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The Problem of Religious Freedom (cont.)

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 beginning of this chapter and table of contents, see The Problem of Religious Freedom and Contents.

The Tradition

The history of public care of religion as a theological, ethical, political, legal, and jurisprudential problem has been lengthy and involved. Only the most meager outline of it is possible here, sketched chiefly with a view to indicating the changes in the state of the question that have taken place.

The beginnings of the argument go back to the pagan Roman Empire, in which the citizen was permitted his freedom of conscience but compelled to offer sacrifice to the Emperor. The argument assumed Christian form with St. Augustine. He always held firmly to freedom of conscience, the necessary freedom of the Christian act of faith. Nevertheless, he consented to the use of the imperial power to take coercive care of the Donatists. No one today, however, argues the question in his terms, scil., the pragmatic religious value of "salutary constraint," imposed by the public power, as a means for assisting the return of the heretic to the Church. This is not the state of the question today, even in the First View.

The medieval argument was more complicated. The great Hildebrand [Pope Gregory VI, 1073-84] declared the state of the question in the pregnant phrase that is forever connected with his name, "libertas ecclesiae." Imperial care of religion (the phrase was not medieval but the thing itself was) was limited by the principle of the freedom of the Church, that is, the freedom of the Roman Pontiff and the freedom of the Christian people. The first imperial care of religion was to be a care for the freedom of the Church, a respect for the immunity of the Church from imperial intervention in her internal affairs and in her apostolic office. The essential question was obscured in the Later Middle Ages, when the Gregorian principle of the freedom of the Roman Pontiff was expanded by canonists to the dimensions of the papal prerogative as finally formulated in the doctrine of the two swords and in the system, for instance, of Giles of Rome. The Gregorian state of the question, however, has been restored to full actuality in our present day; it has also been amplified and adapted in the light of new historical circumstances. The question today, as we have seen, is whether public care of religion is not only limited by a necessary care for the freedom of the Church, but also limited to a care for the freedom of the Church together with a care for the religious freedom of all peoples and all men.

The other pertinent medieval argument dealt with the question, who is to enjoy the "freedom of the Christian people" (libertas populi christiani). The argument was made in terms of a distinction between Jews, pagans, and heretics, and it yielded different conclusions. Care of religion meant limited freedom for the Jew, tolerance for the pagan, intolerance for the heretic. The ultimate premise of the argument was concrete and historical, namely, the principle that in the Christian commonwealth the Christian faith was the basis of citizenship, the foundation of all droit de cité, the title to the freedom of the Christian people. From this principle the juridical axiom followed, "Extra ecclesiam nullum ius." The axiom did not state an abstract ethical theory (error has no rights); its sense was concrete, historical, constitutional. No one today argues the constitutional question in these terms. The medieval state of the question is archaistic. (A third great medieval argument, about the relation between conscience and the truth, need not detain us here.)

In the post-Reformation era the constitutional question became not only complicated but highly confused. The basic Hildebrandine principle was lost from view. The care of religion by the prince, Catholic or Protestant, came to be determined by the territorial principle (first enunciated by Luther) and by the view, common to Catholics and Protestants (as an afterimage of the medieval doctrine of the two swords), that the power of the prince is to further the cause of religious truth (either Catholic or Protestant, as the case might be) and to persecute error. Gradually, however, the principle of freedom of conscience came to be commonly accepted: "Nec est quisquam puniendus propter conscientiam. " But the principle of the free exercise of religion was not accepted. The question therefore arose, what modes of coercion and constraint were or were not incompatible with freedom of conscience. What did the function of public care of religion empower the prince to do with regard to the suppression of public expressions of erroneous religious faith, Catholic or Protestant, as the case might be?

At first, the dichotomy between freedom of conscience and the free exercise of religion was maintained. Gradually, however, the conviction began to penetrate the common consciousness, Catholic and Protestant, that the link between the two freedoms was more intimate than had been supposed in that individualistic age. Men began to feel that freedom of conscience became meaningless when its public expressions were inhibited. They also began to see that, when outward religious conformity was enforced, freedom of conscience itself was damaged or lost.⁽¹⁾ This growing conviction did not support any concept of religious freedom, but it did enlarge the scope of tolerance.

The conviction seems to have been largely a matter of common sense. In this respect it resembled the gradual recognition of the principle of reciprocity, so called, the political adaptation of the golden rule to the controversy between Catholic and Protestant. t that, common sense is not a bad guide in matters of politics and law. And the fact was that the political and legal aspects of the constitutional question of public care of religion, rather than its theological and ethical aspects, were causing the trouble, in consequence of the unprecedented confusions of the time. Never was there a more disastrous blurring of the classic distinctions made by the constitutional tradition-between the sacred and the secular, between society and state, between the common good and public order. As for the classic rule of jurisprudence, it was stood on its head, to read, "As much coercion as possible; as much freedom as necessary."

In particular, three conceptions of political sovereignty prevailed, which forbade an equitable solution of the constitutional question as a political and juridical question. First, the nation or principality was conceived on the analogy of the family, and the prince was conceived to be pater patriae, whose paternal power extended to a care for the total welfare of his subject-children, including their religious welfare. Second, the prince was conceived to be praecipuum membrum ecclesiae, whose power was somehow ecclesial in that it extended to a care for the religious unity of his subjects, which was generally considered to be essential to their political unity. Third, the false principle of the indivisibility of sovereignty had become established, and in consequence the religious prerogative of the prince was considered to be simply an essential attribute of his political sovereignty. Care of religion was not the prince's duty; it was his inherent right. And the scope of its exercise was left to his own arbitrary determination. The constitutional question was hopelessly bogged down in this political and juridical morass.

The state of the constitutional question was altered by the ratification of the American Constitution (1789) and its Bill of Rights (1791). The question ceased to be asked in terms of political and legal support of the exclusive rights of truth, with consequent intolerance of error. The question was asked, and answered, in terms of religious freedom-personal, ecclesial, associational, practical. The premise of the answer was the restoration, in a new form adapted to new circumstances, of ancient and medieval constitutionalism. Religious freedom as a legal institution, which was formally created by the First Amendment, stood in harmonious relation with the political conception of government as limited in its powers, which was stated in the Constitution. Public care of religion by the state became legal care of "the free exercise of religion" in society. By establishing a form of government and an order of constitutional law that were both new and also a renewal of traditional principles, the people of the United States altered the state of the historic constitutional question of public care of religion. The alteration was effected by a consensual act of the people; this in itself was a singular historical event.

At the time, no raison d'église obliged the Church to reckon with the new development. There were less than 30,000 Catholics in the new Federal Republic. Moreover, the Church was immediately plunged into the lengthy and bitter conflict with the French Revolution. Prominently at issue in the conflict was a concept of religious freedom that was totally different-in its premises, meaning, import, and purport-from the concept embodied in the First Amendment to the American Constitution. No one, then or later, took official notice of the difference. The attention of the Church, from Pius VI to Pius IX, was totally engaged in the condemnation and containment of the new European revolutionary ideology.

The next constructive phase of the constitutional question was inaugurated by Leo XIII. He read the signs of the times, as every Pope does. Two were decisive for the orientation of his doctrinal instruction and pastoral solicitude. They were visible in the traditionally Catholic nations of Europe. The first was the phenomenon of the "illiterate masses" (imperita multitudo), which was basic to the doctrine of Libertas, as the same phenomenon in the form of the "people in misery" (miserum vulgus) was basic to the doctrine of Rerum novarum. The statistics of illiteracy at the time are well known. The masses were also religiously untutored, politically inert, economically powerless, deficient in both the personal and political consciousness. The second sign of the times was the spread of totalitarian democracy (as it is called today), both as a quasi-religious ideology and also as a political regime, whose purpose was to effect the apostasy of the masses, the destruction of traditional Catholic culture, the establishment of a new morality, a new politics, a new historical-social order.

The basic philosophical tenet was the theory of the "outlaw conscience" (conscientia exlex), the absolute autonomy of the individual human reason.⁽²⁾ The political transcription of this basic tenet of rationalism was the theory of the juridical omnipotence and omnicompetence of the state.⁽³⁾ Implicit in the theory was the unity and indivisibility of the national sovereignty. Consequent on the theory was the obliteration of all distinction between society and state. The whole of social life was subsumed under the power of the totalitarian state.

The state conceived its religious prerogative in terms of its own omnicompetence. Like the autonomous individual reason of which it was the political embodiment, it became the supreme arbiter of religious truth and church polity. Its theological judgment, based on the rationalist principle, was that all religions are equally true as equal expressions of the individual outlaw conscience. On the basis of this judgment, the state promulgated the ius commune, the statute of religious freedom. All religions are to be equal in their rights within society, because they are all equal in their inherent truth. The ius commune was an act of omnipotent sovereignty, which positively authorized the existence of all religions within the society-state on an equality of legal footing which corresponded to their equality in theological truth. Moreover, the indivisibility of sovereignty permitted no other public authority to exist in society. Hence the Church and the churches were assigned the equal statute of purely voluntary associations, whose right to existence and action derived solely from the juridically omnicompetent state. Thus the Church was incorporated into the juridical order of the state and made subject to the "unlimited and lawless government" (principatus sine modo sine lege), in Leo's phrase, of rationalist political theory. In technical law, the Church had no public existence. Public religion was a contradictio in adiecto. Officially, the state-that is, the whole of public life-was atheist. Religion was a purely private affair.

This was the conception of religious freedom as a legal institution, and the corresponding conception of the state as a totalitarian power, that confronted Leo XIII. Like his predecessors, but on the basis of a far more acute analysis of historical and political reality, he condemned both the legal institution and the ideology that inspired it. It was not possible then to make a distinction between the institution and the ideology. The institution was vicious in its principle; it was condemned in itself and in its principle.

What Leo XIII confronted was the post-Reformation confessional nation-state à rebours. It was the lineal progenitor of the people's democracy of contemporary Communist theory. The public philosophy was atheism; it alone had public rights. Religion had no public rights; it was to be exterminated from the public domain by the power of the state. This juridical order and this form of polity were characterized in rationalist theory as "ideal." To the rationalist mentality, which is

untouched by historical consciousness, discourse about "ideals" in law and politics is congenial. The rationalist deals in theses, in ideological propositions that are not derived from historical reality but are to be imposed upon it.

Leo XIII was not untouched by the logic of contradiction; no controversialist ever is. Hence he constructed his own conception of the confessional state. He made his defense of the status quo ante. In common with the whole European Church in the nineteenth century, he formed part of what is called the Conservative Reaction. (Today, when we have come to understand better the price of revolution, this movement receives more kindly judgment at the hands of historians.) Five aspects of the Leonine theory of the confessional state require comment.

First, he adopted the theory of the ethical society-state (Kulturstaat), proper to the postmedieval era, whose roots are in Plato. It is difficult to find in Leo XIII the classic distinction between society and state (except in Rerum novarum). The distinction had been lost from view during the absolutist era. Correlatively, nowhere in some eighty-eight documents that deal with political or religio-political affairs did Leo XIII ever develop a complete philosophy of law and jurisprudence, in the style of St. Thomas' treatise De lege. He was a moralist, not a lawyer. As portrayed in his text, the society-state had the four classic characteristics. It was built upon a conception of the common good. The total care of the common good was committed to the principes (Leo's favorite word); hence the disappearance of the distinction between society and state. The social order was to be constructed from the top down, by the action of the rulers. The citizen appears simply as subject, whose single duty is obedience to rule. The cachet of the theory is in the maxim that Leo quotes: "Qualis rex, talis grex." This theory met the needs of the time, specified by the phenomenon of the illiterate, inert masses.

Second, against the lawless and unlimited government of rationalist theory, Leo XIII developed the true notion of political authority, derivative from God, subject in its uses to the divine law, directed in its action to the common good. In his own idiom and for his own day he wrote a Speculum principis christiani. In this great aggiornamento of the medieval Fiirstenspiegel, the ruler appears as the servant of God, the architect of the social order, the supreme agent responsible for the Christian quality of social life.

Third, Leo XIII accepted the analogy, common in post-Reformation theory, between civil society and domestic society. The ruler appears in Libertas as pater-familias, who is "to govern in kindly fashion and with a sort of fatherly love."⁽⁴⁾ In Immortale Dei the subjects appear as children, who are "to be obedient to their rulers and show them reverence and loyalty, with a certain species of that pieta-s which children show their parents.⁽⁵⁾ In this paternal conception of rule, the power of the ruler extends to a care for the total welfare of his children-subjects, the illiterate masses. His patria potestas is to protect them, since they cannot protect themselves, in their possession of the patrimony of Christian truth that has been their heritage in the traditionally Catholic nation. To this end the ruler is to repress the "offenses of the unbridled mind," which are like "injuries violently wrought upon the weak."⁽⁶⁾

Fourth, Leo XIII accepted an adaptation of the territorial principle of the post-Reformation era, the principle that in one "city" (civitas) only one faith should be publicly professed.⁽⁷⁾ This, incidentally, is not the dogma of faith that all men are called by God through Christ to unity of religious faith in the one Church. The dogma states a thesis whose realization is to be eschatological. Leo XIII "temporalized" the thesis; his premise was historical-the traditional unity of faith in the Catholic nations of Europe. In the one "city" the one public faith should obviously be the true faith, certainly in those "cities" which have been traditionally Catholic. The Catholic faith ought to enjoy the favor of the law and the protection of the ruler, as part of his paternal care for the common good and for the total welfare, including the religious welfare, of his subject-children. Certainly, little support of the Church could be expected from the illiterate masses; it was they who needed the protection of the ruler. With complete realism, Leo XIII saw that the reliance of the Church had to be on the heads of state.

Fifth, Leo XIII permitted the ruler to tolerate the legal institution of religious freedom, in given circumstances, for the sake of gaining or guarding some greater good or for the sake of avoiding some greater evil. Nothing more than tolerance could be granted to the institution in the only historical sense in which Leo XIII understood it-the sense given to the institution by Continental sectarian Liberalism. In this sense, the institution was not a legitimate exigence of the personal and political consciousness, which at the time did not exist in the illiterate masses. It was an outrageous act of totalitarian sovereignty, based on a rationalist ideology that was, in effect, the destruction of human dignity.

Thus Leo XIII brought to its final term of development the theory of the confessional state. Nothing has been added to it since his day, except perhaps its qualification as the "ideal instance" of constitutional law. Leo XIII never uses the word "ideal." What impresses the student of his doctrine is not any quality of idealism, but a strong sense of historical realism. As the whole tenor of his pontificate shows, Leo XIII was not lacking in the historical consciousness.

In another respect, Leo XIII laid the foundations for a new development of doctrine, a new growth in the understanding of the Christian tradition which Vatican Council I laid as an enduring imperative on the Church.⁽⁸⁾ The Leonine development was accomplished, as all legitimate development must be accomplished, by a ressourcement, a creative return to the sources of the tradition, a review of traditional doctrine within a new perspective created by history. The Leonine perspective was created by the fact that totalitarian democracy, in the style of Continental sectarian Liberalism, had renewed in a more vicious form than ever the confusion of the sacred and the secular orders of human life which had been the disastrous legacy of the post-Reformation era. Hence Leo XIII recalls the tradition of the dyarchy, which is the first principle in Christian constitutionalism.

Moreover, he states the doctrine in a developed form of understanding that was unprecedented, a new thing in papal utterances. The dyarchy is not left in its medieval form of understanding -- the doctrine of the two powers in the one Great Society, the ecclesia. In Leo's understanding, there are two societies, two orders of law, and two powers. There are seven major texts, which cover his whole pontificate. They are found in Arcanum (1880), Nobilissima Gallorum gens (1884), Immortale Dei (1885), Officio sanctissimo (1887), Sapientiae christianae (1890), Praeclara gratulationis (1894), and Pervenuti (1902).

This reiterated statement of the dyarchy, in developed form, is the very heart of Leo's doctrine on constitutionalism. He emphasized in a new way the transcendence of the Church, both as a spiritual authority and as the People of God, who are ruled by His law, revealed in Christ. He also emphasized in a new way the relative autonomy of the secular order of human life-the proper autonomy of the People Temporal, who are ruled by a civil law, under a government whose powers are limited by a higher order of law not of its own making.

Leo XIII did not pursue the consequences of this latter emphasis. It would have been inappropriate, as well as impossible, to pursue them in a day when the People Temporal were so largely illiterate, culturally and religiously, and consequently incapable of asserting their rightful autonomy, their empowerment to judge, direct, and correct the processes of political rule and legal action. In any case, Leo XIII opened the door to the developments which became visible in Pius XII and John XXIII. For the rest, his statement of the autonomy of the socio-political order dissipated the afterimage of medieval christianitas, which for so long had hung more or less heavily over the Catholic nation-states. Thereafter christianitas on the medieval model would be archaism. His statement also condemned the confusion of religion and politics that still existed, not least in the Catholic nation-states.⁽⁹⁾ Finally, the statement of Leo prepared the way for a change in the state of the question of public care of religion. Implicit in the statement was a declaration of the freedom of the people, once the people had fulfilled the conditions of freedom, which are the growth of the personal and political consciousness. And implicit in the freedom of the people is religious freedom as a juridical institution correlative with constitutional government as a form of polity.

In another respect, the Leonine statement of the dyarchy at once effected a development of doctrine and opened the door to further developments. It restored to its proper centrality the Gregorian doctrine of the freedom of the Church, which had been lost from view in the post-Reformation era.

It would not be consonant with the evidence of the texts to say that Leo XIII's master idea, in what concerns public care of religion, was the notion of the exclusive rights of truth and the rightlessness of error. He does indeed blast the silly rationalist notion that all ideas are equally true and rightful, because they are all equally free as expressions of the autonomous reason. He insists on the tautology that truth is truth and error is error. He also insists that the criterion of truth and error is not freedom. He further insists that truth and error, right and wrong do not enter the juridical order on an equal title, which was the other rationalist sophism. What is true or right may receive positive juridical authorization; what is false or evil can receive only juridical tolerance. This, incidentally, is the only concrete juridical sense that can possibly attach to the otherwise unhelpful abstraction, that error has no rights. No sensible man would quarrel with this concrete sense. The point at the moment, however, is that this Leonine doctrine, directed against the basic tenet of rationalism, was not his central notion in the question of public care of religion.

His central notion was "the freedom of the Church." One could begin to appreciate its centrality by counting the number of times that the phrase, or an equivalent of it, appears in his writings (some eighty-one times in sixty documents). A more positive proof emerges from a study of the texts on the dyarchy. It is clear that the doctrine of the freedom of the Church is equally as central as the doctrine of the dyarchy itself. Freedom is the first property of the Church; and freedom is the first claim that the Church makes in the face of society and state: "This freedom is so much the property of the Church, as a perfect and divine work, that those who act against this freedom likewise act against God and against their duty."⁽¹⁰⁾

The decisive proof results from an understanding of the structure of Leo XIII's controversy with Continental sectarian Liberalism, and with its notion of religious freedom as a legal institution that stood in correlation with a form of polity in which government was "lawless and unlimited." The essential vice of the system was not that the liberalist state granted equal rights to truth and error and dethroned the Church from its historic status of legal privilege. The essential vice was that this political and juridical system destroyed the freedom of the Church. Thus it attacked the very nature of the Church as a community, an order of law, and a spiritual authority. The basic line of battle was drawn by Proposition 39 of the Syllabus: "The state, inasmuch as it is the origin and source of all rights, possesses a power of jurisdiction that knows no limits."

The texts are numerous and formal. They begin with Inscrutabili (1878) and its indictment of what Leo later will call the "new regalism," which "makes [the Church] subservient to the sovereignty of political rulers."⁽¹¹⁾ So too Immortale Dei: "In this kind of political order, presently so much admired, it is a deliberate policy either to drive the Church wholly out of public existence or to hold her bound and fettered to the regime."⁽¹²⁾ So again Libertas and its protest against the politicization of the Church: "Accordingly, they falsify the nature of this divine society; they diminish and inhibit her authority, her teaching, all her action. At the same time, they aggrandize the power of civil government to the point of subjecting the Church of God to its sovereign rule, as if the Church were just another voluntary association of citizens."⁽¹³⁾ Et alibi pluries.

Proposition 39 of the Syllabus was the destruction of the freedom of the Church. Hence Leo XIII was led to restore this doctrine to the rightful centrality that it had in the tradition. He was Hildebrand redivivus. The essential care of religion that devolves upon the public powers is not a care for the exclusive rights of truth and for the extermination of error. lt is a care for the freedom of the Church. The phrase is pregnant with multiple meanings, which Leo XIII specified. It is not, however, pregnant with the concept of "establishment," the status of legal privilege for the Church, with the consequent status of legal disadvantage for other religious bodies. Leo XIII never draws this conclusion from his central doctrine. He does indeed draw the conclusion, but from other premises of a more historically conditioned kind.

Proposition 39 of the Syllabus was also the destruction of the essential dignity of man, which resides in his freedom. Leo XIII did not greatly attend to this aspect of the matter; it did not lie within his historical problematic. However, by his central emphasis on the freedom of the Church he at once reinstated the Gregorian state of the question of public care of religion and thus also opened the way to a widening of the question, thus stated, to include the issue of the freedom of the human person-the issue of religious freedom as a legal institution within a system of constitutional government, correspondent to the legitimate exigencies of the personal and political consciousness.

Pius XII, in his turn, read the signs of the times and discerned two that gave direction to his doctrine and pastoral solicitude. The first was totalitarian tyranny on the Communist model. Now the threat was not simply to the freedom of the Church in the traditionally Catholic nations of Europe; the new threat was to the freedom of the people everywhere. An ideology and a system of rule were abroad, 11 which in the end rejected and denied the rights, the dignity, and the freedom of the human person."⁽¹⁴⁾ The problematic that had been only implicit in Leo XIII's time had now become terribly explicit. The full implications of Proposition 39 of the Syllabus had been realized. The second sign of the times was the rise of the personal and political consciousness: "The people have been awakened, as it were, from a lengthy dormancy. In the face of the state and in the face of their rulers they have assumed a new attitude-questioning, critical, distrustful. Taught by bitter experience, they oppose with increasing vehemence the monopolistic reaches of a power that is dictatorial, uncontrollable, and intangible. And they demand a system of government that will be more in accord with the dignity and freedom of the citizenry."⁽¹⁵⁾

The mission of the Church, therefore, must include the vindication of the "dignity of man."⁽¹⁶⁾ The goal of Pius XII's pontificate, which he recommended as a goal for all men of good will, was "to give back to the human person the dignity with which he was endowed by God from the beginning."⁽¹⁷⁾ To this end, a new social order had to be constructed, based on this principle: "The purpose of all social life remains always the same, always sacred and obligatory, namely, the development of the personal values of man as the image of God."⁽¹⁸⁾ Proceeding from these premises, Pius XII made his first contribution to the development of doctrine in the matter of religious freedom. It consisted in his development of the concept of government as constitutional, that is, limited in its powers.

He abandons Leo XIII's ethical concept of the society-state, with its four classic characteristics. Instead he adopts the juridical concept of the state (Rechtsstaat), whose genesis owed more to Christian inspiration. The state is only one order of action within society; it is an agent of society for certain limited purposes. Society and state are not built on a generic conception of the common good, but on a concrete conception of the human person in the present historical moment, marked by the rise of the personal and political consciousness. The basic notion in Pius XII's sociopolitical philosophy is thus stated: "Man as such is by no means to be considered the object of social life or a sort of inert element in it; on the contrary, he is the subject, the foundation, and the end of social life."⁽¹⁹⁾ The Pope revalidates the fundamental insight that gave rise to the constitutional tradition, the "free man, bound by duties, endowed with inviolable rights, who is the origin and end of human society."⁽²⁰⁾

Therefore the primary function of government is a function with regard to the juridical order: "To protect the inviolable rights that are proper to man, and to have a care that everyone may more readily discharge his duties-this is the chief function of the public power."⁽²¹⁾

Therefore too the function of government with regard to the common good is limited:

Does not this principle [the juridical function of government] bring out the genuine meaning of the common good which the state is called upon to promote? From this principle it follows that the care of the common good does not imply such an extensive power over the members of the community that, in virtue of it, public authority would be allowed to restrict the expansion of individual human action, as described above, or to make direct decisions with regard to the beginning or the termination (except in the case of legitimate punishment) of human life, or to determine on its own cognizance what should be the movement of human life-physical, spiritual, religious, and moral-in such a way as to come in conflict with the personal rights and duties of man.⁽²²⁾

Here, as elsewhere, Pius XII shows his awareness of the distinction between society and state, between the total common good of society and the elements of the common good that are committed to the power of the state. In his own idiom, the distinction is between the wider order of "social life" and the narrower "juridical order" of society.

Therefore, again, Pius XII abandons completely the Leonine notion of government as paternal. The relationship between ruler and ruled is only political, not familial. The citizen is not a child. Still less is he the mere passive object of rule. He is to be an active participant in the fashioning of his own social and political destiny. In Pius XII's conception, society and state are to be built, as it were, from the bottom upon the human person and by the human person, or, in more formally political terms, on the consent of the people and by the consent of the people.

Therefore, finally, the nineteenth-century polarity of the illiterate masses and the principes is dissolved. Now the terms of political life are the "true people" (as distinct from the "masses") and the public powers as representative of the people, united with the people in the traditional political effort to achieve an "ideal of freedom and equality."⁽²³⁾

Thus Pius XII effected a badly needed aggiornamento of the official political philosophy of the Church. He relinquished the elements in Leo XIII's philosophy that had become archaistic. He brought the Church abreast of the developments in the constitutional tradition that were demanded by the new personal and political consciousness.

Constitutional government, limited in its powers, dedicated to the defense of the rights of man and to the promotion of the freedom of the people, is the political correlate of religious freedom as a juridical notion, a civil and human right, personal and corporate. By advancing the doctrine of constitutional government, Pius XII moved along the way opened by Leo XIII, towards a change in the state of the question of public care of religion. Moreover, if his doctrine is considered as a whole, in itself and in its tendency, within the perspectives set by his insight into the signs of the times, it may be maintained that he helped to constitute the ancient question in a new state. He took a step beyond Pius XI, who was himself in the Gregorian tradition that had been renewed by Leo XIII.

Pius XI rejected the formula "freedom of conscience," because to his ears it still bore connotations of the rationalist theory of the outlaw conscience. However, against the invasions of the Fascist totalitarian state, he undertook "to fight the good fight for freedom of consciences."⁽²⁴⁾ In the context, it would seem, he was continuing the ancient fight for the freedom of the Church, as the community of the faithful. This is what he defended against the operations of Proposition 39 of the Syllabus which were still visible in Mexico: "As a society of men, the Church has absolute need of a just freedom of action for the enjoyment and growth of her own life; and the faithful have the right to live in civil society according to the dictates of reason and conscience.⁽²⁵⁾

Pius XI was in the Gregorian tradition, as Pius XII would also be: "Wherefore We ... address all civil rulers and all those who are in any way in charge of public affairs, and We solemnly assert that the Church must always enjoy a due freedom, in order to pursue her work of education, to impart truth to the mind, to impress justice on the spirit, and to refresh both mind and spirit with the divine love of Jesus Christ."⁽²⁶⁾ Again, when Pius XII comes to declare the essential exigencies of the Church within society and state, to be recognized in a concordat, the declaration takes this form: "Concordats ought therefore to assure to the Church a stable condition in law and in fact in the state with which they are concluded, and guarantee the Church a full independence in the fulfilment of her divine mission."⁽²⁷⁾ The formulation is in terms of the Gregorian-Leonine principle. Nothing is said about a situation of legal privilege as per se a claim of the Church. Nor is it implied that only such a legal situation of establishment as the one religion of the state would assure the requisite legal and social stability and freedom of the Church.

Already under Pius XI the problematic of religious freedom began to widen in consequence of the crudities of Nazi totalitarianism and its sweeping attack on all manner of religion, Catholic and Protestant. Therefore Pius XI took the forward step of assuming the patronage of the freedom of all religious men: "The man of religious faith has an inalienable right to profess his faith and to practice it in appropriate ways. Laws which repress or render difficult the profession and practice of religious faith are in contradiction with a law of nature."⁽²⁸⁾ This statement rests on a general premise, "that man as a person possesses God-given rights which must remain immune from any invasion on the part of society that would deny, annul, or diminish them."⁽²⁹⁾ The problematic is developing. The freedom of the Church as the community of the faithful is not the sole object of the Church's concern. The freedom of the human person in his belief in God is also to be recognized and protected against unjust encroachments by legal or social forces.

Pius XII accepts this wider problematic of religious freedom. Among the "fundamental rights of the person," which are to be recognized and promoted by the juridical order of society, he includes the "right to private and public worship of God, including also religious action of a charitable kind."⁽³⁰⁾ Religious freedom as a juridical notion, which required legal recognition and protection, has emerged into clarity. In this juridical sense, religious freedom is an integral element in the freedom of the people, which sets limits to the powers of the state. It is a freedom in which all the people equally share, without discrimination on the score of particular forms of religious belief. Moreover, religious freedom in its universal juridical sense is a proper object of legal and social care. In the constitutional order of a society in which the personal and political consciousness is active, public care of religion becomes a care for the religious freedom of the Church and likewise a care for the religious freedom, personal and corporate, of the human person as such.

This affirmation, presently being made by the Second View, is fully in consonance with the doctrine of Pius XII. It is also fully in continuity with the growth in the understanding of the tradition which had been inaugurated by Leo XIII's renewal of the Gelasian and Gregorian tradition. The two essential junctures of ideas have, in effect, been made. The first juncture is between the two correlative exigencies of the personal and political consciousness-between constitutional government (Pius XII's juridical state), limited in its powers by a necessary respect for human rights, and the concept of religious freedom as a general civil and human right, claiming the protection of the juridical order of society. The second juncture is between the ancient historic defense of the freedom of the Church and the newly necessary defense of the freedom of the people. In the present moment of history the freedom of the people of God is inseparably linked with the freedom of the peoples of the world. What the pastoral solicitude of the Church today demands, the developed doctrine of the Church likewise proclaims and authorizes, namely, a universal care for religious freedom in society and state.

One document of Pius XII requires special attention, the Allocution to the Congress of Italian Catholic jurists of December 6, 1953.⁽³¹⁾ The document must be regarded as one of the Pope's occasional deliberate efforts to fall short of complete lucidity. The purpose was achieved in the present case; this document has been cited by both parties to the present controversy, between the First and the Second Views. In any event, the major doctrinal intention of the document is plain, namely, to clarify an issue of jurisprudence with regard to the legal institution of intolerance. The Pope's chosen universe of discourse is the problem of public care of religion as a problem within the international juridical community presently being formed. Four propositions immediately emerge with adequate clarity.

First, throughout the document the Pope uses the vocabulary of "tolerance." However, what he is talking about is the immunity of the citizen from coercion by the public powers in his religious profession and practice. This is precisely the definition of religious freedom in its contemporary juridical sense, explained above. Hence it cannot be maintained that the Pope refuses to acknowledge the concept of religious freedom. The issue of vocabulary is trivial.

Second, the Pope asserts that the theological question of objective religious truth, and the moral question of the obligations of conscience toward what is objectively true and good, are not proper matters for political discussion or legal decision by individual states or by the international community. What confronts the statesman or jurist is the constitutional question, namely, the question of the use of legal coercion in religious matters.⁽³²⁾

Third, the Pope implies that a statute of religious freedom throughout the international community, subject to restriction only by the exigencies of the public order, would be acceptable to the Church and ought to be acceptable to the Catholic state. By religious freedom he means the immunity of the citizens from coercion in "the free exercise of their own ethical and religious beliefs and practices, in so far as these do not violate the penal laws of the state in which they dwell."⁽³³⁾

Fourth, in continuity with all his predecessors the Pope rejects the solution of the constitutional question, and the consequent concept of religious freedom, that were proper to nineteenth-century European sectarian Liberalism. The solution, as we have seen, took the form of an act of sovereignty whereby the state positively authorized the existence and action of religious error and positively conferred upon truth and error an equal social and legal mandate. This solution and this concept of religious freedom, as we have likewise seen, are outlawed not only by Catholic theological and ethical principle but also by the political and legal principles of constitutionalism.

With these simple matters out of the way, the Pope approaches with considerable delicacy his central issue, which is the jurisprudence of legal intolerance. His question is, what is the ultimate and most general rule of jurisprudence in terms of which the legal institution of intolerance is to be justified. The question is theoretical, a quaestio iuris.

Is it to be maintained that this ultimate rule of legal action is a duty, per se incumbent on the state, to repress religious and moral deviations? If this is so, it follows that such deviations are to be repressed by the state, whenever and as far as it is possible for the state to repress them. The state would fail in its duty, if it were to tolerate religious and moral errors in circumstances in which their repression was possible. Such tolerance would be immoral.

The Pope denies both the premise and the conclusion of this system of jurisprudence. He denies the premise: "The duty to repress moral and religious deviations cannot therefore be considered an ultimate norm of action."⁽³⁴⁾ He denies the conclusion: "Hence the affirmation: Religious and moral aberration ought always to be suppressed, as far as repression is possible, because tolerance of them is in itself immoral, cannot be sustained in its unconditioned absoluteness."⁽³⁵⁾ The Pope goes on to assert that this rule of jurisprudence is unknown to the civil and Christian tradition: "Neither the common conviction of men, nor the Christian conscience, nor the sources of revelation, nor the practice of the Church recognize such a rule."⁽³⁶⁾ Thus the Pope fulfils his severely limited doctrinal intention, which was to make clear that the possibility of legal repression of error and evil is not the juridical criterion that justifies such repression.

However, he carries his doctrine one step farther. The rule of jurisprudence, that religious and moral deviations are always to be repressed by the state, as far as it is possible to repress them, rested for its validity on an ethical premise: "That which does not correspond with truth and the norm of morality has, objectively, no right either to existence or to dissemination or to action." Here the Pope grants the premise, but still refuses the conclusion. The premise merely asserts the obvious truth that there is an objective distinction between truth and error, good and evil. It also implies that truth and goodness may receive the positive sanction of law, whereas error and evil may not. This too is obvious. The question is whether one may draw from this ethical axiom the jurisprudential conclusion that, whenever the state can repress error and evil, it ought to repress them, as a matter of primary and ultimate duty. The Pope refuses this conclusion. The only legitimate conclusion is that the state may never positively authorize the existence, dissemination, or activity of what is erroneous or evil.

For the rest, the Pope does not deny that the state has a duty to repress religious and moral deviations, or, in broader terms, that care of religion is a duty incumbent on the state. No one who is acquainted with the civil and Christian tradition of constitutionalism will deny this. The question has always been, and still is, what is the rule of jurisprudence which justifies the use of coercive measures in fulfilment of this duty. In more general terms, what is the competence of the state with regard to religious matters? In reply to this positive question, the Pope is content to make three general affirmations.

First, he affirms that the question cannot be decided in the abstract; there is need always to consider the relativities of history, the diversity of factual circumstances. A priori discourse about duties that per se devolve upon the state is illegitimate and useless, for one simple reason: "It can happen that in determinate circumstances He [God] does not confer upon man any mandate, does not impose any duty, does not even give any right to inhibit or repress that which is erroneous and false."⁽³⁷⁾ The quaestio iuris, about the duties and rights of the state with regard to the care of religion, is inherently a historical question, not an abstract one. Every answer to it is necessarily hypothesis, an answer conditioned by circumstances, an application of principles within a determined situation of fact. The disjunction between thesis and hypothesis is factitious.

Second, he affirms that, from the standpoint of the Church, the supreme juridical principle that governs the constitutional question is the common good of the Church, both as a national and as an international entity.⁽³⁸⁾ From his other writings it is clear that the good of the Church consists essentially in two things: first, exact observance of the requirements of the Gelasian-Leonine dyarchy, and second, full assurance of the freedom of the Church. From the standpoint of the statesman, the juridical criterion for the limitation of religious freedom is the exigencies of public order, as specified in penal laws.⁽³⁹⁾

Third, he affirms the competence of the "jurist" with regard to the quaestio facti, scil., what are the determinate exigencies of the good of the Church and of the public order of society in given circumstances. Since the quaestio facti is a question of constitutional law, whose justice must rest on the consent of the governed, the "jurist" here is the citizen, or better, the people as a whole. Finally, the Pope affirms the necessity of a dialogue between the Church and the jurist-people in the process of reaching a mutually satisfactory solution of the quaestio facti.

It is not difficult to assemble from the vast corpus of Pius XII all the principles that were marshaled above in support of the Second View: (1) the theological principles-the dyarchy, the freedom of the Church, the freedom of the act of faith; (2) the ethical principles religious freedom as the rightful exigence of the contemporary personal and political consciousness; the insight that the free man, bound by duties and endowed with rights, is the origin and end of the social order; (3) the political principles-that the public power is not the judge of religious truth or of the secrets of conscience; that the primary function of the public powers is the vindication of the juridical order of human and civil rights, i.e., the fostering of the freedom of the people; (4) the juridical principle-that the criterion for public restriction of religious freedom is some necessary requirement of public order; (5) the jurisprudential principle-that necessity, not possibility, is the further criterion for coercive inhibition of the free exercise of religion.

The principles are all stated, but they are not systematized, and the conclusion to which they point is not explicitly drawn. At that, the basic concept for a work of systematization has gradually emerged, beginning with Leo XIII-the freedom of the Church as allied, in the present historical juncture, with the freedom of the peoples of the world. At the same time, the ancient problem of public care of religion has emerged in a new state of the question.

The state of the question proper to the post-Reformation and Liberalist eras is now archaistic-the care of religion as the care for the exclusive rights of truth and for the consequent extermination of error. There has been a return to the traditional theological state of the question, in its Gregorian form, public care of the freedom of the Church. Today, however, in the new circumstances of our own age, marked by the growth of the personal and political consciousness, the Gregorian state of the question, reinstated by Leo XIII and confirmed by Pius XII in the line of Pius XI, has necessarily been widened. The public care of religion which the doctrine and pastoral solicitude of the Church today require and authorize is care of religious freedom, in the complex sense approved by the common consciousness of men.

This affirmation, to which the Second View concludes after a review of the tradition within the new perspectives created by the historical moment, is strongly confirmed by John XXIII. He situated himself firmly within the Gregorian tradition. Moreover, with the historical consciousness that was his mark, he broadened even more explicitly than Pius XII the problematic of religious freedom in the light of the signs of the times.

Speaking of the work of the coming Council, he voices the primary traditional concern and claim of the Church, to which the Council would turn its attention:

What is to be said about the relations between the Church and civil society? We live in the face of a new political world. One of the fundamental rights which the Church cannot renounce is the right to religious freedom, which is not simply freedom of worship. The Church claims and teaches this freedom, and for the sake of it she continues to suffer grievous penalties in many countries. The Church cannot renounce this freedom, because it is of the essence of the service which she is bound to render. This service is not offered as a collective or a complement of that which other institutions are required to render or have appropriated to themselves. It is an essential and irreplaceable element of the design of Providence, in order to set men on the way of truth. Truth and freedom are the foundation stones upon which the edifice of human civilization is erected.⁽⁴⁰⁾

The centrality of the Gregorian principle is evident. Moreover, the last sentence adumbrates in advance the theme of Pacem in terris⁽⁴¹⁾ This Encyclical consciously builds on Pius XII and his conception of the juridical state as the servant of the free man and the free society. What concerns us here is that John XXIII makes more explicit the new state of the question of public care of religion and speaks more directly to the question in its new state. It will be sufficient briefly to indicate the two major contributions that he made to the development of Catholic doctrine on the subject.

First, the juncture between the two correlative exigencies of the personal and political consciousness is made explicit in the very structure of the Encyclical. The concept of constitutional government is more sharply described than in Pius Xll,⁽⁴²⁾ even to the point of recommending, for the first time in papal documents, the written constitution.⁽⁴³⁾ And this concept of the limited functions of the state is brought into explicit correlation with a fully developed description of the juridical order of human and civil rights and freedoms, whose protection and promotion is the primary function of the state.⁽⁴⁴⁾ This is Pius XII, of course, but speaking with a new accent-more affirmative, more confident that the present moment in history is the term of a progress that has been real, even though not unambiguous.

Moreover, within the juridical order of human and civil rights the right to religious freedom is firmly situated: "This too is to be numbered among the rights of man, that he should be able to worship God in accord with the norm approved by his conscience (ad rectam conscientiae suae normam) and to profess his religion privately and publicly."⁽⁴⁵⁾ The declaration is not ambiguous, as some have maintained. It is to be understood within the context of the Encyclical and its concept of the juridical state. Obviously, the Pope cannot espouse the theory of conscientia exlex; he asserts that conscience must be formed by higher norms (conscientia recta). But for the purposes of civil life, in order that conscience may possess the status of personal and civil right in the face of the public power, it is not required that the norms whereby conscience is formed should be true (conscientia vera).

The reason is the traditional one, namely, that the public power is not the judge of the truth or falsity of the norms whereby conscience is formed. The public power is obliged to respect the personal or corporate conscience as such, for the precise reason that conscience is subject to higher norms which the public power cannot legislate. To deny this is to affirm Proposition 39 of the Syllabus, quod absit. John XXIII touches the tradition in speaking of the mode of action of public authority: "Since all men are equal in their natural dignity, no one has the power to force another to act out of inner conviction. Only God can do this, since He alone scrutinizes and judges the secret counsels of the heart."⁽⁴⁶⁾

Religious freedom is a human freedom in the external forum of society. It is a personal and corporate right to immunity from coercion by any legal or extralegal forces in the profession and practice of religion. This right is grounded in the law of nature-or, if you will, in the exigence of reason-which manifests itself, in today's social historical context, both through the mature personal consciousness which claims the right and also through the mature political consciousness which forbids the state to deny or diminish it. It is evident that John XXIII's whole discussion of human and civil rights, including religious freedom, is commanded by the historical consciousness, by a sense of man's "spiritual aspirations" (animorum appetitiones)⁽⁴⁷⁾ which reason approves as expressions of man's growing consciousness of his own self-in-society-or, if you will, his own personal and social nature.

This is not liberalist individualism or any sort of false personalism. The Pope's thought reveals the methodology of natural-law thinking at its best, both in ethics and in politics. For him, religious freedom is not some sort of Platonic idea that has had no history but has been always somehow "there," to be seen by anyone who cared to look at it. Religious freedom is the reasonable affirmation of the contemporary human consciousness. In the Second View, which is that of John XXIII, it is also an affirmation of the Christian consciousness that has become aware of the essential link between a government of limited powers (Pius XII's "system of government that will be more in accord with the dignity and freedom of the citizenry") and religious freedom as a juridical notion, a civil and human right, to be protected by a legal institution written into constitutional law (John XXIII's more consequent affirmation).

John XXIII's second contribution to the new statement of the question of religious freedom, and to its solution, lay in his tetradic diagram of the spiritual forces that sustain human society: Leo XIII had endlessly reiterated the triad-truth, justice, and love; so too had Pius XII. John was the first Pope to add the fourth spiritual force, freedom, as coequally essential. The new tetrad was new; it was also fully traditional. The tradition has always asserted that the human quality of society depends on the freedom of the Church. In a new and more profound understanding of the tradition, John XXIII affirms that the human quality of society depends on the freedom of the people. The second juncture of ideas has been formally effected. In our age (the reiterated phrase in which John XXIII reveals his historical consciousness) the two freedoms are inseparable-in fact, they are identical. They stand or fall together. The doctrine of the Church affirms both of them. Her pastoral solicitude extends to each of them.

The spiritual order of society is founded on truth-on the true view of man, his dignity, his duties and rights, his freedoms and obligations. This order must be brought into being under fidelity to the precepts of justice, whose vindication is the primary function of the public power as well as the primary civic duty of the citizenry. This order needs to be animated and perfected by love; for civic unity cannot be achieved by justice and law alone; love is the ultimate force that sustains all human living together. Finally, this order is to achieve increasingly more human conditions of social equality, without any impairment of freedom.⁽⁴⁸⁾

Truth, justice, and love assure the stability of society; but freedom is the dynamism of social progress toward fuller humanity in communal living.⁽⁴⁹⁾

The freedom of the people ranks as a political end, along with justice; it is a demand of justice itself. Freedom is also the political method whereby the people achieve their highest good, which is their own unity as a people: "A society of men achieves its unity (coalescit) by freedom, that is, by methods that are in keeping with the dignity of its citizens, who are by nature men of reason and who therefore assume responsibility for their own actions."⁽⁵⁰⁾ Society is bound to the usages or methods of freedom (libertatis consuetudinem teneat)⁽⁵¹⁾ in its constant effort to base itself on truth, govern itself with justice, and permeate itself with civic friendship.

When the freedom of the people is unjustly limited, the social order itself, which is an order of freedom, is overthrown. The problem of political refugees, for instance,

shows that the rulers of certain nations impose excessive limits on the just measure of freedom within which each citizen should be allowed to live a life worthy of a man. In fact, in this kind of state the very right to freedom is at times called into question or wholly denied. When this happens, the right order of civil society is overthrown in its very foundations; for by its nature the public power looks to the protection of the good of the community, and its chief duty is to recognize the legitimate reaches of freedom and to keep inviolable the rights of freedom.⁽⁵²⁾

By this accent on the freedom of the people, new in modern papal utterances, the historical problematic of the nineteenth century is completely dissolved. The rightful autonomy of the people, implicit in Leo XIII's statement of the dyarchy, has received explicit affirmation. In particular, the state of the question of religious freedom has been altered. The distinction which Leo XIII could not make has now been made-between religious freedom as a juridical notion and a legal institution in a free society, and the false ideology and the resultant form of political regime that once inspired the notion and the institution.⁽⁵³⁾ Now religious freedom has a new basis in each of the four dynamic spiritual forces that sustain society. It is an exigence of truth, justice, and civic friendship or love. In particular, it is acknowledged to be an integral element of the freedom of the people.

It is not now a question of tolerating the institution as a lesser evil. John XXIII is not enlarging the hypothesis of the First View. He is quietly bidding good-bye to both thesis and hypothesis in the sense of the opinio recepta. He represents the present term of a new development of the genuine tradition, eodem sensu, eademque sententia. Now the Church positively affirms the validity of the institution of religious freedom. It embodies a civil and human right, personal and corporate. It also embodies a recognition by government of one of the "legitimate reaches of freedom" (honestos libertatis fines)⁽⁵⁴⁾ which are immune from restriction by any legal or extralegal force.

The Second View must undertake the task of showing that it is the traditional view-the view that represents a valid and necessary growth in the understanding of the tradition. The foregoing pages illustrate a way in which this task may be accomplished. There may be other ways.

The Issues

Only the beginnings of an effort to initiate an intramural dialogue on religious freedom were made in the second and third conciliar sessions, in the speeches in the conciliar aula, and later in the comments, criticisms, and emendations sent in to the Secretariat for the Promotion of Christian Unity. A few illustrations will show the difficulties involved in setting afoot a dialogue between the First and Second Views.

For instance, the First View asks the question, whether a man has a natural right to found a false religion. It answers the question in the negative and considers that it has dealt a mortal blow to the Second View. The trouble is that the Second View does not answer the question in the affirmative. In fact, it is not inclined to answer the question at all. In the manner of its asking, under complete abstraction from all historical reality, the question is irrelevant to the issue of religious freedom in its contemporary sense, which supposes a given historical-social-political context. Hence no dialogue ensues.

Again, the First View asks the question, whether error is to be granted the same rights as truth. It returns a negative answer and again considers that it has cut the ground from under the Second View. The trouble is that the Second View does not stand on this simplistic ground. It clarifies the question to mean, whether the public power may positively authorize the existence and dissemination of religious error on the same footing on which it positively authorizes the existence and dissemination of religious truth. To the question thus framed, it answers again that the question itself is irrelevant to the contemporary issue of religious freedom. What is more, the fallacy of the previous question, so called, appears. Is it in any sense the function of government to authorize the public existence of any religion, true or false? The answer is no.

To give an example, the first Amendment to the Constitution of the United States does not positively authorize the existence and propaganda of Jehovah's Witnesses. Fortunately too, it does not positively authorize the existence and propaganda of the Catholic Church-fortunately, for such an authorization by the public power would be a monstrous violation of the freedom of the Church, which neither requires nor tolerates any such authorization. The legal institution of religious freedom in its contemporary sense is not a positive authorization of either truth or error. This institution does not "grant" rights, that is, confer empowerments in the matter of religion. Its essential premise is that the public power is not competent to confer such empowerments. In other words, its essential premise is a denial of Proposition 39 of the Syllabus. The First Amendment is simply the recognition of an immunity. By it the people of the United States, inspired by the personal and political consciousness, declared that the free exercise of religion is to be immune from coercive restriction by the power of the state or by any power within society. The First Amendment is a limitation imposed by a free people on the public power; it is not an assertion of the power of the state over the people, in the sense of Continental sectarian Liberalism. The issue, whether error is to be granted the same rights as truth, simply does not arise. Hence again there is no dialogue.

For a final example, the First View asks the question, whether the erroneous conscience has rights in the public forum. To illustrate its negative answer, it gives an example. If I mistakenly think you owe me five dollars, does my erroneous conscience give me the right to demand five dollars from you? Again the Second View declares the question to be irrelevant. As for the example, it limps badly. First, it is taken from the sphere of juridical relations between men, as ruled by commutative justice, whereas religious freedom has to do with man's relation to God. What is more important, it confuses the notion of right as an empowerment and as an immunity. My erroneous conscience gives me no empowerment to demand from you money that you do not owe me. On the other hand, my religious conscience, whether erroneous or not, confers on me an immunity from coercion, whether legal or extralegal, within limits defined by the exigencies of public order. Once again the dialogue dies.

In its turn, the Second View asks some questions. It inquires, for instance, whether the whole issue of human rights is to be argued on the premise that the nature of man is a historical nature, whose rational exigencies manifest themselves progressively, under the impact of the continually changing social-political context, and in response to the growing personal and political consciousness. In the face of this question, the First View tends either to look blank or to launch the accusation that this is juridical modernism. In either case, there is no dialogue.

Again, in what concerns the interpretation of papal documents, the Second View asks the question (apropos of Leo XIII, for instance), is not the historical context of the document and its doctrinal, polemic, and pastoral intentions to be considered, with the result that particular assertions may be regarded as historically conditioned and therefore subject to further development in what concerns their manner of conception and statement, under altered circumstances and with the rise of new questions which affect the perspectives in which the truth is viewed. The First View replies that Leo XIII did indeed speak within a historical context but that his utterances transcended the context. What matters is what he said-the propositions that he put down on paper. These propositions stand forever, true, certain, and immutable. The Second View may urge the issue, citing the assertion of Pius XII that Boniface VIII's doctrine of the sun and the moon and the two swords was historically conditioned and is today archaistic.⁽⁵⁵⁾ In reply, the First View changes the subject, raising the issue of the doctrinal authority of papal encyclicals, with appropriate citations. This issue is important, but it would seem to suppose an answer to the prior question. Again the parties fail to join in dialogue.

At that, this abortive dialogue seems to indicate where the real issue lies. The First and Second View do not confront each other as affirmation confronts negation. Their differences are at a deeper level-indeed, at a level so deep that it would be difficult to go deeper. They represent the contemporary clash between classicism and historical consciousness.⁽⁵⁶⁾ This, however, is a subject too vast to be dealt with here. It will be sufficient further to illustrate the clash by considering the objections that each view brings against the other.

The First View accuses the Second View of doctrinal errors-Liberalism and neo-Liberalism, subjectivism, relativism, indifferentism, Rousseauism, laicism, social and juridical modernism, humanistic personalism, existentialism, situation ethics, false irenicism. These, at any rate, were the accusations brought against the incomplete and badly organized version of the Second View that appeared in the original text of Chapter Five of the Decree on Ecumenism. And there were others. It is not difficult to show that all these accusations rest upon misunderstanding. The Second View needs only to explain itself in order to show that these accusations of doctrinal error are groundless.

The Second View is less harsh in its judgment. It does not accuse the First View of doctrinal errors but of theological fallacies.

The first is archaism-the fallacy which maintains that the Church's understanding and manner of statement of her faith, and of doctrines of reason related to faith, can and ought to be halted in some particular stage, under denial of the possibility and legitimacy of further development. The first historic victim of the fallacy was Eusebius of Caesarea during the controversy over the new Nicene formula of the Church's faith in the Son and Word. The scriptural formulas, said he and the men around him, are definitive; it is not permitted to go beyond them. These men refused to consider the fact that Arius had asked a new question which could not be answered, without ambiguity, in scriptural formulas. Similarly, the First View would fix the doctrine of the Church on religious freedom in its nineteenth-century stage of conception and statement. It refuses to consider the fact that the state of the question has been altered and the nineteenth-century answer is inadequate.

Archaism therefore consists in the rejection, on principle, of the more recent synthesis or systematization, and in the effort to adhere or return to the synthesis or systematization of a prior age, which is judged to be simple and more pure. History has known scriptural archaism, in the original Protestant Reform; patristic archaism, in Baius and Jansenius; medieval archaism, in various kinds of Scholastic Talmudism. The First View is a sort of political archaism. As Boniface VIII's doctrine was archaistic after the emergence of the autonomous nation-state in the fifteenth century, so the First View is archaistic after the growth of the personal and political consciousness in t e twentieth century. With this growth in man's understanding of himself as a free man in a free society, Catholic doctrine on religious freedom must likewise grow in its understanding of itself. Pius XII

glimpsed the fact and reckoned with it in his doctrine on the juridical state, but he drew back, with his wonted caution, from its full implications. With all the penetration of his extraordinary insight, John XXI II saw the fact with full clarity. His insight found expression in his articulated concept of the freedom of the people as a political end and as the political method, and in the correlative concept of religious freedom as a necessary and integral element of the freedom of the people. What remains is simply the fuller conceptualization of religious freedom as a social faculty, a human and civil right (personal and corporate), and a legal institution. What remains too is the recognition that the First View is archaistic, because all sense of the personal and political consciousness is absent from it.

The second fallacy is misplaced abstractness; it is the contrary of the famous fallacy of misplaced concreteness, identified by Alfred North Whitehead. It is the fallacy which creates ideologies. On the face of it, the First View presents itself as a theory conceived with full abstractness, the pure creation of the conscience survolante. In fact, however, it is an apologetic for the nation-state of largely Catholic population which began to take shape, under more or less absolutist rule, in the post-Tridentine era, and then felt the religious and political shock of the French Revolution. This special kind of political-legal realization began to receive recognition in a series of concordats in the nineteenth century, of which the first was with the Kingdom of the Two Sicilies in 1818. It is, of course, entirely legitimate to construct an argument in favor of this historical realization. However, the argument would have to be constructed as Leo XIII constructed it-with concreteness and complete historical realism. The fallacy enters when the Leonine argument is transposed into an abstract thesis which proposes an abstract "ideal instance" of constitutional law, per se and in principle obligatory on an abstraction called "the state."

Here is the neuralgic point in the intramural dialogue on religious freedom. It may be that the intramural segment of the dialogue is not the most important today, given the world-wide character of the problem. Nevertheless, the intramural dialogue has priority. Until it is conducted to a conclusion and a Catholic consensus takes form, the ecumenical dialogue is impossible and so too is the dialogue between Christian and non-Christian. It has often been pointed out that, if the First View stands as the immutable formulation of Catholic doctrine, the whole dialogue ad extra is cut off before it can begin.

It has been alleged that the Second View implies a rejection of the classic concept of the Catholic confessional state. In its generality, this allegation is false. Obviously, the "Catholic state" is not a univocal concept. This fact will be admitted by anyone who is familiar with political history and with the variant content of concordats. The concept covers a whole variety of historical realizations, from the ancien regime with its Gallicanized Union of Throne and Altar, to contemporary Portugal, in which (according to some jurists) there is a mode of separation of Church and state. Some of these historical realizations were sufficiently ambiguous. In any case, the whole issue needs to be argued with great care and with due regard for all the necessary distinctions.

The primarily necessary distinction is between society (or the people) and state (or the order of public law and administration). From this distinction another follows immediately-between the public profession of religion by society (officium religionis publicae) and the care of religion by the public power (cura religionis). Neither of these distinctions is clearly and consistently maintained by Leo XIII. The result has been confusion.

Obviously, the Second View acknowledges, in common with all Catholics, that an obligation to profess faith in God and to worship Him is incumbent on society-on the people as such as well as on individuals. This obligation, however, is not fulfilled by legislative or executive action by the public power. It is fulfilled by occasional public acts of worship, usually on so-called state-occasions-the opening of the legislature and judiciary, national days of thanksgiving and prayer, etc. These acts of worship are organized by the Church, not by the government, which has no competence in liturgical matters. Moreover, they are to be voluntary acts, since they are formally acts of religion. No legal coercion may be exerted to force either individuals or the people to participate in these occasional acts of public faith and worship. All this is clear. The Second View rejects the sectarian Liberalist notion of religion as a purely private affair, against which Leo XIII insisted on the officium religionis publicae.

Obviously too, the Second View embraces the notion of the Christian society, described in the modern papal encyclicals. The development of the Christian social conscience is a duty of the highest order; so too is the effort to permeate all the institutions of society-economic, social, cultural, political-with the Christian spirit of truth, "justice, love, and freedom; so too is the growth of the personal and political consciousness among the people. The helpless and inert imperita multitudo of Leo XIII's time was not a Christian people in the high sense of the word. The Second View rejects the notion of the laicized society in the sense of Continental sectarian Liberalism. In particular, it regards the religious unity of a particular society or people as a good of the highest order-an order so high that it transcends the political order. The emergence of such Catholic societies in history has been a work of divine providence. All this too is clear.

The difficulty begins when the distinct constitutional issue of public care of religion arises, scil., the function of the public power with regard to religion in society and among the people. Only here does the issue of the "Catholic state" become controversial. The word "state" has its proper political-legal meaning.

The First View maintains that there is an abstract idea of the order of constitutional law and an abstract idea of the religious competence of the public power that are distinctively Catholic. In this abstract conception, the Catholic order of constitutional law contains two related institutions, first, the establishment of Catholicism by law as the single religion of the state (i.e., the one religion recognized by law, which alone has the civil right of public existence, guaranteed and supported by the power of the state), and second, intolerance of other religions (i.e., the empowerment of the state to use its legal and police powers to exterminate from public existence all other religions). These twin institutions are of the legal order, matters of constitutional law. Establishment is not a profession of faith in the Catholic religion as the one true religion. It is a legal enactment whose force is felt in the public life of the people. Establishment is not an act of religion; it is a political act of the public power. (Historically, it normally found its place in the constitution octroyée, so called, which was not in any sense an act of the people but only of the ruler.) Moreover, the First View maintains that these two legal institutions, establishment and intolerance, constitute the "ideal instance" of constitutional law. Where they exist, the ideal "Catholic state" exists.

The ideal may be seen, for instance, in the Concordat with the Republic of Ecuador (September 26, 1862): "The Catholic Apostolic Roman religion shall continue to be the single (unica) religion of the Republic of Ecuador, and it shall always be maintained in the possession of all the rights and prerogatives which it ought to enjoy according to the law of God and the dispositions of canon law. In consequence, no other dissident cult and no society condemned by the Church can ever be permitted in Ecuador."

Under allowance for some differences of opinion among its proponents, the general position of the Second View may be stated in the following five propositions.

1) It is not at all incompatible with the doctrine and practice of religious freedom that there should exist an "orderly relationship" (ordinata colligatio, in Leo XIII's phrase) between the public power, as the representative of the people, and the Church, which has authority over the community of the faithful. Moreover, this relationship may be made formally legal by a concordat. (A concordat would normally require ratification by the elected legislature in democratically organized countries, since it is an international convention.) Furthermore, out of respect for historical custom, where it exists, it is not inappropriate or contrary to religious freedom that the people of a particular nation should declare their common allegiance to the Catholic Church in some sort of constitutional document. This declaration has no juridical consequences; it has the value of a statement of fact.

2) In order that the relationship between the two powers may be orderly, the requirements of religious freedom must be observed. There are three.

First, there must be no infringement or inhibition of the freedom of the Church as a spiritual authority and as the community of the faithful. Her internal autonomy must remain inviolable and the free exercise of her apostolic mission must be unimpeded. Moreover, the Church is not to be used by the public power as instrumentum regni.

Second, there must be no confusion of the religious and the political-in particular, no confusion of religious unity and political unity. As the public power has no share whatever in the care of souls (cura animarum) or in the control of thought (regimen animorum),⁽⁵⁷⁾ so it has no share whatever in the care of the unity of the Church. The unity of the Church is a unity of the supernatural order; the care of it is committed exclusively to the Church, and this care is to be exercised by the purely spiritual means proper to the Church. Even when the theological concept of the unity of the Church is historicized or temporalized to mean the religious unity of a given people or ethnic group in the one true faith, this fact must imply no politicization of the national Church, no empowerment of the state to protect or promote the unity of the national Church by coercive means. This would be an infringement of the freedom of the Church and a violation of the exigencies of the Leonine dyarchy; it would also be action ultra vires by the public power. Moreover, the functions of the state with regard to the national culture, whatever they may be, imply no empowerment of the state with regard to the religious welfare of the people, which remains exclusively the duty and prerogative of the Church.

Third, the relationship between the Church and the national government must be so conceived and so executed that it will not result in the alienation of the people from the Church that was a prominent feature of the post-Tridentine and sectarian Liberalist eras. This would be, in effect, an infringement of the freedom of the Church as the community of the faithful.

3) The legal institution of religious intolerance is incompatible with religious freedom as an integral element of the freedom of the people. The right to religious freedom, personal and corporate (in the sense described above), is a rational exigence of the contemporary personal and political consciousness. The correlative exigence is that the public power should have no empowerment to use coercive measures to exterminate any religion from public existence and public action. Exceptions to this rule occur only in particular cases in which there is a clear violation of public order which makes demonstrably necessary the intervention of the public power. Moreover, this third proposition is not hypothesis in the sense of the First View. It is a matter of principle-theological, ethical, political, legal, jurisprudential. It is not a lamentably necessary concession to force majeure, made in order to avoid a greater evil or to gain a greater good. Religious freedom is a personal and political good. It is part of that "establishment of freedom" which, as Acton said and John XXIII in effect repeated, represents the "highest phase of civil society."

4) There is no such thing as an "ideal instance" of Catholic constitutional law. In particular, the twin institutions of establishment and intolerance do not represent the ideal instance. There may be some constitutional orders which are good and others which are bad. The first Catholic criterion of judgment was proposed by Pius XII, scil., whether the constitutional order assures the Church a stable condition in law and in fact and full freedom in the fulfilment of her spiritual ministry. (The centrality of the freedom of the Church is visible in the new series of concordats initiated by the Concordat with Latvia in 1922.) The second Catholic criterion was proposed by John XXIII, scil., whether the constitutional order assures the citizen the secure possession of all his personal rights and protects and promotes in full measure the legitimate freedom of the people.

These two criteria are to base the Catholic judgment, no matter what may be the religious composition of the citizenry-whether conditions of religious unity or conditions of religious pluralism obtain. There are not two standards of judgment on constitutional law-one for a Catholic people and another for a religiously pluralist people. The fact of the religious unity of a particular people in the Catholic faith does not make obligatory the legal institution of establishment, as if a situation of legal privilege were a Catholic constitutional ideal. Still less does the religious unity of the people authorize the legal institution of intolerance, as if this institution were also a Catholic ideal.

In its turn, the Second View does not propose the legal institution of religious freedom as a constitutional ideal, an abstract thesis, conceived a priori, under abstraction from historical-social reality. It discards the categories of the ideal and the tolerable, thesis and hypothesis, as invalid categories of discussion about constitutional law. It goes back to the jurist for its category of legal discussion. It is the function of law, said the jurist, to be useful to the people.⁽⁵⁸⁾ its categories of political discussion are taken from John XXIII-truth, justice, love, and the freedom of the people. As for its category of socio-religious discourse, it would prefer to abandon the ambiguous neologism, "the Catholic state," and go back to the noble medieval phrase, "the Christian people." This is not archaism; it is ressourcement.

5) As the historical consciousness precludes the fallacy of archaism, so also it precludes the fallacy of anachronism. This latter fallacy consists in the assumption that a later and more perfect stage in the Church's understanding of her own tradition existed before it actually did exist. The Second View presents itself as the contemporary stage in the growing understanding of the tradition. This understanding cannot be found in ecclesiastical documents of the nineteenth century. It was brought into being by a dynamism proper to the twentieth century, the growth of the personal and political consciousness, first noted by Pius XII and more fully developed in its implications by John XXIII. The notion of religious freedom as a human and civil right, personal and corporate, is not to be sought in theologians of the nineteenth century, since it is explicitly the product of a twentieth-century insight into the exigencies of the personal and political consciousness. The link between religious freedom and limited constitutional government, and the link between the freedom of the Church and the freedom of the people-these were not nineteenth-century theological political insights. They became available only within twentieth-century perspectives, created by the "signs of the times." The two links were not forged by abstract deductive logic but by history, by the historical advance of totalitarian government, and by the corresponding new appreciation of man's dignity in society.

The complex notion of the freedom of the Church had indeed always stated the question of public care of religion in its proper terms. It had also stated the essential claim that the Church perennially must make on the public power, as the essential requirement of positive divine law that is binding on the public power. But the tradition had been obscured by history-by the decadence of the constitutional tradition after the quattrocento broke with the medieval conception of kingship, and by the involvement of the Church in the politics and power struggles of the late medieval period, the post-Tridentine era, and the century of sectarian Liberalism in Europe and Latin America.

However, what history had obscured, history would also clarify. History brought forth Proposition 39 of the Syllabus, brutally incarnate in a form of totalitarian society-state. In the light of history Leo XIII began to restate the question of public care of religion in its traditional terms and to restore the traditional centrality of the Church's ancient claim to freedom in the face of the public power. Pius XI and Pius XII began to work out the wider political implications of the tradition in the altered historical context of the twentieth century. By his fuller acceptance of the context, John XXIII renounced all archaism, confirmed the new problematic of religious freedom, and began to apply to its resolution the newly developed tradition, theological and political.

If archaism is now forbidden, so too is anachronism. The rejection of this latter fallacy controls the thought of the Second View in two major ways.

First, it controls the interpretation of papal documents of the past. The Second View does not search in the Leonine corpus or elsewhere for "proof-texts," that is, for explicit earlier statements that will textually confirm the explicitness of its own later statements. Nor does it undertake to "read back" into the text of Leo XIII its own synthesis of the tradition. Both of these procedures would be vitiated by anachronism, a violation of good theological method. As Leo XIII cannot be "read back" into Innocent 111, so John XXIII cannot be "read back" into Leo XIII.

The theological task is to trace the stages in the growth of the tradition as it makes its way through history. Scylla is archaism; Charybdis is anachronism. The task is to discern the elements of the tradition that are embedded in some historically conditioned synthesis that, as a synthesis, has become archaistic. The further task is to discern the "growing end" of the tradition; it is normally indicated by the new question that is taking shape under the impact of the historical movement of events and ideas. There remains the problem of synthesis-of a synthesis that will be at once new and also traditional. This is the problem faced by the Second View.

Second, the rejection of anachronism controls judgments on past situations. To return to the example already given, the Second View does not denounce the Church or the Republic of Ecuador for a violation of religious freedom in 1862. More in general, in judging all past or present realizations of the Catholic state, so called, the historical situation needs to be considered. The historical institutions of establishment and intolerance are to be judged in situ. They might well be judged valid in situ. The function of law, said the jurist, is to be useful to the people. These institutions might well have been useful to the people, in the condition of the personal and political consciousness of the people at the time. This was Leo XIII's judgment. It would be anachronistic to question it.

But if anachronism is outlawed, so too is archaism. Leo XIII himself rejected the latter fallacy by his restatement of the Gelasian dyarchy and the Gregorian principle of the freedom of the Church. It may still be useful for the people of God in certain countries of the world today that the Church should be recognized by law as the common religion of the people. This would validate the judgment that the institution of establishment should be retained in those countries. But nothing can validate the judgment that this legal status is "ideal" because it enlists the coercive power of government in the service of the exclusive rights of truth. To say the least, this view is archaistic. The argument would have to be that establishment is useful for assuring the freedom of the Church, as the people of God and as a spiritual authority. This argument might be more difficult to make. In any case, its conclusion would not be that establishment is a constitutional ideal.

On the other hand, no argument can be made today that would validate the legal institution of religious intolerance, much less canonize it as a Catholic ideal. The institution cannot even be tolerated today as a harmless archaism. Nor is it even permissible to raise the question, whether legal intolerance may be useful to the people either to the people of God or to the civil people. The fact is that legal intolerance stands condemned today by the common consciousness of the peoples of the world. The condemnation is binding today on all civilized states, which, as such, must reject Proposition 39 of the Syllabus. Today, religious freedom, as a human and civil right, personal and corporate, which requires the protection of a legal institution, has emerged as an exigence of the personal and political reason. As such, it claims the sanction of Catholic doctrine.

These five propositions suggest the position taken by most proponents of the Second View with regard to the complicated issue of the "Catholic state," so called.

It is now possible to state the issues in the controversy.

There seems to be a basic agreement between the First and Second Views that the controversy concerns the constitutional question, the technical question of public care of religion by the public power, as a theological, ethical, political, legal, and jurisprudential question. This antecedent agreement is important, since it rules out irrelevant issues. There are, for instance, a number of issues involved in the larger problem which is customarily called, not without some ambiguity, the problem of "Church and state." These issues, however, are not directly relevant to the narrower question of public care of religion. From the foregoing exposition it is clear that the First and Second Views, in dealing with this question, make affirmations that are either contradictory or contrary.

1) The state of the question.-Has it altered in consequence of a Christian discernment of the new signs of the times (the Second View), or is it somehow by definition immutable (the First View)? This question seems to have first priority. Unless there can be agreement on the state of the question, further argument is futile. Moreover, all other disagreements seem to stem from this one.

2) The basic concept in the question of public care of religion.-Is it the exclusive rights of truth (the First View) or the freedom of the Church as inseparably allied, in the present moment of history, with the freedom of the civil people (the Second View)?

3) Public care of religion in constitutional law.-Is there an ideal instance of Catholic constitutional law (the First View), or not (the Second View)? Furthermore, is there a dual standard for Catholic judgment on orders of constitutional law, one for the Catholic nation and another for religiously pluralist peoples (the First View,), or is there a single standard equally applicable to any order of constitutional law (the Second View)? More in particular, are the categories of judgment the ideal and the tolerable, thesis and hypothesis, principle and expediency (the First View), or are they the good and the bad, the just and the unjust, the more or less just and the more or less unjust (the Second View)?

4) The competence of the public power with regard to religion.

Does it extend to public care of religious truth (the First View), or is it limited to public care of religious freedom (the Second View)? Does it extend to a care for the Church herself-her doctrine, authority, prestige (the First View), or is it limited to a care for the freedom of the Church (the Second View)? Does it extend to a care for the religious unity of the people as related to their political unity (the First View), or is it limited to a care for the religious freedom of the people as related to their civil and political freedom (the Second View)?

5) The rule of jurisprudence for repressive intervention by the public power in what concerns the free exercise of religion.-Is it the possibility of such intervention without serious disturbance of the public order (the First View), or is it the necessity of such intervention in order to maintain the essential exigencies of the public order (the Second View)?

6) The state and positive divine law.-What is the essential requirement of positive divine law which is binding on the state, that is, on the public power? Is the public power bound to establish the Church by law as the one religion of the public power, that is, the one religion whose right to public existence and action is recognized by the public power (the First View), or is this a misunderstanding of the whole matter (the Second View)? On the other hand, is the essential requirement of positive divine law satisfied when the public power recognizes and protects the freedom of the Church (the Second View), or is this a minimalizing of the whole matter (the First View)?

7) The legal institution of intolerance.-Is it the logical and juridical consequence of the legal establishment of the Church, in such wise that the two institutions stand or fall together (the First View), or is it possible to maintain an organic and even a legal relationship between the Church and the public power, and at the same time abolish the legal institution of intolerance and introduce the legal institution of religious freedom (the Second View)? More in particular, what are the correct premises on which to validate the legal institution of establishment? And are there today any premises on which the legal institution of intolerance can be validated?

8) The issue of the Catholic confessional state.-This issue runs through all the foregoing seven issues, in such wise that the answer to it will depend on the answers to them. Here one general question may be added. To what extent is this kind of state-that is, this conception of the order of constitutional law and this conception of the religious competence of the public power-the creation of post-Tridentine history, and to what extent is it the creation of transtemporal doctrine?

9) The issue of theological judgment.-Is the Second View infected with doctrinal errors (as the First View maintains), or is the First View infected with theological fallacies (as the Second View maintains)? How successfully does each View contend with the objections brought against it by the other?

The basic issues in the controversy seem to come to expression in the foregoing series of nine interrelated topics. The node of the controversy also appears. It is the notion of the ideal. This is the "fighting word." But is the fight necessary? The Second View fights against the notion, because public care of religion is a constitutional question; it has to do with legal institutions, to which the notion of an ideal is inapplicable. The First View fights for the notion, because public care of religion has to do with the maintenance of the religious unity of a Catholic people, which is an ideal. If this is the issue, it is no issue at all. The Second View can grant that the religious unity of a Catholic people is an ideal to be pursued. The First View need only grant that the legal institutions of establishment and intolerance are not ideal means of pursuing it. In any event, until the false issue of the ideal is disposed of, there is little possibility of getting on with the real argument. The ideal has become a King Charles's head, or, if you will, a red herring across the trail.

There are also three other sets of issues that must be briefly mentioned.

1) Religious freedom, as a concept and as an affirmation.-Has the concept been adequately described? And has the affirmation of it been reasonably made in terms of argument, and theologically made in terms of a genuine growth in the understanding of the tradition? Many particular issues arise under this general topic.

2) The mode of argument for the validity of religious freedom as a human and civil right, embodied in a legal institution.-The basic issue here concerns the different mentalities with which the whole question of public care of religion is approached -- the extrinsecist-abstract-logical-deductive-ahistorical mentality (the First View), and the historical consciousness (the Second View). The cognate issue concerns the development of doctrine concerning public care of religion. Has there been a genuine growth in the understanding of the tradition from Gelasius I to John XXIII (the Second View), or did the growth come to a stop at some determined stage (the First View)?

3) Certain theological principles and pastoral considerations that are relevant to the whole problem. The general question is, which of the two Views more adequately reckons with these principles and considerations.

First, religious divisions are not simply brute fact but theological fact. That is to say, the fact of them is inherent in the supernatural economy of salvation. The economy hangs suspended from the divine predilection and predestination; faith is a gift offered to man's freedom; the economy is a divine action that unrolls in time and space; the eschatological division (Mt 25:31-46) is prefigured in history; Christ did not come to bring peace but division (Lk 12:5153). No historical-geographical realizations of Catholic unity escape this theological fact. Religious pluralism is theologically the human condition.

Second, there is the mode of God's governance of men-its disposition to "overlook" (Acts 17:30), its "forbearance" (Rom 3:26), its respect for human freedom, its adamant resistance to the "divine temptation," as it has been called-the temptation to coerce men for their own good (cf. Mt 4:7).

Third, there is the evangelical consciousness of the Church-the pusillus grex, the pilgrim Church which is "poor," that is, dependent only on spiritual means to win wayfaring man to herself, the missionary Church, forever engaged in a work of discernment, seeking in the historical succession of human cultures for their truly human elements, striving always to save the institutions of men by filling them with a content of truth, justice, love, and freedom; willing always to recognize the reality of human progress, despite its ambiguities.

Fourth, there is the fact of the great sin of our times-carelessness and even contempt for the dignity of the human person and its birthright of freedom. Against this sin, the Church has sharpened her emphasis on man as the image of God and also enlarged her pastoral solicitude for human freedom.

Fifth, there is the contemporary need for ecumenical dialogue on the issue of religious freedom, and the further need for dialogue between Christian and non-Christian. For this dialogue the Church needs a common doctrine; she also needs a doctrine that can be made intelligible to the contemporary man of good will.

These considerations, and others too, are relevant to the question of judgment on the two Views. Which of them is more in consonance with these theological truths? Which of them better reflects the contemporary pastoral solicitudes of the Church?

For the next chapter, see The Issue of Church and State at Vatican Council II.

Footnotes

1. Cf J. Lecler, Toleration and the Reformation 2 (tr. T. L. Westow; London, 1960) 197, 235, 250, 253, 279, 355, 362, 377, 379, 400, 426.

2. Cf. Syllabus, prop. 3 (DB 1703). [Editor Note: "Syllabus" in Enchiridion Symbolorum: Definitionum et Declarationum de Rebus Fidei et Morum, edited by Henry Denziger and Clement Bannwart, S.J.. (Freiburg: Herder, 1922), para. 1703.]

3. Cf. Syllabus, prop. 39 (DB 1739).

4. Libertas, ASS 20 (1887) 605.

5. Immortale Dei, ASS (1885) 163.

6. Libertas, ASS 20 (1887) 605.

7. Cf Ibid., p. 604.

8. Cf. DB 1800.

9. Cf. Cum multa, ASS 15 (1882) 242.

10. Officio sanctissimo, ASS 20 (1887) 269.

11. Praeclara gratulationis, ASS 26 (1893-94) 712.

12. .Immortale Dei, ASS 18 (1885) 171.

13. Libertas, ASS 20 (1887) 612.

14. Divini redemptoris, AAS 29 (1937) 72.

15. Radio message, Dec. 24, 1944; AAS 37 (1945) 11-12.

16. Ibid., p. 22.

17. Radio message, Dec. 24, 1942; AAS 35 (1943) 19.

18. Ibid., p. 14.

19. .Radio message, Dec. 24, 1944; AAS 37 (1945) 12.

20. Ibid., p. 15.

21. Radio message, June 1, 1941; AAS 33 (1941) 200.

22. Ibid.

23. Cf Radio message, Dec. 24, 1944; AAS (1945) 13-16.

24. Non abbiamo bisogno, AAS 23 (1931) 302.

25. Firmissimam constantiam, AAS 29 (1937) 196.

26. Summi pontificatus, AAS 31 (1939) 445.

27. Ci riesce, AAS 45 (1953) 802.

28. .Mit brennender Sorge, AAS 29 (1937) 160.

29. Ibid., p. 159.

30. Radio message, Dec. 24, 1942; AAS 35 (1943) 19.

31. AAS 45 (1953) 794-802.

32. Cf Ibid., p. 798.

33. Ibid., p. 797.

34. Ibid., p. 799.

35. Ibid.

36. Ibid. 4a.

37. Ibid., pp. 798-99.

38. Cf Ibid., p. 801.

39. Cf Ibid., p. 797.

40. Radio message, Sept. 11, 1962; AAS 54 (1962) 682.

41. AAS 55 (1963) 257-304.

42. Cf Ibid., pp. 273-79.

43. Cf Ibid., p. 278.

44. Cf Ibid., pp. 259-69.

45. Ibid., p. 260.

46. Ibid., p. 270.

47. .Ibid., p. 279.

48. Ibid., p. 266.

49. Cf Ibid., p. 265. [Editor Note: Freedom as the driving force for social betterment anchors Murray's principal argument to common good concerns. By offering a social betterment grounding for liberty, he bypassed individualistic interpretations of Western freedoms. See also 1963j, p. 613; 1966b, p.574; and the fourth article in this book.]

50. Ibid., p. 266.

51. Ibid., p. 297.

52. Ibid., pp. 285-86.

53. Cf. Ibid., p. 300

54. Ibid.

55. Cf. Allocution Vous avez voulu, Sept. 7, 1955; AAS 47 (1955) 678.

56. Editor Note: The classicism versus historical consciousness distinction is from Lonergan. Murray had been in contact with Lonergan, particularly after 1958, and had an advance copy of the latter's "Transition from a Classicist World-View to Historical Mindedness" in 1966. For Murray the Council's affirmation of religious freedom entailed also an affirmation of "historical consciousness," parallel to the Nicene Council's affirmation of a dogmatic way of knowing along with its affirmation of "homoousion" (see 1964c, 1966j). He also appealed to historical consciousness in support of the majority report, which recommended changes in the church's policy toward artificial contraception, accusing the minority report as being caught in "classicism" (see 1967g).

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

58. Cf. 1-2, q. 95, a. 3.

See also:

• The Issue of Church and State at Vatican Council II, the next chapter.