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Volume 16 Number 1 Volume 16, Winter 1970, Number 1 Article 6

Natural and the Declaration on Religious Freedom of the

Charles P. Kindregan

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This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more , please contact [email protected]. NATURAL LAW THEORY AND THE DECLARATION ON RELIGIOUS FREEDOM OF THE SECOND VATICAN COUNCIL

CHARLES P. KINDREGAN*

Introduction T HERE ARE FEW AREAS of activity which have been the cause of as much hatred, war and civil discrimination as religious and practice. The record of history indicates that man a great insecurity which gives rise to feelings of aggressive hostility when he confronts a religious belief alien to his own. Freedom to practice according to one's own has been advocated by many , theologians and persecuted religious minorities, but civ- ilized man has consistently practiced gross religious intolerance. This has been true even in the so-called "golden ages" of western civilization. The reaction of the Athenians to ' comments about the , the crude attempts of great Roman emperors such as Marcus Aurelius, Decius and Diocletian to destroy , the slaughter of by Jewish fanatics at Caesarea in 556, the massacres of Jews by Chris- tians in the Armleder of 1336-38, the burning of English Protestants under Queen Mary, the drawing and quartering of Papists in Elizabe- than , the proscription of non-Catholic missionary activity in Colombia, and the forced destruction of Mormon polygamy in the are but a few indicators of this tendency in the story of

* Associate Professor of Law, Suffolk University. B.A., M.A., LaSalle College; J.D., Chicago-Kent College of Law; LL.M., Northwestern University. NATURAL LAW THEORY western man. Rare in history has been the in practice if the present trends continue."3 example of a man like the Pharisee Gamaliel, Among the trends noted by Dr. Brown was who, when the Sanhedrin was about to the advocacy of religious freedom by the order the execution of the Christian Apos- of the tles, could the leaders of Israel: meeting in the twenty-first . The Declaration on Religious keep away from these men and let them Freedom (Dignitatis Humanae) (the Dec- alone. For if this plan or work is of men it laration), promulgated by Paul VI on be overthrown, but if it is of you December 7, 1965, is significant because it will not be able to overthrow it.' places the world's largest religious denom- ination on the side of the proposition that In recent centuries there has been a more the must guarantee freedom of reli- general verbal acceptance of the idea that gious belief and practice for all of its sub- religious freedom should be protected by jects regardless of what they believe. "It is the state, at least in the . At necessary," the Bishops wrote, "that reli- present the of most western nations gious freedom be everywhere provided with provide constitutional protections against with an effective constitutional guarantee" coercions or restrictions of religious belief (article 15). The only limitation placed and practice.2 Whatever the for this on this is the right of the state to "defend development, it raises the that western itself against possible abuses," to "provide man will someday overcome religious in- effective safeguard of the of all cit- tolerance. Dr. Sterling Brown, President of izens and for the peaceful settlement of the National Conference of Christians and conflicts of rights"-but the state can act in Jews, has said that "at first it may only be these areas only in a non-partisan, non- a , but in due time it will also be arbitrary and judicial manner (article 7). true [that religious freedom will prevail] That such thoughts would come from the Fathers of the Second Vatican Council 1 Acts of the Apostles 5:38-39. is particularly significant in that Roman 2 Of course constitutional protections on paper Catholicism as an has a long can be meaningless in . For example, the history of promoting intolerance of other of the U.S.S.R. forbids any "direct religious groups. When Christianity first or indirect restriction of rights" because of social, national, cultural or racial associations. FUNDA- gained official toleration in the Roman MENTAL LAW OF THE RUSSIAN SOCIALIST FEDER- Empire ( of Milan, 313), and then ATED SOVIET art. 123, ch. X (U.S.S.R. secured a preferred under Theodosius, 1918) (Constitution of the Communist Party States, Hoover Institution, Stan. Univ. 1969). Yet signs of intolerance towards others were a flow of recent books and articles indicates that already present. Gradually Jews came these constitutional "protections" have little under various proscriptions. Heretics such for Soviet Jews. See, e.g., E. FLANNERY, THE ANGUISH OF THE JEWS 231 (1965); J. TELLER, THE KREMLIN, THE JEWS AND THE MIDDLE EAST (1957); Decter, The Status of Jews in the Soviet 3 Times-Review, Dec. 23, 1966, at 7 (newspaper Union, 41 FOREIGN AFFAIRS 422 (1963). of the Catholic diocese of La Crosse, Wisconsin). 16 CATHOLIC LAWYER, WINTER 1970 as Arians, Nestorians, Monophysites and the prince who chose the religion which his Manichaeans frequently found themselves subjects were to follow. under civil as well as ecclesiastical dis- against even these few examples, the abilities. Many early Christian writers in- importance of the Declaration can be easily sisted that a person cannot be compelled seen. What is perhaps not so easily seen to accept the Christian faith, 4 but the right is the importance of the underlying the- to believe something other than official oretical basis for religious freedom given by doctrine was often limited. The Code of the Declaration. The constant reappearance Justinian placed unbelievers under further of religious intolerance in Christian history disabilities, for example, it "stripped Juda- '5 makes it imperative that the legal basis for ism of its explicit ." religious freedom flow from firm roots. In the medieval period, Catharist com- Should it be based merely in the needs of munities were destroyed with ecclesiastical the day, should it merely be a device to approval. Christian Europe engaged in a condemn the anti-religious activities of the series of bloody "" to drive the Communist states, then the Declaration's from the holy land. Heretic-hunting statement of the right to religious freedom bishops allowed Jan Hus and Jeanne d'Arc would have little historical impact. If the to be burned at the stake. The roots are so firm that the Church has made used physical torture to discover "false" a doctrinal commitment to religious free- Christians among converted Jews. This was dom, then Catholic states will find it dif- part of the price which western civilization ficult to deny religious freedom without paid to maintain its Catholic unity free from placing themselves outside the Church. This alien influences. paper is an attempt to survey various the- ories about the legal basis for religious free- The witnessed the growth of dom and compare them to the approach fanatic intolerance within the Christian used in the Declaration. church. Catholic-Protestant disputes became so disruptive of the political, social and economic life of Europe that compromises Legislative History of the aimed at reducing friction in soon Declaration came about. These compromises usually When the Bishops met in Rome to orga- involved the simple imposition of a single nize the Second Vatican Council, the pro- form of Christianity on a given people; posed agenda did not include the drafting religious freedom did not exist except for of a separate statement on religious free- dom. Discussion of the subject among Catholics had largely centered on Catholic- 4 E.g., of Milan, Letter 21, PL 16, Protestant dialogue over the status of Ref- 1005; , Letter 23, PL 33, 98; ormation churches in America and Letter 34, PL 33, 132. over church-state relationships in countries 5 E. FLANNERY, supra note citing 2, at 66-67, such as the United States. It was therefore Code of Justinian 1-3-54; 1-10-2; 1-5-13, Novella 131; 1-5-12; 1-5-21. to be expected that any consideration of NATURAL LAW THEORY religious freedom would be made in con- right.8 There has been a noticeable move nection with the ecumenical movement. The away from traditional natural law thinking first two texts of what eventually became among Catholics in recent years," but the the Declaration on Religious Freedom were Declaration (as well as parts of the Pastoral chapters in preliminary drafts of the Constitution on the Church in the Modern on . Within an ecumenical World and the Declaration on Christian framework, an analysis of religious freedom Education) shows that the theory of natural became extremely difficult because the right is likely to continue playing an im- Council was badly divided over the rights portant role in contemporary Catholic of individual conscience in relation to ob- thought. jective . The basis for religious free- dom at this point was rather than The Enlightenment Theory of a natural law-natural right.' John Courtney Natural Right to Religious Murray noted that the decision to create a Freedom and the separate document on religious freedom Declaration released the discussion from "its previous Enlightenment forms an im- formal preoccupation with ecumenical re- portant historical backdrop to the theory of lationships."' 7 In the third draft, the study religious freedom contained in the Declara- was placed in a natural law framework; this tion. Of course, explicitly Christian the- provided the basic structuring of the doc- ological developments also were influential ument through three subsequent re-draft- as will be shown subsequently. But as Dr. ings. Jerald C. Brauer, the Dean of the The final draft takes the position that "the right to religious freedom has its 8 Papal natural law teachings on various subjects foundation in the very of the human are illustrative of this point. See, e.g., Encyclical person" (article 2). Anyone acquainted Letter of John XXIII, Pacem in Terris, April 11, with Catholic theological vocabulary would 1963, AAS 55 at 257 (1963); Encyclical Letter of John XXIIT, Mater et immediately recognize these words as point- Magistra, May 15, 1961, AAS 53 at 401 (1961); Encyclical Letter of Pius ing toward a natural law basis for the XI, Quadragesitno Anno, May 15, 1931, AAS 23 at 190 (1931); Encyclical Letter of Pius XI, Casti Connubii, Dec. 31, 1930, AAS 22 at 546 (1930). ; Murray, The Declaration on Religious Free- 9 See, e.g., A. DONDEYNE, CONTEMPORARY EURO- dora: A Moment in Its Legislative History, in PEAN THOUGHT AND CHRISTIAN FAITH (1958); L. DUPRES, KIERKEGAARD AS THEOLOGIAN: THE RELIGIOUS : AN END AND A BEGINNING 15, 22-23 (J. Murray ed. 1966). OF CHRISTIAN (1963); McKenzie, Natural Law in the , 7 Id. at 27. This is not to say that the document 9 BIBLICAL RES. 1-13 (1964); Walgrave, Is does not retain great ecumenical value (see Static or Dynamic?, Arntz, Natural Law Littell, A Response, in THE DOCUMENTS OF And Its History, in V CONCILIUM IN VATICAN 1I (W. 697 Abbott ed. 1966)) or in- THE AGE OF RENEWAL, MORAL PROBLEMS AND fluence on church problems of authority and CHRISTIAN 22, 39 (F. Bockle ed. conscience. See Murray, Freedom, Authority, and 1965); Wassmer, Is Intrinsic A Viable Community, 115 AMERICA 734 (1966). Term?, 5 CHL STUDIES 307 (1966). 16 CATHOLIC LAWYER, WINTER 1970

School at the University of Chicago, has cive action .... hence the object of religious observed: freedom as a juridical conception is not the actualization of the positive values inherent in religious belief, profession, and prac- religious freedom emerged.., not so much tice. . . . The object of the right is simply and activities of the from the the assured absence of constraints and re- traditional Christian churches, but primarily straints on individuals and groups in their from the philosophy of the Enlightenment efforts to pursue freely the positive values and from the necessities of historical cir- 12 of religion. cumstances. 10 The ideas described by Murray, and Murray, the American John Courtney adopted in the Declaration, grew out of the Jesuit who had been widely proclaimed as Enlightenment. From the classical jus author of the Declaration, the principal naturale the Enlightenment philosophers indicated the debt which the document owes evolved a theory of natural right. This philosophy of natural to Enlightenment evolution is noticeable in the writings of as this is embodied in the first amend- right Grotius, Pufendorf, Vattel, ment of the Constitution of the United and Wolfe. However, it was States:" who most influenced this development. Locke did not cut himself off completely Religious freedom is a freedom from coer- 3 medieval of natural law, 1 cion; it is an immunity; its content is neg- from ative. Historically, the First Amendment but he pictured the content of natural law to the Constitution of the United States as a catalogue of rights inherent in all launched this conception. The freedoms of human .' 4 Both Locke and Rousseau the First Amendment, including the "free believed that natural rights become civil exercise of religion," were understood to be rights in social man. The right to religious certain specified immunities; moreover, they were essentially related to the concept of freedom was an example of a natural right, constitutional , which is two- and its constant citation by the Enlighten- fold in its import. First, the powers of ment philosophers indicates its importance government are limited by a higher order of in their thinking. ; and second it is "to secure these rights [that] are insti- Locke and the other natural rights advo- tuted among men (Declaration of Indepen- cates of the Enlightenment met consider- dence)." The political or civil freedoms of able opposition, notably from Thomas the First Amendment . . . were not claims on society and government for positive ac- assurances against positive coer- tion, but 12 Murray, supra note 6, at 27-28. 13 His thinking shows the influence of Joseph Hooker, who had developed an Anglican- 10 Brauer, Religious Freedom as a Human Right, Thomistic natural law doctrine. Scott-Craig, John in RELIGIOUS LIBERTY: AN END AND A BEGINNING Locke and Natural Rights, II SOUTHERN METH- 45, 48 (J. Murray ed. 1966). ODIST UNIVERSITY STUDIES IN 29 11 Father Murray had been the leading proponent (1955). of the American approach to church-state rela- 14 J. GOUGH, JOHN LOCKE'S POLITICAL PHILOS- tions among Catholic theologians. See J. MURRAY, OPHY (1950); W. VON LEYDEN, ESSAYS ON THE WE HOLD THESE (1960). LAW OF (1954). NATURAL LAW THEORY

Hobbes and , but unquestion- 2. The right to practice religion freely for- bids the state to coerce the individ- ably prevailed in the minds of the American 19 ual. founding fathers. Adams, Paine, Henry, 3. The natural right to religious freedom Priestly, Yates, Hamilton and Wilson all becomes a civil (constitutional) right proclaimed their devotion to the natural and requires the state to protect the rights of man.15 made citizen against religious coercion. The the classic statement of the Enlightenment state, however, has no affirmative duty theory of natural right in the Declaration toward religion. of American Independence: Does the Declaration see the right in the We hold these truths to be self-evident, same light as many commentators have that all men ... are endowed by their Cre- maintained? The Declaration proclaims that ator with certain[16i unalienable rights, that "the right to religious freedom has its foun- among these are life, liberty, and the pur- dation, not in the subjective disposition of suit of . That to secure these the person, but in his very nature" (article rights, governments are instituted among 2), that this right requires "immunity from men .... 17 external coercion as well as psychological That Jefferson thought of freedom from freedom" (article 2), and that "this right coercion in religious practice as one of these of the human person to religious freedom unalienable rights, a dimension of "liberty," is to be recognized in the constitutional is without doubt.18 law whereby society is governed. Thus it is to become a civil right" (article 2). The Enlightenment doctrine of the These ideas certainly sound of the En- natural right to religious freedom could be lightenment. summarized in three points: However, there are some commentators 1. The right to believe and practice reli- who detect basic departures from this gion, or not to believe, is inherent in pattern. Professor Denenfeld of Western man as a thinking, willing . Michigan University has written that the Declaration "differ[s] sufficiently in its fundamental means and purposes to be out 15 Manion, The Natural Law Philosophy of the Founding Fathers, 1 NAT. L. INST. PROC. 3 (1947). Wright, American Interpretationsof Nat- ural Law, 20 AM. POL. Scr. REV. 524 (1926). 19 There is a similarity between Enlightenment 16 Jefferson's phrase was "inherent and unalien- thought and the "negative natural law" of Lao- "cer- able rights." Congress substituted the word Tze, the teacher of . His tao, the way tain" for "inherent." THOMAS JEFFERSON ON of nature, is for each man to work out his DEMOCRACY 13 (S. Padover ed. 1954). 17 Declaration of Independence. destiny free of any interference from the state. 18 See An Act for Establishing Religious Free- , The Natural Law in the Chinese Tradi- dom. This act, written by Jefferson, became law tion, 5 NAT. L. INST. PROC. 119, 125-29 (1951). in Virginia in 1785. The text is found in 2 BOYD, American are familiar with such ideas THE PAPERS OF THOMAS JEFFERSON 545 (1950). since this philosophy dominated Supreme For further discussion, see T. JEFFERSON, NOTES thinking in law during the nineteenth ON THE STATE OF VIRGINIA (W. Peden ed. 1955). century. 16 CATHOLIC LAWYER, WINTER 1970 of harmony with the genius of the Consti- Scholastic Natural Law, , tution. '20 Certainly it is true that there are and the Declaration ideas in the Declaration with which the Christians have frequently used the Enlightenment philosophers would have phrase: "the natural law is written on the taken issue. The Declaration recognizes the heart of man."'2 2 The phrase is based on idea of an established religion "in view of Paul's statement to the Romans: "the peculiar circumstances obtaining among gentiles who have no law do by nature what certain peoples" (article 6), as long as prescribes . . . they show the work freedom of practice is maintained equally of the law written on their hearts. 2 3 Pro- for all. The statement that "government fessor Julius Stone of the University of I ..ought to take account of the religious Sidney thought that Paul "left the overall life of the people and show it favor" (article impression that God's dictates are not to 3) would seem to be quite foreign to first be understood in terms of human under- amendment thinking. In spite of these state- standing, and are not rational in terms of ments, however, the overall impression human . ' '24 Indeed, the most influ- created by the Declaration is of a strictly ential of the early Christian writers, impartial state whose function is to prevent Augustine of Hippo, did not think of natural coercion of religious belief and practice. law as having a purely rational basis. He John Cogley, the Religion Editor for the saw natural law as a transcription of the will New York Times, has observed that "in and of God into the spiritual the Declaration . . . there are bumpy faculties of man,25 a transcription intended stretches; the screeching of conservative to aid man in following the eternal law 20 brakes is heard almost every time the text which is in God. turns a new theological corner."' Un- questionably, the compromises required to In the , Christian philos- achieve agreement among several thousand ophers began to move toward a more men from every nation on earth resulted specifically rational approach to natural law. in some imbalances in the text. But this Influenced by the writings of , the reader's analysis of the text convinces him that the thinking of the Declaration is at least a first cousin to the Enlightenment 22 Encyclical Letter of Pius XI, Divine Redemp- philosophy embodied in the first amend- , March 19, 1937, AAS 29 at 65, 76 (1937). See also Address by Pius XI, Dec. 24, 1941, ment. AAS 34, at 16 (1942). The great of Luther, Philip Melanchthon, used the phrase. See P. MELANCHTHON, THE Loci 110 (C. Hill trans. 1944). 20 Denenfeld, The Counciliar Declaration and 23 Letter to the Romans 2: 14-15. the American Declaration, in RELIGIOUS LIBERTY: 24 J. STONE, HUMAN 43-44 (1965), AN END AND A BEGINNING 120 (J. Murray ed. citing I Cor. 1:19-28, 2:14, 3:19; 1 Tim. 6:16. 1966). 25 Augustine of Hippo, Of Disputed Questions 21 Cogley, After the Council, THE CRITIC, April- 53, 2. May 1966, at 51, 52. 26 Augustine of Hippo, Against Faustuin 22, 27. NATURAL LAW THEORY

Mohammedan philosophers Avicenna and man should achieve and what he ,2' 7 and Jewish thinkers such should avoid.:1 as and Moses The greatest of the scholastics, St. Maimonides, 28 the scholastics built a whole , suggested that system of natural law morality. The dom- inant feature of this philosophy was the there is in man an inclination to . . . emphasis given to the role of "right reason" which is special to him: thus man has a natural inclination to know the truth about in determining the natural rights and duties God, to live in society, and so whatever of man. Natural law is that part of God's pertains to this inclination pertains to nat- design for the which can be known ural law, e.g., to shun ignorance, to avoid to man by his own reason without the aid offending those among whom one has to 2 of Judaeo-Christian revelation. This bore a live. resemblance to 's "right reason which applies to all men a true law, unchangeable It is the inclination to know the truth about and eternal, which accords with human God, and to do so in a social world, which nature. '29 But whereas the Roman stoics is the basis for religious freedom in the found a statement of this law in the jus thinking of contemporary Thomists. Jacques gentium, the scholastics deduced the content Maritain has written: of natural law from the which they With respect to the state, to the temporal believed human life should achieve. Some community, and to the temporal power he commentators have described the basic [man] is free to choose his religious path principle of scholastic natural law, "bonum at his own risk, his freedom of conscience 33 est faciendum, malum vitandum," as a is a natural, inviolable right. "tautology, '30 but the medieval scholastics were quite precise in stating what goods Aquinas himself, however, never alluded to religious freedom as that right is pro- posed in the Declaration. He felt that the rights of Jews to exercise their religion must 27 See 11 F. COPELSTON, THE HISTORY OF be protected PHILOSOPHY 190-99 (1950). by the because 34 28 See I. HUSIK, A HISTORY OF MEDIEVAL JEWISH of the truth found in Judaism. But the PHILOSOPHY (1916); Freehof, The Natural Law in the Jewish , 5 NAT. L. INST. PROC. 15 (1951). 31 Cf. T. FARRELL, THE NATURAL LAW ACCORD- 29 M. CICERO, DE REPUBLICA 111 22 (circa 51 ING TO ST. THOMAS AQUINAS AND SUAREZ (1930); B.C.). E. GILSON, MORAL VALUES AND MORAL LIFE, 20 See Nielson, The of Natural Law, in THE SYSTEM OF ST. THOMAS AQUINAS (1931); LAW AND PHILOSOPHY: A 122, 124 Stevens, The Relationship of Law and Obligation (S. Hook ed. 1964). Some modern Thomists are 29 PROC. AM. CATH. PHIL. ASS'N 195 (1955). so reluctant to specify concrete goods that they 32 ST. THOMAS, I-It, q. 94, deserve the criticism. See, e.g., Ryan, The Tradi- art. 2. tional Concept of Natural Law: An Interpreta- 33. J. MARITAIN, THE RIGHTS OF MAN 46 (1958). tion, in LIGHT ON THE NATURAL LAW 13 (1. 34 ST. THOMAS, SUMMA THEOLOGICA I-II, q. 10, Evans ed. 1965). art. 11. 16 CATHOLIC LAWYER, WINTER 1970

rites of other non-Christians were to be directly toward God. No merely human tolerated in a Christian state only if the power can either command or prohibit acts good of avoiding "scandal or disturbance" of this kind (article 4). was more important than stamping out and requires that the state permit com- activities which are "neither truthful nor munity activities or group rites to all beliefs profitable. '35 However, Thomas opposed (article 5). The only instance in which the the forced of either Jews or pa- state has a right to limit religious practices gans. 30 He rejected any toleration of is to prevent abuses relating to public Christian heretical activity. If heretics did order-but certainly the religious content not renounce their "forgery" of Christianity of the belief is irrelevant. they were to be excommunicated by the church and "deliver[ed] . . . to the secular It should be pointed out in fairness to to be exterminated from the world contemporary Thomists that all the leading by death. '37 He also believed that a prince inheritors of the scholastic tradition today forfeited his right to rule when he renounced maintain that religious freedom is a natural 3 8 the Christian faith. right belonging to all regardless of the con- tent of their belief.3 9 While ignoring The Declaration ignores the various dis- Thomas' own views on toleration of non- tinctions made by Aquinas. The content believers and heretics, the Thomists have of religious belief is made totally irrelevant constructed a right to religious freedom to the right to practice what the individ- based on man's duty to pursue the truth ual's belief requires: about God. nor is anyone to be restrained from acting The Declaration adopts the scholastic in accordance with his own beliefs, whether idea that natural right can be known "by privately or publicly, whether alone or in association with others, within due limits reason itself" (article 2). It describes the (article 1). right as flowing from man's search for "truth in matters religious" (article 2), Religious freedom is said to consist in thus following the scholastic principle of deducing natural rights and duties from those internal, voluntary and free acts the goods man should be seeking. In whereby man sets the course of his life describing the imposition of "profession

35 Id. 36 Id. at art. 12. 39 See, e.g., J. COGLEY, NATURAL LAW AND 37 Id. q. 11, art. 3. It has been pointed out that MODERN SOCIETY (1961); A. D'ENTREVES, NAT- Aquinas' views on heretics flowed from the com- URAL LAW (1964); LIGHT ON THE NATURAL LAW mon medieval belief that a Christian who know- (I. Evans ed. 1965); J. FUCHS, NATURAL LAW ingly rejects his faith must have a . (1965); J. MARITAIN, FREEDOM IN THE MODERN Rommen, A of Natural Law, in LAW WORLD (1935); H. ROMMEN, THE NATURAL LAW AND PHILOSOPHY: A SYMPOSIUM 105, 119 (S. (1947); J. Wu, FOUNTAIN OF JUSTICE: A STUDY Hook ed. 1964). IN THE NATURAL LAW (1955); Maritain, Govern- 38 ST. THOMAS, SUMMA THEOLOGICA Il-II, q. 12, mental Repression of Heresy, in PROC. CAT. art. 2. THEO. Soc. AM. 26 (1949). NATURAL LAW THEORY or repudiation of any religion" on people imperative. . . . Act not as a means or by the state as a "wrong" (article 6), the vehicle of the forces of nature, but as an Declaration approaches the Thomistic autonomous being, having the quality of a beginning and an end . . . human actions notion of an unjust law, i.e., one which are considered no longer in their empirical "inflicts unjust hurt on 40 its subjects.1 The nexus, but in their transcendental depen- theory that a state which hurts its citizens dence with regard to the . . . absolute be- by depriving them of fundamental rights ing of the subject. They are not merely ex- has done a wrong, with the result that its plained as phenomena of nature, but they may not be binding, was one are evaluated as expressions of liberty, that is, in comparison with that criterion which of the scholastics' greatest contributions to is given by the intimate being of the sub- western jurisprudence, and the Declaration ject, and constitutes its proper and charac- 42 inclines toward this view without expressly teristic law. adopting it. Thus, for Del Vecchio, freedom is primary. It is not merely a means to another good, Neo-Kantian Natural Law and but is itself the source of "natural law." the Declaration The transcendental method of Immanuel It is apparent from the study made of Kant, based on the categorical-imperative, the Declaration above that the Bishops did states that concepts of choice and freedom not value freedom for its own sake as the neo-Kantians would. Man must be free in are the a priori basis of law.41 Law is not drawn from reason, intuition or order that he can pursue the truth (article but from man's right to be free and choose. 2) not for the sake of freedom itself. The For Kant, the idea of deducing natural Bishops would no doubt agree with Del right by reason or inducing it from history Vecchio that every man must have "liberty or experience was nonsense. of conscience . . . [because] by his very nature . . . [man] is a subject of right . . . In Catholic circles the most influential and the fundamental right of liberty . . . neo-Kantian has been Georgio Del Vecchio, [is] inalienable. '43 But they would do so the former President of the faculty of because of the good of truth rather than the Jurisprudence at the University of Rome, a priori good of freedom of choice. who describes a It is interesting that even Del Vecchio transcendental faculty or vocation which would grant the right of the state to limit asserts itself psychologically in the con- such rights as "on the sciousness of one's own liberty and respon- basis of law, that is, with the virtual partic- sibility, converts itself immediately into a ipation of all."' 44 In describing the right of supreme of the subject, the ethical

40 ST. THOMAS, SUMMA THEOLOGICA I-II, q. 96, 42 G. DEL VECCHIO, 439-40 art. 4 (reply to objection 3). (T. Martin trans. 1953). 41 1. KANT, METAPHYSISCHE ANFANGSGRUNDE DER 43 Id. at 449-52. RECHTSLEHRE (1797). 44 Id. at 452. 16 CATHOLIC LAWYER, WINTER 1970

the state to prevent abuses under the pre- Theologians such as Ignace Lepp, s Marc text of religious freedom the Declaration Oraison,4a and Werner Schdllgen,50 opened insists that such restraints not be "arbitrary" natural law morality to experiment, in- but "controlled by judicial norms" (article duction and historical considerations, and 7). philosophers such as made respectable among Catholics. By 1965 it was not unusual to find a Cath- The Declaration and Socio-llistorical olic sociologist telling a group of Catholic Reality as a Basis of Religious Freedom theologians that

In the several decades before Vatican II the idea of natural law . . . does not take Catholic legal philosophers carried on a account of the distance between underlying natural capacities and dispositions and the constant debate against those who advo- historical decisions which intervene between cated a "positivist" or "existential" basis for those capacities and the concrete com- law. The search for universal values flowing munity."' from the ontological order of things was thought to be incompatible with the de- The ferment in Catholic circles over the velopment of law on the basis of social problem of birth limitation no doubt aided experiment or historical reality. Professor J. W. Smith has described the former as a model of "logico-mathematical deduction" 48 "We ... do not regret the 'good old days' and the latter as "piecemeal inductive when life was lived under the illusion of the given universality of the moral law, but we '4 5 engineering. As late as the 1950's there enthusiastically take up the challenge of realizing were few Catholic writers who saw any ourselves." I. LEPP, THE AUTHENTIC MORALITY hope of a reconciliation of the two views, 62 (B. Murchland trans. 1965). 49 "The governing every life are too although some non-Catholic writers held fluid, too 4 6 dynamic, to be enclosed within the such a hope. strict boundaries of a system, for this is precisely to destroy their existential character." M. In the sixties, new trends in Catholic ORAISON, LOVE OR CONSTRAINT? 120 (U. Mor- natural law thinking began to become ap- rissey ed. 1961). 5o "The question . . . [is] whether, and how, the parent.47 The influence of Teilhard de essentially dynamic character of reality is com- Chardin started to persuade Catholics that patible with permanent, essential attributes; man himself is the artisan of the world. whether the static way of looking at things, from the standpoint of natural law, needs to be supplemented with the introduction of historical considerations which give to actuality its peculiar and otherwise unrecognizable value and impor- 45 J. SMITH, THEME FOR REASON 6 (1957). tance . . . a satisfactory can be made 46 See, e.g., C. CURTIS, LAW As LARGE As LIFE which permits such a synthesis of timeless prin- (1959); Jenkins, The Matchmaker; Toward a ciples and historically determined norms of Synthesis of Legal Idealismn and , 22 reference. W. SCHOLLGEN, MORAL PROBLEMS To- J. LEG. EDUC. 1 (1959); Pound, The Revival of DAY 18 (E. Quinn trans. 1963). Natural Law, 17 NOTRE DAME LAW. 287 (1942). ."1 Schmitz, The New Freedom and the Integrity 47 E.g., Nogar, The Emergence of the Person in of the Profane, 11 PROC. Soc. CATH. COLLEGE Natural Law Theory, 5 CHI. STUDIES 81 (1966). TEACHERS SACRED DOCTRINE 13, 40 (1965). NATURAL LAW THEORY the move toward a more dynamic theory closer relationships," the Bishops conclude 52 of natural law. that "it is necessary that religious freedom be everywhere provided with an effective The Declaration reflects some of these constitutional guarantee" (article 15). developments. It begins with the observa- tion that there is a growing "demand for freedom in human society" (article 1). Christological Natural Law The wording of article 1 leaves the im- , certainly one of the most pression that the Bishops are "search[ing] influential voices of modern , into the and doctrine of has suggested that natural rights exist only the Church" to find a basis for religious within the framework of 's salvic freedom because of the "demand" for reli- act.'' Christological natural law has its gious freedom which has evolved among roots in the Reformation tradition which modern men. This is a remarkable admis- sees nature as essentially corrupted by sin. sion by the Church that history, as much If nature has been corrupted then there is as its own principles, has opened up its no natural good for man unless Christ re- understanding of this dimension of natural stores it to him. Emil Brunner, the best law. Indeed, article 15 is largely devoted known contemporary Protestant natural to the socio-historical condition of con- law advocate, rejects this "Christological temporary man as an argument for reli- as a collection of phantasms which gious freedom. The Bishops approve "the at best are of no use,' 5 4 but Barth's state- fact . . . that men of the present day want ment is probably most representative of to be able freely to profess their religion" Protestant thought. Catholics have consis- (article 15). They denounce the fact tently rejected the Christological natural law; they believe that while sin deprived that forms of government still exist under man of grace and wounded which, even though freedom of religious it did not destroy natural worship receives constitutional recognition, good. Catholic theologians insist that man the powers of government are engaged in an effort to deter citizens from the profes- possesses natural rights simply because he sion of religion. is a man-redemption is not the source of these natural rights. the real- From these existential facts, and As could be expected, the Declaration cultures and ization that "men of different does not employ Christological natural law together in are being brought to reach the conclusion of religious free- dom. Its basis is the "inviolable rights of the human person" (article 1) rather than 52 See, e.g., WHAT MODERN CATHOLICS THINK redemption. The teaching of gives ABOUT BIRTH CONTROL (W. Birmingham ed. 1964); L. DUPRES, CONTRACEPTION AND CATH- OLICS (1965); G. GRISEZ, CONTRACEPTION AND UND RECHT 1 NATURAL LAW (1964); J. NOONAN, CONTRACEP- 53 K. BARTH, RECHTFERTIGUNG TION (1965); T. ROBERTS, CONTRACEPTION AND (1944). HOLINESS (1964). 54 E. BRUNNER, DOGMATIK II 374 (1950). 16 CATHOLIC LAWYER, WINTER 1970 man a greater insight into the dignity of and safety within its borders.5 7 Thus, for the human person, but his salvic act is not the Moslem, a revelation through the the source of natural rights. prophets shows man his natural rights. The Declaration adopts a form of re- Revealed Natural Law vealed natural law. 5s Christian revelation "discloses the dignity of the human person Throughout human history the idea that in its full dimensions" (article 9). Thus a divine revelation is the source of man's the "doctrine of freedom has roots in divine knowledge of his natural rights and duties revelation" (article 9). Revelation is not has constantly reappeared. For example, the sole source of this knowledge for "this the Moslem theory of natural law is based dignity [has] come to be more adequately on the of God in the universe. known to human reason through centuries The laws of nature are immutable because of experience," nor does revelation "affirm they are the thoughts of God. Muhammad in so many words the right to immunity said "this is the Divine Nature on which from external coercion in matters religious" God has built the nature of man." 55 While (article 9). natural law can be known in the heart of man, sin and ignorance prevent him from The primary revelational basis for reli- knowing the ways of nature. The content gious freedom is the New Testament teach- of natural law can therefore be known only ing that faith is a gift of God which through the religious prophets. The prophet, man is at liberty to accept or re- as a man of God, alone has the wisdom to ject. Being free, faith cannot be based on make clear the law of nature.5 6 The great any "manner of coercion" (article 10). Prophet, Muhammad, taught that man has Religious freedom makes "no small con- a natural right to freely practice the reli- tribution to the creation of an environment gion he . Religious freedom was to in which men can without hindrance be prevail in Islam, and it could be limited invited to the Christian faith and embrace only by the need of state to insure order it of their own " (article 10). The example of Christ and the Apostles not using force to spread their views is cited as giving an additional revelational insight 55 MUHAMMAD, QUARN, Rum 30. 56 Cf. Sundaram, The Natural Law in the Hindu into religious freedom (article 11). The Tradition, 5 NAT. L. INST. PROC. 69, 72 (1951). Bishops saw the Declaration as being The Hindu tradition is also revelational, for the content of natural law is "promulgated . . .by teaching. The teachers are those we call seers, sages, prophets, mystics, philosophers, law-givers, 57 See Hakim, The Natural Law in the Moslem and sons of God." A comparable example Tradition, 5 NAT. L. INST. PROC. 29, 33-35 may be the ching as developed in the Canonical (1951). Scripture of . The ching is the im- 58 In Catholic thought, revealed natural law mutable law of nature, but its content is found seems to have had its origin in the writings of in the sacred canons as these were developed by Gratian who thought that natural law was iden- Chinese -theologians. See Hu Shih, tifiable with the Decalogue, Decretum 1 pars, d. supra note 19, at 133. I proem. NATURAL LAW THEORY

faithful to the truth of the . . . and Council to put the right to religious free- giving support to the principles of religious dom on what is for Catholics the most solid freedom as befitting the dignity of man and possible juridical grounds. 59 If Aristotle being in accord with divine revelation (ar- could justify , if Aquinas could jus- ticle 12). tify the burning of heretics, and if sixteenth century Spanish theologians could justify Conclusion the denial of civil rights to the Indians of Six different approaches to natural law South America because they "practiced have been discussed above and each has blasphemy," then it is apparent that a be- been compared to the content of the Dec- lief in natural law does not of itself assure laration. Four of these theories are em- a devotion to natural rights as contempo- bodied in some form in the document; rary man understands that concept. How- only the neo-Kantian and Christological ever, since Catholics believe that revelation approaches seem to have had no influence constitutes the central in the history on the Bishops. The fact that four ap- of man, the Bishops did try to place the proaches did influence the text may give right to religious freedom on the firmest an impression of random eclecticism, but possible natural law basis which they could there is generally an internal consistency find. of thought in the Declaration. The resort to a first amendment solution to the prob- lem of the state's function in maintaining 59 See generally B. HARING, THE LIBERTY OF THE religious freedom and the dependence on CHILDREN OF GOD (1966); L. JANSSENS, FREE- historical-social realities in explaining the DOM OF CONSCIENCE AND RELIGIOUS FREEDOM right enable the Church to speak intelligibly (1966); T. LOVE, : CONTEMPORARY CHURCH-STATE THEORY (1965); to modern western man. The influence of Crittenden, Religious Liberty: A Study in Doc- contemporary rights-oriented Thomists en- trinal Development, 200 CATH. WORLD 355 abled the Bishops to express these ideas in (1965); Murray, This Matter of Religious Free- dom, 112 AMERICA 40 (1965); Murray, The a vocabulary familiar to Catholics. The Problem of Religious Freedom, 25 THEO. STUDIES dependence on revelation allowed the 503 (1964).