Works By John Courtney Murray, S.J.

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This Matter of Religious Freedom

JOHN COURTNEY MURRAY, S. J.

There has been considerable speculation about the reasons for the postponement of a doctrinal decision on religious freedom at the last session of the Council. (It provoked the famous "Day of Wrath," November 19.) The question is not, of course, the classical one: "Who done it?" This question is probably unanswerable, as often happens in Rome. The real question concerns the reasons, motives and feelings that lay behind the doing. It can be answered at least up to a point. First, however, it is necessary to give a brief sketch of the contents—the theme, methodology and argument—of the third draft Declaration on Religious Freedom submitted at the last session.

The Declaration made a simple and straightforward affirmation, namely, that coercion in religious matters—worship, observance, practice, witness—is, in principle, to be repudiated as offensive to the dignity of man. Primarily in view was legal coercion exercised by government; also in view were other forms of compulsion, direct or indirect, brought to bear by institutions or forces within society. In positive terms, the Declaration affirmed the free exercise of religion in society to be a basic human right that, in any society pretending to be well-ordered, should be furnished with a juridical guarantee so as to become a civil or constitutional right. Religious freedom, therefore, was clearly stated to be a juridical notion. Moreover, freedom here has the sense of "freedom from." It is an immunity in a twofold sense. First, no man is to be forcibly constrained to act against his conscience. Second, no man is to be forcibly restrained from acting according to his conscience.

From the historical point of view, religious freedom in the sense of immunity from coercive constraints came to be recognized as a human right even during the post-Reformation era of confessional absolutism, as it is called. The principle was gradually established that even the absolutist prince may not compel a man to act against his conscience or punish him for reasons of conscience. The doctrine of religious freedom as an immunity from coercive restraints was, however, first effectively proclaimed in the First Amendment to the Constitution of the United States. It was considered to be an integral element of the doctrine of limited constitutional government. The Declaration affirmed religious freedom in both of these senses. The affirmation was doctrinal.

At the same time, the Declaration recognized that religious freedom, like other human and civil freedoms, is exercised within society and may therefore be subject to limitation. Two principles of limitation were stated. The first was the general moral principle of personal responsibility, which requires that all civil rights be exercised with a sense of responsibility toward society and its common good, toward the state and its just laws and authority, and toward one's fellow men, who are equally persons and citizens: The second principle was that the exercise of religious freedom may in particular cases be subject to restraint by state intervention. As the criterion for this intervention, the Declaration posits the traditional jurisprudential norm, the necessities of the public order.

The public order is that limited segment of the common good which is committed to the state to be protected and maintained by the coercive force that is available to the state—the force of law and of administrative or police action. The public order thus comprises a threefold good—the political good, which is the public peace; the moral good, which is proper custody of public morality as determined by minimal and generally accepted standards; and the juridical good, which is harmony among citizens in the exercise of their civil rights. By this criterion, the exercise of religion is to be free unless, in some case, it seriously disturbs the public peace, violates public morality or results in infringement of the rights of others. The possibility of abuse of this broad criterion was obviated, as far as possible, by the inclusion in the Declaration of the basic principle of the free society, namely, that there is to be as much freedom as possible, and only as much restriction as necessary.

Furthermore, the Declaration articulates the concept of religious freedom in its corporate sense, in its application to religious communities, the family, and voluntary associations for various purposes. In its content, this corporate concept exhibited substantial agreement with the concept elaborated in official statements of the World Council of Churches. In particular, the Declaration recognized the right of religious communities to immunity from coercive interference, both in the conduct of their own internal affairs and in the bearing of public witness to their faith.

In accord with its basic premise, namely, that religious freedom is a juridical notion; the first section of the Declaration evolves and affirms the concept from the standpoint of reason and justice. In the second part, it affirms the harmony between the contemporary juridical notion of religious freedom and the revealed doctrine of the Church. Two doctrines are immediately relevant: 1) the freedom of the Church, both as a spiritual authority and as a spiritual community in its own right, and 2) the necessary freedom of the act of Christian faith. Thereafter, a brief section seeks to uncover the roots of religious freedom in the inspired words of God, the Scriptures.

The Declaration concludes with a pastoral exhortation to the faithful. It reminds them both of their duty of fidelity to Christian truth in its integrity and also of their duty of respect for human freedom in the pursuit and embrace of religious truth. The final paragraph is addressed to men and governments at large; it urges the rightness, value and necessity of religious freedom in the world of today.

The method followed by the Declaration in approaching its subject is governed by historical consciousness. The starting point is not abstract or ideological, but factual and historical. The initial appeal is to the fact that today man is growing more and more conscious of his own dignity, personal and civil. The Declaration does not lay as its premise the abstract truth of human dignity and then undertake to deduce from it the affirmation of religious freedom as a human right. In the general matter of human rights, this procedure is both logically perilous and also unconvincing. The truth of human dignity is as old as Christianity, and in a sense, even older. The new thing today, and the thing that matters for the argument, is the newly common human consciousness of this truth. Glenn Tinder, in his recent and remarkable book, The Crisis of Political Imagination, rightly asserts that mankind has reached a historical climax. Today,

the free and transcendent character of the person has dawned more fully in the civilized consciousness than ever before in history. During approximately the past two thousand years, the irreducible reality and the final value of each individual have been among the fundamental premises of western civilization. But it has taken a very long time for a. deep and widespread awareness of these principles to develop. Man was sanctified in myth and thought. But in his social relations he was often openly and deliberately degraded.

Given, today, man's new consciousness of his dignity, this contradiction is no longer tolerable. Man demands civil liberties that he may lead in society a life worthy of a man. And this demand for freedom from coercion is made with special force in what concerns religion. Hence it is that a juridical guarantee of religious freedom is contained in the constitutions of all civilized states today.

This approach to the subject from the standpoint of historical consciousness has three major advantages. It avoids the fallacy of a false "objectivism," as if truth could somehow be divorced from the possession of truth. It also avoids the pragmatist and positivist fallacy, which would regard today's demand for religious freedom as no more than a brute fact in the face of which one must simply give way. On the contrary, the Declaration accepts the present-day emergence of the human self into the clear light of consciousness as the term of a genuine intellectual and moral progress in man's understanding of his nature. The consequent demand for religious freedom therefore appears as an exigency of man's own true nature, as the truth about man's nature has historically penetrated into consciousness. Hence the Declaration can affirm the validity of the demand—the validity of religious freedom as a human right of man today. No shadow of opportunism or expediency clouds this argument. It frankly recognizes that progress has taken place in the understanding of an ancient truth, in itself and in its implications for social and civil life.

There is no need to set forth here, in detail, the grounds that the Declaration advances for its affirmation of religious freedom. They are metaphysical (the integrity of human person), moral (the nature of religion and the role of conscience in religious life), political (the limits of governmental competence) and legal (the nature of human law). Suffice it to say that it would be difficult to raise serious objections against the case made. One might indeed say that the case is incompletely made. It was not, however, the intention of the Declaration to make the case with all completeness. As a conciliar utterance, the Declaration was content to indicate the structure and lines of an argument and to leave its further development to philosophers and theologians.

In sum, the Declaration would seem to commend it-self, not only to Catholics, but to all men of good will, by the solid substance of its affirmation, by the correctness of its method, and by the strength of its reasoning. Why then the postponement of conciliar decision, which seemed to some to suggest the existence of doctrinal doubts or pastoral difficulties?

The suggestion has been made that "they" were to blame—meaning, of course, the Roman Curia. But the suggestion is too facile. It would be more adequate to say that a series of interrelated factors was at work.

In the first place, in its method and doctrine, the Declaration rejected the theory of religious tolerance and the related theory of governmental competence in religious matters that began to be developed in the post-Reformation era, assumed form in the 19th century, and subsequently became the received opinion among canonists. This theory rests on the abstract juridical maxim that error has no rights and on the correlative abstract political maxim that government is to repress error whenever possible and tolerate it only when necessary, as a concession to circumstances of religious pluralism. This theory was presented by a few conciliar Fathers. It impressed the assembly chiefly by its archaism. It obviously stands in dependence on a sociological situation, not so much of religious unity as of religious illiteracy. It also rests on the concept of government as paternal in character, charged with a duty toward the religious welfare of the "illiterate masses," to use the phrase of Leo XIII. It was not considered necessary at the Council to refute the theory; it was sufficient quietly to bid it good-by. Certain adversaries—as Santayana pointed out—are better treated thus. In any case, the theory was seen to be irreconcilable with the exigencies of the personal and civil consciousness at its contemporary height. Nevertheless, the classical theory of tolerance still has adherents, who are few indeed but tenacious of their view. They would represent the hard core of opposition to the draft Declaration. At that, they oppose, not so much the institution of religious freedom as such, but rather the affirmation of progress in doctrine that an affirmation of religious freedom necessarily entails.

The second factor was probably of greater significance. The advocates of religious freedom were divided among themselves. This has happened not seldom within the so-called "progressive" majority of the Council. To understand the division, one would have to note the difference in methodology and focus of argument between the first two drafts of the Declaration and the third draft.

The first two drafts followed a line of argument common among French-speaking theologians. The argument began, not in the order of historical fact, but in the order of universal truth. The truth is that each man is called by God to share the divine life. This call is mediated to man by conscience, and man's response to it is the free act of faith. The essential dignity of man is located in his personal freedom of conscience, whereby he is truly a moral agent, acting on his own irreducible responsibility before God. Thus religious freedom was conceived to be formally and in the first instance an ethical and theological notion; The effort then was made to conclude, by inference to the juridical notion of religious freedom—man's right to the free exercise of religion in society. The trouble was that this structure of argument seemed vulnerable to the advocates as well as to the adversaries of religious freedom. It is not obvious that the inference from freedom of conscience to the free exercise of religion as a human right is valid. Nevertheless, many French-speaking theologians and bishops considered their view to be richer and more profound. They were therefore displeased by the third draft Declaration, which relinquished their line of argument in favor of a line more common among English and Italian-speaking theorists.

This line, as I have indicated, addresses the problem where it concretely exists—in the legal and political order. It considers religious freedom to be formally and in the first instance a juridical notion, whose validity, however, is to be established by a convergence of theological, ethical, political and legal argument. To the French-speaking school, this view of the matter seemed "superficial" (I heard the adjective often). This division of opinion was not, indeed, regarding the affirmation of religious freedom as a human right, but rather the manner of making the case for the affirmation. None the less, the division of opinion itself somewhat affected the climate of the Council. And the root of it—the new methodology adopted by the third draft—lent color to the complaint, made by the opposition, that the Fathers had been confronted with a "new schema" which should not be voted on before discussion.

A third factor was a confusion that begot a fear. The Declaration dealt with religious freedom as a constitutional issue, a problem in the juridical order of civil society. But in the minds of some, this issue was confused with another—the presently sensitive question of freedom and authority within the Church. This confusion gave rise to a vague fear that a conciliar declaration in favor of religious freedom would somehow be misinterpreted by the faithful and either cause trouble of conscience or possibly even undermine the authority of the Church. This confusion of two altogether separate issues was lamentable, and the ensuing fear was irrational. Fear, however, though it rarely furthers good purposes, is a potent weapon. Postponement of the issue could have been made to seem a good idea.

The decisive factor remains to be noted. In the end, a doctrinal decision on religious freedom was postponed for a year because it had already been postponed for some two hundred years. The remark may seem paradoxical. In the 19th century, the Church did indeed make a doctrinal decision on the notion of religious freedom that was advanced by Continental laicism. Its premises were the absolute autonomy of the individual conscience and the juridical omnipotence of the state. The notion itself implied that man is free from any dependence on God. It also implied that the state is the power superior to the Church, competent to make a theological judgment on what the Church is and to determine by legislation what role the Church is to play in society. As everybody knows, the thesis was that the Church is to play no role in society. It contended that religion is a purely private matter. The Church condemned this notion of religious freedom and its premises. The condemnation, however, left the real issue of religious freedom untouched. Only a historically urgent, but theoretically false, issue had been decided. The real issue was not faced by the Church until Vatican Council II. Even then, however, the conciliar Fathers and their theologians were not entirely prepared to face it. The reason was that free discussion of the real issue had been inhibited within the Church by the power of the Holy Office. The fact was well known and widely lamented. We have now come to lament also its consequences, the failure to develop a consensus within the Church. This can be done only through free discussion.

The failure was more lamentable because religious freedom is not the most important issue before the Council, nor the most difficult, except insofar as it raises the issue of development of doctrine, which is the issue underlying all issues at the Council. More noteworthy is the fact that religious freedom is not the most urgent issue in the world at large today. On the contrary, despite deplorable violations of the principle of religious freedom today, the principle itself is accepted by the common consciousness of men and civilized nations. Hence the Church is in the unfortunate position of coming late, with the great guns of her authority, to a war that has already been won, however many rear-guard skirmishes remain to be fought. An argument about religious freedom might almost be called a distraction from the real issues at the moment.

I felt obliged to be critical of the view taken by my French-speaking friends on the narrow issue of religious freedom. On the other hand, I entirely share the preoccupations that gave rise to their view. I mean the need to go to the depths of the religious problematic of our age, of which atheism is an important integral part, not only as a personal conviction but as a social force. I mean also the need to center all attention on the problem to which Leo XIII pointed at the deepest and most enduring level of his doctrine. It concerns, broadly, the problem of religious truth in its relation to human society in its full sweep.

The state can and should do no more than guarantee freedom of religion. It remains for religion itself, by the force of its own truth alone, to recover its public standing and its social influence in an industrial society to which religion has become largely irrelevant and even insipid. Leo XIII had to be content with an effort to inaugurate a dialogue between the Church and the rulers of society in his time, who were estranged from religion. Today, the estrangement has spread throughout society itself, so as to profoundly affect the human person as such, whose religious consciousness is necessarily social and historical. Today, as Paul VI has pointed out, the problem is to broaden the dialogue until its ever widening circles embrace the whole of humanity and include all human concerns, both personal and social.

It is to be hoped that the Council will quickly conclude its distracting debate on religious freedom, finish the Church's long unfinished business, and get on to the deeper issue of the effective presence of the Church in the world today.

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