Works By John Courtney Murray, S.J.

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The Problem of Religious Freedom⁽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 Leo XIII and Pius XII: Government and the Order of Religion and Contents.

By Murray's count, the Secretariat for Christian Unity worked through five different texts on its way to the document that the Council approved as Dignitatis humanae personae.⁽²⁾ The first two, the "first" and "second" texts, were written during the first session of the Council (October to December 1962) and were the result of attempted compromises between August Cardinal Bea's Secretariat for Christian Unity and Cardinal Ottaviani's Pontifical Theological Commission. Murray was not present at this first session and had no role in shaping these first two drafts. Both texts attempted to justify religious freedom on the basis of the rights of conscience.

During and immediately after the third session (September to November 1964) two subsequent drafts (the textus emendatus and the textus re-emendatus) were written with Murray as their "first scribe." The central argument in both texts was that of his "The Problem of Religious Freedom."

A fifth text (the textus recognitus) was written while Murray was out of circulation because of a collapsed lung. The fifth text was presented to the Council on October 25, 1965 during the fourth session (September to December 1965). After the incorporation of several proposed amendments, a final text was approved and promulgated on December 7, 1965, as a conciliar declaration. The main argument of the fifth and final texts was grounded on the human right to search after the truth and to embrace the truth once found. Murray's principal line of argument entered the text, as we will see in the last article in this collection, as an addendum.

Murray composed our present article, "The Problem of Religious Freedom," before and during the third session, while he was also drafting the textus emendatus. The second section is a broad historical analysis of the changing state of the religious liberty question, from the Roman Empire to John XXIII. The first section abruptly presents the canonist position and Murray's own argument "objectively" (so Murray claimed). In the third section, Murray tried to sketch the full range of issues that separated him from the canonists.

Introduction

In a recent address to a seminar of the United Nations on freedom of information Paul VI said:

As you know, the Church also is busy with a somewhat different problem but one that is not without affinity with the present object of your research. It is the problem of religious freedom. The importance and amplitude of the question are so great that it has claimed the attention of the Ecumenical Council. It is legitimate to expect the promulgation of a text on the subject that will be of great import not only for the Church but also for all those countless in number who feel that an authoritative declaration on the subject is a matter of concern to them.⁽³⁾

This essay may serve to illuminate the formidable difficulties that the problem itself presents. They arise from two general sources.

First, there is the variety of religio-social situations throughout the world, and the differences among political traditions and regimes, and the divergences in the historical experiences of the nations.

For instance, religious freedom has been an integral part of the Catholic experience in the United States; the institution is considered to have made a contribution to the vitality of the Church. Elsewhere, perhaps chiefly in Spain, the institution is alien; the very notion connotes a hated Liberalismo, pernicious both to the Church and to a cherished national religious unity.

Again, there is the more difficult problem of Christian communities in lands of non-Christian tradition and culture-Islamic, Hindu, Buddhist. A declaration on religious freedom might be understood to signify the will of Christians to constitute a "state within a state," and to withdraw from solidarity with the existent national community. The result might possibly be governmental legislation against conversion to Christianity, as well as severe restrictions on missionary activity. Opposition on Christian grounds to governmental policies is an accepted phenomenon in those countries in which government pretends to do no more than administer the affairs of society; it is considered a legitimate exercise of religious freedom. The case may be different in those countries in which government is undertaking the task of constructing the social order, in the name of an ideology of which government is the representative. In these circumstances, opposition, based on an appeal to religious freedom, might be considered disloyalty to the state.

Furthermore, there is the still more difficult problem of the Church in countries under Communist domination. Some conciliar Fathers are in favor of a strong condemnation of Communism, both as an ideology and as a regime, precisely in the name of religious freedom. Others are inclined to doubt the value or prudence of such a condemnation. Still others consider that it would do more harm than good. If the Council were to declare, explicitly or implicitly, that the atheist is not free to profess his ideology and to make it the basis of a socialist-materialist society, the retort might well be: "The freedom that you solemnly deny to us, we shall deny to you with equal solemnity and considerably more effect." There is also the more general problem of the atheist himself, and the secularist too. If the Council were simply to say to him that he is the enemy of the common good and therefore cannot be granted freedom, it would reveal itself as insensitive to the religious problem of today, of which the atheist and the secularist form so large a part.

Finally, there is the problem of making a declaration on religious freedom that will appeal to the common consciousness of all men of good will and furnish the basis of a badly needed dialogue between the Church and the world on this acute and universal problem. The scope of the Council calls for a pastoral act, which will at once clarify the doctrine of the Church and also demonstrate her concern for human freedom in this perilous age of ours.

The second source of difficulty is the contemporary state of Catholic doctrine on religious freedom. The fact is that serious differences of opinion presently exist within the Church. The fact was clearly demonstrated by the variant reactions to the three draft texts submitted in succession by the Secretariat for the Promotion of Christian Unity. Nevertheless, there is general agreement on the necessity of reaching a consensus and on the means of doing so, namely, the freedom of the conciliar dialogue, and the willingness of the Fathers to rise above any sort of apologetic complex and to approach the problem in the spirit of genuine theological inquiry.

The purpose of the present essay is not to present any personal views of the author. The essay undertakes, first, to state with all possible objectivity the two existent views on religious freedom (in order to avoid prejudicial characterization, they will be called simply the First View and the Second View), and second, to institute a dialogue between them, presenting the objections that each has to the other. In this way it may be possible to formulate clearly and without confusion the real issues.

At the outset, it may be useful to state the central question that is in dispute between the two Views. It concerns the care of religion by government. The technical term or phrase "care of religion" (cura religionis) is a post-Reformation coinage. But the problem goes back to the days when the Church first emerged into public existence within the ancient Roman Empire. It is a political problem, because it concerns the competence of government with regard to religion in society. It is a juridical problem, because it concerns the functions and limits of the coercive power of civil law in the same regard. It is a theological problem, because it touches doctrines of faith, chiefly in ecclesiology. It is an ethical problem, because it raises the issue of conscience and of human and civil rights. Hereinafter it will be called the "constitutional question." The practical reason is that nowadays an answer to the question of public care of religion is customarily provided, in one sense or another, in the constitutional law of organized political communities.

The Two Views

The First View

The problematic of religious freedom is abstract and simple. It is constructed by two related questions-the moral question of the rights of conscience, and the constitutional question.

With regard to the moral question, three cases are distinguished. First, there is the conscience that is not only subjectively formed in accord with higher norms (conscientia recta), but also formed by norms that are objectively true (conscientia vera). This conscience, which is the Catholic conscience, possesses the fulness of religious freedom, because religious freedom is rooted in objective truth. It is a positive concept. It is the social faculty of professing and practicing what is true and good, as the true and the good are objectively proposed by the eternal law of God (both natural and positive), subjectively manifested by a rightly and truly formed conscience, and authentically declared by the Church. Religious freedom in this sense is the requirement of the dignity of the human person. As a rational and moral being, man is constituted in his proper dignity by his adhesion to what is true and good. This is the religious freedom that the Church has always vindicated in the face of persecution of the truth.

Second, there is the case of the outlaw conscience (conscientia exlex). It recognizes no norms higher than its own subjective imperatives. Therefore it possesses neither rectitude nor truth. Therefore it has no rights; it can make no claim to religious freedom. Again the reason is that religious freedom is rooted in religious truth.

Third, there is the case of the sincere but erroneous conscience. It is formed in accord with higher norms that approve themselves to it, but these norms are not objectively true, at least not with the fulness of truth (conscientia recta sed non vera). Its rights are defined in terms of a distinction between internal personal freedom and external social freedom.

The erroneous conscience is endowed with internal personal freedom. It has the right not to be forced to abandon its religious convictions and practices and not to be coerced into acceptance of the true religious faith, against its own subjectively sincere mandate. It also has a right to reverence and respect on the part of others, and others have the duty of paying it reverence and respect. The respect, however, is not owed to the erroneous conscience as erroneous, since no respect is due to error, but to the man in error who is still endowed with that measure of human dignity which is synonymous with internal personal freedom. The duty here is therefore of the order of charity; its proper name is tolerance.

Furthermore, internal personal freedom is extended to include the religious freedom of the family the right of parents to care for the religious upbringing of their children and to provide religious teachers for them. Finally, some affirm that internal personal freedom includes the right to public worship; others, however, deny this right, for the reason that a public act of worship is already an act of public propaganda.

The erroneous conscience has no right to external social freedom. That is, it has no right to public expression or manifestation of its beliefs in worship, witness, or teaching. In particular, it has no right publicly to propagate or disseminate its belief. The reason is that error has no public rights; only the truth has public rights, scil., rightsto be exercised within society. Therefore the case of the erroneous conscience raises no issue of right in the strict sense, no issue of religious freedom in the proper sense. It raises only the issue of tolerance or intolerance. The erroneous conscience can claim no immunity from the repression of its external social manifestations by the public powers. This immunity, however, may be granted as an act of tolerance.

The constitutional question is solved by appeal to the same principle that governed the solution of the moral question, namely, that only the truth has rights, whereas error has no rights, within the public sector of society. This is the supreme juridical principle which controls the order of constitutional law and the action of the state. Whence it follows immediately that the public powers may never positively authorize the public existence of religious error. The legal attitude towards error can only be one of tolerance. On the other hand, the public powers have no right to violate the internal freedom of the personal conscience, or the freedom of the family, by compelling the profession or practice of any religion or ideology.

For the rest, the constitutional question is solved in terms of a distinction between thesis and hypothesis. The thesis states the ideal-the care of religion that constitutional law ought to provide, per se and in principle. The hypothesis states the concessions that may have to be made to circumstances-the care of religion that constitutional law may provide, per accidens and in view of circumstances.

The thesis asserts two general propositions. First, the state is bound not only on the natural law but also on the positive divine law whereby the Church was established. Therefore the state has the duty, per se and in principle, to recognize by constitutional law that the Church is a perfect society sui iuris and that it is the only religious society which has a right iure divino to public existence and action. Since Catholicism is, by divine law, the one true religion, it ought to be, by constitutional law, the one religion of the state. Whence it follows that no other religion may have, per se and in principle, a legal right to public existence and action within society. A religion that has no right to exist iure divino, can have no right to exist iure humano. Therefore, per se and in principle, all false religions ought to be "exterminated," that is, put beyond the bounds of public life and social action.

Hence the thesis affirms the legal institution of intolerance as the logical and juridical consequence of the legal institution of "establishment" (unica status religio). Together, these two institutions exhibit the ideal instance of constitutional law, the ideal solution to the constitutional question of public care of religion. The solution is internally consistent. The supreme juridical principle--the exclusive rights of truth--is transposed into the legal institution of the one state-religion. The obverse of the principle-the rightlessness of error-is transposed into the legal institution of intolerance. The special argument for this latter institution proceeds in two stages.

First, religious error may legitimately be repressed by law or by the police action of the state. Since error has no rights, no injury is done by this repression. The internal personal religious freedom of the erroneous conscience creates for it no external social freedom. Therefore the man of erroneous conscience cannot be considered reasonably unwilling to submit to the repressive action of the legitimate authority, the state. It is per se and in principle irrational to oppose the repression of what has no right to existence. Second, error ought to be repressed by the state. There are four reasons. First, error and evil are per se contrary to the rational and moral nature of man. Second, they are per se contrary to the common good of society, which is constituted by what is true and good. Third, they are per se injurious to the rights of others, especially their right to be protected from error and evil and to be left undisturbed in the profession of truth and in the practice of the good. Fourth, error and evil are per se a scandal, an occasion of moral wrongdoing and of defection from the truth.

This, in brief, is a statement of the thesis, the ideal, the solution to be given, per se in principle, to the constitutional question as a quaestio iuris. There remains the quaestio facti, the question of applying the ideal in practice. This question gives rise to the hypothesis. The distinction between thesis and hypothesis corresponds to the difference between national societies in respect of the religious composition of the citizenry.

Certain nations are Catholic, that is, the majority of the citizens are Catholic; or, as some prefer to say, the nation has historically reached the social consciousness of Catholic truth; or, as others prefer to say, the tradition of the nation has been a tradition of national Catholic religious unity. In these circumstances the thesis applies, per se and in principle. Other societies, however, are not Catholic; the religio-social situation is pluralistic; Catholics are only a minority; Catholicism has not permeated the national consciousness. In these circumstances the hypothesis applies, per accidens, as a matter of fact.

That is, the Church forgoes her right to legal establishment as the one religion of the state, with its juridical consequence, legal intolerance, The Church, however, gives no positive approval to the resultant constitutional situation. Per se the situation is an evil, but it may be regarded as a lesser evil than the evils which would result from application of the thesis. Therefore it may be tolerated, per accidens and in practice.

The supreme juridical principle of the exclusive rights of truth, and its pendant distinction between thesis and hypothesis, establish a rule of jurisprudence with regard to intolerance and tolerance. This rule prescribes intolerance whenever possible; it permits tolerance whenever necessary. (The degrees of legal intolerance will vary; the essential thing is that false religions should be denied public existence, action, and utterance. So too the degrees of tolerance may vary.) The political criterion, whereby the issue of the possibility of intolerance or the necessity of tolerance is to be decided, is the public peace. Within conditions of Catholic unity, where dissidents are a small minority, legal intolerance becomes possible without disruption of the public peace. It is, in fact, a means toward the public peace. In contrast, legal tolerance becomes necessary within conditions of religious pluralism, where Catholics are a minority. It is in turn a means toward the public peace. The religious criterion is the good of the Church. Within conditions of national Catholic unity the good of the Church is served by intolerance; elsewhere, by tolerance.

The First View puts forward its answer to the moral question, and its consequent answer to the constitutional question, as true, certain, and immutable, not only in respect of the constituent principles themselves but also in respect of their systematization (impostazione). The basic systematic concept is the exclusive rights of truth. The whole system, especially the disjunction between thesis and hypothesis, derives from this concept.

Moreover, this First View is declared to be the doctrine of the Church, supported by magisterial authority. The document of primary and definitive importance is alleged to be the Allocution of Pius XII, ci riesce. There are two reasons. First, Pius XII affirms the basic systematic concept of the First View: "That which does not correspond to the truth and the norm of morality has, objectively, no right either to existence or to propaganda or to action."⁽⁴⁾ Second, Pius XII proposes a doctrine of tolerance, not of religious freedom: "Not to inhibit it [error] by means of public laws and coercive methods can nevertheless be justified in the interests of a higher and greater good."⁽⁵⁾

Moreover, this doctrine is in continuity with Leo XIII. Thus, on the moral question: "Right is a moral faculty. Hence We have said -- what needs to be repeated -- that it is absurd to think that this moral faculty is granted by nature, impartially and without distinction, to truth and untruth, to decency and indecency."⁽⁶⁾ Thus also, on the constitutional question and the issue of tolerance:

Nevertheless, it is with a maternal judgment that the Church measures the heavy weight of human weakness; and she does not fail to note the direction being taken by events and opinion in this our age. For this reason, although she grants no rightfulness except to what is true and good, she is not unwilling that the public power should put up with certain things that are at odds with truth and justice, when it is a question of avoiding a greater evil or of gaining or saving a greater good.⁽⁷⁾

Other texts of the same tenor are adduced from Leo XIII. In addition, there is the catena of texts, beginning with Gregory XVI, in which the "modern liberties," especially freedom of religion, are condemned. Finally, Pacem in terris is considered to be simply a pastoral document, expressing the concern of the Church for the dignity of man. This concern is shared by the First View, in its defense of the right to internal personal religious freedom. For the rest, John XXIII leaves intact the doctrine of the duties and rights of the state in the order of religion, as presented by the First View. This doctrine is traditional and unalterable.

The supreme juridical principle of the exclusive rights of truth embodies an understanding of the medieval axiom: "Extra ecclesiam nullum ius." The thesis reproduces the sense of the medieval doctrine of the two swords, according to which the temporal sword is available "at the will and command of the priest" (ad nutum et iussum sacerdotis) for the protection of the religious unity of Christendom (christianitas) and for the extermination of heresy. The hypothesis states the sense of the medieval doctrine with regard to tolerance of Jews and pagans, their rites and beliefs.

Moreover, the First View stands in continuity with the doctrine of theologians during the post-Reformation religious conflicts. At that time, both Catholic and Protestant theologians taught the distinction between personal freedom of conscience and public manifestations of religious belief. In the latter regard, the state of the question was the same as it is today, namely, religious freedom in the civil order is the prerogative of the truth; error is to be treated with civil intolerance or tolerance, as the case might be. Moreover, in those days as also today, a sociological distinction was made. There were kingdoms and principalities within which unity of faith still prevailed, on the whole; the Reform had only begun to make inroads; its adherents were a small group, not well organized, not possessed of significant social or political power. Within these conditions of fact, the prince could exterminate the Reform, by measures of greater or less severity, without serious danger to the public peace. Hence the prince was obliged to proceed with the policy of extermination. In contrast, there were states within which the Reform was already well established and organized; it already claimed a sizable number of adherents, even among the nobility; it was therefore possessed of social and political power. Within these conditions of fact, the extermination of the Reform was no longer possible without danger of civil strife. Therefore tolerance became necessary and the prince was permitted to grant it, as the lesser evil. Per se and in principle, the prince's duty to care for religion constituted him the custodian of religious unity; per accidens and in practice, the prince was permitted to tolerate a plurality of religions within his jurisdiction.

On the other hand, the First View rejects certain conceptions of public care of religion that were prevalent in former eras. It recognizes that the modern Catholic nation is not the medieval Christian commonwealth; hence it denies that the religious prerogative of the emperor is to be transferred without alteration to the public powers in the Catholic state today. It denies that public care of religion may be prolonged into a ius in sacra or a ius circa sacra. It also denies the ius reformandi of the prince and its pendant, the beneficium emigrationis. It denies that the prince, by reason of his political sovereignty, is a competentjudge of religious truth and custos utriusque tabulae. It rejects the notion that the prince, although he has no right to compel or impose religious faith, has nonetheless the duty and right to compel his subjects to hear the true word of God and to enforce outward conformity with the official faith. It admits therefore, in principle, that certain kinds of external constraint are incompatible with personal freedom of conscience.

In these respects, and in others, the First View represents progress within the tradition, a clearer and less confused understanding of traditional principles-in particular, the distinction between the religious order and the political order, and the limitations of political sovereignty in the order of religion. However, the First View maintains that progress within the tradition ended with Leo XIII and the systematization of his doctrine by subsequent canonists. Catholic ,'doctrine has reached its final and definitive mode of conception and statement. It has defined forever the ideal instance of constitutional law with regard to public care of religion. Many changes have indeed taken place in the world since Leo XIII; in particular, there is a wide demand for religious freedom as a personal right and as a legal institution. These changes, however, represent decadence, not progress. Their sole historical effect has been to create more evils that the Church must tolerate; hence the scope of tolerance must be broadened. For the rest, the ideal remains, transhistorical, unquestionable.

The Second View

The problematic of religious freedom is concrete and historical. Its construction begins with a scrutiny of the "signs of the times." Two are decisive. The first is the growth of man's personal consciousness; the second is the growth of man's political consciousness. They were noted, in their relation, by John XXIII:

The aspirations of the minds of men, about which We have been speaking, also give clear witness to the fact that in these our days men are becoming more and more conscious of their dignity. For this reason they feel the impulse to participate in the processes of government and also to demand that their own inviolable rights be guaranteed by the order of public law. What is more, they likewise demand that the civil powers should be established in accord with the norms of a public constitution and that they should fulfil their functions within limits defined by it.⁽⁸⁾

The political consciousness, which is the correlate of the personal consciousness, is further described:

Moreover, the dignity of the human person requires that a man should act on his own judgment and with freedom. Wherefore in community life there is good reason why it should be chiefly on his own deliberate initiative that a man should exercise his rights, fulfil his duties, and cooperate with others in the endless variety of necessary social tasks. What matters is that a man should make his own decisions and act on his own judgment, out of a sense of duty. He is not to act as one compelled by external coercion or instigation. in view of all this, it is clear that a society of men which is maintained solely by force must be considered inhuman. The reason is that in such a society men would be denied their freedom, whereas, on the contrary, they ought to be inspired, by all suitable means, to find for themselves the motive for progress in life and for the quest of perfection.⁽⁹⁾

Man's sense of personal freedom is allied with a demand for political and social freedom, that is, freedom from social or legal restraint and constraint, except in so far as these are necessary, and freedom for responsible personal decision and action in society. Freedom, not force, is the dynamism of personal and social progress.

The common consciousness of men today considers the demand for personal, social, and political freedom to be an exigency that rises from the depths of the human person. It is the expression of a sense of right approved by reason. It is therefore a demand of natural law in the present moment of history. This demand for freedom is made especially in regard to the goods of the human spirit-the search for truth, the free expression and dissemination of opinion, the cultivation of the arts and sciences, free access to information about public events, adequate opportunities for the development of personal talents and for progress in knowledge and culture.⁽¹⁰⁾ in a particular way, freedom is felt to be man's right in the order of his most profound concern, which is the order of religion.⁽¹¹⁾

Therefore the Second View holds that, in consequence of the new perspective created by the growth of the personal and political consciousness, the state of the ancient question concerning public care of religion has been altered. Today the question is not to be argued in medieval or post-Reformation or nineteenth-century terms, scil., the exclusive rights of truth and legal tolerance or intolerance, as the case may be, of religious dissidence. The terms of the argument today are, quite simply, religious freedom. The question is to know, first, what religious freedom means in the common consciousness today, and second, why religious freedom, in the sense of the common consciousness, is to receive the authoritative approval of the Church.

The Second View addresses itself to the question in its new historical and doctrinal state. However, two schools of thought seem to exist with regard to the method of setting forth the Second View, which they nonetheless hold in common.

One school regards religious freedom as formally a theological-moral concept, which has juridical consequences, scil., within the order of constitutional law.⁽¹²⁾

The other school regards religious freedom as formally a juridical or constitutional concept, which has foundations in theology, ethics, political philosophy, and jurisprudence. The first school begins with a single insight-the exigence of the free human person for religious freedom. Only in the second instance does it raise what we have called the constitutional question. Consequently, within this structure of argument the political-juridical argument for religious freedom is secondary and subordinate to the theological-ethical argument. In contrast, the second school begins with a complex insight-the free human person under a government of limited powers. The constitutional question is raised at the outset; it is equally as primary as the theological-moral question. Consequently, the political-juridical argument for religious freedom is coordinate with the theological-moral argument. In other words, both religious freedom, as a legal institution, and constitutional government, as a form of polity, emerge with equal immediacy as exigencies of the personal consciousness in its inseparable correlation with the political consciousness.

The differences between the two ways of stating the Second View are not irreducible. In any event, three difficulties are alleged against the first structure of argument.

First, the notion of religious freedom as a human right seems to appear as a piece of theological-ethical theory, arrived at by a process of abstract argument, in a vacuum of historical, political, and juridical experience. The methodology here is vulnerable, in that it seems to divorce the issue of the rights of the human person from its necessary social-historical context. In contrast, in the second school of thought religious freedom presents itself concretely, as both a human and a civil right, embodied in a legal institution, which forms a harmonious part of a larger constitutional order of freedom. This order, in turn, appeals for its validity to traditional principles of politics, legal philosophy, and jurisprudence, as these principles are vitally adapted to the realities of historical experience today. In this fashion, religious freedom as a human right is validated in the concrete, by a convergence of theological, ethical, political, and jurisprudential argument. This methodology commends itself as more in accord with the historical consciousness that ought to preside over all argument about human rights.

Second, the first school of thought runs the risk of "overtheologizing" the notion of religious freedom as a human right and as a consequent norm for the juridical order of society. The result might be to propose the legal institution of religious freedom as the "ideal instance" of constitutional law with regard to public care of religion. This ideal would then stand in conflict with the constitutional ideal proposed by the First View. In consequence, a false argument would be set afoot. Traditional philosophies of politics, law, and jurisprudence do not recognize any such thing as an ideal instance of constitutional law. By reason of the very nature of law, the issue of the ideal never arises. The function of law, as the jurist said, is to be useful to men. Necessity or usefulness for the common good-these are norms of law. Legal institutions can never fall into the category of the ideal. This risk of an idealization of religious freedom is avoided by the second school of thought, in which the relativities of history receive due attention.

Third, the first school of thought runs the risk of setting afoot a futile argument about the rights of the erroneous conscience. This argument may well be inextricable. In any event, it is irrelevant to the constitutional question. The simple reason is that the public powers are not competent to judge whether conscience be erroneous or not. The good faith or bad faith, the truth or falsity of conscience are not matters for adjudication by the civil magistrate, upon whom public care of religion devolves. This unnecessary argument is avoided from the outset by the second school of thought, given its complex starting point, the personal and the political consciousness.

An orderly exposition of the Second View can best be made by making the classic distinction between the question of definition or concept (quid sit) and the question of judgment (an sit, curita sit). Moreover, in the methodology here being followed, the conceptual question is twofold: what is religious freedom, and what is its correlate, constitutional government.

The Conceptual Question

The question, what is religious freedom, is not to be answered a priori or in the abstract. The fact is that religious freedom is an aspect of contemporary historical experience. As a legal institution, it exists in the world today in the juridical order of many states. It is not simply a question of understanding what religious freedom meant in the Third French Republic under the Law of Separation of December 9, 1905; nor of understanding what it meant under the Estatuto Real of 1834 in the reign of Isabella II. For the theologian, the instant conceptual question is to understand what religious freedom means today, in so far as it presents itself as an exigence of the personal and political consciousness of contemporary men. From this point of view, the following description can be assembled.

First, religious freedom is obviously not the Pauline elutheria, the freedom wherewith Christ has made us free (Gal 5: 1). This is a freedom of the theological order, an empowerment that man receives by grace. In contrast, religious freedom is an affair of the social and civil order; it is an immunity that attaches to the human person within society, and it has its guarantee in civil law. Obviously too, religious freedom has nothing to do with the statute of the member of the Church in the face of the authority of the Church, as if the Christian could somehow be free from obedience to the Church, which is absurd. Still less has it anything to do with the statute of the creature in the face of his Creator, as if man could somehow be free from the dominion of God, which is even more absurd.

Second, the adequate subject of religious freedom in its proper juridical sense as a human and civil right, guaranteed by constitutional law, is the body politic as such, the People Temporal-collectively, individually, and in their corporate associations. This follows from the very nature of constitutional law. The people are constituted a people consensu iuris (in the classic phrase), by their consent to a common law which touches all and is to be approved by all (in another classic phrase). Hence the people as such are the adequate subject of all the immunities and empowerments which the common law provides.

Third, the juridical notion of religious freedom is complex in its content. Within the concept it has become customary to make a general division between "freedom of conscience" and "the free exercise of religion" (this technical vocabulary goes back to the sixteenth century, and it is too late to change it now).

In its juridical sense, freedom of conscience is the human and civil right of the human person to immunity from all external coercion in his search for God, in the investigation of religious truth, in the acceptance or rejection of religious faith, in the living of his interior religious or nonreligious life. In a word, it is the freedom of personal religious decision. This freedom is essentially social. A man's religious decisions, however personal, are made in the social context of man's existence. In making them, a man has the right to be free from coercion by any human forces or powers within the social milieu. Society and all its institutions are obliged to respect this right and to refrain

from coercion. By coercion, here and hereafter, is meant all manner of compulsion, constraint, and restraint, whether legal or extralegal. It includes such things as social discrimination, economic disadvantage, and civil disabilities imposed on grounds of religion. Today it importantly includes coercive forms of psychological pressure, such as massive propaganda, brainwashing techniques, etc.

The free exercise of religion is itself a complex concept. First, it is commonly understood to include a twofold immunity: a man may not be coercively constrained to act against his conscience, nor may a man be coercively restrained or impeded from acting according to his conscience. (The question of the limitation of this right will be dealt with later.) Furthermore, three aspects of the free exercise of religion are commonly distinguished.

Ecclesial or Corporate Religious Freedom

This is the right of religious communities within society to corporate internal autonomy. It is their immunity from the intervention of the public powers or of any social agency in the declaration of their own statute of corporate existence, in the determination of their own doctrine and polity, in their internal discipline and self-government, in the appointment of officials and in the definition of their functions, in the training and employment of ministers, in their communication with other communities and with recognized religious authorities in other lands. This freedom also includes the immunity of religious communities from employment by the public powers as instrumentum regni. In a word, this freedom is the corporate counterpart of personal freedom of conscience.

Here too is the appropriate place to locate the religious freedom of the family, the rights of parents with regard to the religious education of their children, and the rights of the religious school in relation both to churches and to families.

Freedom of Religious Association

This includes, first, the right to immunity from coercion in affiliating, or in ending affiliation, with organized religious bodies; and second, the same immunity in the formation of associations for religious and charitable purposes.

Freedom of Religious Expression

This is the right, both of individuals and of religious bodies, to immunity from coercion in what concerns the public worship of God, public religious observances and practice, the public proclamation of religious faith, and the public declaration of the implications of religion and morality for the temporal affairs of the community and for the action of the public powers.

The common legal and civic consciousness today recognizes that freedom of conscience and its corporate equivalent, ecclesial freedom, are freedoms sui generis. The first concerns man's personal relation with God, which is by definition an affair of personal freedom in a unique sense. The second concerns man's relation to God as lived in community, in accord with the social nature both of religion and of man himself. Hence the right to internal ecclesial autonomy is likewise sui generis. Finally, freedom of religious association, inasmuch as it includes immunity from coercion in the choice of one's religious affiliation, possesses the same quality of uniqueness as freedom of conscience and ecclesial freedom, to both of which it is directly related.

On the other hand, the personal or corporate free exercise of religion, as a human and civil right, is evidently cognate with other more general human and civil rights-with the freedom of corporate bodies and institutions within society, based on the principle of subsidiary function; with the general freedom of association for peaceful human purposes, based on the social nature of man; with the general freedom of speech and of the press, based on the nature of political society. The exercise of these more general human and civil rights, whether personal or corporate, takes place in the public domain, and therefore it becomes amenable to regulation by the public powers, in accord with recognized and reasonable criteria. The same is true of the free exercise of religion, inasmuch as it is a civil right cognate with other more general civil rights. The question is to know the criteria which must govern the action of the public powers in limiting the free exercise of religion. This is the crucial issue in the constitutional question of public care of religion. We shall turn to it later.

For the moment, it is to be noted that the free exercise of religion remains a freedom sui generis, even though it is cognate with other civil rights. The reason is that in all its forms it raises the issue of man's relation to God, as conceived by doctrine, affirmed by conscience, socially organized, and proclaimed in public utterance. In contrast, other civil rights have only to do with man's relation to other men or to society.⁽¹³⁾

The foregoing analysis presents the answer which the contemporary consciousness, personal and political, gives to the first conceptual question, what is religious freedom. (There may be a difficulty about the proper classification of the three freedoms listed, but it is of minor importance.) Moreover, the foregoing understanding of religious freedom is substantially in accord with the understanding contained in the pertinent declarations of the World Council of Churches.⁽¹⁴⁾ The fact is of some importance for the ecumenical dialogue.

The second conceptual question, what is constitutional government, is likewise complex. For our purposes, which concern constitutional government as the political correlate of the juridical notion of religious freedom, it will be sufficient rapidly to recall four basic principles which combine to make government constitutional, scil., limited in its powers.

The first principle is the distinction between the sacred and the secular orders of human life. The whole of man's existence is not absorbed in his temporal and terrestrial existence. He also exists for a transcendent end. The power of government does not reach into this higher sacred order of human existence. It has no share in the cura animarum or in the regimen animorum;⁽¹⁵⁾ it is not the judge or the representative of transcendent truth with regard to man's eternal destiny; it is not man's guide to heaven. Its powers are limited to the affairs of the temporal and terrestrial order of man's existence. And they are not to be used as instruments for the spiritual purposes of the Church, the maintenance of her unity or the furtherance of her mission.

The second principle is the distinction between society and state. Historically, this distinction developed out of the medieval distinction between the ecciesia (christianitas) and the imperium. The imperial power played a role within Christendom-a limited role; it was charged with limited functions within the Great Society inasmuch as the ecclesia was a socio-temporal reality. Today, in the developed constitutional tradition, the state is an agency that plays a role within society-a limited role. The purposes of the state are not coextensive with the purposes of society. The state is only one order within society-the order of public law and political administration. The public powers, which are invested with the power of the state, are charged with the performance of certain limited functions for the benefit of society-such functions as can and must be performed by the coercive discipline of law and political power. These functions are defined by constitutional law, in accord with the consent of the people. In general, "society" signifies an area of freedom, personal and corporate, whereas "state" signifies the area in which the public powers may legitimately apply their coercive powers. To deny the distinction is to espouse the notion of government as totalitarian.

The third principle is the distinction between the common good and public order. It follows from the distinction between society and state. The common good includes all the social goods, spiritual and moral as well as material, which man pursues here on earth in accord with the demands of his personal and social nature. The pursuit of the common good devolves upon society as a whole, on all its members and on all its institutions, in accord with the principles of subsidiarity, legal justice, and distributive justice. Public order, whose care devolves upon the state, is a narrower concept. It includes three goods which can and should be achieved by the power which is proper to the state-the power inherent in the coercive discipline of public law. The first is the public peace, which is the highest political good. The second is public morality, as determined by moral standards commonly accepted among the people. The third is justice, which secures for the people what is due to them. And the first thing that is due to the people, injustice, is their freedom, the due enjoyment of their personal and social rights-those empowerments and immunities to which the people, individually, collectively, and corporatively, lay rightful claim. John of Salisbury spoke for the tradition of constitutionalism when he said: "The prince [the constitutional Monarch, in contrast to the tyrant] fights for the laws and for the freedom of the people."⁽¹⁶⁾ The power of the state is therefore limited to the maintenance of public order in this threefold sense. (We omit here, as not relevant to our subject, the function of the state with regard to the good of "prosperity," the material welfare of the people.)

The foregoing three principles belong to the order of political truth. When government is based on them, it is based on the truth. The fourth principle is at once a substantive political truth and also the primary rule of political procedure. It is the principle and rule of "freedom under law." The freedom of the people is a political end, prescribed by the personal consciousness among the people. The freedom of the people is also the higher purpose of the juridical order, which is not an end in itself Furthermore, freedom is the political method per excellentiam, prescribed by the political consciousness among the people. In so far as a political society must depend on force and fear to achieve its ends, it departs both from political truth and from the true method of politics. Finally, freedom under law is the basic rule of jurisprudence, which runs thus: "Let there be as much freedom, personal and social, as is possible; let there be only as much restraint and constraint, personal and social, as may be necessary for the public order." In all these ways, the principle and rule of freedom under law sets limits to the power of government.

The Question of Judgment

In reply to this question, the Second View affirms the validity of religious freedom, in the sense explained, as a legal institution, a juridical notion, a civil and human right. Correlatively, it affirms the validity of constitutional government, within whose structure religious freedom, in the sense explained, finds its necessary place. Two things about this compound affirmation must be noted.

First, the Second View undertakes to justify religious freedom, not to idealize it. It is not a question of affirming an ideal instance of constitutional law, after the manner of the First View. The Second View maintains that an ideal instance of constitutional law is a contradiction in terms. In the Second View, therefore, religious freedom is not thesis; neither is it hypothesis. The Second View abandons these categories of systematization. It does not accept, as its basic systematic notion, the abstract notion of the exclusive rights of truth, which creates the disjunction, thesis and hypothesis. Instead, it posits, as the basis for a systematic doctrine of religious freedom, the concrete exigencies of the personal and political consciousness of contemporary man-his demand for religious freedom, personal and corporate, under a limited government. This demand is approved by reason; it ought to be approved by the authority of the Church. Hence the Second View affirms the validity of an order of constitutional law in which public care of religion is limited to public care of religious freedom in the complex sense already described.⁽¹⁷⁾

In negative terms, the Second View rejects the opinion that public care of religion necessarily means, per se and in principle, a political and legal care for the exclusive rights of truth and a consequent care to exterminate religious error. In positive terms, it holds that public care of religion is provided in both necessary and sufficient measure when the order of constitutional law recognizes, guarantees, and protects the freedom of the Church, both as a religious community and as a spiritual authority, at the same time that it gives similar recognition, guarantee, and protection to the general religious freedompersonal, ecclesial, associational, and practical-of the whole body politic. Within the new perspectives of today, the Church does not demand, per se and in principle, a status of legal privilege for herself. The Church demands, in principle and in all situations, religious freedom for herself and religious freedom for all men.

Second, the Second View makes its affirmation of religious freedom in full awareness that this affirmation is at once new and traditional. It represents a growth in the understanding of the tradition, which corresponds to the growth of the personal and political consciousness of men today, to the enlargement of the pastoral solicitude of the Church today, and to the self-understanding of the Church in the world of today, as the missionary Church, in the diaspora, the sign of truth, justice, love, and freedom lifted among the nations. Therefore the Second View speaks to the ancient constitutional question of public care of religion in a new historical state of the question. The answer must be new, because the question is new. The answer must also be traditional, because it is the answer of the Church. However, only the elements of the answer are to be found in the tradition, not the answer itself in explicit and systematized form.

There are therefore two tasks: (1) to present the arguments for the affirmation of religious freedom; (2) to review the tradition, within the new perspectives of today, in order to show that the affirmation represents a valid growth in the understanding of the tradition. Since the concept of religious freedom is complex, the argument for affirming its validity must be made part by part. Moreover, since the juridical notion has a political correlate, the political and juridical arguments will be adduced coordinately with the theological and ethical arguments. All the arguments will be summarily indicated, notfully developed.

Freedom of Conscience

The theological argument⁽¹⁸⁾ is the tradition with regard to the necessary freedom of the act of faith which runs unbrokenly from the text of the New Testament to the Code of Canon Law (can. 1351). This tenet of Catholic doctrine is held no less firmly by all who bear the name of Christian. In fact, even the atheist holds it. It is part of the human patrimony of truth, embedded in the common consciousness of mankind. The ethical argument is the immunity of conscience from coercion in its internal religious decisions. Even the Church, which has authority to oblige conscience, has no power to coerce it. The political argument is the common conviction that the personal internal forum is immune from invasion by any powers resident in society and state. No external force may coerce the conscience of man to any form of belief or unbelief. The juridical argument enforces the same conclusion; it is contrary to the nature of civil law to compel assent to any manner of religious truth or ideology. The distinction between the sacred and the secular is binding on law and government; and the personal conscience is a sacred forum. Moreover, for the argument here, it does not matter whether the conscience be true or erroneous. It is not within the competence of society or state to judge whether conscience be true or erroneous. And jurisprudence declares the distinction to be irrelevant for the purposes of civil law.

The Free Exercise of Religion

This, as we have seen, has three component elements.

Ecclesial or Corporate Freedom The theological principle here is "the freedom of the Church," the doctrine celebrated by Gregory VII and restored to its centrality by Leo XIII. The pregnant phrase expresses the whole supernatural reality of the Church, as the community of the faithful and as a spiritual authority sui iuris. It expresses her distinction from civil society in origin, constitution, and purposes; it likewise expresses her transcendence to all political forms. In the present connection, the phrase asserts the internal autonomy of the Church in the face of the public powers-her right to define her own statute of existence on the basis of the divine will, to determine her own form of organization and government and her own norms of ecclesial life and action, to elect or appoint her own rulers, to educate her own clergy, and to communicate across national boundaries. In all her internal affairs the Church is immune from interference by the public powers. This same claim to internal autonomy is likewise made by other Christian churches, which today reject all forms of Erastianism. Political and legal philosophy acknowledges this ecclesial freedom. The powers of the state are limited to the purposes and interests of the body politic; civil law can deal only with civil affairs. Internal ecclesiastical affairs are no more the concern of the public powers than the affairs of the internal forum of conscience.

Corporate religious freedom also includes the religious freedom of the family and the freedom of the religious school. The Napoleonic concept of l'état enseignant and the consequent doctrine of the monopoly of education by the state are contrary to the tradition of constitutionalism and its distinction between society and state.

Freedom of Religious Association First, freedom of affiliation with a religious community is inseparable from personal freedom of conscience. And it is supported by the same arguments. A man's religious affiliation or nonaffiliation is no more the concern of the state than his internal religious decision to believe or not to believe. In both respects he enjoys the same immunity from coercion. The political axiom Cuius regio, eius et religio whereby religious freedom became the prerogative only of the prince, not of the people, is now recognized to be incompatible with both Christian and political principle. Second, freedom of association for religious or charitable purposes derives, on the one hand, from freedom of conscience, and on the other hand, from the general right of voluntary association. This latter right is based on the social nature of man, whose sociality is not exhausted by his citizenship in a body politic. It is likewise based on the principle of subsidiary function as a principle of social organization. The Jacobin revolutionary principle, which abolished all social institutions intermediate between the individual citizen and the state, was a violation of the constitutional tradition.

Freedom of Religious Expression This, as we have seen, is the free exercise of religion in the most formal sense. It is both a personal and also an ecclesial freedom, whose exercise is public, within society, chiefly in the forms of worship, witness, and the teaching of religious doctrine in itself and in its implications for society and state. The argument here is the indissolubility of the link, first, between the internal freedom of the Church and her external freedom to fulfil her apostolic office, and second, between personal freedom of conscience and social freedom of religious expression. The indissolubility of this link is established by a convergence of arguments.

First, the Church, as a community and as an authority, is immune from coercion by the public powers in the discharge of her religious mission, which looks both to the salvation of souls and also, by way of overflow (in the classic Augustinian doctrine), to the creation here on earth of conditions of peace and justice among men and nations. The nineteenth-century rationalist-individualist theory, which would confine the Church "to the sacristy" (in the famous phrase), is incompatible both with the theological doctrine of the freedom of the Church and also with the traditional principles of constitutionalism. These latter confer no power on the state to inhibit the free and public exercise of the Church's mission, much less to define what the mission of the Church is. The French Law of Separation of 1905, for instance, was a flagrant violation of sound political and legal principles. It was a sign, among others, of the final corruption of the constitutional tradition in Europe, which had begun with the rise of absolutism and its twin doctrines of the indivisibility of sovereignty and the complete identity of society and state.

Second, within the complex juridical notion of religious freedom, external freedom of religious expression is inseparably linked with internal freedom of conscience. Lest there be misunderstanding, the exact structure of the argument is to be noted.

The argument does not assert that freedom of religious expression is a logical deduction from freedom of conscience. This manner of argument would imply a hidden premise which is false, namely, a rationalist-individualist conception of man, as if the human person were somehow first an individual and only in the second instance a social being, in such wise that a logical inference could be drawn from individual rights to social rights. Second, the argument makes no appeal to any theory about the rights of the erroneous conscience, whatever may be the value of such a theory. The Second View does not base the juridical notion of freedom of religious expression on such a theory, for the reason already stated, namely, that the truth or error of conscience is not relevant to the constitutional question of public care of religion. Finally, the argument here does not raise the issue of tolerance. Tolerance is a concept of the moral order. It implies a moral judgment on error and the consequent adoption of a moral attitude, based on charity, toward the good faith of those who err. Our present discussion, however, has nothing to do with moral attitudes; it concerns freedom of religious expression as an integral part of the larger juridical notion of religious freedom.

Two lines of argument converge to establish the relation between freedom of conscience and freedom of religious expression. First, a true metaphysic of the human person affirms that human existence is essentially social-historical existence. It is not permitted to introduce a dichotomy into man, to separate his personal-interior existence and his social-historical existence. Hence it is not permitted to recognize freedom of conscience and to deny freedom of religious expression. Both freedoms are given in the same one instance; they are coequal and coordinate, inseparable, equally constitutive of the dignity and integrity of man. A dichotomy between them would rest on a false metaphysic of the human person. From the moral point of view, the dichotomy would be a sort of Kantianism, a separation of the personal-moral and the social-juridical orders. From the political point of view, it would introduce a schism in the body politic, an inequitable classification of citizenship on the basis of religious belief.

The political-legal argument reaches and enforces the same conclusion. In the constitutional tradition, no public official is empowered, by virtue of his public office, to inquire into the theological credentials of any religious body, and to decide whether it exists iure divino, whether its doctrine and polity are in conformity with divine revelation, whether it is divinely authorized to conduct public worship, give public witness to its faith, and teach those who are willing to listen. It is not within the competence of the public powers to consign churches to the sacristy, or to exterminate religious opinions from the public domain. The Erastian doctrine that the public powers are the arbiter of religious truth and the architect of church polity is not only contrary to Christian doctrine but also contrary to political principle. Civil law, which has no power to coerce the religious conscience, has no power to coerce the social expressions of the religious conscience. To bring force to bear, in restraint of freedom of religious expression, is to bring force to bear on conscience itself, in restraint of its freedom.

This argument, which is based on metaphysical, ethical, and political principle, is re-enforced by a historical argument. As a matter of historical fact, coercion or constraint of religious worship, witness, or teaching has inevitably resulted in the destruction or diminution of freedom of conscience, from the days of Diocletian to our own day of more subtle and damaging pressures on conscience.

The Limits of the Free Exercise of Religion

Here is the crucial question. From a practical point of view, society must have some way of protecting itself and its members against abuses committed in the name of the free exercise of religion. And it is the function of the state to provide this protection. From a more theoretical point of view, the free exercise of religion, like the exercise of other cognate civil rights, takes place in the public domain. It is therefore somehow amenable to regulation by the powers which preside over the public domain. Therefore we confront again the crucial issue in the constitutional question of public care of religion. What is the competence of the public powers with regard to passing judgment on forms of religious expression in society? Whence does this competence derive? What are the norms which should govern the action of the public powers in imposing limits, in particular cases, on freedom of religious expression?

The question has had a long history, as we shall indicate. And its history is not yet ended. The Second View maintains that the question admits no ideal solution, that it cannot be settled a priori, more geometrico down to the last detail. It is, however, possible to state certain principles of solution.

First, the care of religion, in so far as it implies the care of souls, is not in any sense a function either of civil society or of the state. Second, the care of religion, in so far as religion is an integral element of the common good of society, devolves upon those institutions whose purposes are religious-the Church and the churches, and various voluntary associations for religious purposes. The school too, in its own way, can make a contribution to the religious element in the common good. Third, the care of religion, in so far as it is a duty incumbent on the state, is limited to a care for the religious freedom of the body politic.

It is not exact to say flatly that the state is incompetent in religious matters, as if this were some sort of transtemporal principle, derivative from some eternal law. The exact formula is that the state, under today's conditions of growth in the personal and political consciousness, is competent to do only one thing in respect of religion, that is, to recognize, guarantee, protect, and promote the religious freedom of the people. This is the full extent of the competence of the contemporary constitutional state. From another point of view, constitutional law has done all that is necessary and all that is permissible, when it vindicates to the people what is due to them in justice, namely, their religious freedom. That religious freedom is due to the people in justice is precisely what the personal and political consciousness of contemporary man affirms. Thus it is possible to define, in principle, the functions of constitutional law in our day of the written constitution.

First, freedom of conscience, freedom of religious association, and ecclesial freedom (in the sense of internal autonomy) are to be recognized as absolutely intangible by all legal or extralegal forces. (Obviously, when corporate religious bodies or voluntary associations perform civil acts, such as ownership of property, making contracts, etc., they are subject in these acts to the reasonable regulations of civil law.) Second, personal and corporate freedom of religious expression in worship, witness, teaching, and practice is likewise to be recognized, as inherently related to freedom of conscience and to internal ecclesial freedom. This freedom of religious expression, however, is not absolutely intangible, for the reasons given. Therefore the question arises, what is the criterion which makes limitation of this freedom legitimate.

First, the criterion cannot be theological, scil., the objective theological truth or error involved in some form of public worship, witness, teaching, observance, and practice. The public powers are not competent to make theological judgments. Nor may their action be instrumental in the public enforcement of theological judgments made by the Church. Second, the criterion cannot be ethical, scil., the rightness or wrongness of the personal or collective conscience that prompts particular forms of religious expression. The public powers are not competent to inquire into the norms whereby conscience is formed and tojudge their truth or falsity. Third, the criterion is not social, scil., the common good of society. In the first place, the public powers are not the sole judge of what is or is not for the common good. This is a social judgment, to be made by the people, either through a constitutional consent (consensu iuris) or through the channels of public opinion. In the second place, in consequence of the distinction between society and state, not every element of the common good is instantly committed to the state to be protected and promoted. Under today's conditions of growth in the personal and political consciousness, this is particularly true of the spiritual goods of the human person, primary among which is religion. Therefore, fourth, the criterion can only bejuridical, scil., the exigencies of public order in its threefold aspect-political, moral, and juridical.

This is the criterion which governs the action of law and the power of the state in regulating or limiting the exercise of the general civil rights of the citizenry, with which freedom of religious expression is cognate. Hence the public powers are authorized to intervene and to inhibit forms of religious expression (in public rites, teaching, observance, or behavior), only when such forms of public expression seriously violate either the public peace or commonly accepted standards of public morality, or the rights of other citizens.⁽¹⁹⁾ The public powers are competent to make judgments only with regard to the essential exigencies of the public order and with regard to the necessity of legal or police intervention in order to protect the public order.

Evidently, this juridical criterion is quite general in its manner of statement. The practical problem lies in its application in given cases. And the casuistry is endless. What chiefly matters is that the application should never be arbitrary. In what concerns religious freedom, the requirement is fourfold: that the violation of the public order be really serious; that legal or police intervention be really necessary; that regard be had for the privileged character of religious freedom, which is not simply to be equated with other civil rights; that the rule of jurisprudence of the free society be strictly observed, scil., as much freedom as possible, as much coercion as necessary.

For the rest, the issues of casuistry, as they arise, will call for a continual dialogue between the public powers and the personal and political consciousness of the citizenry, with a view to finding equitable solutions. In the end, the value of civil law in matters of religion is severely limited. What chiefly matters is that the free exercise of religion should always be responsible-before God, before the rights of others, before the community and its legitimate sensibilities, before the state and its necessary empowen-nent to effect harmony of rights in cases of conflict. What further matters is the spirit of tolerance, as a moral attitude, among the citizenry, a spirit of reverence and respect for others, which issues in an abhorrence of coercion in religious matters.

One problem in casuistry requires special mention. It centers on the notion of proselytism. In ecumenical thought today a distinction is made between evangelism and proselytism, between responsible evangelical witness or teaching and an irresponsible caricature thereof. The former is regarded as a legitimate exercise of religious freedom; the latter is regarded as the corruption of religious freedom into license. It is, however, difficult to draw the line sharply between these two forms of religious expression Oust as it is difficult to draw the line between the legitimate influence of the Church in the temporal order and illegitimate interference of the Church in political affairs). At that, certain characteristics of proselytism can be discerned: the self-assertive aggressiveness that always characterizes propaganda; purely destructive attacks on religious beliefs, institutions, and devotional practices; language or action offensive to the religious sensibilities of the community; the employment of means of seduction, by appeal, for example, to materialist motives; perhaps in particular, efforts to undermine religious faith in the young.

Proselytism is recognized by its style, which is infraevangelical, unsuited to the gospel of love, contrary to the manner of God's own approach to man, which is full of respect. Proselytism does not stand at the door and knock; it rushes rudely into the house. It is hardly possible to formulate a legal definition of proselytism; it is even less possible to cope with it by the rough instrument of law. Historically, for instance, the problem of the Anabaptists was never equitably solved. Proselytism creates a dilemma for the Christian and political conscience. At bottom, it represents an unchristian use of force in religious matters. Shall it therefore be met by force? The Christian would prefer to show forbearance.

For the continuation of this chapter, see The Problem of Religious Freedom (cont.).

Footnotes

1. Editor note: Mimeographed versions of this article were first distributed to the American bishops at the Council in the summer of 1964, then translated into four languages and distributed to all conciliar participants in the late summer or fall of that year. A briefer version was published as "The Problem of Religious Freedom," Theological Studies 25 (December 1964):503-75. The text presented here is from The Problem of Religious Freedom, Woodstock Papers, number 7 (Westminster, Md.: The Newman Press, 1965). It was also published as "Le probleme de la liberté religieuse au Councile," in La liberté religieuse: exigence spirituelle et problème politique (Paris: Centurion 1965), pp. 9-112; and "Die religiöse Freiheit und das Konzil," Wort und Wahrheit 20 (1965): 409-30, 505-36; as "Il problema della libertà religiosa: Un grave Problema di oggi ereditato dalla storia di ieri," in Cattolicesimo e libertà, ed. F.V. Johannes (Milano: Mondadori, 1969), pp. 157-254.

2. Editor note: Richard Regan, S.J.'s Conflict and Consensus (1967) is the most comprehensive study available of the various drafts and development of the Declaration. Mention should also be made of Donald Pelotte's Theologian in Conflict (1976), chapter 3: "Vindication: 1960-67," pp. 74-114. For a more complete treatment by Murray of that development than he offers here, see 1965i, the "Introduction" to his translation of DH in 1966i, and, especially, 1966d.

3. Apr. 17, 1964; AAS [Acta Apostolica Sedis] 56 (1964) 389.

4. Ci riesce, AAS 45 (1953) 788-89.

5. Ibid.

6. Libertas, ASS [Acta Sanctae Sedis] 20 (1887-88) 605.

7. Ibid., p. 609.

8. Pacem in terris, AAS 55 (1963) 279.

9. Ibid., p. 265.

10. Cf. Ibid., p. 260.

11. Cf. Ibid.

12. Editor note: In a description of why the Council delayed debate on religious liberty, Murray cites canonist opposition but also disagreement with what he called the French-speaking school of those who were willing to affirm religious freedom. The French thought their theologically grounded justification to be "richer and more profound," in contrast with Murray's view, which they considered "superficial." For this discussion, see 1966i, especially p. 42.

13. Editor note: In the preceding two pages, Murray claims that contemporary consciousness grants a special, privileged position to religious freedom, that is nonetheless cognate with other social freedoms. To me he seems to be here importing Christian constitutionalism into his "natural" argument. For my discussion of the possible theological premises in Murray's argument, see the general introduction "The Ongoing Argument," above.

14. Cf. A.F. Carrillo de Albornoz, The Basis of Religious Liberty (New York, 1963), esp. Pp. 16-26, 155-62.

15. Cf. Leo XIII, Sapientiae christianae, ASS 22 (1889-90) 396.

16. Polycraticus 8, 17 (PL 199, 777).

17. Editor note: See Murray's struggle with religious freedom as an empowerment in the third article of this volume.

18. Editor note: Murray here and elsewhere throughout this article presents five distinct arguments and their resulting principles that support religious freedom. These arguments between two distinct orders "link," "converge," or form "junctures" that yield an affirmation of civil religious freedom (see also pp. 150-51, 169, 173, 176, 187). The last of the principles is the "jurisprudential" ("as much freedom as possible, as much coercion as necessary"). As we will see in the last article in this book (1968), he later moved the content of this last principle closer to a core definition of the human person.

19. Editor note: Murray developed most of his public order criteria in American arguments over censorship of adult books. See his 1956f (chapter 7, "Should There Be a Law?" in WHTT), 1956a, and 1965f.

See also:

• The Problem of Religious Freedom (cont.), the continuation of this chapter.