., 149 [1954], n. 675, p. 330). "Only" this, indeed. And who has established it as God's will and as a theological ideal that a Catholic community should be divided into the above four classes, in such wise as to make necessary an extensive governmental tutelage of ignorant and hostile Catholics? And who has proved that this manner of tutelage, because it is necessary in concrete circumstances, is therefore itself a theological ideal? This is what I mean by the passage from the plane of apologia to the plane of theoretical construction, pure principle, from the contingent necessities of history to the inherent demands of principle.

(35) Editor's Note: The text of Murray's galleys offered a footnote number here and on page 107 (note 37). However, as the original editor of these galleys penciled in the margins, the galley note page lacked a content for both numbers. For Pius XII's talk to the jurists, see note 30, above.

(36) Editor's Note: Murray's first venture into problems of the international common good was spurred by Pius XII's to "all men of good will" to participate in post-World War II reconstruction. From that starting point, he then had to address the question of lay autonomy and spirituality (as suggested in note 19, 20) and then into the present issue of civil religious freedom. For the reconstruction problem, see 1944a, "The Juridical Organization of the International Community" and 1944b, "The Pattern for Peace and the Papal Peace Program."

(37) Editor's Note: The galleys offered a note but no content here. See note 35.

(38) Editor's Note: "Intention of nature" is Murray's terminology for a principle that he considers derived from natural law or human nature, now understood to be capable of development through time, i.e., to be contingent, not absolute. Most of Murray's explanation of the developments of natural law occur in his discussions of American constitutionalism (see, for example, chapters 1, 2, and 9 of WHTT). For an early treatment of Anglo-American political philosophy as the arena in which these intentions were developed, see 1951b, "The Problem of 'The Religion of the State,'" pp. 335–36.

(39)Editor's Note: Murray's term "received opinion," used here and elsewhere in these articles, seems to be what is called a theological note. Theological notes define the degree of theological certainty that attaches to particular theological claims. For Murray to claim that, say, Ottaviani's doctrine on establish is merely a received opinion is to admit that a majority of theologians hold it to be in line with more essential aspects of Catholic faith. But it is only that, an opinion of theologians, not a matter of faith. For a listing of the various theological notes and a discussion of the degrees of certainty that attaches to each, see Dionne, 1987, "Theological Notes," pp. 23–25, "Notes, Theological" The Catholic Encyclopedia; and "Theological Notes," Encyclopedia of Theology, ed. Karl Rahner (New York: Seabury Press, 1975), pp. 1678–85.

(40) From this point on, Murray attempts to dismantle the claim that at least establishment of Catholicism as the religion of the state remains a Catholic "ideal." Again, the canonists in Murray's view ran two distinct arguments, one that concluded to establishment and another that concluded to intolerance. I discuss the fate of these two arguments in section IV of the general introduction.

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