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John Courtney Murray, religious liberty, and modernity: Part I: inalienable natural rights'.

I

Religious toleration, or the separation of church and state, appears to many to be a characteristically modern achievement, one that we owe to modern rationalist political philosophers. But many Catholic intellectuals have a different understanding of its provenance. They follow the thought of John Courtney Murray, the American Jesuit theologian who, as a peritus at the Second Vatican Council, had a large hand in writing the "Declaration on Religious Liberty" (hereafter DRL). (2) And according to Murray, religious liberty, freedom of the conscience, and the separation of church and state are all doctrines that are fundamentally Christian in origin. With this claim Murray and his students attempt to reconcile Catholic political thought with liberal democracy. That such an attempt can be successful is doubtful. But sorting out just why this is so can provide us with a better grasp of the inherent aims of liberal democracy as a form of modern political rationalism, and so with a better grasp both of what can reasonably be expected of it and of how one might reasonably expect to improve it. More than this, it can allow us to begin to see the abiding value of classical political rationalism over and against modern political rationalism.

While Murray's influence has waxed and waned over the past fifty years, it has been waxing of late with the attempt to combat what his followers see as a version of moral relativism in the American courts. They cite the opinion of the majority in Planned Parenthood v. Casey: "At the heart of liberty is the right to define one's own concept of existence, of meaning, the universe, and of the mystery of human life. Belief about these matters could not define the attributes of personhood were they formed under the compulsion of the State." (3) Those who disagree, and who make an attempt to guide public life according to standards of justice that transcend the autonomous self, are in the court's view necessarily guilty of irrational "animosity" toward those who refuse to recognize such standards. (4) Students of Murray have therefore been attempting to provide what they believe to be a more sound, more coherent understanding of our polity. (5)

Noting that Murray recognized as early as 1953 the growing loss or denial of the transcendent in American life, and in particular Murray's attention to what he called the "moral confusion ... suspended over a spiritual vacuum," (6) they hope to restore an understanding of those truths that, according to Murray, we must hold if our civic life is to be healthy and morally sound. They do so, moreover, with the confident understanding, inspired by Murray, that the best understanding of constitutional democracy is to be found in the Thomistic tradition of the Catholic Church. At the heart of their understanding of Thomism is Murray's twofold claim that, first, "political and social life has a natural moral purpose, namely, to ordain what the common good, the exigencies of a humanly virtuous life in common demand"; and second, that "the human person is free in society when all his inalienable rights are juridically guaranteed immunity from inhibition and provided with the due conditions of their exercise." (7) Murray, a champion of religious liberty and the rights of the individual, was also a champion of natural law and the obligations it imposes upon human beings in light of the common good. Hence his thought is, as his growing number of admirers believe, able to guide us out of the present crisis in American public life. They regard Murray's thought as liberal but teleological.

There is much to admire in both Murray's thought and the work of those who have begun elaborating upon that thought in the face of our present difficulties. Nonetheless, there are practical and theoretical difficulties that attend that endeavor, not the least of which is his attempted synthesis of natural law and inalienable natural rights, a synthesis that threatens to lead to a serious confusion on the part of Catholics and non-Catholics alike. To introduce the theoretical problem, and the practical problem that attends it, it will be helpful to examine Murray's thought, and to look first at the DRL. As part of Vatican II's "Pastoral Constitution on the Church in the Modern World," the DRL belongs to the Magisterium of the Church, not to Murray.Yet since Murray was one of its primary authors, his followers tend to cite it as his most outstanding achievement as they use his works as a means of discerning and elaborating upon the change of direction of church-state relations that it inaugurated. Moreover, it is no exaggeration to say that the impact of this work upon Catholic political thought has been equivalent to the impact of Moses Mendelssohn's thought upon Judaism--thought that, by "liberalizing" Judaism, turned what had been previously regarded as Judaism into a marginalized branch of Judaism called "orthodoxy."

Our examination will in no way be exhaustive but will focus on Murray's understanding of the best political order or regime--which he takes to be Constitutional Democracy of the American type--in order to elucidate the understanding that is tending increasingly to direct Catholic political thought today. (8) Hence we will be looking at four things: first, the DRL, and some conflicting interpretations of it; second, what those conflicting interpretations point to--namely, the DRL's problematic synthesis of traditional natural law and modern natural rights; third, Murray's attempt to give a firmer ground for religious freedom by articulating a vision of the historically disclosed best political order; and fourth, some potential problems with that ground, in light of the general theoretical intention of modern political philosophy.

II

The DRL has a preamble and two parts, the first of which develops an argument for religious freedom as it is known by reason, the second as it can be inferred from scripture. We'll confine ourselves to the first part, which opens as follows:
   This Vatican Synod 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.

      The synod further declares that the right to religious freedom
   has its foundation in the very dignity of the human person, as this
   dignity is known through the revealed Word of God and by reason
   itself. This right of the human person to religious freedom is to
   be recognized in the constitutional law whereby society is
   governed. Thus it is to become a civil right.


And a little later in the DRL,
   [Man] is not to be forced to act in a manner contrary to his
   conscience. Nor, on the other hand, is he to be restrained from
   acting in accordance with his conscience, especially in matters
   religious.

      It follows that a wrong is done when government imposes upon its
   people, by force or fear or other means, the profession or
   repudiation of any religion, or when it hinders men from joining or
   leaving a religious body.


Thus does the DRL proclaim the prepolitical natural right of all persons to religious freedom and indeed to "freedom of conscience." (9)

To most Americans this will seem like common sense; others can doubtless remember the days before the DRL, and so recognize that the change in Catholic doctrine that this represents is quite dramatic. The immediately previous Church teaching, affirmed in numerous encyclicals since Pius IX's "Syllabus of Errors" (1864), followed the thought of Bellarmine, and had held that an officially established Catholic Church, with preferential treatment, was the preferred or perfect institutional arrangement everywhere, or as it came to be called through the corruption of the useful distinction of Bishop Felix Dupanlou of Orleans, the "thesis." The confessional state excluded all public worship to other religions. While fervently to be hoped for, this ideal of an established Church could not, it was reasoned, be secured in all places without significant damage to the public good. Hence, for reasons of expediency, a second-best arrangement, a "hypothesis," was acceptable until such time as the "deplorable" religious pluralism had given way, and in the United States, this meant until the time of an auspicious "Catholic majority." Then Catholics were obliged in conscience to work for an established Catholic Church.

The argument supporting this older position of a confessional state ran roughly as follows. The moral magistracy of the Church, granted to it through the authority of apostolic succession, stands higher than and so must not be subjugated to the magistracy of any particular temporal moral order. For the Church's end, the salvation of souls is higher than any mere temporal good. The Church must inform and infuse the temporal order with the good news of the Incarnation and the deep reconciliation of human beings made possible by true sacramental encounters with the divine. And the moral unity of the Christian community formed by the Church must be protected from the rupture that heresy would pose to it; the political order must be conformed to Christ. The spiritual welfare of citizens pertains in this way to their temporal well-being. Hence, just as the state can and should prohibit people from preaching the doctrine of racial hatred, so it can and should prohibit them from preaching, to the detriment of followers of the one true faith, the doctrine that, say, Christ is not present in the Holy Eucharist. As Pious IX had succinctly put it in the "Syllabus of Errors," "Error has no rights." Again, Leo XIII, in the 1888 encyclical Libertas, argues that "it is absurd to say that all opinions have equal rights." Heretical teachings are a source of injury to the deepest welfare of true believers. The Church, as the depositum of revelation and the spiritual authority for mankind, should therefore be united with the state to secure the redemption and well-being of mankind.

Hence one can easily see why non-Catholics, as well as many American Catholics--who had long lived under the suspicion of non-Catholics that they could not be loyal to the Constitution and its First Amendment prohibitions--were delighted with the DRL. Finally, it seemed, the Church had entered the modern world: it recognized freedom of conscience. The press was quick to hail the victory of "progressives" in the Church hierarchy. No less an authority than Murray himself, primary author of the DRL, stated, in his semiofficial notes to it, that "in assigning a negative content to the right to religious freedom (that is, in making it formally a 'freedom from' and not a 'freedom for'), the DRL is in harmony with the sense of the First Amendment to the American Constitution." (10) At long last, the Church had embraced one of the fundamental rights of liberal democracy, the "inviolable" right of all persons to religious freedom.

Or had it? When the dust had settled in 1966, some doubts began to be raised. The American Constitutional scholar Victor Rosen-blum, citing a passage from the DRL that enjoined government to "take account of the religious life of its citizenry and show it favor," wondered if this was genuinely compatible with the American Constitution. Other parts of the document likewise offered, according to Rosenblum, "dual thoroughfares for interpretation." (11) More concerned and more forthright was Philip S. Denenfeld of the American Civil Liberties Union, who found that the DRL contained "contradictory characteristics." He writes, "It seems to me to resemble in many of its key assertions the ... [American] Bill of Rights. Yet many of its basic assumptions work at cross-purposes with the statement of our national liberties, for its primary commitment, I think, is to religion, not to freedom." (12) Denenfeld cited in particular passages in the DRL like the following: "religious freedom ... which men demand as necessary to fulfill their duty to worship God"; "a moral obligation to speak the truth, especially religious truth"; and "In all his activity a man is bound to follow his conscience in order that he may come to God, the end and purpose of life." Denenfeld offers this observation: "Perfectly proper statements for a Vatican Council to make their absence, in fact, would be remarkable--and undoubtedly reflective of the beliefs of millions of Americans. But when they become the basis of a philosophy that in turn dictates a definition of the proper relation between church and state for a whole nation, they are no longer a distracting admixture with Madison and Jefferson; they are contradictions that violate the spirit of the Bill of Rights." (13) Chief among the contradictions, according to Denenfeld, is "the traditional view that men's private and public acts, directing their lives to God, 'transcend by their very nature the order of terrestrial and temporal affairs.'" This, he claimed, is not a universal view, and it is in conflict with the First Amendment, which "makes clear that we respect the right of a citizen to accept, or reject, the transcendancy of religious acts." (14)

It is clearly not the Catholic Church's traditional understanding of its mission per se that troubled Denenfeld, but the "illusion of sameness" between the Church's DRL and the rationale of the Bill of Rights. That illusion would, he argued, have a divisive impact on American life, perpetuating and increasing the conflict between Catholics and non-Catholics. For Americans there can be no "right to be wrong," since the Constitution prohibits the state from determining a right from a wrong understanding of reality. The Vatican DRL, however, suggests that a different understanding than this should inform American Constitutionalism. Hence, Denenfeld concludes, the DRL will not dispel suspicion of Catholics but rather will ensconce the view that Catholics are still not loyal to the First Amendment-- but have merely changed tactics. They wish this time to change the American regime by changing the very meaning of its most fundamental document.

Now we might be inclined to dismiss the arguments of Denenfeld and Rosenblum as early but grossly mistaken misgivings about a document that, as George Weigel, Richard John Neuhaus, and Michael Novak insist, has reconciled Catholic thought with the American Constitution. (15) But it would be a mistake to do so. For in the first place, an American Catholic theologian, Kenneth Craycraft, subsequently argued, on the basis of the very passages in the DRL that were worrisome to Denenfeld, that the DRL does indeed have as its primary intent to secure the Church's liberty, the liberty to teach the truth that is formative and binding on all Catholic consciences. Craycraft argues that the DRL accepts freedom of religion as a strictly juridical right, a "relative, contingent allowance of liberty"; that the DRL calls upon all political communities (including, e.g., the state of Israel) to have as their "first order of business to protect the Church as it carries out its mission"; that against American liberal democracy's indifference to the truth, (16) the DRL states "that a properly ordered state must care for the well-being of the Church's claim of religious truth"; that the "Church's freedom is a positive claim of privilege based upon its possession of religious truth"; that the State "must not merely grant the Church negative immunity, but must positively foster an atmosphere in which she enjoys the maximum opportunity of carrying out her mandate" (emphasis added), (that is, that the Church's freedom must become her empire); that the state's right not to make a judgment about the content of religious teaching is merely "a concession to the [present] inevitability of the secular, pluralist State"; and finally--we can see where this argument will end--that a confessional state is not by any means out of the question "in principle," but is "not a practical suggestion in the modern secular liberal context." (17)

Craycraft's argument is utterly astounding, not merely because of its conclusion, but rather owing to the care and rigor he employs in drawing that conclusion out of the DRL, and in supporting his argument with deft references to the work of none other than John Courtney Murray. Apparently unaware of Denenfeld's argument from thirty years earlier, Craycraft, as it were, sees Denenfeld's fear and raises him one: the DRL's argument is indeed fundamentally at odds with the First Amendment, and this is how it should be. For as Denenfeld had wished to say, the First Amendment makes a transcendent truth claim of its own--that there are no religious truth claims that must be recognized as true--and the Church must, and does, make a counter claim, according to Craycraft. And in making that claim, it must of necessity render the rights of the First Amendment and the religious pluralism that it recognizes and fosters mere "contingencies." It must, in other words, adhere to the old thesis/ hypothesis distinction, as Murray in fact did. It must make a temporary concession to what Murray himself called the "lamentable truth" of religious pluralism. (18) Craycraft denies, then, that on the basis of the DRL, there is anything but a relative or contingent or temporary right to be publicly wrong.

III

How are we to make sense of these diametrically opposed interpretations of the DRL, the one holding that the DRL reflects the rationale of the First Amendment, the other that it sounds similar to it but in fact stands fundamentally opposed to it? Political partisanship alone can't explain the problem, for the two opposed interpretations each come from both the left and the right of the political spectrum. They come likewise from partisans of Church prerogatives and jealous guardians of the First Amendment against those prerogatives. I suggest that we can begin to make sense of them, and to find our way out of the impasse that they present, by recognizing something they point to: the synthesis that the DRL attempts to achieve between two traditions, that of natural law and modern natural rights, is highly problematic. We will then be in a position to see why Murray and his followers have moved, in the wake of the DRL's promulgation, to strengthen religious liberty by grounding it in a novel understanding of liberal or constitutional democracy as the best regime simply, and how that novel understanding, far from resolving the problem, has further weakened the capacity of Catholics to address the concerns of their fellow citizens in America.

What I have called the problematic character of the synthesis of natural law and natural rights begins to show itself in the manner in which the DRL derives the right to religious liberty. Aware of some of the difficulties attending the modern--Hobbesian or Lockean-- doctrine of natural rights, and seeking to avoid the whole vexed controversy of whether there can be a right to error, the Council, and Murray in particular, attempted to place the right to religious liberty within a properly moral and realistic framework. As Francis Canavan, SJ, stresses, (19) the DRL derives the right to religious freedom from a preexisting, primary natural duty to seek the truth and hold fast to it when it is found. This is a duty all human beings, endowed with reason and free will, have by nature, according to the DRL. That is, we cannot attain our natural end or perfection without adhering to this duty. Following Canavan, let us call this a traditional or Thomistic natural law argument. The question is, how does this natural duty become the basis of an "inviolable right" to freedom of religion? (20) Why is it not instead the basis of a duty to promulgate the truth when found, especially since the truth that the Council has in mind entails the prescription to go out and teach the Christian gospels to all nations? What is the basis of a right to freedom of those who err?

The truth, the DRL argues, is discovered and held by or in conscience. Those who argue that "error has no rights" abstract from this fact; they abstract from the human beings who hold the truth or who err. (21) And each of those human beings is obliged by nature to act on the truth as he understands it, however inadequately. To coerce action is a violation of the ontological freedom of each individual to act on the basis of his or her grasp of the truth. That is, on account of our reason and will we are free to act or not act upon the truth as we understand it. We indeed have a duty so to act, but political freedom is required to fulfill that duty. Therefore we have a right to the free exercise of religion. That in a nutshell is the DRL's derivation of our inviolable right, one that allegedly avoids the abstraction from human beings inherent in the claim that "error has no rights," and one that grounds itself in respect for the dignity of the human, that is, morally free, person.

There is a problem, nonetheless, with accepting this "inviolable" right as part of the Catholic natural law teaching. To be sure, the DRL was not the first document in which "inviolable rights" are presented as part of Catholic political teaching, or "social teaching," as it came to be known. Statements about "sacred and inviolable natural rights" had been appearing alongside "natural law" arguments in papal encyclicals since the nineteenth century, most notably in Leo XIII's Reram Novaram, where the references to rights (jura), exceed the references to natural law (lex). That famous encyclical was the first to present civil society as the means of protecting inviolable "natural rights," which are supposed to antedate civil society and exist independently of it. But as Ernest Fortin has argued, the Thomists who were behind Reram Novaram, above all Luigi Taparelli and his students, were not necessarily aware of the difficulty in combining "rights" with "natural law." (22) Their thought suffered from the unfortunate disruption of university life caused by the French Revolution and Napoleonic Wars, which shut down the leading center of theological learning in the early part of the nineteenth century. As a consequence, a rather unthoughtful blend of Thomistic natural law and modern "natural rights" found its way into the encyclicals (which claim, for example, the existence of a "sacred and inviolable right" to private property).

What distinguishes the DRL, to repeat, is precisely its awareness of the need to attempt a consistent synthesis of the two doctrines, natural law and natural rights, rather than settle for the eclectic Leonine compromise. (23) The question is, can such a synthesis be achieved? Is it possible? Or is there a radical heterogeneity of the two positions? I'm inclined to think that, despite the best and noble efforts of Jacques Maritain and his student, John Courtney Murray, it is not possible to effect a synthesis of the two doctrines. To understand why, it is necessary to step back for a moment and remind ourselves of the origins of the doctrine of "natural rights."

IV

The doctrine of inalienable natural rights, or individual human rights as we now call them, did not exist in its present form until 1651, the year Hobbes's Leviathan was published. Prior to that time, human beings, with some notable exceptions, typically spoke of justice and of law, but not of "natural rights." The Vulgate Bible, for example, speaks of ius (right), about thirty times but always to signify an arrangement sanctioned by law. It speaks more typically, as we all know, in commandments: "Thou shall not." And while "rights" occurs in some medieval authors, as Brian Tierney has recently shown, (24) the "rights" in question never appear as unconditional, but are always circumscribed by law, are contingent on the prior performance of duties, and hence are forfeitable. Similarly, in the work of St. Thomas Aquinas, the word iura occurs fifty-two times, but always with reference to civil or canonical rights, never to natural rights. (25)

Why is that so? How could political philosophers and political theologians speak of justice without framing the discussion in terms of individual rights? The beginning of an answer is that ancient and medieval thought adhered closely to actual political life in its understanding of justice. For that reason, "right" (ius), the object of justice, meant in their thought that which is right for someone, is his due, or accords with his worth or desert. (26) As such, it did not necessarily work to the material advantage of the individual whose "right" it was. The right of a counterfeiter, for example, who in his greed destroys the trust needed for all economic commerce, was to be put to death, since what is right for him must accord with what is right for the community of which he is a part; he receives the wages of sin as his "right." (27) "Right" is what the morally virtuous human being determines to be appropriate for someone, in accordance with that person's moral worth or dignity, and that dignity can be lost. (28) In this older sense, one is possessed by right, or bows to it; one does not possess it.

Above all, in the older understanding the "right" to rule meant the fitness or worthiness to rule, to which different parts of a given city--the people, the few or aristoi, the wealthy, the brave, the prudent--could propose to rule, to direct the city, on account of its particular excellence or virtue, to the common good. (29) In fact, in full or robust political life, the question "who should rule?"--that is, who deserves to rule, who can best guide us in common to our end as citizens, and hence who is everyone else morally obligated to obey?--that question is the most important question of all. A prudent politics can ill afford to expose this question for long, but if the question remains altogether buried, there is no political life properly speaking. For political life proper aims at a certain comprehensive understanding of the good life. Even so, no legitimate political order ever thought it could or should be a total way of life: the justice that it aimed to establish was clearly beyond any merely human capacity. Hence, even the healthiest political life necessarily pointed beyond itself to the rule of gods or God, and so both religious disputes and disputes about justice were never far from political life.

It is the very question "who should rule?" that disappears from political life, and with it the larger question of worth or desert, or distributive justice, with the emergence of the modern doctrine of prepolitical, inalienable natural rights. And as it disappears, so too does political life itself. This is not an accidental result of the doctrine but rather its intended effect. Hobbes, who first gives us that doctrine, lets us know that this is its intended effect by telling us that "the question 'who is the better man,' has no place in the condition of meer Nature." For all human beings are by nature, in all politically significant respects, equal. "Or," he adds, significantly enough, "if Nature have made men unequall, yet ... such equality must be acknowledged." (30) And the reason it must, as he suggests, is to end the warfare to which all titles to rule, including and above all those based on religious faith, inevitably leads. All titles to rule are to be understood as "vainglorious," motivated by that uniquely human joy that we take exclusively in what is eminent. (31) To replace all such claims, and found a type of life that does not allow them, Hobbes gives us his new doctrine, natural rights, which limits by its nature the end or purpose of government, and thereby brings into being something altogether new.

To grasp the significance of the new doctrine for political life, it is helpful to recall how Hobbes derives "rights," and the kind of society that the doctrine of rights calls into being. Among the many and arbitrary passions that move us, he argues, chief or strongest is our fear of violent death. This is a compelling fear. We cannot help but be moved by it to secure ourselves. But justice does not ask the impossible: if we cannot help but have this fear and act on it, then we cannot be blamed for it. Therefore we have a right, by nature and before entering civil society, to all things required to secure ourselves from violent death. (32) We each, that is, have a selfish but justified claim against one another. In our effort to escape the sorry state in which each of us acts upon that unlimited right, we enter civil society. We agree to relinquish the natural right to all things in order safely to obtain some things, free of the threat of other human beings. We settle for those "rights," or claims that we can all secure peacefully.

Establishing civil society on this basis--the securing of rights--means that we emphatically do not set up a ruler. We instead contract to set up a sovereign, who will represent us to ourselves, someone who will remind us of our fear of violent death and the need to avoid death by acting peacefully rather than vaingloriously. The person or group of people whom we set up to do so has unlimited power, but is radically limited in aim or intention: protecting rights and thereby securing peace, or ensuring the comfortable self-preservation of citizens. The sovereign governs in the sense of one who supervises political procedures; he does not rule. He acts as does a governor on a car or truck, not directing it toward an end but merely keeping our individual, subjective, arbitrary, passionate pursuits in line. We are left free to do in fact whatever the law does not forbid; the law does not command us to devote ourselves to an alleged common good, or to the cultivation of virtue or excellence. As Richard Kraut puts it, the purpose of individual rights is to protect us from the demands of others, or "carve out a zone in which one is relieved of the task of having to contribute to the common good." (33)

This is not to deny that the modern doctrine of rights is a moral doctrine. It presents as "just" that diffident majority of men who, over and against the "vainglorious," are strictly limited in their deeds by the intention to preserve themselves; any and all actions dictated by this (limited) intention are accorded the title of right. The new teaching assumes that moral obligations are ordinarily binding; it implicitly condemns vainglorious actions when exonerating those of self-defense. To accept the right of nature, in other words, it is necessary to have and to maintain a preexisting, unexamined conviction or belief that justice has some claims on us, that the ordinary obligations we have to the common good still hold somewhere, somehow; that the state of nature is an unusual and by no means necessary state; that the state of civil society will deprive us of our original right to all things because it will deprive us of our excuse for acquiring all things. Civil society, artificial though it be, restores us to the proper state, one in which our rights are defined, limited.

But the implicit reference to the common good that this modern understanding calls upon us to make is meant to remain implicit. More than that, it is meant to be fugitive in the extreme. Not the common good, but the individual's claims against others are to direct his civic disposition. He secures as much freedom from others as is possible to secure. The doctrine is hence anarchic in the precise sense: no one rules, because no one sees any true ground to obey another's moral direction. The individual's jealous guarding of his rights over and against others displaces devotion to the common good. For the compelling fear for one's own preservation is not understood merely as an excuse from the normal obligations of justice. (34) Rather, the compelling fear is understood to grant to its possessor an un-blamable claim universally valid and unlimited in the state of nature, and limitable only by the conclusions, the natural laws, posited by a fear-induced, calculative reason. As Hobbes suggests, the law of man, "do not do unto others," is to replace the law of the gospels, "do unto others." Devotion to the good of others as part of a whole to which one belongs is to give way to indifference to them.

That arena in which we are left by the powerful but indifferent sovereign to pursue our various desires comes to be called "society." There one may with equal dignity become a barber or physicist, a used car salesman or a philanthropist, as one wishes. For there is no true or intrinsic worth to any activity or calling. Worth is rather determined in society by the selfishly driven forces of the market. As Hobbes wryly puts it, in wartime generals are at a premium, but in peacetime, judges. (35) Worth or desert is determined, then, by what an aggregate of unfathomable others desire and happen to believe. For the ordering principle of the regime is indifference to the question of worth or desert, to titles to rule; it rejects the pretense to know and practice what is best for human beings. The "unencumbered" or "autonomous self," as he has come to be called, who creates his own meaning as it suits him, (36) is the intended result of the modern doctrine of natural rights.

V

It is this doctrine, and the depoliticizing dynamic that I have just sketched, which is being synthesized in the DRL with the older doctrine of natural law, according to which one has a natural directedness and obligation to the common good. Everything in the DRL is made to rest on the derivation of an inviolable right of the individual to freedom of conscience. Now as mentioned above, and as the DRL stresses, the Second Vatican Council attempted to derive this right from a preexisting duty, and not from a blameless fear of autonomous individuals. But there are at least two difficulties with this procedure. In the first place, the inviolable right that is so derived remains an individual right. Based on the moral imperative to follow one's conscience, the right always works to the political advantage of the individual whose right it is, and is intended to do so. It stands against any and all human rule or natural authority. It is then, like the Hobbesian right, a claim of one person against all others who might threaten him with a claim to provide moral direction to his life. In the second place, and relatedly, the derivation of the right is, despite the attempt of its authors to avoid abstraction, a rather abstract thing. Unlike the older understanding of justice, this right is derived without reference to actual political life, and so with no reference to the question, "Who deserves to rule, and hence whom ought I to obey?"

Such concerns may seem unimportant to non-Catholics, who may simply be grateful that, whatever its flaws, the DRL has in practice "liberalized" Catholic political thought, and turned a one-time defender of the ancien regime into the world's foremost institutional proponent of human rights. But in fact the new natural rights doctrine leaves Catholic social and political doctrine massively unstable: it leads Catholics to demand the push-me-pull-you of alienable inalienable rights.

To grasp this troubling instability, it is helpful to note that Murray's thought, so decisive in both the DRL and subsequent Catholic social thought, represents a radicalization of a problematic part of the teaching of Jacques Maritain, on which it tends to rely. (37) Maritain, who argues that we have inalienable rights, (38) nonetheless follows Aquinas in arguing that natural right is the specification, in a given circumstance, of the just man's connatural disposition to do the right thing, that is, render to each his natural due. (39) And the natural law, which, as a rule gleamed from reason's participation in the eternal law, directs the just man, aims primarily at the common good of the community. What is just, then, applies to an individual as a member of a political community. But this leads to a visible incoherence in Maritain's thought. The inalienable rights are possessed, he claims, but the possession (and not only the exercise) is "subject to the conditions and limitations" dictated by justice. In concrete circumstances, Maritain also declares, it can be just for the state to deny to an individual "the possibility of justly asserting" his right. (40) As a result, we have rights that are alleged to be proper to the very nature of the thing, but that can be given and taken away for the common good by legislation. But of course, this means that such rights are not freedoms from the government at all. They are civil or constitutional rights, possessed by the person as a member of the community that legislates for him or her. For there cannot be alienable inalienable rights.

What may have been merely a rhetorical false step in Maritain's Thomism (41) becomes radicalized in Murray, who (when wearing a liberal hat) argues that an inalienable freedom is the key political component of the common good, and hence of positive law. (42) And with this step, it is clear that man is no longer considered political animals at all. He is simply social; the state, keeper of the public order, serves nothing but his bodily security, the mere condition for the free pursuit of happiness. Freedom from rule becomes the principle of political life. (43) (It is in fact the recognition of this primacy of freedom that Murray considers the "progress in doctrine ... sanctioned and made secure by' Dignitatis Humanae Personae.'") (44) Politically, this means that any failure to fulfill an obligation--any obligation--should in itself carry no political consequence. (45) And if freedom is retained, in spite of misuse--if one's dignity or worthiness is not lessened by failure to conform one's actions to a given end--then the dignity is held independently of right use; the freedom has no politically significant right use. One's dignity is inalienable. Hence the loud and clear message to the citizen is this: "It is not the responsibility of the state to make men paragons of virtue." (46)

On the other hand, when wearing his Thomistic hat, Murray still wishes the teleological part of his argument, freedom for, to limit political freedom. "Person" for Murray (and increasingly for the Catholic Church) is the new way to speak of our human end or perfection. In fact, when using this term, the DRL (as well as subsequent Vatican documents) attempts to present rights not in terms of preserving what one has but as conditions of development toward a specific end, not only as immunities but as teleological entitlements.Yet this is to subordinate the notion of rights to that of a human telos, and hence to give the common good priority over rights, to make the rights violable or forfeitable--precisely as Craycraft claims, and contrary to what Murray and his followers explicitly wish when wearing their liberal hats. And this subordination will occur every time Catholics demand, in the name of a common good (as the "theocons" recently did), (47) that the state promote those conditions that allow human beings to pursue their natural and supernatural ends as persons. The conception of prepolitical, inviolable natural rights simply cannot be made consistent with the Thomistic premise that man is by nature a rational animal, that is, that he becomes fully human and can attain his end through the fulfillment of his natural obligations within the political community.

It appears to be considerations like these that moved Francis Canavan to regret the absence in the DRL of a full-fledged argument about the best political order as it has emerged in human consciousness through the unfolding of human nature in history. (48) Such an order would, as he saw it, by its nature demand recognition of the right--the propriety--of religious freedom. And it is the Catholic Church's full articulation of that political order, which would best promote a respect for a full human dignity that students of Murray are now busy trying to accomplish.

What is that historically disclosed, naturally best political order? The DRL begins to suggest an answer: constitutional democracy, or what most Americans would call liberal democracy. (49) And while Murray himself had reservations about the very possibility and the desirability of declaring any political order best or "ideal," (50) he nonetheless came to see the need for the institutional Church to do so, and to extract from papal statements support for such an ideal. (51) And so have his students. As one of them recently put it, through its most recent encyclicals the Catholic Church has or is on its way toward articulating "a preferential option for constitutional democracy," including the demand for a written constitution, separation of powers, recognition of political equality before the law approaching one-man-one-vote, the separation of state and society, and the protection of rights as the proper activity of government. (52) In other words, the best regime simply is something like the American regime, properly understood, a regime that has its philosophical roots, say the Murrayites, in medieval scholasticism, as a full understanding of the history of Western political philosophy discloses. (53)

Impressive as this extraordinarily ambitious claim may seem, its defense, which attempts nothing less than a new philosophy of history (in a Hegelian sense), cannot resolve the difficulties we have noted. In fact, that defense has made the Murrayite approach to liberal politics not less but more confused and unstable.

I will turn in the next part--to be published in the subsequent issue of this journal (17:3)--to explain why, first by examining Murray's understanding of American democracy, and then by sketching in conclusion what seems, contrary to Murray, to be the general intended direction of modern political thought.

Notes

(1.) This article is published in two parts. The second, concluding portion will be published in the next volume of Logos: A Journal of Catholic Thought and Culture, Summer, 17:2.

(2.) Often titled Dignitatis Humanae Personae, or "The Dignity of the Human Person," after its first three words. Hereafter I shall refer to it as DRL.

(3.) The opinion of Justices Kennedy, Souter, and O'Conner, writing for the majority in Casey vs. Planned Parenthood (1992). These words were quoted in two subsequent circuit court of appeals cases in order to justify the striking down of laws against assisted suicide. See the opinion of Judge Reinhardt, of the Ninth Circuit Court of Appeals, in Compassion in Dying vWashington (March 6, 1996), and of Judge Miner of the Second Circuit Court of Appeals in Quill v. Vacco.

(4.) Romer v. Evans, 517 U.S. 620, May 20, 1996.

(5.) See, for example, Richard John Neuhaus, "Democracy, Desperately Dry," John Courtney Murray and the American Civil Conversation, ed. Robert P. Hunt and Kenneth L. Grasso (Grand Rapids: Eerdmans, 1992), 3-18; "Foreword," Catholicism, Liberalism, and Communitarianism, ed. Kenneth L. Grasso, Gerard V. Bradley, and Robert P. Hunt (Lanham: Rowman and Littlefield, 1995), ix-xi. Kenneth L. Grasso, "Catholic social thought and the quest for an American public philosophy," and "Beyond liberalism: human dignity, the free society, and the Second Vatican Council," in Catholicism, Liberalism, and Communitarianism, i-14, 29-58. See also Russell Hittinger's references to Murray in "A Crisis of Legitimacy," FirstThings 67 (November 1996): 25-29; See also the important reference to the Declaration on Religious Liberty in the reply of Michael Novak in "Neocon v. Theocon: An Exchange," The New Republic, February 3, 1997, 28-29.

(6.) "Christian Humanism in America," Social Order 3 (1953): 236-37;"Returnto Tribalism," Catholic Mind 60 (January 1962), 7.

(7.) Murray, "Governmental Repression of Heresy," Proceedings of the Catholic Theological Society of America (1948): 56, 76-77.

(8.) For a measure of Murray's abiding and growing influence, see Religion and Politics in the American Milieu, ed. Leslie Griffin (South Bend: University of Notre Dame Press, 1986), esp. vii. See also John Courtney Murray and the American Civil Conversation, ed. Hunt and Grasso, esp. vii-x, 273-96, and Catholicism, Liberalism, and Communitarianism, ed. Grasso, Bradley, and Hunt. Finally, see the special issue of The Catholic Social Science Review devoted to a retrospective on his work: 16 (2011).

(9.) See also Murray, We Hold These Truths, 37: "rights ... inhere in man antecedent to any act of government ... they are as inalienable as they are inherent."

(10.) Note 5. The Documents of Vatican II, ed. Walter M. Abbott, SJ (NewYork: Herder and Herder, 1966), 678.

(11.) Victor G. Rosenblum, "The conciliar document: A politico-legal excursus," in Religious Liberty: An End and a Beginning, ed. John C. Murray (New York: Macmillan, 1966), III.

(12.) Philip S. Denenfeld, "The conciliar declaration and the American declaration," in Religious Liberty: An End and a Beginning, ed. Murray (New York: Macmillan, 1966), 120.

(13.) Denenfeld, "The conciliar declaration and the American declaration," 122.

(14.) Ibid., 122-23.

(15.) Richard John Neuhaus, "A new order of religious freedom," First Things 20 (February 1992); George Weigel, Freedom and Its Discontents, Ethics and Public Policy Center, 1991.

(16.) On this point, Craycraft finds the Declaration superior to Murray, who failed to recognize that the American political order of Jefferson and Madison does indeed (as Denenfeld had hinted) make a claim about the unknowability of the transcendent truth and hence asserts what Craycraft calls a "religious truth." Murray as it were fails to see the wry and imperial character of the American Continental Congress' expressed "incompetence in spiritual matters" (See Murray, We Hold These Truths, 70-71).

(17.) Kenneth Craycraft, "Religion as moral duty and civic right: Dignitatis Humanae on religious liberty," in Catholicism, Liberalism, and Communitarianism, ed. Kenneth L. Grasso, Gerard V. Bradley, and Robert P. Hunt (Landham: Rowman and Littlefield, 1995), 59-80. Quotations are from pp. 68-72.

(18.) We Hold These Truths, 74.

(19.) Francis Canavan, "The Catholic concept of religious freedom as a human right," in Religious Liberty: An End And A Beginning, ed. John C. Murray (New York: Macmillan, 1966), 65-80.

(20.) There is prima facie reason to doubt the claim that this "natural duty" is evident to unassisted reason. Some of the concepts upon which it depends---"will" and "conscience," for example--were known, but were more questionable or problematic, to pre-Christian political philosophers.

(21.) See Murray, "On Religious Freedom," Theological Studies X (September 1949), 413; Proceedings of the Catholic Theological Society of America (Boston, 1948), III, 33, 83.

(22.) Ernest L. Fortin, "'Sacred and Inviolable': Rerum Novarum and Natural Rights," Theological Studies 53 (1992), 203-27; "The New Rights Theory and the Natural Law," Review of Politics 44 (Oct. 1982), 59off.

(23.) On Murray's awareness of the non-Catholic origin of the natural rights doctrine, see J. Leon Hooper, SJ, "Citizen Murray," Boston College Magazine, Winter 1995: "Murray's argument that public freedom served the common good ultimately grounded the Declaration on Religious Freedom ("the dignity of the human person" became the first words of that text). To make his case, though, he appealed to an insight from American political philosophy, which, he frankly admitted, the Church had ignored. The Church needed to learn a truth about human dignity from beyond its magisterial and cultural borders. In this understanding of how the Church came to endorse civil religious freedom, modern pluralism becomes a positive good--for civil society and for the Church--not simply a lesser evil to which the Church must adjust."

(24.) B. Tierney, "Villey, Ockham and the origin of individual rights," in The Weightier Matters of the Law: Essays on Law and Religion, ed. J. Witte, Jr. and F. S. Alexander (Syracuse: American Academy of Religion), 1988; "Origins of Natural Rights Language: Texts and Contexts, 1150-250," History of Political Thought 10 (1989), 616-46; "Marsilius on Rights,"Journal of the History of Ideas 52 (1991), 3-17. See also Richard Tuck, Natural Rights Theories: Their Origin and Development (Cambridge: Cambridge University Press, 1979).

(25.) Fortin, "'Sacred and Inviolable': Rerum Novarum and Natural Rights," 219-20.

(26.) See Thomas Aquinas, Summa Theologiae I, q. 21 a. I ad. 3 and II-II, 58 a. I.

(27.) Thomas Aquinas, Summa Theologiae II-II, 57 a.i. Unlike the other virtues, which produce acts that are ius (right) with respect only to the intention of the possessor of the virtue, what is ius in a work of justice, besides its relation to the possessor of the virtue, is determined by its relation to others. See Also ST II-II, q. 58 a. II, sed contra, where Aquinas quotes St. Ambrose in support of the argument that justice, or rendering to each what is his, entails a disregard of our own profit in order to preserve the common equity.

(28.) For example, Aquinas says, with references both to Aristotle's Politics and the Bible: "Man through sin recedes from the order of reason: and thereby he falls away from human dignity--on account of which man is naturally free and exists for the sake of himself--and thus falls, in a way, into a bestial servitude, so that it is permitted to treat him according as it is useful to others. And thus while to kill a man who maintains his dignity be wrong in itself, nonetheless to kill a man who has sinned can be good, as it can be to kill a beast." ST II-II, 64, ad tertium. See Frederick J. Crosson, "Maritain and Natural Rights," Review of Metaphysics 36 (June 1983), 895-912, esp. 907-08.

(29.) See ST I, q. 29 a. I: What characterizes rational individuals (i.e., persons) is that they are by nature "rulers" of themselves. See also ST I, q. 21 a. I ad 3, where Thomas's example of ius in the sense of "belonging" is that of a slave's belonging to his master, and where, following Aristotle, he states that one who is free is "causa sui," a notion closely related to another expression he often uses to characterize one who is free: "dominus sui actus," lord or master of his action. I am grateful to Fr. Steven Brock for bringing these passages to my attention.

(30.) Leviathan, chap. 15, on the ninth Law of Nature (MacPherson, ed., 211).

(31.) See Leviathan, chap. 17, "Why certain creatures without reason, or speech, do nevertheless live in Society, without any coercive Power" (MacPherson, ed., 225-26) with chap. 13 (185), chap. 14, "the end of an Oath" (200).

(32.) Leviathan., chap. 18 (Macpherson ed., 234) with chap. 13 (184-85).

(33.) Richard Kraut, "Are There Natural Rights in Aristotle?" Review of Metaphysics XLIX, 4 (June 1996), 763. On the difference between ruling and governing, see Harvey C. Mansfield, Jr., "Hobbes and the Science of Indirect Government" APSR 65, 97-110; Clifford Orwin, "On the Sovereign Authorization," Political Theory III i (February 1975), 26-52; Francis Slade, "Rule as sovereignty: The Universal and homogeneous state," in The Truthful And The Good. Essays in Honor of Robert Sokolowski, ed. John J. Drummond and James G. Hart (Dordrecht: Kluwer Academic Publishers, 1995), 159-80.

(34.) Such an understanding would necessarily have required that those normal obligations (which require sacrifice of our own good for the sake of the common good) be articulated and defended, and hence the modern doctrine would not have put an end--as it sought to do--to the perpetual disputes about justice and the right ordering of our lives that one finds in robust political life.

(35.) Leviathan, chap. 10, "worth" (MacPherson ed., 151-52).

(36.) See again the opinion of the majority in Casey vs. Planned Parenthood, cited above. Compare Leo Strauss, The Rebirth of Classical Political Rationalism, ed. Thomas Pangle (Chicago: University of Chicago Press, 1989), 244-45.

(37.) Jacques Maritain, Scholasticism and Politics, trans. Mortimer Adler (New York: Macmillan, 1940), 56. For Maritain, as for Thomas, there is no dichotomy between politics and morality, nor between a public and private morality. The exercise of prudence is inseparable from the possession of the moral virtues, and the virtues are a means of ordering ourselves to the end or ends in the light of which prudential choices are to be made. For Maritain and Thomas, moreover, the common good the community seeks is moral through and through. As he puts it, "The common good requires the development of the virtues in the mass of citizens." He even goes so far as to say that "a general Christian education for the nation, a general development of Christian habits and Christian instincts is in fact a condition for the political success of democracy." Accordingly, for Maritain rights are not absolute or inviolable: "These rights, being human, are, like everything else human, subject to conditioning and limitation." And finally, as Maritain says, "To obey him [who is rightfully in the position of authority] who really fulfills the duty to direct the common work toward the common good is to act as a free man." For Aquinas, of course, law in general, and thus natural law, is meant to inculcate virtue through habituation: it prepares men for virtue, in spite of themselves; it is an external corrective for man's "weakness." Hence Aquinas stresses that law leads men to obedience by fear of punishment (ST I-II, q.92, art. 2 resp.). The command of the law (as opposed to mere advice) has coercive force; it holds the "threat of punishments" (I-II, q. 92, art. 2, ad 4; q. ioo, art 9).

(38.) The Rights of Man and the Natural Law (NewYork: Scribners, 1943); Man and the State (Chicago: University of Chicago Press, 1951).

(39.) Man and the State, 167. On connaturality in Maritain's thought, see Frederick Crosson, "Maritain and poetic knowledge," in Being and Predication: Thomistic Interpretations (Washington: Catholic University Press, 1986), chap. 20.

(40.) Man and the State, 102. Natural rights are said to be ontologically prior to law, yet they are also said to endow us considered as prior to society.

(41.) Faced with the horrific prospect of totalitarianism, Maritain emphasized the human person's final end in union with God, and on the basis of this end claimed a "right" of the individual to religious freedom from the modern state. But even as he does so, he strives to keep in view "natural ends," and the aid that they can provide in coming to our "final" end. For intriguing analyses of Maritain's false step, see Crosson, "Maritain and natural rights," and Michelle Wattkins and Ralph McInerny, "Jacques Maritain and the rapprochement of liberalism and communitarianism," Catholicism, Liberalism, and Communitarianism: The Catholic Intellectual Tradition and the Moral Foundations of Democracy, ed. Grasso et al. (Landham: Rowman and Littlefield, 1995), 151-72.

(42.) As Murray says in his twenty-first note to the Declaration, "Freedom is an end or purpose of society, which looks to the liberation of the human person. Freedom is the political method par excellence, whereby the other goals of society are reached." On this point, in Murray and in Catholic social teaching since Vatican II, see Kenneth L. Grasso, "Beyond liberalism: Human dignity, the free society, and the Second Vatican Council," in Catholicism, Liberalism, and Communitarianism: The Catholic Intellectual Tradition and the Moral Foundations of Democracy, ed. Grasso et al. (Lanham, MD: Rowman and Littlefield, 1995).

(43.) Murray arrives at this teaching, as does Maritain, by looking emphatically and exclusively not to our natural (political) ends but to our "otherworldly" end. And from this end, he posits, first, the existence of the Church's "right" to freedom from the state, and then, on the basis of the freedom demanded by that end, the existence of the individual's rights. He takes our transpolitical end and asks, not "How can it be achieved?" but "What is the beginning for securing this end from the political? How do we secure its conditions over and against those who see our end as political? And his answer is: secure from the state the guarantee of human "freedom" to make a choice. It is perhaps telling that Evangelical Protestants are now becoming enamored of Murray, since his doctrine of natural law, drained of reason as a guide, rests instead on a direct appeal to our supernatural end.

(44.) DRL, note 21. It might be objected that, in note 23 to the DRL, Murray states that "freedom is not an end in itself, but a means for the fulfillment of the highest purposes of man." Freedom is, however, the only political end that Murray recognizes. See also C.T.S.A. Proceedings, 1948, 63: Freedom is the highest political end, and ... the function of the state itself, which is the function of ordering, is the ordering of freedoms into an ordo legalis, and the maintenance of the processes of freedom whereby order itself is kept alive and active, and developed to meet the developing needs of society."

(45.) "The very responsibilities inherent in man's personhood mandate a zone of personal freedom within which human beings can confront these responsibilities in a manner consistent with their nature as persons. Man's moral responsibilities, in other words, are creative of rights vis a vis government, and demand that constitutional limits be placed on the scope of government. The authentic rights of the human person thus have their foundation 'not in the subjective disposition of the person, but in his very nature.' Precisely because its roots are in man's very ontological status as a person, these rights 'continue to exist even in those who do not live up to their obligation of seeking the truth and adhering to it.'" Grasso, "Beyond liberalism," 39.

(46.) Ibid., 43.

(47.) See First Things 67 (November 1996), First Things 69 (January 1997): 2--ii; David Brooks, "The Tempting of the Right, "TheWeekly Standard (November, 1996). Jacob Heilbrunn, "Neocon v. Theocon," The New Republic (December 30, 1996); Michael Novak, Robert George, and Jacob Heilbrunn, "Neocon v. Theocon: An Exchange," The New Republic (February 3, 1997). Contributions of the participants to the controversy have recently been published in The End of Democracy? ed. Richard John Neuhaus (Dallas: Spence, 1997).

(48.) Francis Canavan, "The Catholic concept of religious freedom as a human right," in Religious Liberty:An End and a Beginning, ed. John C. Murrary (NewYork: Macmillan, 1966), 65-80, especially 76-80.

(49.) See Murray, Religious Liberty: An End and a Beginning (New York: Macmillan, 1966), 33, and Canavan, ibid. See also John XXIII's Pacem in Terris.

(50.) Murray, Theological Studies XII, 166.

(51.) See Murray's concurrence with Canavan's point, Religious Liberty: An End and a Beginning, 9, and Cross Currents, 17.

(52.) Grasso, "Beyond Liberalism." See also Paul E. Sigmund, "The Catholic tradition and modern democracy" in Religion and Politics in the American Milieu (South Bend: University of Notre Dame Press, 1986), 3-21.

(53.) Gary D. Glenn presents Murray's arguments concerning the contribution of Christian political thought to the rise of modern liberalism as something that more students of political philosophy should take seriously. See "Murray After Fifty Years: Five Themes," in The Catholic Social Science Review 16 (2011): 113-22. He may be right. But as Philip Gleason has recently reminded us, the Murrayite argument is not altogether new. What Murray did was to employ his considerable scholarly gifts to lend sophistication and substance to it. The claim that Medieval and Counter-Reformation thinkers had made important contributions to the evolution of modern constitutional theory, and even an emphasis on the virtual identity of Scholastic and American political principles, began with Gaillard Hunt's 1917 legend that Jefferson had cribbed the Declaration of Independence from Cardinal Bellarmine. And Lord Acton's claim that Thomas Aquinas was the first Whig had been taken up in the 30s and 40s by the likes of Ernest Barker, Moorhouse Millar, Carleton Hayes, and Walter Lippmann. See Philip Gleason, Contending with Modernity: Catholic Higher Education in Twentieth-Century America (Oxford: Oxford University Press, 1995).
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