John Courtney Murray, “the Juridical State,” and the Catholic Theory of Religious Freedom

“Religious Freedom”” in Freedom and Man, edited by John Courtney Murray, 131–140. New York: P. J. Kenedy & Sons, 1965.

“”The Declaration on Religious Liberty: A Moment in its Legislative History”” in Religious Liberty: An End and a Beginning, edited by John Courtney Murray, 15–42. New York: MacMillan 1966. (DRL)

“”The Problem of Religious Freedom”” in Religious Liberty: Catholic Struggles with Pluralism by John Courtney Murray, 127–198. Edited by J. Leon Hooper, S.J. Louisville, Kentucky: Westminster/John Knox Press, 1993. (PRF)

“”The Issue of Church and State at Vatican II”” in Religious Liberty: Catholic Struggles with Pluralism, 199–228.

“”Arguments for the Human Right to Religious Freedom”” in Religious Liberty: Catholic Struggles with Pluralism, 229–244. (AHR)

“”The Declaration on Religious Liberty”” in Bridging the Sacred and the Secular: Selected Writings of John Courtney Murray, S.J., 187–199. Edited by J. Leon Hooper, S.J. Washington, D.C.: Georgetown University Press, 1994.

“”Religious Freedom and the Atheist”” in Bridging the Sacred and the Secular, 255–265.

John Courtney Murray is remembered today primarily for the essays gathered in We Hold These Truths exploring the nature of the American experiment in self-government and religious pluralism, its compatibility with Catholicism, and contemporary America’s quest for a public philosophy.¹ As important as these essays have proven to be, however they do not reflect the primary focus of Murray’s work. As George Weigel has suggested, Murray’s life’s work is best seen as a series of “”concentric circles,”” the innermost of which concerned Catholic teaching on Church-state relations and the nature and scope of religious freedom.²

Between 1945 and his death in 1967, Murray wrote almost forty articles exploring various aspects of this topic.³ These path-breaking articles began with an effort to disengage the trans-temporal principles governing the Catholic understanding of Church-state relations from historically conditioned attempts to incarnate them in institutions. They culminated in an effort to show that the type of union of throne and altar characteristic of the ancien régime was not normative for Catholic thought and, in Weigel’s words, to “”develop a theory of religious liberty that cohered with classic Catholic thought on the rights of conscience and on the relationship between Church and state, but extended that tradition in light of contemporary experience.””⁴ They culminated, in other words, in an effort to demonstrate that the Catholic understanding of man and society demanded the embrace of an understanding of the nature and scope of religious liberty that differed significantly from the understanding which had informed Church teaching prior to the Second Vatican Council (1962–5).

What George C. Higgins has described as Murray’s “”brilliant rethinking of Catholic doctrine””⁵ on Church-state relations and religious freedom laid the groundwork for a far-reaching renewal in Catholic social teaching on this whole subject, a renewal that found signal expression in one of the seminal documents of contemporary Catholic social teaching, Dignitatis Humanae. Described by Paul VI as one of the Second Vatican Council’s “”major”” texts⁶ and one of its “”greatest documents,””⁷ Dignitatis Humanae effected a dramatic development in the Church’s teaching on the subject of religious liberty. It represented a pivotal step in the far-reaching development in Catholic social teaching that Weigel has aptly dubbed “”the Catholic human rights revolution.””⁸ At the same time, as Walter Kasper has observed, it must be “”considered a watershed in the long and controversial history of the relationships between the Church and the development of the concept of freedom in the modern era,”” a milestone in the long standing conflict between the Church and “”the modern idea of freedom.””⁹ Indeed, John Paul II clearly concurs with his predecessor’s estimation of DH‘s importance, repeatedly invoking it as one of the foundational documents of contemporary Catholic social teaching.¹⁰

For all its importance, as Murray points out, Dignitatis Humanae is actually “”a document of very modest scope.”” DH touches only lightly and in passing on the complicated problems of the proper relationship between respectively, Church and state, and Church and society. Its subject matter and scope are aptly conveyed by its alternative title: the “”Declaration on Religious Freedom: On the Right of the Person and of Communities to Social and Civil Freedom in Matters Religious.”” “”This Vatican Synod,”” it announces,

declares that the human person has a right to religious freedom. This freedom means that all men are to be immune from coercion on the part of individuals or of social groups and of any human power, in such wise that in matters religious no one is to be forced to act in a manner contrary to his own beliefs. Nor is anyone to be restrained from acting in accordance with his own beliefs, whether privately or publicly, whether alone or in association with others, within due limits.¹¹

The limits in question are “”the just requirements of public order”” (4, 171). This “”right to religious freedom in civil society,”” it concludes, must “”be recognized in the constitutional law whereby society is governed as a civil right”” (2, 166).

My topic here is one particular aspect of Murray’s work on the Catholic theory of Church-state relations and religious freedom, namely, the intellectual foundations of the right affirmed by Dignitatis Humanae. If his work helped lay the groundwork for DH and if as a peritus at the Council he actively participated in its drafting, Murray, as Higgins observes, did not have “”anything like complete control over…the final text.””¹² Indeed, Murray was by no means entirely satisfied with the final document. His reservations, it should be stressed, did not concern the nature and scope of the right affirmed by DH. Rather, they centered on the argument employed by the document to justify this right. As Richard J. Regan has shown in his study of its drafting, at the Council the Declaration’s supporters were “”deeply split on how to articulate a rationale for the principle of religious freedom.”” As a result, the argument of the final text was deliberately designed as a “”compromise”” combining elements of the various justifications for religious freedom that had emerged in the course of the conciliar debates so as to secure a consensus in support of the Declaration.¹³ If this compromise argument “”pleased…no on in all respects”” (AHR, 230), as Murray noted, it was not in any case intended to be “”final and decisive,”” but merely to indicate “”certain lines or elements or argument”” which the Council thought might be worth pursuing.¹⁴ In doing so, it left to the future the task of systematically elaborating the intellectual foundations of the right affirmed by DH.

In the debates during the Council, Murray emerged as the leading advocate of what is sometimes called the political or constitutional argument for religious liberty, an argument that sought to ground the right in the limited role of the state in the overall economy of social life. A government which restricts the free exercise beyond the point required to safeguard “”the just requirements of public order,”” he argued, thereby exceeded the limits of its legitimate authority, the scope of its proper jurisdiction. Believing the argument of the final document to be “”deficient…through a failure to appreciate the political dimension of the issue,””¹⁵ in the aftermath of the Council he continued to explore the political dimensions of religious liberty and to outline the theory of the state he believed DH presupposed.

Unfortunately, as John Coleman has pointed out, in the decades since Murray’s death there has been “”very little…writing or discussion”” by Catholic thinkers on the issues addressed by DH.¹⁶ One sign of this state of affairs is the relatively scant attention given to Murray’s writings on the Catholic theory of Church-state relations in general, and on the Declaration in particular, compared to his work on Catholicism and “”the American proposition.”” Only recently, in fact, has a collection of his writings on the Catholic theory of Church-state relations been gathered in book form, and the articles included constitute  only a small portion of his work on this subject.¹⁷

The neglect of these writings is astonishing in light of Murray’s stature as a Catholic thinker, their centrality to his work, and the importance of the issues they address to contemporary Catholic social teaching. It is also surprising given their relevance to an important controversy in contemporary democratic theory: namely, the relationship between moral truth and political freedom. Several decades ago, Bertrand de Jouvenel remarked that the idea that freedom could be ensured by means of moral relativism was one of the strangest intellectual illusions of the nineteenth century.¹⁸ Yet the influence of this view has hardly been restricted to the nineteenth century. In fact, twentieth-century American democratic theory has been profoundly shaped by what Murray termed the horror of the absolute.

From early in the twentieth century through the mid-1960s, for example, democratic theory was profoundly influenced by what Edward S. Purcell terms “”the relativist theory of democracy.”” Contending that intellectual and moral “”absolutism”” entailed political absolutism, its proponents argued that “”intellectual relativism and moral skepticism”” provided the essential intellectual foundation of democratic government.¹⁹ More recent democratic theory has exhibited a similar suspicion of intellectual “”absolutism.”” One thinks here of the “”positivist pluralism”” that for so long dominated the intellectual scene.²⁰ One also thinks of the effort to develop a justification for democracy that prescinds from any substantive conception of the human good and in the attempt of thinkers like Richard Rorty to articulate a post-modern and pragmatic approach to democratic government.²¹ What unites these efforts is, at least in part, a fear that the affirmation of a substantive conception of the human good is incompatible with a principled commitment to democratic practices and institutions.

Most critics of the relativist theory of democracy—including Murray himself in We Hold These Truths—focused on showing that relativism is incapable of sustaining the affirmations which form the moral foundation of constitutional democracy.²² As far as the constructive side of their arguments was concerned, they, for the most part, merely asserted the compatibility of democratic institutions and practices with the affirmation of intellectual and moral absolutes, rather than providing a sustained and systematic argument to demonstrate this compatibility. The critics of the other theories alluded to a moment ago have tended to pursue a similar argumentative strategy. The problem, however, is that this line of argument leaves untouched the claim that affirmations of moral absolutes or substantive conceptions of the human good are incompatible with a principled commitment to constitutional democracy. To show, for example, that relativism is incapable of grounding a principled comitment to democratic government (or that the “”right”” is unsustainable absent a substantive conception of the “”good””) is not to demonstrate that “”absolutism”” is capable of grounding such a commitment. It is difficult, after all, to quarrel with Spragen’s observation that “”the belief in absolute values can and has led to political absolutism.””²³

What Murray attempts in his work on the intellectual foundations of religious liberty is much more ambitious. He seeks to demonstrate that the right to religious freedom affirmed by DH and, more broadly, the institutions and practices of constitutionally limited government dedicated to the protection and promotion of human right are demanded by the Catholic understanding of man, society, and the human good—in other words, that a principled commitment to democratic government follows from the substantive vision of the human good, which informs the Catholic tradition. Murray seeks to demonstrate, in other words, that the claim that moral absolutism entails political authoritarianism is mistaken, that the affirmation of an “”objective order of truth and morality”” can be compatible with a principled commitment to the institutions and practices constitutive of constitutional democracy.

Before exploring Murray’s contention that the justification of the right proclaimed by DH necessarily involved the articulation of a full-fledged theory of the state and his efforts to elaborate such a theory, however, it is first necessary to briefly explore Murray’s account of the Declaration’s significance and the nature of the right it affirms.²⁴

Dignitatis Humanae and the Right to Religious Freedom

One of the principal reasons DH is a seminal document in Catholic social teaching is its conception of the nature and scope of right of religious liberty.²⁵ At the risk of oversimplifying, it might be said that prior to the Declaration, Catholic thinking on the whole subject of religious took its bearing from two premises. The first concerned the nature of religious freedom. In this view, religious liberty was understood as “”a positive concept,”” as an empowerment, as the moral right of individuals publicly to profess and practice their beliefs. Since “”only what is true and good”” can be an object of a right, it follows that as “”the social faculty of professing and practicing what is true and good, as the true and the good are objectively proposed by the eternal law of God.”” “”The fullness of religious freedom”” thus extends only to the profession and practice of the truth (PRF, 130). Those who hold erroneous beliefs, it is true, have “”the right not to be forced to abandon”” their “”religious convictions and practices and not to be coerced into acceptance of the true religious faith”” against their conscience. Likewise, they have the right as “”parents to care for the religious upbringing of their children and to provide religious teachers for them.”” Nevertheless, the right to religious freedom does encompass the right of such beliefs and practices to “”public expression or manifestation…in worship, witness or teaching”” (PRF, 131).

The second premise concerned the role of the state. Religious error is a moral evil which is “”damaging to the common good, which is constituted by what is true and good”” and “”injurious”” of the right of individuals “”to be left undisturbed in the profession of the truth”” (PRF, 133). The state’s responsibility for the common good, for the “”total welfare”” (PRF, 161) of its populace, thus encompasses the “”care of religion”” (PRF, 157). This care, in turn, encompasses a responsibility for the protection and promotion of religious truth and the suppression of public expressions of religious error. Such suppression raises “”no issue of religious freedom”” because erroneous beliefs and practices have “”no right to external social freedom”” (PRF, 131–32).

The conclusion that was drawn from these premises was that the state had not only the right but the duty to suppress public expressions or manifestations of non-Catholic religions. Since the foundations of the state’s authority to suppress public manifestations of erroneous religions is its responsibility for the common good, this authority ought not be exercised if doing so would prove damaging to that good. For this reason, however, Catholic teaching distinguished between the “”thesis and hypothesis,”” between “”the ideal solution to the constitutional question of public care of religion”” and “”concessions that may have to be made to circumstances”” which impede the realization of the ideal (PRF 132–33). Restrictions on the public expression of non-Catholic religions, therefore, ought not to be imposed if they would damage the common good by disrupting “”public peace.”” Thus, the pre-conciliar view prescribed “”intolerance wherever possible”” but permitted “”tolerance whenever necessary.”” In overwhelmingly Catholic nations, in other words, restrictions ought normally be placed on the public manifestations of non-Catholic religions, while under conditions of religious pluralism, the law should embrace, a policy of religious “”tolerance”” (PRF, 134).²⁶

An appreciation of the Declaration’s true significance, Murray argued, must begin with the recognition that, as the passages quoted from it earlier suggest, DH embodies a very different (and considerably broader) understanding of the right to religious liberty. Regarding Murray’s understanding of the nature and scope of this right, the major points that concern us here are as follows:

(1) The Council affirms that the right to religious freedom “”has its foundation in the very dignity of the human person, as this dignity is known through the revealed Word of God and by reason itself”” (6, 167) in man’s ontological dignity as a person. Inasmuch as the right to religious freedom is rooted “”not in the subjective disposition of the person, but in his very nature”” (2, 168), this right, Murray concludes, is “”a demand of natural law”” (PRF, 138), and thus is “”a universal human right.””²⁷ “”Grounded in the law of nature”” (PRF, 175), it extends to “”all men”” (2, 166) regardless of their religious convictions (or lack thereof)—not just Catholics.²⁸

(2) The right of religious freedom concerns not the “”relationship”” of the person to “”God”” and “”His Church””²⁹ or “”the objective order of truth and morality”” (DRL, 24), but rather the relationship “”between man and man.””³⁰ Man lives his life in two orders of reality, namely, the “”vertical”” order of his relationship to God, truth, and goodness, and “”the horizontal order of interpersonal relations among men, between man and organized society, and especially between the people—as individuals and as associated in communities, including religious communities—and the powers of government.””³¹ It is with this latter order, the juridical order, that the right proclaimed by the Declaration is concerned. This right pertains to “”Social and Civil Freedom in Matters Religious.”” It concerns “”only…the juridicosocial order.”” DH recognizes that, in Murray’s words, “”no man may plead ‘rights’ in the face of truth or…the moral law.””³² On the contrary, rights can only be affirmed against others; they concern only the order of “”intersubjective relations among men”” (DRL, 24).

The religious freedom proclaimed by the Declaration, therefore, “”has nothing to do”” either with the status of the Christian as a “”member of the Church in the face of the authority of the Church,”” or the status “”of the creature in the face of his Creator, as if man could somehow be free from the dominion of God”” (PRF, 141). Thus, the right to religious liberty, as DH affirms, “”leaves untouched”” both “”traditional Catholic doctrine on the moral duty of men and societies toward the true religion and toward the one Church of Christ”” (1, 165), and men’s “”moral obligation to seek the truth”” and, “”once it is known,”” to “”order their whole lives”” in accordance to its demands (2, 168). Rather, it “”has to do with immunity from coercion in civil society”” (1, 165).

(3) As far as its content or object is concerned, the right to religious freedom encompasses a two-fold immunity from coercion. “”In matters religious,”” the Declaration affirms, man “”is not to be forced to act in a manner contrary to his conscience. Nor…is he to be restrained from acting in accordance with conscience”” (3, 170). As an immunity rather than an empowerment—as a “”freedom from,”” rather than a “”freedom for””—the right has an essentially negative character. An appreciation of its negative character is important, because inasmuch as “”a right is a moral claim made on others,”” it follows that “”neither error nor evil can be the object of a right, only what is true and good.””³³ The Declaration does not assert an individual’s moral right to spread his beliefs or practices regardless of their character. Rather, it asserts his right to not be impeded in doing so by coercive action on the part of the state.

(4) The right to religious freedom encompasses, in Murray’s words, “”immunity from coercion in what concerns religious worship, observance, practice, and witness—in all cases, both private and familial, and also public and social””³⁴ within the limits set by “”the just requirements of the public order”” (6, 176). Hence, while the right itself is “”inalienable”” as Murray remarks, its “”exercise…is subject to control in particular instances.””³⁵ As the Declaration puts it, because this right “”is exercised in human society,”” it follows that “”its exercise is subject to certain regulatory norms”” designed to protect society from “”possible abuses committed on pretext of freedom of religion.”” “”These norms arise out of the need”” for an “”effective safeguard of the rights of all citizens and for the peaceful settlement of conflicts of rights,”” “”an adequate care of genuine public peace, which comes about when men live together in good order and justice,”” and “”a proper guardianship of public morality.”” Taken together, “”these matters constitute”” that “”basic component of the common welfare”” which DH designates as “”public order.”” The “”protection”” of society through the enforcement of these norms—through the vindication of the demands of public order—is “”the special duty of government”” (7, 176–177).

In determining and safeguarding “”the just requirements of public order”” (4, 171), DH insists, the state must act in “”conformity with the objective moral order”” and be guided by the principle “”that the freedom of man [must] be respected as far as possible, and curtailed only when and in so far as necessary”” (7, 177–178). Nevertheless, the right of religious freedom is not violated if in enforcing these requirements it prohibits people from acting on their religious beliefs, by engaging in activities that their religion authorizes or even commands. (Although Murray doesn’t offer examples here, as Francis Canavan suggests, human sacrifice, sacred prostitution, and polygamy would seem to be obvious examples.³⁶) When “”the just requirements of public order”” are violated, “”a public action ceases to be a religious exercise and becomes a penal offense.””³⁷

(5) Finally, the right to religious liberty, affirmed by DH entails neither the privatization of religion nor a posture of governmental indifference toward it. On the one hand, DH makes clear that “”it comes within the meaning of religious freedom that religious bodies should not be prohibited from undertaking to show the special value of their doctrine in what concerns the organization of society and the inspiration of the whole of human activity”” (5, 172). On the other hand, it emphatically rejects as incompatible with religious liberty what Murray terms the view “”that secular government may maintain a neutrality of indifference to religion, or that secular society may excise religion from its concept of the common good.””³⁸ If government has the duty to “”safeguard”” “”the religious freedom of all its citizens,”” to respect and protect their right to immunity from coercion in religious matters, it also has the obligation “”to help create conditions favorable to the fostering of religious life, in order that the people may be truly enabled to exercise their own religious rights and to fulfill their religious duties, and also in order that society may itself profit by the moral qualities of justice and peace which have their origin in men’s faithfulness to God and to His holy will”” (6, 175). Indeed, “”since the function of government is to make provision for the common welfare,”” it is obligated “”to take account of the religious life of the people and show it favor”” (3, 170).

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Religious Liberty and the Catholic Theory of the State

There was overwhelming agreement at the Second Vatican Council about the existence of the right to religious liberty whose nature and content was just outlined. The problem that confronted the Council was, as Murray notes, “”how to construct the argument—whether derived from reason or from revelation—that will give solid foundation to what the Declaration affirms”” (AHR, 230). At first glance, the difficulties encountered by the Council in articulating the intellectual foundations of this right might seem surprising. Religious liberty, after all, was not exactly a new idea. As Kenneth R. Craycraft, Jr., has recently reminded us, however, religious freedom is not a univocal concept.³⁹ In fact, Western intellectual history attests to the existence of a variety of competing theories of religious freedom differing in their understanding not only of this right’s foundation, but also of its nature and scope. As Robert P. George has observed, religious liberty has been defended

on various grounds. Some argue for religious freedom on the basis of the controversial religious view that all religions are (equally) true or untrue; or the equally controversial religious view that religious truth is a purely subjective matter; or the pragmatic political ground that religious freedom is a necessary means of maintaining social peace in the face of religious diversity; or the political-moral view that religious liberty is part of the right to personal autonomy; or the religious-political view that “”religion,”” if a value at all, is a value with which government lacks the jurisdiction or competence to deal. There are other arguments as well.⁴⁰

Not every theory of religious liberty is consistent with the Catholic understanding of man, society, religious truth, and the human good. Indeed, the theories of religious liberty that have most influenced modern Western intellectual life have been rooted in intellectual traditions (e.g., Protestantism, Enlightenment liberalism), and have often involved consequences (e.g., the privatization of religion), incompatible with Catholicism.

The problem confronting the Council was the articulation of a theory of religious freedom compatible with the affirmations that lie at the heart of the Catholic tradition. Among them, as Canavan points out,

are the following: There is a divinely revealed truth about man and his relation to God, of which the Church is the infallible custodian. Men are not free to take or leave this truth as they choose; it is God’s will that they accept His revealed truth and live by it. Society as well as individuals must guide its activities in the light of this truth. Since the same persons are members of the Church and citizens of the state, Church and State must act in harmony so that men may achieve both their temporal and eternal goals.⁴¹

At the same time, the tradition includes a commitment to a metaphysical and moral realism and to the idea of natural law, to the existence of an objective moral order discoverable by human reason. Affirming the naturalness of social and political life, it emphatically rejects the view that a political community is nothing more than a mutual protection society. Since the state exists not merely to suppress violence but affirmatively to foster the human good, political life must take its bearings from the truth about man and his good. Thus, theories of religious truth that involve commitment to religious indifferentism or subjectivism, or which deny that social and political life should take its bearings from the truth about man and the good conveyed through divine revelation and/or the natural moral law are unacceptable from the perspective of Catholicism. The same is true of theories which elevate choice to the status of the human good, which assert that the state should be neutral on questions of religious and moral truth, or which deny that religious truth makes an essential contribution to the good of society.

The right to religious freedom, affirmed by the Declaration, as we have seen, embodied a twofold immunity from coercion: in religious matters, as long as “”the just requirements of public order are observed”” (3, 171), no one was to be forced to act against his conscience, nor was anyone to be restrained from acting in accordance with his conscience. From the perspective of traditional Catholic social teaching, the first immunity was not problematic. The Catholic tradition had long acknowledged the right of individuals not to be compelled to profess Catholicism or any other religion. This right followed, as Murray notes, “”from the necessary freedom of the act of Christian faith”” (AHR, 231). Precisely because “”it is one of the major tenets of Catholic doctrine that man’s response to God in faith must be free,”” it followed that “”no one is to be forced to embrace the Christian faith against his own will”” (9, 180). This doctrine, in turn, “”licitly and necessarily extended to the profession of every religion”” (AHR, 231).

What proved to be difficult was the construction of an argument for religious liberty rooted in the Catholic tradition to undergird the second immunity, to ground the right of individuals and groups not to be restrained from acting in accordance with their consciences within the limits sets by the essential exigencies of public order. The recognition of this immunity, as DH notes, constitutes a development in Catholic social teaching. As late as Pius XII (d. 1958), Catholic social teaching denied the existence of a natural human right to religious liberty encompassing this immunity. Since the Catholic tradition has long recognized that “”neither evil nor error can be the object of a right,””⁴² there was no right, it was concluded, publicly to act upon or advocate religious error, and such action or advocacy could be prohibited as destructive to the common good when its prohibition would not be the source of greater evils.

The conciliar debate thus centered on the foundations of this second immunity. As a result, as Murray writes, the debate necessarily focused on

the juridical relationship among human beings in civil society. The concept of a juridical relationship properly includes the notion of a correspondence between rights and duties. To one person’s right there is a corresponding duty incumbent on others to do or give or omit something. In our case [i.e., in the case of the second immunity], the human person demands by right the omission of all coercive action impeding a community or the person from acting according to its conscience in religious matters. Therefore, the affirmation that every person has a right to such immunity is simultaneously an affirmation that no other person or power in society has a right to use coercion. On the contrary, all others are duty-bound to refrain from coercive action. The second immunity, then, requires a compelling argument that no other person can raise, as a right or duty, a valid claim against that immunity, or, put positively, that all are obliged to respect that immunity.

To place the right affirmed by DH on a secure foundation, therefore,

it was necessary to formulate a compelling argument rooted in the Catholic tradition justifying this immunity, demonstrating, in Murray’s phrase, its “”juridical actuality”” (AHR, 231).

The problem of constructing such an argument was not solved by the Council. In the course of the Council’s deliberations, as Regan shows, four arguments designed to ground the right affirmed by DH emerged: (1) an argument from the duties and rights of the individual conscience; (2) an argument from the limits placed on the powers of government by man’s dignity as a person; (3) an argument from Scripture and “”Christian freedom””; and (4) an argument from man’s obligation to pursue truth in a manner consonant with his dignity as a person and the social nature of man.⁴³ In the face of this disagreement regarding the foundations of religious liberty, the Council decided to put forward a brief, highly schematic, and, in any case, tentative argument incorporating elements of the lines of argument advocated by each of four schools of thought.

In the compromise argument of the final text, the arguments “”from the right and duty to follow conscience”” and from the limits of government were invoked but “”in a subsidiary rather than a central role.””⁴⁴ The argument from Scripture and Christian freedom was used but relegated to the second chapter and employed merely to show that religious freedom was, in the words of the Declaration, “”consonant”” with “”revelation”” (9, 179). “”Primacy”” was afforded to “”the argument from the duty and right to pursue the truth”” and “”from the social nature of man”” which enjoyed “”undisputed first place in both position and the number of lines devoted to it.””⁴⁵

As the principal proponent of the political argument, Murray shared in the widespread dissatisfaction with the argument of the final document. It should be stressed that his preference for the political argument did not mean that Murray saw no validity in any of the other lines of argument that emerged in the course of the conciliar debates. He was, it is true, highly critical of the argument from the rights of conscience that played a central role in the first two schemata. He readily admits that an individual has “”the duty to act according to his conscience”” even if his conscience is “”erroneous,”” even if the action in question “”is in violation of the objective order of truth and morality.”” Nevertheless, the question at hand is not the duty of an individual to follow his conscience but whether others have a duty not to impede him in doing so when the resultant action would involve an objective moral evil and damage to the common good. In fact, “”another’s error of conscience can create no duties in me”” (DRL, 24–5). The fact that “”I mistakenly think you owe me five dollars,”” for example, gives me no right “”to demand from you money that you do not owe me”” (PRF, 179–180). Insisting, as we have seen, that “”only what is true and good”” can be “”the object of a right,”” Murray emphatically rejects any effort to ground religious freedom in the idea “”that I have the right to do what my conscience tells me to do, simply because my conscience tells me to do it.””⁴⁶

Nevertheless, Murray readily admitted that the argument from our obligation to pursue truth conveys important truths. As far as it goes, it is “”valid and on target.”” Indeed, he advocated its incorporation into the broader political argument he championed (AHR, 234; 238–39). Likewise, he conceded that situating the “”juridical-social”” right to religious liberty affirmed by the Council in the context of “”a full and complete theology of freedom”” would have been “”a far more satisfactory method of procedure from a theological point of view”” and issued in a “”doctrine…much richer in content”” than that ultimately contained in DH. Such an approach, however, would have been a far more ambitious undertaking than the narrower argument from Christian freedom and Scripture championed by the proponents of the “”theological argument”” at the Council, and was, for that reason among others, open to a series of insurmountable practical objections.⁴⁷ In any case, whatever the merits of these lines of arguments may be, they were ultimately incomplete because neither addresses the political issues raised by DH.

Inasmuch as the state by right possesses a monopoly on the instruments of coercion, Murray argued that in order to ground the immunity from coercion at issue, it was first necessary to address the question of “”the criteria which must govern the action of the public powers in limiting the free exercise of religion”” (PRF, 143). The pivotal question was whether “”the public powers have the duty and the right to repress opinions, practices, religious rites, because they are erroneous and dangerous to the common good”” (AHR, 232). Or, alternatively, whether they may limit the free exercise of religion only when “”the just requirements of public order”” are violated. Obviously, the latter position is embraced by DH. This immediately raises the question of why DH denies to the state “”the right to repress religious opinions, practices and rites simply because they are erroneous and destructive of the common good.”” “”On what justifying argument,”” asks Murray, “”does this denial rest?”” Why, in short, “”may the limitation placed on the public power in matters of religion”” by DH “”be considered just and legitimate?”” To address these questions, in turn, it is necessary to engage the whole subject of “”the duties and rights of the public power—their nature, their extent, and their limits”” (AHR, 232). An argument designed to ground the immunity affirmed by the Declaration, in short, must necessarily include a theory of the state.

A quick examination of the central argument of DH illustrates Murray’s point. This argument begins with the affirmation that “”the moral obligation”” of “”all men”” is “”to seek the truth, especially religious truth.”” Indeed, men have an obligation “”to adhere to the truth, once it is known, and to order their whole lives in accord with the demands of truth”” (2, 168). It is this duty, in turn, which supplies the foundation of the right to religious liberty. Since the duty to pursue truth and adhere to it must proceed freely, it follows that “”men cannot discharge these obligations in a manner in keeping with their own nature unless they enjoy immunity from external coercion as well as psychological freedom”” (2, 168). We thus have a right to freely search for, and, when found, adhere to, the truth—a right to religious freedom.

This argument, Murray insists, is open to the obvious objection that the right to search for truth does not in itself confer upon individuals the right publicly to disseminate and act upon falsehood. The “”repression”” of “”false forms of worship or religious error,”” after all,

is compatible with man’s moral obligation to seek the truth in order to act according to it. For such repression does not in the least prevent the quest for truth, nor does it prevent acting according to the truth. What it does prevent are public activities that proceed from a basis in error and that thus cause harm to the public good.

The fact is that after “”searching for religious truth or not searching for it,”” many people “”actually cling to more or less false opinions that they wish to put into practice publicly and to disseminate in society”” (AHR, 234). “”There is no doubt,”” furthermore, that the “”spreading [of] religious error”” and “”practicing false forms of worship”” is “”per se evil in the moral order”” and may be “”dangerous to the common good.”” Why then should the state not “”repress”” such “”opinions, practices [and] religious rites”” (AHR, 232)?

Murray asks that we “”imagine”” the “”public powers”” answering “”those who profess more or less false opinions that they wish to put into practice publicly and disseminate in society”” in the following fashion:

We acknowledge and deeply respect the impulse to seek truth implanted in human nature. We acknowledge, too, your moral obligation to conform your life to truth’s demands. But, sorry to say, we judge you to be in error. For in the sphere of religion we possess objective truth. More than that, in this society we represent the common good as well as religious truth—in fact religious truth is an integral part of the common good. In your private and in your family life, therefore, you may lawfully act according to your errors. However, we acknowledge no duty on our part to refrain from coercion in your regard when in the public life of society, which is our concern, you set about introducing your false forms of worship or spreading your errors. Continue, then, your search for truth until you find it—we possess it—so that you may be able to act in public in keeping with it.

This proclamation, as Murray notes, is hardly “”imaginary.”” Governments have “”time and again”” made such claims (AHR 235). Indeed, it closely tracks the argument employed both by the defenders of the “”Catholic states”” of the modern era and the small minority of bishops at the Council who opposed the promulgation of the Declaration.

This rejoinder by the state admits no convincing answer so long as we remain within the horizon of the argument from the person’s duty to seek truth. It admits no such answer because one can concede an obligation to seek the truth while denying that the state is obligated to allow those in error to “”act in public according to their consciences”” and freely to disseminate their errors. To defeat the line of argument embodied in this proclamation it is necessary to address a subject which the argument from the duty to seek truth ignores: “”the duties and rights of the public power—their nature, extent and limits.”” It is necessary, in short, to move from “”the moral”” to “”the juridical order”” (AHR, 232).

In its most sophisticated form the argument from the obligation to pursue religious truth sought to counter this objection by situating the duty to seek truth in a social and political context. On the one hand, its proponents invoked the social nature of the human person, arguing that search for truth is necessarily a social enterprise. Furthermore, they maintained that there exists a “”necessary connection between internal acts of religion and those outward acts by which, in keeping with his social nature, a human being displays his religious convictions in a public way. Given this connection, the argument runs as follows: A purely human power cannot forbid internal acts; it is therefore equally powerless to forbid external acts”” (AHR, 237).

As Murray points out, however, this argument involves “”the fallacy of begging the question”” because “”it supposes that in society no power exists with authority reaching far enough to warrant its legitimately forbidding [external] acts of religion, even acts that transgress objective truth or divine law or even the common good.”” The difficulty, however, is that “”this is what must be established; it is the very heart of the matter under discussion.”” That no such power exists is not proven simply by stating that because man possesses a social nature the pursuit of religious truth is a social enterprise which “”must proceed in a public and communitarian manner”” (AHR, 237). Even in its most sophisticated form this argument fails to justify its assertion that the state is not authorized to forbid religious acts or utterances embodying religious error and destructive of the common good, but instead simply posits it without argument or explanation. Here again, it fails to do so because it fails to engage a subject that cannot be evaded if this assertion is to be vindicated, namely, the subject of the role and limits of the state.

The point is that appeals to the nature and importance of religious and moral truth or to the religious and moral obligations of the person thus do not in themselves suffice to establish the Declaration’s conclusions. What Murray calls the political argument—the argument from the principle of limited government—is of “”primary importance,”” because “”without it any other argument would not sufficiently settle the question. For the very question [of religious freedom] concerns the limits of public power in religious matters”” (AHR, 237). When all is said and done, a theory of religious freedom cannot avoid “”the crucial issue”” of “”the competence of the powers with regard to passing judgment on forms of religious expression in society”” (PRF, 151). A persuasive argument to ground the right affirmed by DH simply cannot be constructed without engaging the question of why “”the public power”” possesses neither “”the duty”” nor “”right to repress opinions, practices, religious rites”” that “”are erroneous and dangerous to the common good”” (AHR, 232).

Thus, as Murray points out, in articulating the foundations of the right to religious liberty, it is not sufficient “”to attend only to the theological and ethical aspects of the issue. The political aspect becomes decisive. It is necessary to confront the question, whether and under what conditions government has the right to restrain citizens from public action according to their beliefs”” (DRL, 31). The embrace of the right proclaimed by DH necessarily involves the embrace of a state whose powers are limited in a particular fashion. To construct a persuasive argument for this right, therefore, it is necessary, to provide an account of, and justification for, such a state. An account of the foundations of the right proclaimed by DH, in other words, necessarily includes a full-fledged theory of the state.⁴⁸ Insofar as DH fails to provide such a theory, its account of the foundations of the right it affirms is incomplete.

The Political Argument Revisited

Before proceeding to Murray’s effort to remedy this lacuna, it is necessary first to return to the Declaration itself. To suggest that DH fails to provide full-fledged theory of the state is not to suggest that it says nothing at all on the subject. On the contrary, it makes a number of claims about the nature and proper limits of governmental authority. It is necessary to examine these claims because one of the criteria that must be employed in judging the adequacy of Murray’s political theory will be its consistency with these claims and its capacity to justify them.

Several of the claims made by DH regarding the state have already been elaborated in the context of Murray’s analysis of the right itself: the existence of a right to religious liberty as a twofold immunity from coercion in the sense discussed earlier; “”public order”” as the source of the norms limiting the scope of this liberty; the ideas that this order represents “”the basic component of the common welfare”” and that its “”protection”” is entrusted in some “”special”” sense to the state; the insistence that in the organization of social life “”the freedom of man [must] be respected as far as possible, and curtailed only when and in so far as possible””; and the affirmation that, properly understood, religious liberty involves neither the privatization of religion nor a posture of governmental indifference to religion, but includes the duty of the state both to “”take account of the religious life of the people and show it favor,”” and to create conditions that will facilitate the person’s exercise of his religious rights and fulfillment of his religious duties.

Over and above these claims, the Declaration makes a number of other assertions that bear on the nature of political life. To begin with, it affirms that “”the demand”” that “”constitutional limits should be set to the powers of government, in order that there may be no encroachment on the rightful freedom of the person and of associations”” is “”in accord with truth and justice”” (1, 162–163). Secondly, it connects the legitimacy of this demand with the growing recognition of “”the dignity of the human person”” by virtue of which “”the demand is increasingly made that men should act on their own judgment, enjoying and making use of a responsible freedom, not driven by coercion but motivated by a sense of duty”” (1, 162). This dignity, it suggests in turn, is the source of an order of human rights—””the inviolable rights of man”” (6, 174–175)—which the state must respect, an order that includes the right to immunity from coercion in religious matters proclaimed in DH. (This dignity would also seem to ground DH‘s insistence that in the exercise of its powers by the state “”the freedom of man [must] be respected as far as possible, and curtailed only when and in so far as necessary”” [7, 178].)

Thirdly, DH affirms that “”the social nature of man”” (4, 172) finds expression in a wide variety of institutions. In addition to the state, these institutions and communities include “”the family”” (which, DH is at pains to stress “”is a society in its own original right”” [5, 172]), as well as “”educational,”” “”cultural,”” “”charitable,”” “”social,”” (4, 172) and “”religious”” organizations (3, 170). Fourthly, it affirms that the state’s “”power”” is limited to “”the order of terrestrial and temporal affairs”” (3, 170). Fifthly, it defines the common good of the political community as “”the entirety of those conditions of social life under which men enjoy the possibility of achieving their own perfection in a certain fullness of measure and also with some relative ease.”” Finally, it affirms that the political common good “”consists chiefly in the protection of the rights, and in the performance of the duties of the human person,”” and thus that “”the protection and promotion of the inviolable rights of man ranks among the essential duties of government”” (6, 173–174).

Although DH hardly articulates a complete political theory, one can discern in it, as Pietro Pavan observes, the broad outlines of a model of the state that differs both from “”the Catholic-confessional”” model⁴⁹ of the state championed by Church social teaching prior to the Council and the secularist—””laicistic or neutralistic””⁵⁰—model rejected by both pre-conciliar Church teaching and by the Declaration. At the heart of DH‘s vision of political life is the idea of limited government, the idea that the state is to play what Rausch terms “”a limited secular role””⁵¹ in the overall economy of human social life. DH, as Coleman notes, thus affirms as “”normative”” the idea of “”the limited constitutional state.””⁵²

It is this conception of the state that undergirds the Declaration’s theory of religious freedom. Government, it insists, is not authorized to forbid religious acts merely because they are erroneous or subversive of the common good. Government possesses neither a generalized authority to pass judgment on the truth of the religious beliefs professed by the individuals and groups which comprise society, nor an open-ended mandate to advance the common good. The state thus exceeds the legitimate scope of its authority if it prohibits religious acts for either of these reasons. It possesses no right to restrict religious freedom—except insofar as its restriction is demanded by its responsibility to protect that segment of the common good DH terms “”public order.””         

From the perspective of the Declaration’s understanding of the role of the state, as Murray notes, “”the care of religion, in so far as it is a duty incumbent on the state, is limited to a care for the religious freedom of the body politic”” (PRF, 152). This care, as Pavan notes, places a twofold responsibility on the state. On the one hand, it must simultaneously “”recognize, respect [and] safeguard”” the right to religious freedom and “”limit its exercise in those cases where its abuse may consistently compromise public order.”” On the other hand, it must act “”to insure that the citizens do not lack means to exercise their religious rights and fulfill their religious duties.”” As the latter responsibility underscores, DH is quite emphatic that its conception of the limited constitutional state does not authorize a posture of governmental indifference toward religion. On the contrary, as Pavan remarks, “”it is integral”” to DH‘s “”model of the constitutional state that it should have a positive policy toward religion,”” albeit one consistent with its “”nature,”” with its limited role in the economy of social life.⁵³

As the Declaration’s recognition of religion as a fundamental human good, its grounding of the content of public order in “”the objective moral order”” (7, 177), and its insistence that the right to religious freedom “”has its foundation, not in the subjective disposition of the person, but in his very nature”” (2, 168) suggest, the limited constitutional state embraced by DH is rooted neither in an agnosticism on the question of the human good nor in the view that freedom as such constitutes that good. As Canavan observes, the Declaration’s conception of religious freedom operates within the horizon of “”the rational, natural-law”” framework which “”forms so significant a part”” of “”the Catholic tradition.”” It thus takes its bearings from the idea of “”a universal human nature, whose natural tendencies and needs are knowable to the human mind”” and the idea of “”God, who is truth, and the truth about whom answers…the deepest of human needs.””⁵⁴

Nor does DH‘s conception of the limited constitutional state entail a posture of governmental neutrality on the question of the human good, the embrace by the state of the goal that the maximization of individual autonomy is the goal of law and public policy, or the reduction of the state’s role to the suppression of violence. On the contrary, as the positive responsibilities regarding religious life DH imposes on the state and its linkage of public order with “”the objective moral order”” (7, 177) make clear, the Declaration embodies a substantive conception of the human good and enlists the state in the service of this good—albeit in a manner consistent with the restricted character of its role in the overall scheme of human social life.

From Human Dignity to Public Order:
The Contours of Murray’s Argument

The focus of Murray’s work on the theory of state presupposed by DH is essentially twofold: the foundation of the Declaration’s idea of limited government and the whole question of the function of the state, of the content of “”public order.”” DH‘s embrace of the idea of limited, constitutional government presupposes, he argues, a rejection of what he calls a paternalist conception of the state in favor of what he terms a juridical or constitutional conception. In the former conception of the state, the political community “”was conceived on the analogy of the family,”” and the ruler “”was conceived to be pater patriae, whose paternal power extended to a care for the total welfare of his subject-children”” (PRF, 157). Thus, “”the total care of the common good was committed to the principes“” (PRF, 160) and society was understood “”to be built and rendered virtuous from the top down, as it were.””⁵⁵ As a result, “”no distinction between state and society”” was made, and “”the citizen appears simply as subject, whose single duty is obedience to rule”” (PRF, 160).

The juridical state, on the other hand, embodies the idea of government that is limited in its scope, subject in its operations to the rule of law, and responsible to those it governs. It embodies the view that “”the primary function of government is juridical, namely, the protection and promotion of the exercise of human and civil rights, and the facilitation of the discharge of human and civil duties by the citizen who is fully a citizen, that is, not merely subject to, but also participant in, government.”” Likewise, it insists that society is to be constructed and rendered virtuous “”from the bottom up, as it were,”” as free persons voluntarily respond to the responsibilities inherent in their human nature.⁵⁶

From the perspective of Catholic social thought, Murray continues, there is nothing particularly novel in this model of the state. It is the same model of the state that has informed the social teaching of the Church since the pontificate of Pius XII and which has driven the far-reaching transformation Catholic social teaching has undergone during this period.⁵⁷ The Declaration is essentially a statement of the implications of this conception of the political order for the question of religious freedom. This is why it states that “”in taking up the matter of religious freedom,”” its intention is “”to develop the doctrine of recent Popes on the inviolable rights of the human person and on the constitutional order of society”” (1, 165).

The obvious question here concerns the principles on which this conception of the state rests. In a short book that he wrote during the Council exploring the whole topic of the nature, scope and foundations of religious freedom, Murray argued that the juridical state was informed by four principles. The first is “”the distinction between the sacred and secular orders of human life.”” Because he “”exists for a transcendent end,”” it follows that “”the whole of man’s existence is not absorbed in his temporal and terrestrial existence.”” Government, however, is neither “”the judge”” nor “”the representative”” of the “”transcendent truth”” governing “”man’s eternal destiny.”” Thus “”the powers of government do not reach into this higher sacred order of human existence”” but are instead “”limited”” to “”the temporal and terrestrial order.”” The second principle, in turn, “”is the distinction between society and state.”” In this view, “”the state is only one order within society,”” namely, “”the order of public law and public administration.”” Accordingly, it is “”charged with the performance”” only of certain limited functions “”to be specified in the society’s constitutional law, in accord with the consent of the people.”” Thus, “”the purposes of the state are not coextensive with the purposes of society”” (PRF, 144–45).

From this distinction follows a third principle, namely, “”the distinction between the common good and public order.”” Whereas “”the common good includes all the social goods, spiritual and moral as well as material, which man pursues here on earth in accord with the demands his personal and social nature,”” the public order is that “”narrower”” segment of the common good “”whose care devolves upon the state.”” It encompasses certain responsibilities regarding “”the material welfare of the people,”” as well as a care for public peace, public morality and the order of interpersonal justice. The fourth and final principle is the idea of “”freedom under law.”” Freedom, in this view, is both “”a political end”” and “”the political method per excellentiam.”” Thus, there should exist “”as much freedom, personal and social, as is possible,”” and “”only as much restraint and constraint, personal and social, as may be necessary for the public order”” (PRF, 145–146). From these premises, Murray concludes, follow both DH‘s claims about the state and the right it affirms.

If the juridical state rests on these principles, however, the question necessarily arises of the intellectual underpinnings of these principles themselves. Although in the aforementioned volume he only touches lightly on this question, in his other writings during and after Vatican II, Murray consistently seeks to ground the conception of the state he believed DH presupposed in the idea of man’s dignity as a person. This dignity, he contends, demands that government’s role be restricted to the performance of the limited array of functions that together compose the public order.

Murray’s argument begins

with the traditional truth that every man has the innate dignity of a moral subject. He is endowed with intelligence, with a capacity for self-awareness. He is therefore called to a consciousness of the sense of his own existence—its meaning and purpose as determined by a transcendent order of truth and moral values, which is not created by himself but is to be discovered by him in the total reality of existence itself. Man is also endowed with freedom, a capacity for love and choice. As a subject sui juris, he is called to realize the sense of his own existence through a lifelong process of self-determination, motivated by his own personal judgments.

As a moral subject, man is “”responsible”” both “”for the conformity of his judgments of conscience with the imperatives of the transcendent order of truth”” and “”for the conformity of his external actions with the inner imperatives of conscience”” (DRL, 38). As a moral subject, therefore,

man exhibits three characteristics. The first is personal autonomy. That is to say, in his necessary search for the sense of human existence, he is subject only to the laws that rule the order of truth—truth is so accepted only on pertinent evidence, the assent is to be pursued in free communion with others. The second characteristic is the irreplaceability of personal judgment and choice in the moral life. Moral worth attaches only to a human act done deliberately and freely. The human subject cannot be endowed with moral worth from the outside, by the action of others that would attempt to substitute itself for the inner dynamisms of intelligence and freedom. The third characteristic is inviolability. Man’s native condition as a moral subject, who confronts the demands of a transcendent order of truth and goodness, requires that he be surrounded by a zone or sphere of freedom within which he may take upon himself his ineluctable burden—that of responsibility for his own existence.

This requirement of a zone of freedom is even “”more stringent in what concerns man’s relation with God””—on account of its immediacy, its “”person to person”” character, and each individual’s “”personal responsibility”” for “”the nature”” of his or her individual “”response”” to God’s call (DRL, 39).

For all these reasons,

it clearly appears that coercion brought to bear upon the human subject, especially in what concerns his relation to God, is not only a useless irrelevance but also a damaging intrusion. It does injury to man’s personal autonomy. It stupidly seeks to replace what is irreplaceable. It does violence to the very texture of the human condition, which is a condition of personal responsibility. The conclusion is that an exigence for immunity from coercion is resident in the person as such. It is an exigence of his dignity as a moral subject.

This “”exigence for immunity from coercion”” extends to all those “”areas of human life in which the values of the human spirit are directly at stake”” and is validly “”asserted against…other individuals, others organized in social groups, and especially that impersonal other that is the state.”” It is thus “”the source of the fundamental rights of the person—those political-civil rights concerning the search for truth, artistic creation, scientific discovery, and the development of man’s political views, moral convictions, and religious beliefs”” (DRL, 40).

Inasmuch as this “”exigence to act on his own initiative and on his own personal responsibility”” is “”a thing of the objective order…rooted in the given reality of man as man,”” it follows that it is “”permanent and ineradicable and altogether stringent.”” In essence, “”it is identically the basic requirement that man should act in accordance with his nature.”” Thus, the claim to “”immunity from coercion, especially in matters religious”” is “”man’s fundamental claim on others”” (DRL, 40–41).

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The only “”authority that might possibly enter a counterclaim”” overriding this claim is the “”government”” in its capacity as the ag