Leo XIII and Pius XII:
Government and the Order of Religion(1)
By J. Leon Hooper, S.J.
From Religious Liberty: Catholic Struggles with Pluralism by John Courtney
Murray, edited by J. Leon Hooper, S.J. (Louisville, Ky: Westminster/John Knox Press, 1993)
Copyright © 1993 Westminster/John Knox Press
All rights reserved
For the previous chapter and table of contents, see General
Introduction and Contents.
As mentioned in the general introduction, this was the last of six distinct articles
written between 1952 and 1955. Throughout the series 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, and the people as an inert mass versus morally
active agents. My edited notes to this text, included with Murray's notes, offer
references to themes that Murray developed in the earlier articles.
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."
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" (Immortale 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
reipublicae), 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 exposition 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 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.
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 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 society, or of the medieval regnumand 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 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 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 legislation 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 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, everywhere 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 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 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 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.
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, 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 society(13) 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 divine(14) 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 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 societies 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 judgment 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 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, 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 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 between 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 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 unchangeable 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 religious 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
necessary 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 Deiand 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.
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 novarummakes 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.
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 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 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).
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.
For the continuation of this chapter, see Government
and the Order of Religion (cont.).
Footnotes
1. Editor 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.
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 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. See also pp. 158-59 of the
second essay of this collection, "The Problem of Religious
Freedom."
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 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. 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 note: Here and at 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. Editor note: See 1951b, "The Problem of `The Religion of
the State,'" pp 342-43, note 13.
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 questiones 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 note: Another substitution of "society" for
the galley term "state." See note 6 above.
14. Editor 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 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, p. 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 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 note: Murray maintained that the public educational
system in the U.S. 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", WHTT; 1962b, "Federal Aid to Church Related
Schools".
18. Editor note See 1952a "The Church and Totalitarian
Democracy" for a lengthier description of the conspiracy that Leo XIII thought he
faced.
19. Editor 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 1948i "St. Robert Bellarmine on the Indirect Power" and 1949b
"Contemporary Orientations of Catholic Thought." )
20. Editor 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 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 1954a,
"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 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 of WHTT: "Should
There Be a Law," pp. 155-174. The use of that argument against Catholics involved in
a censorship campaign 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. 275-294.
23. Fritz Tillmann, Handbuch der katholischen Sittenlehre,
Vol. 4, Part 2: Die Verwirklichung der Nachfolge Christi: Die Pflichten gegen such
selbst und gegen den Nöchslen, pp. 441-42.
See also:
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