An Unfinished Argument:
John Courtney Murray, Dignitatis Humanae
and the Catholic Theory of the State


Professor Kenneth L. Grasso
Department of Political Science, Southwest Texas State University


Introduction
The Right to Religious Freedom: A Brief Overview
Dignitatis Humanae, the Intellectual Foundations of Religious Liberty and the Catholic Theory of the State
Religious Liberty and the Catholic Theory of the State: The Political Argument Revisited
From Human Dignity to Public Order: The Contours of Murray’s Argument
Murray and the Political Theory of the Juridical State: Four Difficulties
Recasting the Political Argument: Toward a Catholic Theory of the Juridical State
Social Pluralism and the Foundations of Limited Government
Toward the Political Theory of the Juridical State: Preliminary Reflections
Conclusion



In his "Message to Rulers" at the conclusion of the Second Vatican Council, Paul VI numbered Dignitatis Humanae among the Council's "major" texts.[1] A day earlier during an audience granted to special delegates from various countries and international organizations, he characterized it as "one of the greatest documents" of Vatican II.[2] It is difficult to quarrel with this assessment of DH's importance. Dignitatis Humanae effected a dramatic transformation in the Church's teaching on the subject of religious liberty and represented a pivotal step in the far-reaching development in Catholic social teaching that George Weigel has aptly dubbed "the Catholic human rights revolution." [3] At the same time, as Walter Kasper has observed, it must be "considered a watershed in the long and controversial history of the relationships between the Church and the development of the concept of freedom in the modern era, "a milestone in the long standing conflict between the Church and "the modern idea of freedom." [4] Indeed, John Paul II clearly concurs with his predecessor's estimation of DH's importance, repeatedly invoking it as one of the foundational documents of contemporary Church social teaching.

If Dignitatis Humanae is clearly among the Council's major texts, it is also one in which American Catholics can take particular pride. Not only did the American hierarchy play a prominent role in the debates surrounding religious liberty at the Council, but the experience of the Church in America and the work of perhaps the greatest of American Catholic theologians, John Courtney Murray, clearly exercised a profound influence on DH. On the one hand, the favorable experience of the Church in the United States undoubtedly helped lay that groundwork for DH. To begin with, it showed that the Church could flourish without enjoying a position of legal privilege, in the context of a political order guaranteeing wide-ranging religious freedom and in a social environment characterized by far-reaching religious pluralism. Simultaneously, it was widely agreed that the American experience demonstrated that religious liberty entailed neither the privatization of religion nor the organization of public life in accordance with a secularist ethos. By doing so, it removed one of the principal obstacles to the Church's embrace of the idea of religious liberty. On the other hand, George C. Higgins is clearly correct in suggesting that it was Murray's "brilliant rethinking of Catholic doctrine" on the whole subject of Church and state that "prepared the way" for DH.[5] And, even if Murray's influence on its writing was not determinative and although he was far from entirely satisfied with the argument it advances in support of religious liberty, there be no question that his work at the Council shaped DH in important ways.

In view of all this, its surprising how little attention DH receives in contemporary Catholic social thought. To begin with, DH hardly plays the sort of central role in American Catholicism's engagement with contemporary American public life that it has played in John Paul II's engagement with the contemporary world. This is particularly perplexing in light of the fact that one of the most striking aspects of contemporary American political life is our movement toward what is sometimes called the privatization of religion, our movement toward the establishment of what has been termed "the naked public square." [6] One of the principal causes of this troubling movement has been the ascendancy of a particular view of religious freedom and the proper relation of religion and public life. In the face of this disturbing development, it is more than a little surprising that American Catholics have not made the alternative understandings of these subjects embodied in DH the cornerstone of their engagement with contemporary American public life.

Likewise, American Catholic thinkers have hardly attempted to address the whole array of issues raised by DH. Indeed, since DH's promulgation, as John Coleman has observed, "there has been very little Roman Catholic theological writing or discussion" on the subjects it addresses. [7] This is ironic in view of the role played by Murray's thought and the American Catholic experience in laying the groundwork for DH and puzzling in that even a cursory reading of DH reveals that it leaves great many questions unanswered, and indeed raises more issues than it resolves.

For all its importance, as Murray has noted, Dignitatis Humanae is actually "a document of very modest scope." [8] Its subject matter and scope are aptly conveyed by its alternative title: the "Declaration on Religious Freedom: On the Right of the Person and of Communities to Social and Civil Freedom in Matters Religious." "This Vatican Synod," it announces,

declares that the human person has a right to religious freedom. This freedom means that all men are to be immune from coercion on the part of individuals or of social groups and of any human power, in such wise that in matters religious no one is to be forced to act in a manner contrary to his own beliefs. Nor is anyone to be restrained from acting in accordance with his own beliefs, whether privately or publicly, whether alone or in association with others, within due limits.[9]

If DH is clear in its affirmation of a "right to religious freedom in civil society" (1, 165), as well as about the nature and limits of this right, it nevertheless leaves a wide array of important questions unresolved.

It avoids, for example, the complicated problem of the development of Catholic teaching on the whole subject of religious freedom, the problem of how the teaching of DH can be said to constitute a development of, rather than a simple break with, earlier Church teaching. Likewise, beyond taking pains to distinguish the conception of religious freedom it defends from alternative conceptions that would entail the privatization of religion or result in a posture of governmental indifference toward religion, does not really explore in any detail the affirmative responsibilities it attribute to government in religious matters. In fact, DH touches only lightly upon the implications of the right it proclaims for the ancient problems of the proper relationship of, respectively, Church and state, and Church and society. Finally, and most importantly for our purposes here, the Declaration does not attempt to resolve in any type of conclusive fashion the whole question of the intellectual foundations of the right whose existence it affirms.

The Declaration, it is true, does offer an argument in support of this right. The Council, as Murray remarks, felt "it was necessary . . . to present an argument for the principle of religious freedom, lest anyone should mistakenly think that the Church was accepting religious freedom merely on pragmatic grounds or as a concession to contemporary circumstances,"[10] in order to make it clear "that the affirmation of religious freedom is doctrinal."[11] Although the overwhelming majority of Bishops at the Council affirmed the right proclaimed by DH, the Declaration's supporters were, as Richard J. Regan notes, "deeply split on how to articulate a rationale for the principle of religious freedom."[12] As a result, he shows, the argument of the final text was deliberately designed to be a "compromise" combining elements of the various justifications for religious freedom that had emerged in the course of the Conciliar debates so as to secure a consensus in support of the Declaration.[13]

As a deliberate compromise between opposing schools of thought, the argument of the Declaration was not intended to be, in Murray's words, "final and decisive," but merely to indicate "certain lines or elements of argument" which the Council thought might be worth pursuing.[14] In doing so, as Regan notes, it "left to professional theologians, philosophers and political scientists the task of critically evaluating specific arguments," the task of systematically elaborating the intellectual foundations of the right affirmed by DH.[15]

If DH constitutes, as Murray notes, both an "end" and a "beginning," it is because in the process of resolving one question -- by affirming the existence of the right to religious freedom whose nature and scope it outlines -- it opens a whole array of other questions, including those just mentioned. Taken together, these questions constitute what James Rausch has described as "the unfinished agenda" of DH.[16] The completion of this intellectual agenda is essential to the successful conclusion of the broader development in Catholic social teaching of which the Declaration is a part. Thus, as Walter Burghardt has pointed out, one of the pressing tasks confronting Catholic social thought today is the deepening of "our understanding of the Declaration's affirmations and the reasons on which they repose."[17]

My focus here will be on one particular aspect of that unfinished agenda, namely, the intellectual foundations of religious freedom, "the reasons" on which the "affirmations" of the Declaration "repose." This question possesses a particular importance because its resolution is an essential precondition of the resolution of the other questions composing this agenda. I will explore this question through a critical engagement with the work of John Courtney Murray.

Specifically, my objectives will be essentially threefold. First, I will seek to show that, Murray is correct in contending that the intellectual foundations of the right affirmed by DH must necessarily include an account of the proper role of government in the overall economy of human social life, and thus a full-fledged theory of the state. Secondly, I will seek to show that Murray's own account of the theory of state presupposed by DH, although far and away the best effort to articulate the theory of the state underlying the Declaration, is itself in important respects neither complete nor fully satisfying. Finally, without attempting to systematically elaborate the theory of politics necessary to undergird the conclusions of DH, I will attempt to identify the intellectual resources offered by Catholic social thought in the construction of such a theory and the general trajectory of the argument that would inform it. Before turning to these subjects, however, it is first necessary to return to DH and examine more carefully the nature of the right it proclaims.

The Right to Religious Freedom: A Brief Overview

My concern here is with the intellectual underpinnings of the right affirmed by DH. The construction of a secure foundation for this right presupposes clarity about the nature and scope of the right whose existence it affirms. The major points in this regard are as follows:

1. While the Declaration affirms that the right to religious freedom "is to be recognized in the constitutional law whereby society is governed" as a basic as "civil right" (2, 187), the Council makes clear that this right "has its foundation in the very dignity of the human person, as this dignity is known through the revealed Word of God and by reason itself" (6, 167). It has its foundation, this is to say, in man's very ontological dignity as a person. It thus has its foundation, as Pavan writes, in the dignity "that every human person possesses always and everywhere simply by being a person, and not by behaving rightly in the moral field. It is the dignity that flows from the being of the person and inheres in the being of the person and does not depend on the deeds of the person."[18] Inasmuch as the right to religious freedom "has its foundation, not in the subjective disposition of the person, but in his very nature" (2, 168), this right is, as Pavan concludes, a "natural," rather than a mere "positive" right.[19]

2. As "a natural right, that is, one grounded in the very nature of man," Pavan observes, "it is a right which belongs to all human beings: Catholics and non-Catholics, Christians and non-Christians, believers and unbelievers or atheists."[20] Indeed, it belongs even to those who refuse to take seriously their "obligation to seek the truth, especially religious truth" and "to order their whole lives in accord with" its "demands." This right thus "continues to exist even in those who do not live up to their obligation of seeking the truth and adhering to it" (2, 168). "Everyman," as Pavan observes, "has a right to religious freedom because he is a person."[21]

3. The right of religious freedom, as Pavan has written, does not concern "the relation of the person to truth," but rather "the relation between person and person."[22] Man, as Murray points out, lives his life in two orders of reality, namely, the "vertical" order of his relationship to God and truth and "the horizontal order of interpersonal relations among men, between a man and organized society and especially between the people -- as individuals and as associated in communities, including religious communities -- and the powers of government."[23] It is with this latter order, the juridical order, that the right proclaimed by the Declaration is concerned. DH is emphatic that, in Murray's words, "no man may plead 'rights' in the face of truth or . . . the moral law."[24] On the contrary, rights can only be affirmed against others; they concern only the order of "intersubjective relations among men."[25]

Thus, the right to religious liberty, as DH affirms "leaves untouched" both "traditional Catholic doctrine on the moral duty of men and societies toward the true religion and toward the one Church of Christ" (1, 165) and men's "moral obligation to seek the truth" and, "once it is known," to "order their whole lives" in accordance to its demands (2, 168). Rather, it "has to do with immunity from coercion in civil society" (1, 165).

4. As far as its content or object is concerned, the right to religious freedom encompasses a twofold immunity from coercion. In matters religious," the Declaration affirms, man "is not to be forced to act in a manner contrary to his conscience. Nor . . . is he to be restrained from acting in accordance with conscience." (3, 170). As an immunity, rather than an empowerment -- as a "freedom from," rather than a "freedom for" -- the right has an essentially negative character. It does not, as Francis Canavan remarks, assert, "a person's moral right to propagate his belief," but rather "his freedom from being impeded in his propaganda by civil laws and coercive measures."[26]

"It is important," as Pavan remarks, "to be clear about the negative nature of the object [of this right], so as to avoid the idea that the object of the right to religious liberty is connected with the content of religious faith,"[27] so as to avoid the idea that "the object of the right is a faculty, recognized and legally protected, to profess one's own religion." This would involve the claim that individuals have a moral right -- an empowerment -- to profess their religion, whatever it might be, or even to profess atheism. This claim, however, is untenable. "If a religion is not true or contains false elements." Pavan notes, "anyone who professes it thereby contributes to the spreading of error, and the spreading of error is a bad thing; therefore it cannot be the object of a right."[28] It cannot be the object of a right because "no one has the right" to commit "evil."[29] "A natural right," in short, "cannot be founded on an objective error."[30] In Murray's terse formulation: "neither error nor evil can be the object of a right, only what is true and good."[31]

5. The right to religious freedom encompasses, in Murray's words, "immunity from coercion in what concerns religious worship observance, practice and witness -- in all cases, both private and familial, and also public and social"[32] within the limits set by "the just requirements of the public order" (6, 176). Hence, while the right itself is "inalienable" as Pavan remarks, its "exercise" can be suspended in cases of grave "abuse."[33] As the Declaration puts it, because this right "is exercised in human society," it follows that "its exercise is subject to certain regulatory norms" designed to protect society from "possible abuses committed on pretext of freedom of religion." "These norms arise out of the need" for an "effective safeguard of the rights of all citizens and for the peaceful settlement of conflicts of rights," "an adequate care of genuine public peace, which comes about when men live together in good order and justice," and "a proper guardianship of public morality." Taken together, "these matters constitute" that "basic component of the common welfare" which DH designates as "public order." The "protection" of society through the enforcement of these norms -- through the vindication of the demands of public order -- is "the special duty of government" (7, 176-177).

In determining and safeguarding "the just requirements of public order" (4, 171), DH insists, the state must act in "conformity with the objective moral order" and be guided by the principle "that the freedom of man [must] be respected as far as possible, and curtailed only when and in so far as necessary" (7, 177-178). Nevertheless, in enforcing these requirements, as Canavan observes, "government does not act arbitrarily or violate religious freedom, even if it prevents people from doing things that their religious beliefs authorize or perhaps even command (ritual murder, sacred prostitution and polygamy are extreme, but not fantastic, examples)."[34]

6. Finally, as we have noted, the right to religious liberty, affirmed by DH entails neither the privatization of religion nor a posture of governmental indifference toward it. On the one hand, DH makes clear that "it comes within the meaning of religious freedom that religious bodies should not be prohibited from undertaking to show the special value of their doctrine in what concerns the organization of society and the inspiration of the whole of human activity" (5, 172). On the other hand, it emphatically rejects as incompatible with religious liberty what Murray terms the view "that secular government may maintain a neutrality of indifference to religion, or that secular society may excise religion from its concept of the common good."[35] If government has the duty to "safeguard" "the religious freedom of all its citizens," to respect and protect their right to immunity from coercion in religious matters, it also has the obligation

to help create conditions favorable to the fostering of religious life, in order that the people may be truly enabled to exercise their own religious rights and to fulfill their religious duties, and also in order that society may itself profit by the moral qualities of justice and peace which have their origin in men's faithfulness to God and to His holy will. (6, 175)

Indeed, "since the function of government is to make provision for the common welfare," it is obligated "to take account of the religious life of the people and show it favor" (3, 170).

Dignitatis Humanae, the Intellectual Foundations of Religious Liberty and the Catholic Theory of the State

There was overwhelming agreement at the Second Vatican Council about the existence of the right to religious liberty whose nature and content was just outlined. The problem that confronted the Council was, as Murray notes, "how to construct the argument -- whether derived from reason or from revelation -- that will give solid foundation to what the Declaration affirms."[36] At first glance, the difficulties encountered by the Council in articulating the intellectual foundations of this right might seem surprising. After all, religious liberty was not exactly a new idea, and Western intellectual history is littered with scores of different theories of religious freedom. Not every theory of religious liberty, however, is consistent with the church's self-understanding or the truths she professes. Indeed, the theories of religious liberty that have most influenced modern Western intellectual life have been rooted in intellectual traditions (e.g. Protestantism, liberalism) and have often involved consequences (e.g., the privatization of religion) incompatible with Catholicism.

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

are the following: There is a divinely revealed truth about man and his relation to God, of which the Church is the infallible custodian. Men are not free to take or leave this truth as they choose; it is God's will that they accept His revealed truth and live by it. Society as well as individuals must guide its activities in the light of this truth. Since the same persons are members of the Church and citizens of the state, Church and State must act in harmony so that men may achieve both their temporal and eternal goals.[37]

At the same time, the tradition includes a commitment to a metaphysical and moral realism and to the idea of natural law, to the existence of an objective moral order discoverable by human reason. Affirming the naturalness of social and political life, it emphatically rejects the view that a political community is nothing more than a mutual protection society. Since the state exists not merely to suppress violence but to affirmatively foster the human good, political life must take its bearings from the truth about man and that good.

The right to religious freedom, as we have seen, embodied a twofold immunity from coercion: in religious matters, as long as "the just requirements of public order are observed" (3, 171), no one was to be forced to act against his conscience, nor was anyone to be restrained from acting in accordance with his conscience. It was not difficult to construct an argument grounded in the Catholic tradition to justify the first immunity. "The Church," as Regan observes, had "long affirmed the right of the individual to freedom from coercion in the profession of the Catholic faith."[38] What proved to be difficult was the construction of an argument for religious liberty rooted in the Catholic tradition to undergird the second immunity, to ground the right of individuals and groups not to restrained from acting in accordance with their consciences within the limits sets by the essential exigencies of public order. The recognition of this immunity, as DH notes, constitutes a development in Catholic social teaching. As late as Pius XII, Catholic social teaching denied the existence of a natural human right to religious liberty encompassing this immunity. Since the Catholic tradition has long recognized that "neither evil nor error can be the object of a right," there was no right, it was concluded, to publicly act upon or advocate religious error, and such action or advocacy could be prohibited as destructive to the common good when its prohibition would not be the source of greater evils.

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

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

To place the right affirmed by DH on a secure foundation, therefore, it was necessary to formulate a compelling argument rooted in the Catholic tradition justifying this immunity, demonstrating, in Murray's phrase, its "juridical actuality."[39]

The problem of constructing such an argument was not solved by the Council. In the course of the Council's deliberations, as Regan shows, four arguments designed to ground the right affirmed by DH emerged: an argument from the duties and rights of the individual conscience; an argument from the limits placed on the powers of government by man's dignity as a person; an argument from Scripture and "Christian freedom"; and an argument from the man's obligation to pursue truth in a manner consonant with his dignity as a person and the social nature of man.[40] In the face of this disagreement regarding the foundations of religious liberty, the Council decided to put forward a brief, highly schematic, and, in any case, tentative argument incorporating elements of the lines of argument advocated by each of four schools of thought.

In the compromise argument of the final text, the arguments "from the right and duty to follow conscience" and from the limits of government were invoked but "in a subsidiary rather than a central role."[41] The argument from Scripture and Christian freedom was used but relegated to the second chapter and employed merely to show that religious freedom was, in the words of the Declaration, "consonant" with "revelation" (9, 179). "Primacy" was afforded to "the argument from the duty and right to pursue the truth" and "from the social nature of man" which enjoyed "undisputed first place in both position and the number of lines devoted to it."[42]

If this compromise argument served to secure the consensus necessary for the passage of Declaration, nevertheless, as Murray points out, it "pleased . . . no one in all respects."[43] Indeed, although his work played a decisively important role in laying the groundwork for DH, and although as a peritus he participated in the drafting of DH, Murray was far from satisfied with the final argument of the document. At the Council, of course, Murray was the principal advocate of what is sometimes called the political or constitutional argument for religious liberty. He advocated, this is to say, grounding the right affirmed by DH on an argument that moved from man's dignity as a person to the principle of limited government, and hence in a theory of the nature, function and limits of the state. As far as the final document is concerned, he expressed his agreement with those who believed its argument to be "deficient" in its treatment of "the political dimension of the issue" of religious freedom.[44]

Murray's preference for the political argument did not mean he saw no validity in the other lines of argument which emerged in the course of the conciliar debates. If he found the argument from the rights of conscience problematic, he readily admitted that the argument from our obligation to pursue truth conveys important truths. As far as it goes, it is "valid and on target."[45] Indeed, he advocated its incorporation into the broader political argument he championed.[46] Likewise, he admitted that situating the "juridical-social" right to religious liberty affirmed by the Council in the context of "a full and complete theology of freedom" would have been "a far more satisfactory method of procedure from a theological point of view" and issued in a "doctrine . . . much richer in content" than that ultimately contained in DH. Such an approach, however, would have been a far more ambitious undertaking than the narrower argument from Christian freedom and Scripture championed by the proponents of the "theological argument" at the Council, and was, for that reason among others, open to a series of insurmountable practical objections. In any case, whatever the merits of these lines of arguments may be, they were ultimately incomplete because neither addresses the political issues raised by DH.[47]

Inasmuch as the state by right possesses a monopoly on the instruments of coercion, Murray argued that in order to ground the immunity from coercion at issue, it was first necessary to address the question of "the criteria which must govern the action of the public powers in limiting the free exercise of religion."[48] The pivotal question was whether "the public powers have the duty and the right to repress opinions, practices, religious rites because they are erroneous and dangerous to the common good?" Or, alternatively, may they limit the free exercise of religion only when "the just requirements of public order" are violated? Obviously, the latter position is embraced by DH. This immediately raises the question of why DH denies to the state "the right to repress religious opinions, practices and rites simply because they are erroneous and destructive of the common good." "On what justifying argument," asks Murray, "does this denial rest?" Why, in short, "may the limitations placed on the public power in matters of religion" by DH "be considered just and legitimate?" To address these questions, in turn, it is necessary to engage the whole subject of "the duties and rights of the public power -- their nature, their extent, and their limits."[49] An argument designed to ground the immunity affirmed by the Declaration, in short, must necessarily include a theory of the state.

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

This argument, however, would seem to be open to an obvious objection. "The fact that a person has a right to search for truth, "as Regan points out, "would not necessarily of itself give him a right to communicate what he thinks is true but which is in fact false."[50] To illustrate this point, Murray asks that we envision the "public powers" answering "those who profess more or less false opinions that they wish to put into practice publicly and disseminate in society" in the following fashion:

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

This proclamation, as Murray notes, is hardly "imaginary." Governments have "time and again" made such claims.[51] Indeed, it closely tracks the argument employed both by the defenders of the "Catholic states" of the modern era and the small minority of Bishops at the Council who opposed the promulgation of the Declaration.

This rejoinder by the state admits no convincing answer so long as we remain within the horizon of the argument from the person's duty to seek truth. It admits no such answer because one can concede an obligation to seek the truth while denying that the state is obligated to allow those in error to "act in public according to their consciences" and to freely disseminate their errors. To defeat the line of argument embodied in this proclamation it is necessary to address a subject which the argument from the duty to seek truth ignores: the nature of the state and its proper role in the overall economy of social life.

In its most sophisticated form the argument from the obligation to pursue religious truth sought to counter this objection by situating the duty to seek truth in a social and political context. On the one hand, as Regan reports, its proponents maintained that the "search for truth is necessarily a social enterprise involving communication and exchange."[52] Likewise, they argued, in Murray's words, that there exists a

necessary connection between internal acts of religion and those outward acts by which, in keeping with his social nature, a human being displays his religious convictions in a public way. Given this connection, the argument runs as follows: A purely human power cannot forbid internal acts; it is therefore equally powerless to forbid external acts.[53]

From these two considerations, this argument concluded that, in Regan's words, "within the limits of public order every man, whether communicating truth or error . . . may claim a right to immunity from coercion in all expression that concerns . . . religious truth."[54]

As Murray points out, however, this argument involves "the fallacy of begging the question" because "it supposes that in society no power exists with authority reaching far enough to warrant its legitimately forbidding [external] acts of religion, even acts that transgress objective truth or divine law or even the common good." The difficulty, however, is that "this is what must be established; it is the very heart of the matter under discussion." That no such power exists is not proven simply by stating that because man possesses a social nature the pursuit of religious truth is a social enterprise which "must proceed in a public and communitarian manner."[55] Even in its most sophisticated form this argument fails to justify its assertion that the state is not authorized to forbid religious acts or utterances embodying religious error and destructive of the common good, but instead simply posits it without argument or explanation. Here again, it fails to do so because it fails to engage a subject that cannot be evaded if this assertion is to be vindicated, namely, the subject of the role and limits of the state.

The point is that appeals to the nature and importance of religious and moral truth or to the religious and moral obligations of the person thus do not in themselves suffice to establish the Declaration's conclusions. What Murray calls the political argument -- the argument from the principle of limited government -- is of "primary importance" because "without it any other argument would not sufficiently settle the question. For the very question [of religious freedom] concerns the limits of public power in religious matters."[56] When all is said and done, a theory of religious freedom cannot avoid "the crucial issue" of "the competence of the powers with regard to passing judgment on forms of religious expression in society."[57] A persuasive argument to ground the right affirmed by DH simply cannot be constructed without engaging the question of why "the public power" possesses neither "the duty" nor "right to repress opinions, practices, religious rites" that "are erroneous and dangerous to the common good."[58]

Thus, as Murray points out, in articulating the foundations of the right to religious liberty, it is not sufficient "to attend only to the theological and ethical aspects of the issue. The political aspect becomes decisive. It is necessary to confront the question, whether and under what conditions, government has the right to restrain citizens from public action according to their beliefs."[59] Inasmuch as the right proclaimed by DH necessarily entails a state whose powers are limited in a particular fashion, its foundations necessarily include a full-fledged theory of the state grounding these limits. An account of the foundations of this right, therefore, that lacks such a theory is necessarily incomplete.

Religious Liberty and the Catholic Theory of the State: The Political Argument Revisited

The obvious question concerns the nature of the political theory presupposed by DH. Our inquiry into this question must begin with the Declaration itself, with the claims it makes regarding the nature and limits of the state. Several of these claims have already been elaborated in the context of our analysis of the right itself: the existence of a right to religious liberty as a twofold immunity from coercion in the sense discussed earlier; "public order" as the source of the norms limiting the scope of this liberty; the ideas that this order represents "the basic component of the common welfare" and that its "protection" is entrusted in some "special" sense to the state; the insistence that in the organization of social life "the freedom of man [must] be respected as far as possible, and curtailed only when and in so far as possible"; and the affirmation that, properly understood, religious liberty involves neither the privatization of religion nor a posture of governmental indifference to religion, but includes the duty of the state to both "take account of the religious life of the people and show it favor" and create conditions that will facilitate the person's exercise of their religious rights and fulfillment of their religious duties.

Over and above these claims, the Declaration makes a number of other assertions that bear on the nature of political life. To begin with, it affirms that "the demand" that "constitutional limits should be set to the powers of government, in order that there may be no encroachment on the rightful freedom of the person and of associations" is "in accord with truth and justice" (1, 162-3). Secondly, it connects the legitimacy of this demand with the growing recognition of "the dignity of the human person" by virtue of which "the demand is increasingly made that men should act on their own judgment, enjoying and making use of a responsible freedom, not driven by coercion but motivated by a sense of duty" (1, 162). This dignity, it suggests in turn, is the source of an order of human rights -- "the inviolable rights of man" (6, 174-175) -- which the state must respect, an order that includes the right to immunity from coercion in matters religious proclaimed in DH. (This dignity would also seem to ground DH's insistence that in the exercise of its powers by the state "the freedom of man [must] be respected as far as possible, and curtailed only when and in so far as necessary" [7, 178].)

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

Although DH hardly articulates a complete political theory, one can discern in it, as Pavan observes, the broad outlines of a model of the state that differs both from "the Catholic-confessional" model[60] of the state championed by Church social teaching prior to the Council and the secularist -- "the laicistic or neutralistic"[61] -- model rejected by both pre-Conciliar Church teaching and the Declaration. At the heart of DH's vision of political life is the idea of limited government, the idea that the state is to play what Rausch terms "a limited secular role"[62] in the overall economy of human social life. DH, as Coleman notes, thus affirms as "normative" the idea of "the limited constitutional state."[63]

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

From the perspective of the Declaration's understanding of the role of the state, as Murray notes, "the care of religion, in so far as it is a duty incumbent on the state is limited to a care for the religious freedom of the body politic."[64] This care, as Pavan notes, places a twofold responsibility on the state. On the one hand, it must simultaneously " recognize, respect [and] safeguard" the right to religious freedom and "limit its exercise in those cases where its abuse may consistently compromise public order." On the other hand, it must act "to insure that the citizens do not lack means to exercise their religious rights and fulfill their religious duties."[65] As the latter responsibility underscores, DH is quite emphatic that its conception of the limited constitutional state" does not authorize a posture of governmental indifference toward religion. On the contrary, as Pavan remarks, "it is integral" to DH's "model of the constitutional state that it should have a positive policy toward religion," albeit one consistent with its "nature," with its limited role in the economy of social life.[66]

As the Declaration's recognition of religion as a fundamental human good, its grounding of the content of public order in "the objective moral order" (7, 177), and its insistence that the right to religious freedom "has its foundation, not in the subjective disposition of the person, but in his very nature" (2, 168) suggest, the limited constitutional state embraced by DH, is rooted neither in an agnosticism on the question of the human good nor in the view that freedom as such constitutes that good. As Canavan observes, the Declaration's conception of religious freedom operates within the horizon of "the rational, natural-law" framework which "forms so significant a part" of "the Catholic tradition." It thus takes its bearings from the idea of "a universal human nature, whose natural tendencies and needs are knowable to the human mind" and the idea of "God, who is truth, and the truth about whom answers . . . the deepest of human needs."[67]

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

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

Of the many questions suggested by the claims made by DH regarding the state, we wish to pursue two here. The first concerns the foundations of its vision of limited government. The second concerns the whole question of the function of the state, the whole question of the content of the "public order," of that portion of the common good whose protection and promotion is "the special duty of government." Perhaps the best place to begin investigating these questions is with the work of John Courtney Murray. Not only are the portions of DH addressing the political dimensions of religious liberty to a significant degree his handiwork, but his work during and after the represents the most serious and systematic effort to elaborate the theory of the state presupposed by the Declaration. This is not to suggest, however, either that Murray offers a fully developed, systematically elaborated theory of politics, or that he claims to offer such a theory. Rather, as he makes, clear, his work outline designed to serve as a starting-point for such a theory, the foundation from which such a theory might be projected.

DH's embrace of the idea of limited, constitutional government presupposes, Murray argues, what he terms a juridical or constitutional conception of a state. In sharp contrast to paternalist conceptions of the state in which the political community "was conceived on the analogy of the family" and the ruler "was conceived to be pater patriae, whose paternal power extended to a care for the total welfare of his subject-children"[68] and in which society was understood "to be built and rendered virtuous from the top down, as it were," the juridical state embodies the idea of government that is limited in its scope, subject in its operations to the rule of law and responsible to those it governs. The constitutional state embodies the view that "the primary function of government is juridical, namely, the protection and promotion of the exercise of human and civil rights, and the facilitation of the discharge of human and civil duties by the citizen who is fully a citizen, that is, not merely subject to, but also participant in, government." Likewise, it insists that society is to be constructed and rendered virtuous "from the bottom up, as it were," as free persons voluntarily respond to the responsibilities inherent in their human nature.[69]

From the perspective of Catholic social thought, Murray continues, there is nothing particularly novel in this model of the state. It is the same model of the state that has informed the social teaching of the Church since the pontificate of Pius XII and which has driven the far-reaching transformation Catholic social teaching has undergone during this period.[70] The Declaration is essentially a statement of the implications of this conception of the political order for the question of religious freedom. This is why it states that "in taking up the matter of religious freedom," its intention is "to develop the doctrine of recent Popes on the inviolable rights of the human person and on the constitutional order of society" (1, 165).

The obvious question here concerns the principles on which this conception of the state rests. In a short book that he wrote during the Council exploring the whole topic of the nature, scope and foundations of religious freedom, Murray argued that the juridical state was informed by four principles. The first is "the distinction between the sacred and secular orders of human life." Because he "exists for a transcendent end," it follows that "the whole of man's existence is not absorbed in his temporal and terrestrial existence." Government, however, is neither "the judge" nor "the representative" of the "transcendent truth" governing "man's eternal destiny." Thus "the powers of government do not reach into this higher sacred order of human existence" but are instead "limited" to "the temporal and terrestrial order." The second principle, in turn, "is the distinction between society and state." In this view, "the state is only one order within society," namely, "the order of public law and public administration." Accordingly, it is "charged with the performance" only" of certain limited functions "to be specified in the society's constitutional law, in accord with the consent of the people." Thus, "the purposes of the state are not coextensive with the purposes of society."[71]

From this distinction follows a third principle, namely, "the distinction between the common good and public order." Whereas "the common good includes all the social goods, spiritual and moral as well as material, which man pursues here on earth in accord with the demands his personal and social nature, the public order is that "narrower" segment of the common good "whose care devolves upon the state." It encompasses certain responsibilities regarding "the material welfare of the people" as well as a care for public peace, public morality and the order of interpersonal justice. The fourth and final principle is the idea of "freedom under law." Freedom, in this view, is both "a political end" and "the political method per excellentiam." Thus, there should exist "as much freedom, personal and social, as is possible" and "only as much restraint and constraint, personal and social, as may be necessary for the public order."[72] From these premises, Murray concludes, follow both DH's claims about the state and the right it affirms.

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

Murray's argument begins

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

As a moral subject, man is "responsible" both "for the conformity of his judgments of conscience with the imperatives of the transcendent order of truth" and "for the conformity of his external actions with the inner imperatives of conscience." As a moral subject, therefore,

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

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

For all these reasons

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

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

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

The only "authority that might possibly enter a counterclaim" overriding this claim is the "government" in its capacity as the agency "responsible for the establishment and maintenance of the juridical order in society." In fact, however, man's claim to immunity from coercion "is valid not only in its objective foundation . . . but also in the crucial instance" of "the citizen's confrontation with the authority that has charge of the juridical order," in the citizen's confrontation with the state. In contrast to "the moral claim or right of the person" who "is the foundation, the end and the subject of the juridical order," government's claims "are only derivative, subordinate to the claims of the human person, and enlisted in the support of these claims." The state thus has

the burden of proving that it has the right to bring coercion to bear. This, however, it cannot do, except when its own fundamental responsibility becomes controlling -- in the case of violation of public order; a contravention of the necessary conditions of social coexistence; a public offense that imperils the pillars of society, which are an order of equal justice for all citizens; the public peace which is the work of justice; and that minimum of realizable public morality whose maintenance is the just requirement of the citizenry.

Only government's obligation to fulfill "its fundamental responsibility" of safeguarding public order -- of protecting the triad of goods this order embodies -- trumps the claims of the person to immunity from coercion in religious matters.[73]

Elsewhere, Murray adumbrates a slightly different version of this argument. Here he moves from the dignity of the person to the affirmation "that the human person is the subject, foundation, and end of the entire social life" (238). From these two principles, he draws three conclusions. The first is that "freedom not to be restricted unless and insofar as necessary" to safeguard "public order," insofar, this is to say, as its restriction is necessary "to preserve society's very existence." The second is that all citizens, by virtue of their human dignity must "enjoy juridical equality in society." The third is that, as Pius XII had affirmed, "the paramount duty of every public power" is "to protect the inviolable rights proper to human beings and to ensure that everyone may discharge his duties with greater facility."[74]

These "five principles," he concludes, "cohere with one another in such a way that they form a kind of vision of the human person in society and of society itself, of the juridical ordering of society and of the common good considered in its most fundamental dimensions, and finally of the duties of the public power toward persons and society." Taken together, they undergird the juridical conception of the state which DH presupposes, the claims about the political order it explicitly makes, and "the notion of religious freedom" it proclaims.[75]

Murray and the Political Theory of the Juridical State: Four Difficulties

Murray's contention that both DH and contemporary Catholic social teaching presuppose what he describes as a juridical or constitutional model of the state is persuasive, as is his contention that a convincing effort to ground the right affirmed by DH necessarily involves the articulation of the full-fledged theory of politics, the model of man and society, in which the juridical state is rooted. At the same time, certain questions suggest themselves about Murray's account of this theory. Does it contain all the elements necessary to construct the theory of politics he so persuasively argues is required to ground the conclusions of DH? Does it persuasively justify the role it attributes to the state? To what degree is its conception of the state consistent with the role attributed to the state by both the Declaration and, more broadly, contemporary Catholic social teaching?

Seen in this light, four difficulties immediately suggests themselves. The first concerns the capacity of Murray's argument to ground the full range of principles constitutive of the juridical state. Although Murray initially insists that the juridical state is informed by the four principles cited earlier, his effort to articulate their foundations seems to give shortshrift to two of these principles. Specifically, while his argument attempts to ground the limitation of government's role to the safeguarding of public order and a commitment to what he terms the method of freedom in the exigencies of human dignity, it appears to pass over in silence the distinctions between the sacred and secular orders and between state and society. How, or even if, these principles can simply be generated from the dignity of the person is not immediately clear.

The second concerns the very content of the public order. Unfortunately not only does he never really explore the idea of public order in a sustained fashion, but it is difficult to reconcile what he says at different points in his work regarding its content. At times, Murray's analysis seems to suggest that it possesses a rather thin content. In the previously quoted passages, he at one point equates public order with "the necessary conditions of social existence,"[76] and at another with "the restraint necessary to preserve society's very existence."[77] In another passage, he describes it as the conditions "necessary for the sheer coexistence of citizens within conditions of elemental social order."[78]

When it is defined in this minimalist fashion, it would seem difficult to distinguish the conception of the state's role embodied in the idea of the "public order" from that embodied in the idea of the nightwatchman state. Indeed, as Regan points out, at the Council the seeming resemblance of these two ideas caused uneasiness.[79] The problem, of course, is that the emphatic rejection of the nightwatchman state is one of the enduring features of contemporary Catholic social teaching. While the Church has placed greater and greater emphasis on the limited nature of government's role in the overall economy of social life, Catholic social teaching has simultaneously consistently insisted that the state's role transcends the mere suppression of violence or the protection of a sphere of negative liberty. Interpreted in this type of minimalist fashion, it is difficult to see how the idea of public order can be reconciled with the conception of the state's role which informs Catholic social teaching as a whole.

At the same time, when read in this manner, it is difficult to see how it can be reconciled with the role DH itself attributes to the state. DH, after all, insists that the essential duties of government include not merely "the protection" of "the rights of man" but their "promotion" as well (6, 174). Beyond respecting these rights itself and seeing to it that they are not violated by others, the state, this is to say, it has the obligation to assist in the establishment of conditions that will help the people exercise their rights and thereby assist them in the performance of their duties. The state's role in religious matters, therefore, is not restricted to merely respecting and vindicating against other persons the right of individuals and communities to immunity from coercion in religious matters. Inasmuch as "the function of government is to make provision for the common welfare," the state is obligated "to take account of the religious life of the people and show it favor" (3, 170). Thus, it must "help create conditions favorable to the fostering of religious life" so "that the people may be truly enabled to exercise their religious rights and to fulfill their religious duties" and so that "society itself will profit" by this "moral" virtues which originate in religion ( 6, 175). It is difficult to see how these aspects of DH's understanding of the function of the state can be reconciled with a "thin" reading of the "public order."

Not surprisingly, therefore, despite the statements cited earlier, Murray never definitively embraces such a minimalist understanding of public order. On the contrary, at a number of points, his analysis seems to attribute a much richer content to this concept. For example, although not pursuing the point "as not relevant" to the immediate question of, "the criteria" which should govern "the action of the public powers in limiting the free exercise of religion," he suggests that the public order encompasses "the function of the state with regard to the good of 'prosperity,' the material welfare of the people."[80] Similarly, his analysis suggests that the vindication of public order extends beyond the mere suppression of violence in the manner of the nightwatchman state, but includes the protection of the "values" -- "juridical, political, moral"[81] -- that constitute "the pillars of society."[82] Over and above the safeguarding of public peace, public order extends to a care for "an order of justice" and a "moral order."[83] It thus includes more than the mere suppression of violence, more than the minimal restraint necessary "to preserve society's very existence." Indeed, even public peace itself would seem to involve more than the suppression of violence insofar as the safeguarding of "genuine public peace" -- as opposed to a false and inadequate conception of public peace -- involves the maintenance of "good order" and "true justice" (7, 177). Finally, Murray is quite clear that its care for public order includes the affirmative responsibilities in the area of religion specified in DH. Understood in this fashion, it is clear that the public does not reduce the state to what Murray once described as an "amoral policeman."[84]

Yet the more substantive concept of public order presupposed by DH and pointed toward by the aspects of Murray's account of it just cited, "thick" interpretation of the public order brings with it certain dangers. If pushed too far a "thick" reading issues in what might be called a maximalist conception of the content of public order.[85] An expansive reading of the concept of public morality, to take but one obvious example, might very well authorize the state to assume a type of generalized responsibility for the protection and promotion of religious truth incompatible with the natural human right to religious freedom by DH. Such a role, it might be argued, is justified in terms of the close relationship between religious and moral truth or by the fact that our moral obligations encompass duties of a religious nature. Indeed, it might even be claimed that the government's responsibility to protect public morality authorizes it to proscribe false modes of religious worship and the public advocacy of religious error.

This maximalist reading, however, is ultimately no more satisfactory than the minimalist reading of the public order. The effect of this reading is to collapse the public order into the common good, make the goals of the state with the goals of society, and efface the distinction between state and society. Accordingly, the maximalist interpretation is inconsistent with the spirit and substance of contemporary Catholic social teaching which, as J. Bryan Hehir notes, not only "affirms substantial responsibilities for the state," but simultaneously "sets clear limits to its range of activity."[86] At the same time, it is inconsistent with both the spirit and substance of DH and the overall thrust of Murray's thought. A maximalist interpretation of the concept of public morality, for example, ignores the fact that the scope of "public morality" is obviously more limited than that of morality as a whole. More fundamentally, it is at odds with the whole intent of the concept of public order itself which is to limit the functions of the state in the overall scheme of social life. Indeed, in the final analysis it brings the concept of public order into collision with both the idea of limited government and the very right to religious liberty which it is the Declaration's purpose to affirm.

Clearly, what Murray and contemporary Catholic social teaching have been attempting to do is to articulate a conception of the proper role of the state that avoids both the Scylla of the minimalist reading of the public order and the Charybdis of the maximalist reading, that avoids, as Murray puts it, either elevating the state an "episcopus externus" or reducing it to an "amoral policeman."[87] The difficulty is that it is clearer what is being rejected than what is being embraced. The question of the exact nature of the state's proper contribution to the common good of society, of the state's proper role, has not been addressed with a degree of precision and specificity commensurate with its importance. Without a satisfactory account of the proper functions of the state, the political theory in which DH is rooted, and hence the very intellectual foundation of the right to religious liberty, remains incomplete.

The third problem involves the justification for restricting the state's role to the protection and promotion of the public order. Why should the state be limited to the safeguarding of the public order rather than being given a generalized and open-ended mandate for promoting the common good? Murray's argument, as was noted earlier, moves from the idea of human dignity to a conception of the state that limits its role to the safeguarding of that segment of the common good DH designates as "public order." The dignity of the human person, he maintains, demands "that man in society must be accorded as much freedom as possible," and thus that "freedom is not to be restricted unless and insofar as is necessary" in order "to preserve society's very existence."[88] The person's dignity, in other words, creates an exigence to act freely that trumps all other claims save those of societal self-preservation.

Presuming as it does an untenably thin conception of public order, this argument would seem incapable of grounding the more substantive idea conception of this order implicit in DH. If freedom -- if "the exigence to act on his own initiative and on his own personal responsibility" that is "inherent in the dignity of man as a moral subject"[89] -- truly trumps all claims other than those of societal self-preservation, it would seem to trump the claims of a sufficiently thick conception of public order to do justice to the understanding of the role of the state which informs DH and contemporary Catholic social teaching and which the major thrust of Murray's own thought seems to assume. A persuasive argument for the restriction of the state's role to the care of "public order" in the thicker sense operative in DH must necessarily begin with the recognition that goods other than societal self-preservation outweigh those of individual freedom, and encompass both the identification of those goods and an explanation of why they trump the claims of freedom.

The final difficulty concerns the tension between DH, the main thrust of Murray's own political theory and some of his formulations regarding the relationship of the state to the order of truth and, in particular, the order of religious truth.[90] "Inherent . . . in the notion of religions freedom," he remarks, "is the notion of governmental incompetence in matters religious." This notion, Murray stresses, neither presupposes nor entails "an assertion of indifference to the values of religion to man and to society. Nor is it a reassertion of the outworn laicist creed that 'religion is a purely private matter.'"[91] As in the case of public order, however, Murray never really explores the meaning or implications of the religious "incompetence" of the state in anything approaching a systematic fashion.

For the most part, his scattered discussions of the subject would seem broadly consistent of the spirit of substance with both the Declaration and his own theory of the state. In this context, one thinks of his insistence that the right to religious liberty proclaimed by DH involves the rejection of the idea that government is "defensor fidei," the rejection of the idea that government's "duty and right . . . extend to what had long been called cura religionis, a direct care of religion itself."[92] It involves, this is to say, the rejection of the ideas that the "function of government" encompasses a responsibility for "the protection and promotion . . . of religious truth," that "government is to be the judge of religious truth, the defender of the true faith, or the guardian of religious unity,"[93] and that the state's duties encompass a "share in the cura animarum or in the regimen animorum."[94] One also thinks here of his contention that this right implies the recognition that "the function of government is secular,"[95] that "its powers are limited to the affairs of the temporal and terrestrial order of man's existence," and thus that the state is neither "the judge or the representative of transcendent truth with regard to man's eternal destiny" nor "man's guide to heaven."[96]

Nevertheless, several of the stronger claims Murray makes regarding the "incompetence" of the state "in matters religious" would seem to be problematic when seen against the backdrop of the Declaration and his own theory of the state. He remarks, for example, that truths "of the transcendent order" are not "accessible" to "judgment by secular powers."[97] Similarly, he avers that "the positive values inherent in religious belief, profession, and practice," are "juridically irrelevant, however great their religious, moral, and social significance." They are "irrelevant" because

it is of the nature of a juridical formula -- in this case, religious freedom -- simply to set outside limits to a sphere of human activity, and to guarantee this sphere against forcible intrusion from without, but not to penetrate into the interior of this sphere and to pronounce moral or theological judgments of value on the activity itself. Such judgments exceed the category of the juridical, which is concerned with interpersonal relationships. They likewise exceed the competence of the forces of juridical order -- the forces of law and of political authority.

They exceed the competence of the state, he maintains, because whereas that competence is restricted to the juridical order, "the higher ends of human existence," and "the actual pursuit" of these ends "are of the metajuridical order. They are related to the inner dynamism of the human spirit as such, which is remote from direction or control by any forces of the juridical order."[98]

Admittedly, these statements are hardly unambiguous and to be properly understood must be seen in the context of Murray's theory of the state and account of the relationship of government to the order of truth as a whole. Nevertheless, at least at first glance, they would seem to point toward a conception of the state's competence in religious matters that is difficult to reconcile with either the affirmative responsibilities toward the order of religion or the thick conception of the content of public order which inform both DH and the major thrust of Murray's own thought. Indeed, on the surface, they could well be interpreted as demanding a posture of intellectual agnosticism on the part of the state simply incompatible with the spirit and substance of DH.

These statements thus raise a whole series of questions. How can the affirmative duties imposed by DH on the state in religious matters be reconciled with the claims that "the positive values inherent in religious belief, profession and practice" are "juridically irrelevant" and that "the higher ends of human existence" lie totally beyond the scope of the government's legitimate concerns? How can the state's obligation to "take account of the religious life of the people and show it favor" be reconciled with the view that with regard to religion "the only matters that are juridically relevant are, first, the limits that may reasonably set to the free exercise of religion and, second, the duty of government and of society not to transgress these limits"?[99] How can a conception of public order rooted in "the objective moral order" and hence in the truth about the nature of man and the human good be embraced by a state committed to a posture of intellectual agnosticism? More broadly, inasmuch as a true understanding of the juridical order -- involving as it does the proper ordering of intersubjective relations among men -- can take shape only in light of the truth about the human person, how can a state arrive at such an understanding if "the higher ends of human existence" lie beyond its cognizance? It is hard to see, in short, how a conception of the state's competence in religious matters that involves a posture of intellectual agnosticism can be reconciled with a theory of religious liberty predicated on a substantive vision of man and human good.

Nor are these difficulties completely resolved by arguing, as Murray sometimes does, that that the affirmative responsibilities imposed on the state in religious matters by DH extend only to "the secular values of religion," that if government's competence does not extend to "the care of religion itself" insofar as it involves the affairs and truths of "the transcendental order," it does "extend" to "the secular values of religion -- such values as affect the common temporal good."[100] To begin with, it is not readily apparent how judgments about "the common temporal good" can be made without the pronouncement of "moral or theological judgments of value." Likewise, insofar as judgments about the common temporal good are necessarily judgments of moral value, does not empowering the state to make such judgments while denying it access to the "truths" of "the transcendent order" effectively force it to embrace not merely a secular morality but a secularist morality? Similarly, does not the conduct of public life without reference to "the transcendent order" necessarily entail the privatization of religion? Finally, inasmuch as the very notion of "the common temporal good," as Murray readily admits, is rooted in a prior distinction between "the sacred and secular orders of human life" and thus in a particular theology and metaphysics, it would seem to necessarily presuppose on the part of government the very type of affirmations about the order of transcendent truth that Murray's stronger statements about the religious "incompetence" of the state would seem to preclude.

This is not to imply that Murray embraced what we have come to call the naked public square. Rather it is to suggest that, Murray's intentions and the major thrust of his thought to the contrary notwithstanding, his stronger formulations regarding "governmental incompetence in matters religious" could be interpreted as requiring the very privatization of religion and posture of governmental indifference toward religion that he so steadfastly rejected. My point is that this whole subject obviously needs to be explored in a far more systematic, precise and careful fashion than it is in Murray's work.

Obviously, DH limits the role of the state -- the competence of the state, in Murray's terminology -- in religious matters. The pivotal question concerns the character of these limits. The right proclaimed by DH, along with the broader understanding of the juridical order and the theory of the state of which it is a part, are themselves rooted in a whole series of moral, anthropological, metaphysical and theological affirmations. Insofar as the state is asked to embrace this theory, therefore, it is necessarily asked to embrace these affirmations. DH affirms the existence of a right to religious freedom not because religious truth is unattainable or unimportant but because the truth demands the recognition of this right, because the truth demands that sharp limitations be placed on the role of the state in the overall scheme of social life.

The limits DH places on the state in religious matters would thus appear to be not in the order of knowledge but in the order of action; they would appear to be jurisdictional rather than epistemological. The theory of the state underlying DH asserts neither that the state is incapable of recognizing religious truth nor that it must eschew all judgments of moral or theological value, but rather that government's role relative to the order of religion is limited by virtue of its restricted role in the overall economy of social life. This role encompasses neither the promulgation and defense of religious truth, nor the ordering of the entirety of human life in accordance with its demands, nor the care of souls, but the care of that limited ensemble of social goods which collectively constitute the public order. Just as the truth demands the restriction of government to the care of these goods, so in determining the specific content of this order -- of the order of justice it is called to secure, the "genuine public peace" and "good order" it called upon to safeguard, and the public morality it is called to protect, -- the state is obligated to act in conformity with the "objective moral order," in accordance with the order of truth. Nevertheless, it possesses no open-ended mandate to promulgate or defend this truth, or to undertake the organization every aspect of human social life in conformity with its dictates. Seen in this context, one might well wonder if the very language of the religious "incompetence" of the state does not invite needless confusion.

These reservations, it should be stressed, are not meant to diminish what Murray accomplished. As one Protestant commentator, Keith J. Pavlischek, has recently noted, among the twentieth century Christian ethicists who have wrestled with the problems of church-state relations and religious freedom, Murray "is in a class by himself" in terms of "lucidity of analysis, historical sensitivity, and theological depth."[101] Indeed, Murray's work on these subjects clearly guarantees him a permanent place among the giants of modern Catholic social thought. In fact, Murray himself was well-aware that the intellectual project of formulating the theoretical foundations of the juridical state was too vast an undertaking to be brought to a successful completion by a single thinker. And, if his work offers neither a comprehensive nor fully satisfying account of the nature and functions of the state, it nevertheless offers the most powerful treatment available to us of the political issues raised by the right proclaimed by the Declaration. Whatever its limits, it not only demonstrates that this right cannot be grounded without the systematic elaboration of the theory of the state DH, but makes an important contribution to the formulation of this theory. This contribution consists in moving the idea of the juridical state center stage and showing the foundational role played by the idea of man's nature and dignity as a person in grounding this conception of government. For these reasons, it represents an indispensable starting-point for efforts to complete the unfinished agenda of DH.

Recasting the Political Argument: Toward a Catholic Theory of The Juridical State

The obvious question is where we go from here. The systematic elaboration of the theory of the presupposed by the Declaration is too vast an undertaking to even be attempted here. What is possible, I would suggest, is the exploration of the intellectual resources the Catholic tradition in social thought offers us in this undertaking. A clue to the answer can be found in Murray's own work. Among the principles which he insists undergird the juridical state, as we have seen, are the distinction between the sacred and secular orders, and between state and society. Surprisingly, however, in his work on the Declaration, Murray only briefly analyzes the former distinction and does almost nothing by way of exploring the latter. His failure to explore the state-society distinction in a more sustained fashion is particularly perplexing given his repeated insistence on its centrality to the political theory of the juridical state.

As Murray was well aware, the distinction between state and society he invoked has its roots in the rich complex ontology of social life which both the Church's contemporary social magisterium and the work of the generation of thinkers -- one thinks immediately here of Maritain, Rommen and Messner -- whose work (along with Murray's) helped lay the groundwork for the broader development in Catholic social teaching of which DH is a part. Surprisingly, however, his efforts to articulate the theory of the state presupposed by DH focus almost entirely on the individual and the state. Beyond invocations of the state-society distinction, the whole subject of the structure of society tends to recede into the distant background and at times seems to disappear altogether. What I am suggesting is that one of the principal resources Catholic social thought makes available to us in the construction of the theory of the state presupposed by the Declaration is the broader social ontology from which the state-society distinction emerges.

Social Pluralism and the Foundations of Limited Government

If contemporary Catholic social teaching has emphasized man's nature and dignity as a person, it has at the same time insisted that by virtue of his very nature as a person, man is a social being.[102] "By his innermost nature," as Guadium et Spes affirms, "man is a social being." "Life in society, is not something accessory to man" because it only "through his dealings with others, through mutual service, and through fraternal dialogue" that "man develops all his talents and becomes able to rise to his destiny."[103]

Inasmuch, however, as "man's development" necessitates a wide array of "social ties" some of which "correspond more immediately to his innermost nature" and others of which "flow from free choice,"[104] it follows that society possesses a pluralistic structure. "According to . . . the whole social doctrine of the Church," as John Paul II affirms, "the social nature of man is not completely fulfilled in the State, but is realized in various intermediary groups beginning with the family and including economic social and cultural groups."[105] Man's social nature is not exhausted in the state because human nature, as Heinrich Rommen observes, gives rise "to a plurality of social forms and. . . cooperative spheres that . . . serve independent ends in the order of the common good." The state, therefore, "does not create" these "social forms." They either grow directly "out of the social nature of man, or they are produced by the initiative of free persons for the more perfect realization of their ends and purposes,"[106] and are thus "original entities and original social organizations"[107] in their own right not mere administrative limits exercising functions delegated to them by government. As John Paul notes, echoing Leo XIII, like man himself, "the family" and other social institutions composing "society" are "prior to the state."[108]

A society therefore is not simply a collection of individuals united and structured by the authority of the state. Rather, it is a community of communities, "a unity," in Messner's words, "composed of member communities relatively independent, or autonomous, since they have their own social ends, their own common good, and consequently their own functions."[109] If the state supplies these institutions with their "legal hulk," as Rommen observes, the fact remains that these groups, the ends they serve, and the rights and duties which flow from these ends issue from human nature, from man's dynamic orientation towards the perfection of his nature, not from positive law. It is thus the nature of these institutions "their ends, that control the legal forms, not vice versa." Although "the state may provide the family with its family law" for example, "the essence and the end of the family form the critical norm for legal forms."[110]

The state therefore shares the stage of social life with a wide variety of other institutions which issue from human nature. And, "however adaptable" their specific "forms" may be in "different stages of historical development and national culture," the fact remains that "with regard to their specific ends, these "social forms" are "irreplaceable."[111] They are irreplaceable because, to begin with, each discharges a distinctive function which is essential to human flourishing, which is essential to equipping individuals to realize their humanity. In Mueller's formulation, there exists "a sphere of subsidiary activity proper to each of the various supplemental social groups and institutions."[112] Likewise, they are irreplaceable by virtue of their status as the principal sites, as it were, wherein human beings fulfill their vocations as person, their vocations to, in John Paul II's words, "love and communion," to sincere self-giving, to those relationships of "solidarity and communion with others" for which God created us and through which we discover our selves.[113]

As communities of persons, furthermore, these groups participate in some sense in the subjectivity of the persons who compose them and thus constitute "communal subjects."[114] From their status as communal subjects, flow what John Paul II describes as "certain proper and specific rights."[115] Like the rights of the person, the rights of these communal subjects encompass both the right to access to the economic and cultural resources required to discharge their missions and the right to a large measure of autonomy, to immunity from coercion in matters concerning the values proper to the human spirit. Likewise, as communities of persons, they must be afforded as much freedom to act on their own initiative as is possible. In the idiom of the Declaration, the freedom of these groups must be respected as far as possible and curtailed only when and insofar as necessary. This understanding of the structure of social life thus issues in a commitment to what Canavan describes as "the self-organization of society."[116] Society, in this view, must be constructed from below upwards, not from the top down, as persons freely organize themselves into a wide array of interconnected social groups in order to secure the goods proper to human flourishing.

At first glance, it might not be entirely clear as to how account of society's structure and its implications assists us in constructing an adequate foundation for the theory of the state presupposed by DH. Indeed, it would seem to simply repeat Murray's argument merely substituting what are often called intermediary groups for the individual. It would thus seem to be open to the very same objection to which Murray's argument is vulnerable, namely, that it begs the critical question of the proper functions of the state. The immunity from coercion it asserts is not an absolute but is trumped by the right, (and indeed responsibility) of the state to employ coercion in the pursuit of its legitimate ends. Similarly, while the freedom of these groups must be respected insofar as possible, it may be curtailed when the pursuit by the state of its legitimate ends dictates doing so. The critical question thus concerns the nature of these ends, and the nature of the state's proper role in the overall economy of social life. The problem is that this line of argument seems to leave this question untouched.

In actuality, however, the idea of society as a community of communities is an essential precondition of the successful elaboration of the theory of state presupposed by DH. As John Coleman notes, Murray's "argument is dependent on a strong corollary case for" what he terms "mediating structures."[117] It is dependent, this is to say, upon the acknowledgment of society's pluralist structure and the recognition of the importance of institutions other than the state in the overall scheme of human social life. Indeed, only when Murray's account of the social implications of man's dignity as person is combined with an authentically pluralist ontology of social life does it become possible to articulate a persuasive argument for, and satisfactory account of, the juridical state.

The pluralist ontology of social life that informs Catholic social thought, as Canavan writes, demands that society be

organized in different ways for different purposes. Society is indeed composed of individuals, but not of individuals standing alone opposite the state. The family is a natural human grouping, and society is made up of families as much as of individuals. As society develops it articulates itself into a multitude of economic, cultural and other groups. Society overall is organized as the state, but only for certain purposes and for the performance of certain functions relative to those purposes. For the performance of other functions in relation to God, a Christian society organizes itself as the Church or the churches. The State and its organs of government thus come to have limited powers because they have limited goals and functions.[118]

Seen in this light, it is obvious that Catholicism's pluralist conception of the right ordering of social life has profound implications for the understanding of the nature and role of the state.

On the one hand, this vision plays a critically important role in laying the foundations for a number of political principles that inform the juridical state. It constitutes, for example, the essential foundation of the state-society distinction which is so central to this theory. Inasmuch as, in Canavan's words, "society overall is organized as the state, but only for certain purposes and the performance of certain functions relative to those purposes," it follows that the state must not be confused with society as a whole. The state, as Maritain writes, is not "a whole," but rather "a part of the body politic [i.e., society], and, as such, inferior to the body politic as a whole [i.e., to society as a whole], subordinate to it, and at the service of its common good."[119] The state is but one of the many institutions which collectively compose society, one of the many institutions to which human nature gives rise.

Likewise, it plays a vital role in grounding the principles of limited government. From the perspective of Catholicism's pluralist conception of the proper ordering of human social life, responsibility for the common good does not rest with the state alone, but is shared by all the whole range of institutions which compose society. As DH itself affirms, for example, while religious freedom is an integral element of the common good, the responsibility for the protection and promotion of this right "devolves upon the people as a whole, upon social groups, upon government, and upon the Church and other religious communities, in virtue of the duty of all toward the common welfare, and in the manner proper to each" (DH 6, 173). Similarly, as John Paul II notes in Centesimus Annus, although the state plays an essential role in "overseeing and directing the exercise of human rights in the economic sector," nevertheless "the primary responsibility" for the protection and promotion of human rights in this area "belongs not to the State but to individuals and to the various groups and associations which make up society."[120]

The point is that from the perspective of Catholicism's pluralist ontology of social life, different institutions makes different contributions to the common good. The state, therefore, is limited by the fact that only certain limited aspects of the common good have been entrusted to its care. The remainder have been entrusted to the care of other institutions, institutions which are "original entities and original social organizations" in their own right rather than mere creatures of the state. These institutions have a right not only to exist, but to discharge their distinctive functions, to pursue their proper ends, to make their distinctive contributions to human flourishing. For the state to attempt to absorb the functions of these groups would be a grave injustice. The state is thus limited by the limited character of its functions relative to the overall economy of human social life, and thus by the responsibilities, the distinctive functions, of the institutions with which it shares the stage of social life.

On the other hand, the Catholic conception of society as a community of communities opens the door to the type of systematic inquiry necessary to arrive at an adequate conception of the content of "public order," necessary to arrive at an adequate understanding of the nature, role and limits of the state. A complete account of the proper role of the state in the total scheme of social life cannot simply be deduced from man's nature or dignity as a person. Thus, an analysis that moves on plane of the state and individual alone cannot arrive at a satisfactory theory of the nature and functions of the state. Nor can one which moves on the plane of the individual, the state and "society" alone without analyzing further society's ontological structure so as to specify its pluralist character.

The question of the nature and functions of the state -- of the precise nature of the state's distinctive subsidiary function -- can only be fruitfully pursued against the backdrop of a pluralist conception of society because it is only the context of such a conception that the distinctive character of the state and its role can come into view. Without an understanding of the full range of institutions characteristic of a differentiated society encompassing an account of the functions performed by each, the nature of the state's distinctive subsidiary function -- the exact nature of its contribution to the common good in contrast to that of other social actors -- cannot be specified with any degree of precision. An adequate theory of the state thus can only emerge as a part of comprehensive ontology of social life exploring in a rigorous and systematic fashion the nature and functions of the full range of social institutions to which human gives rise. The elaboration of the theory of the state undergirding DH, in short, necessarily presupposes a sustained and systematic analysis of society's pluralist structure, of the full range of differentiated institutions in which man's social nature issues.

Interestingly enough, Murray's own pre-Conciliar work embodies this recognition. The idea of social pluralism and its implications for the role of the state figures prominently in this effort to rethink Catholic teaching on the whole problem of Church and state.[121] When, during and after the Council, his focus turned from this broader problematic to the specific problem of religious freedom, this whole theme almost entirely disappears from view -- remaining visible only in the residual form of the frequently invoked but never systematically explored distinction between state and society -- and is replaced by a line a argument that moves directly from the idea of man's dignity as a person to an account of the functions of the state without pausing to situate the state in the context of the entire complex of institutions composing what Murray had earlier termed civil society. It is precisely because it neglects the whole subject of social pluralism-- the whole subject of the nature and role of the full-range of differentiated institutions necessary to human flourishing -- that this line of argument is incapable of generating the philosophy of the state underlying the Catholic theory of religious liberty.

This is not to suggest that Murray's explorations of the implications of man's nature and dignity as a person to the organization of social life are irrelevant to the whole subject of the nature and the role of the state. Nor is it to suggest that his whole discussion of the distinction between the sacred and secular offers is irrelevant here. A sound anthropology is an essential precondition of an adequate understanding of both society and the state. As John Paul has written, "the main thread and, in a certain sense, the guiding principle . . . of all the Church's social doctrine is a correct view of the human person and of the person's unique value."[122] Indeed, as a whole array of thinkers -- one thinks immediately here of Maritain[123] --have pointed out, the fact that man is a person has profound implications for our understanding of the nature and proper ordering of both social and political life. Accordingly, Murray is correct in arguing that an understanding of man's nature and dignity as a person, and of their implications for the nature and proper organization of human life in society, represents the essential starting-point of the theory of the state presupposed by DH, and thus that absent such an understanding no convincing justification of the institutions and practices of the juridical state is possible. Likewise, a fully developed account of the political implications of the distinction between the sacred and secular offers is an essential precondition of the elaboration of the theory of politics on which the right affirmed by DH is rooted.

Nevertheless, by themselves accounts of the political implications of man's personhood and the temporal nature of the state's jurisdiction cannot generate the theory of the state presupposed by the Declaration. Precisely because society is not merely a mass of individuals but a community of communities, this theory presupposes a full-fledged social ontology encompassing the whole range of social institutions characteristic of a fully differentiated society. Thus, while the road to the political theory presupposed by DH indeed begins with the idea of man's dignity as a person, it necessarily passes through an account of society's pluralist structure. Personalism and pluralism have been the twin pillars on which the development in Catholic social teaching of which DH is a part has rested, and only a theory of society that is, in Maritain's phrase, simultaneously personalist and pluralist in character can provide a secure foundation for the theory of the state DH presupposes. It might be added that insofar as it draws together the personalist and pluralist strands of Catholic social teaching, John Paul II's motion of the subjectivity of society" represents a promising starting-point for thinking on this whole subject.[124]

Toward the Political Theory of the Juridical State: Preliminary Reflections

If the elaboration of the theory of the limited, constitutional state underlying DH presupposes the sort of sustained and systematic social ontology called for here, Catholicism's thinking on society's pluralist structure is sufficiently developed to allow a few general comments on its implications for our understanding of the role of the state in social life. From the perspective of the Catholic vision of society what we have come to call the institutions of civil society -- rather than the state or market -- are the center, as it were, of social gravity. Far from existing to supplant these communities or to absorb their functions, the goal of the state, as Rommen writes, is essentially

the security of the lower communities [i.e., of the institutions of civil society], their peaceful functioning, the furthering of their self-initiative by the creation of legal institutions and public offices as a help and assistance (but not as their substitute), and the assurance of their peaceful development by protection against internal disorder and external disturbance.[125]

It pursues these objectives by establishing "an order of tranquillity, justice and peace"[126] within which, in the words of Gaudium et Spes, these groups can "freely and effectively pursue" their particular ends, and thereby make their distinctive contribution to "man's wellbeing in its totality."[127] This, of course, is the public order of which DH speaks.

The state's role, therefore, as Jonathan Chaplin suggests, is essentially an enabling one.[128] The state is not simply responsible for the creation -- through the suppression of violence or establishment of some type of neutral framework of order -- of the minimal conditions that allow the groups issuing from man's nature to exist. Nor does it possess a generalized responsibility for perfecting the individuals and groups who compose society. Rather, it is responsible for creating an order within which these groups can flourish, an order which by safeguarding what John Paul II calls the "human ecology,"[129] and assuring them ready access to the resources they need to perfect themselves enables them to make their distinctive contributions to the integral development of the human person.

This order is, above all, a juridical order. "The authority of the state," writes Chaplin,

is not essentially a spiritual, moral, social or psychological kind of the authority, but a legal kind. It performs its subsidiary function towards other communities by means of law, by establishing a legal framework embodying norms of justice and the requirements of the common good, within which other communities can operate.

"The state," in short "enables other communities to realize their ends" by creating "a framework" of public law "recognizing and protecting the various rights and duties pertaining to each and, in the interests of the common good, by adjudicating between them when conflicts of rights or duties arise." Thus, in the economic realm, for example, the state fosters "favorable economic conditions not primarily by functioning itself as an economic agent (producing, consuming and so on) but by establishing a framework of public law" enabling the economic sector to make its distinctive contribution to human flourishing.[130]

This brief sketch, of course, does not represent the type of full-fledged theory of the state presupposed by DH. Nevertheless, when seen in conjunction with both personalist anthropology and the emphasis on the need to respect "the creative subjectivity of society" in which it issues, it points us toward a distinctive conception of the state and its role. Its affirmation of a knowable and substantive theory of the human good decisively separates it from theories that take their bearings from the idea that the human good is unknowable or that this good consists in the maximization of individual autonomy. Likewise, its insistence on the enabling character of the state's mission, of its responsibility for creating a framework of legal order within which individuals and groups can freely and effectively pursue their perfection, decisively separates it from theories that would restrict the state to securing the minimal conditions of human social existence or which insist that government must be neutral on the question of the human good. At the same time, the limits inherent in the idea that the state's role is an enabling one -- that government's role does not encompass a responsibility for perfecting the individuals and groups composing society -- decisively separate it from conceptions which would effectively make the goals of the state coextensive with the goals of society and transform the state into what Rommen terms an omnicompetent moral pedagogue. In doing so, I would suggest, it helps lay the groundwork for the very theory of the state whose elaboration is so critical a part of the unfinished agenda of Dignitatis Humanae.

Conclusion

The completion of DH's unfinished agenda involves an intellectual project of considerable magnitude. Even assuming that the foregoing analysis is correct, the type of systematic analysis of the nature and function of the institutions characteristic of a fully differentiated society is a vast undertaking, as is the systematic elaboration of the theory of the state such an analysis makes possible. And, even were these undertakings successfully concluded, the questions of the development of Catholic doctrine on the whole subject of religious freedom and the implications of DH for the proper relationship of Church and state and Church and society would remain. So would the task of articulating the "full and complete theology of freedom" in whose context the "juridical - social" right affirmed by DH must ultimately be situated.

The Council charged Catholic social thinkers with the responsibility for completing the unfinished agenda of DH. One of the many disappointing features of contemporary Catholic intellectual life is the neglect of this charge. If in the decades immediately prior to Vatican II, thinkers like John Courtney Murray, Jacques Maritain and Heinrich Rommen helped lay the groundwork for the development in Catholic social teaching that finds expression in DH after the Council their work largely disappeared from view. Even today, little has been done to build upon the foundations they so ably laid.

The indifference of American Catholic thinkers toward this project is particularly dismaying. Given the role of Murray's work and the American experience in paving the way for the Declaration, one would have expected American Catholic social thinkers to take the lead in pursuing DH's unfinished agenda. On the contrary, far from aggressively pursuing this agenda, they seem scarcely aware of its existence. This fact speaks volumes about the current state of American Catholic intellectual life, and attests to the abrupt rupture in the tradition that occurred in the immediate aftermath of the Council.

The unfinished agenda of DH remains among the most important pieces of unfinished business confronting Catholic social thought. One can only hope that in the decades ahead, American Catholic thought will undergo a far-reaching renewal that will enable it to assume its rightful place in bringing the unfinished agenda of DH to a successful completion.

______________________

1 Paul VI, Closing Speeches: Vatican Council II (Boston: St. Paul Editions, n.d.), 25. For purposes of convenience, Dignitatis Humanae will generally be abbreviated as DH.

2 AAS 58 (1996): 74; cited in Luigi Misto, "Paul VI and Dignitatis Humanae: Theory and Practice" in Religious Liberty: Paul VI and Dignitatis Humanae, ed. John T. Ford, C.S.C. (Brescia: Instituto Paolo VI, 1995), 13;

3 See George Weigel, "Catholicism and Democracy," The Washington Quarterly 12 (Autumn 1985): 5-25; and Catholicism and the Renewal of American Democracy (New York: Paulist Press, 1989).

4 Walter Kaspar, The Christian Understanding of Freedom and the History of Freedom in the Modern Era (Milwaukee: Marquette University Press, 1988), 2, 4.

5 George C. Higgins, "Introduction" in Religious Freedom: 1965 and 1975, e.d. Walter J. Burghardt, S.J. (New Jersey: Paulist Press 1976), 3.

6 For an introduction to the constitutional dimensions of this development, see Gerard V. Bradley "Dogmatomachy - A Privatization Theory of the Religion Clause Cases," St. Louis Law Journal 30 (1986): 275-330. For broader discussions of this phenomenon, see Richard John Neuhaus, The Naked Public Square (Grand Rapids, MI: William B. Eerdmans, 1984); and Stephen L. Carter The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion (New York: Basic Books, 1993).

7 John A. Coleman, An American Strategic Theology (New York: Paulist Press, 1982), 211.

8 John Courtney Murray, "The Declaration on Religious Freedom" in Bridging the Sacred and the Secular: Selected Writings of John Courtney Murray, S.J., ed. J. Leon Hooper, S.J. (Washington, D.C.: Georgetown University Press, 1994), 187.

9 Dignitatis Humanae in Religious Liberty: An End and a Beginning, ed. John Courtney Murray, S.J. (New York: MacMillan), section 2, pp. 166-167. Further citations of this document will be given parenthetically, the section number in document will be followed by the page number in this volume.

10 This observation is contained in the notes Murray attached to the text of DH in Religious Liberty: an End and a Beginning, 168, n. 7.

11 John Courtney Murray, "Arguments for the Human Right to Religious Freedom" in Religious Liberty: Catholic Struggles with Pluralism, ed. J. Leon Hooper, S.M. (Louisville: Westminster/John Knox Press), 230.

12 Richard J. Regan, Conflict and Consensus: Religious Freedom and the Second Vatican Council (New York: The MacMillan Company, 1967), 170.

13 Ibid., 174.

14 Murray, DH, p. 168, n. 7.

15 Regan, 159.

16 See James S. Rausch "Dignitatis Humanae: The Unfinished Agenda" in Religious Freedom: 1965 and 1975, 39-54.

17 Walter J. Burghardt, "Critical Reflections" in Religious Freedom: 1965-1975, 72.

18 Pietro Pavan "Ecumenism and Vatican II's Declaration on Religious Freedom" in Religious Freedom: 1965 and 1975, 15.

19 Ibid., 13.

20 Pavan, "Ecumenism," 13.

21 Pietro Pavan, "Declaration on Religious Freedom" in Commentary on the Documents of Vatican II, vol. IV, ed. Herbert Vorgrimler (New York: Herder and Herder, 1969), 64.

22 Ibid, 66-67.

23 Murray, "The Issue of Church and State at Vatican Council II" in Religious Liberty: Catholic Struggles with Pluralism (Louisville: Westminster/John Knox Press, 1993), 211.

24 Murray, DH, 163, n. 3.

25 Murray, "The Declaration on Religious Freedom: A Moment in its Legislative History" in Religious Liberty: An End and a Beginning, 24.

26 Francis Canavan, "Church, State and Council" in Ecumenism and Vatican II, ed. Charles O'Neill, S.J. (Milwaukee: Bruce, 1964), 53.

27 Pavan, "Declaration," 65.

28 Pavan, "Ecumenism," 20.

29 Pavan, "Declaration," 65.

30 Pavan, "Ecumenism," 20.

31 Murray, DH, 166, n.5.

32 John Courtney Murray, "Religious Freedom" in Freedom and Man, ed. John Courtney Murray, S.J. (New York: P.J. Kenedy & Sons, 1965), 135.

33 Pavan, "Ecumenism," 18.

34 Canavan, "The Catholic Concept of Religious Freedom as a Human Right" in Religious Liberty: An End and a Beginning, 76.

35 Murray, "Religious Freedom and the Atheist" in Bridging the Sacred and the Secular, 263.

36 "Arguments" in Religious Liberty: Catholic Struggles with Pluralism, 230.

37 Canavan, "Church, State and Council," 48.

38 Regan, Conflict and Consensus, 2.

39 "Arguments" in Religious Liberty: Catholic Struggles with Pluralism, 231.

40 On the debate at the Council, see Regan, Conflict and Consensus.

41 Ibid., 174.

42 Ibid., 159 and 174.

43 "Arguments" in Religious Liberty: Catholic Struggles with Pluralism, 230.

44 Murray, "Preface" in Religious Liberty: An End and a Beginning, 9. Murray is here expressing his agreement with Canavan's reservations about the Declaration's argument. For Canavan's criticisms, see "The Catholic Concept," 78-80. On Murray's reservations, see "Arguments" in Religious Liberty: Catholic Struggles with Pluralism, and Canavan, "Murray on Vatican II's Declaration on Religious Freedom," Communio 9 (1982); 404-405.

45 "Arguments" in Religious Freedom: Catholic Struggles with Pluralism, 234.

46 Ibid., 238-239.

47 "The Declaration on Religious Freedom" in Bridging the Sacred and the Secular, 189-190.

48 John Courtney Murray, The Problem of Religious Freedom (Westminster, Maryland: The Newman Press, 1965), 27.

49 "Arguments" in Religious Liberty: Catholic Struggles with Pluralism, 232.

50 Regan, Conflict and Consensus, 87.

51 "Arguments" in Religious Liberty: Catholic Struggles with Pluralism, 235.

52 Regan, Conflict and Consensus, 88.

53 "Arguments" in Religious Liberty: Catholic Struggles with Pluralism, 237.

54 Regan, Conflict and Consensus, 103.

55 "Arguments" in Religious Liberty: Catholic Struggles with Pluralism, 237.

56 Ibid.

57 The Problem of Religious Freedom, 40.

58 Murray, "Arguments" in Religious Freedom: Catholic Struggles with Pluralism, 232.

59 "The Declaration on Religious Liberty: A Moment in Its Legislative History" in Religious Liberty: An End and a Beginning, 31.

60 Pavan, "Ecumenism," 29.

61 Pavan, "Declaration," 64.

62 Rausch, 41.

63 Coleman, 224.

64 The Problem of Religious Freedom, 41.

65 Pavan, "Ecumenism," 31.

66 Ibid.

67 Canavan, "The Catholic Concept," 71-72.

68 The Problem of Religious Freedom, 51.

69 "The Declaration on Religious Freedom" in Bridging the Sacred and the Secular, 196-197.

70 On the movement of Catholic social thought toward this model of the state in the period from the pontificates of Leo XIII through that of John XXIII, see Murray, The Problem of Religious Freedom, 52-84. On the state in the social teaching of the Second Vatican Council, see Kenneth L. Grasso, "Man, Society and the State: A Catholic Perspective" in Caesar's Coin Revisited: Christians and the Limits of Government, ed. Michael Cromartie (Grand Rapids: William B. Eerdman's Publishing Co., 1996), 79-99.

71 The Problem of Religious Liberty, 28-29.

72 Ibid., 29-30.

73 "The Declaration on Religious Liberty: A Moment in Its Legislative History" in Religious Liberty: An End and a Beginning, 38-42.

74 "Arguments" in Religious Liberty: Catholic Struggles with Pluralism, 238-239.

75 Ibid., 239.

76 "The Declaration on Religious Liberty: A Moment in Its Legislative History" in Religious Liberty: An End and a Beginning, 41.

77 "Arguments" in Religious Liberty: Catholic Struggles with Pluralism, 239.

78 "The Declaration on Religious Liberty: A Moment in Its Legislative History" in Religious Liberty: An End and a Beginning, 35.

79 Regan, Conflict and Consensus, 124-125.

80 The Problem of Religious Liberty, 30, 27, 30.

81 DH, 7, 176-177, n. 20.

82 "The Declaration of Religious Liberty: A Moment in Its Legislative History" in Religious Liberty: An End and a Beginning, 29.

83 DH, 7, 176, n. 20.

84 John Courtney Murray, "Governmental Repression of Heresy," in Proceedings of the Third Annual Convention of the Catholic Theological Society of America (Bronx, N.Y.: Catholic Theological Society of America, 1948), 56.

85 For an example of a maximalist reading of public order, see Brian Harrison, Religious Liberty and Contraception (Melbourne: John XXIII Fellowship Co-Op. Ltd., 1988).

86 J. Bryan Hehir, "Dignitatis Humanae in the Pontificate of John Paul II" in Religious Liberty: Paul VI and Dignitatis Humanae, 174.

87 "Governmental Repression of Heresy" in Proceedings, 56.

88 "Arguments" in Religious Liberty: Catholic Struggles with Pluralism, 239.

89 "Declaration on Religious Liberty: A Moment in Its Legislative History" in Religious Liberty: An End and a Beginning, 40.

90 On this point, see Robert P. Hunt, "Dignitatis Humanae and American Church-State Relations," Paper presented at the annual meeting of the Society of Catholic Social Scientists, Steubenville, Ohio, October 23-25 1998; and David L. Schindler, "Reorienting the Church on the Eve of the Millennium" in Communio 4 (1997): 774-779, and Heart of the Heart, Center of the Church: Communio Ecclesiology, Liberalism and Liberation (William B. Eerdmans Publishing Co., 1996). My discussion of this aspect of Murray's argument is indebted to both Hunt and Schindler. I should stress, however, that I have serious reservations about Schindler's account of Murray's work and many of the criticisms he offers of it.

91 "The Declaration on Religious Liberty: A Moment in Its Legislative History" in Religious Liberty: An End and a Beginning, 36-37.

92 "The Declaration on Religious Freedom" in Bridging the Sacred and the Secular, 192.

93 "The Issue of Church and State at Vatican Council II" in Religious Liberty: Catholic Struggles with Pluralism, 206.

94 The Problem of Religious Liberty, 28.

95 "The Declaration on Religious Freedom" in Bridging the Sacred and the Secular, 192.

96 The Problem of Religious Freedom, 28.

97 "The Issue of Church and State at Vatican Council II" in Religious Liberty: Catholic Struggles with Pluralism, 209.

98 "The Declaration on Religious Freedom: A Moment in Its Legislative History" in Religious Liberty: An End and a Beginning, 28-29; my emphasis.

99 "The Declaration on Religious Liberty: A Moment in Its Legislative History" in Religious Liberty: An End and a Beginning, 28-29.

100 "Religious Freedom and the Atheist" in Bridging the Sacred and the Secular, 258.

101 Pavlischek, John Courtney Murray and the Dilemma of Religious Freedom (Kirksville, MO: Thomas Jefferson University Press, 1994), 3.

102 For an insightful recent discussion of the inherently relational character of this person by an eminent Thomistic philosopher, see W. Norris Clarke, S.J. Person and Being, The Aquinas Lecture, 1993 (Milwaukee: Marquette University Press, 1993), passim.

103 Gaudium et Spes in Vatican II: The Conciliar and Post-Conciliar Documents, ed. Austin Flannery, O.P. (Collegeville, Minnesota: The Liturgical Press, 1975), section 12, p. 913 and section 25, p. 926.

104 Gaudium et Spes, section 25, p. 926.

105 John Paul II, Centesimus Annus [On the Hundredth Anniversary of "Rerum Novarum"] (Boston: St. Paul Books & Media, n.d. [1991]), section 13, p. 21.

106 Heinrich Rommen, The State in Catholic Thought (New York: Greenwood Press, 1945), 142-143.

107 Ibid., 256.

108 Centesimus Annus, section 11, p. 18.

109 Johannes Messner, Social Ethics (St. Louis: B. Herder Book Co., 1949), 140.

110 Rommen, 143-144.

111 Ibid., 144.

112 Franz H. Mueller, "The Principle of Subsidiarity in the Catholic Tradition," The American Catholic Sociological Review, 4 (October 1943): 143-144.

113 John Paul II, Familiaris Consortio (Boston: Daughters of St. Paul, n.d.), section 11, p. 22.

114 John Paul II, Letter to Families (Boston: St. Paul Books & Media, n.d.), section 15, p. 51.

115 Ibid., 17, 62.

116 Canavan, "The Popes and the Economy," First Things 16 (October 1991): 39.

117 Coleman, 213. Although it is widely employed today, whenever possible, I have tried to avoid the language of "mediating structures" or "intermediary institutions." As Stanley Hauerwas observes, "the very language of 'intermediary associations' betrays liberal presuppositions which distort the moral reality of such institutions as the family." Stanley Hauerwas, "Symposium" Center Journal 1, 3 (1982): 44-45; cited in Francis Canavan, The Pluralist Game: Pluralism, Liberalism and the Moral Conscience (Lanham, Maryland: Rowman and Littlefield, 1995), 98. It might also be added that it is difficult to see how this language and the conceptualization underlying it can do justice to Catholic ecclesiology, to the Catholic understanding of the nature and role of the Church.

118 Canavan, "Religious Freedom: John Courtney Murray and Vatican II" in John Courtney Murray and the American Civil Conversation, ed. Robert P. Hunt and Kenneth L. Grasso (Grand Rapids: William B. Eerdmans Publishing Company, 1992), 168.

119 Jacques Maritain, Man and the State (Chicago: University of Chicago Press, 1951), 24.

120 Centesimus Annus, section 48, p. 68.

121 See, for example, Murray, "The Problem of State Religion," Theological Studies XII (June 1951): 155-178.

122 Centesimus Annus, section 11, p. 18.

123 His The Person and the Common Good (New York: Charles Scribners Sons, 1947) is, of course, perhaps the classic study of the subject, and he played a key role in thrusting the idea of man's personhood to the center of Catholic social thought.

124 Pope John Paul II, Sollicitudo Rei Socialis [On Social Concern] (Boston: St. Paul Books & Media, n.d. [1987]), section 15, pp. 25-26; and Centesimus Annus, section 13, p. 21.

125 Rommen, 138.

126 Ibid., 270.

127 Gaudium et Spes section 75, p. 983; my emphasis.

128 Jonathan Chaplin, "Subsidiarity as a Political Norm" in Political Theory and Christian Vision, ed. Jonathan Chaplin and Paul Marshall (Lanham, Maryland: University Press of America, 1994), 81-100.

129 Centesimus Annus section 38, pp. 54-55.

130 Chaplin, 95-96.


Dr. Kenneth Grasso is a professor of Political Science at Southwest Texas State University, San Marcos, TX 78666, (512) 245-8230. Email: kgrasso@swt.edu


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