The Catholic Lawyer

Volume 7 Number 4 Volume 7, Autumn 1961, Number 4 Article 3

The Challenge of John Courtney Murray - Can an American Public be Stated?

Joseph T. Tinnelly, C.M.

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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 information, please contact [email protected]. THE CHALLENGE OF JOHN COURTNEY MURRAY- CAN AN AMERICAN PUBLIC PHILOSOPHY BE STATED?t

JOSEPH T. TINNELLY, C.M.*

1 F OR MANY YEARS Father John Courtney Murray, S.J. has been one of the most articulate Catholic theologians in America. As the Time cover story for December 12, 1960 said: "His lucid, well-modulated concern for the has long earned him eminence among the cognoscenti with time for learned journals and debate." Now in his first book, "We Hold These Truths", 2 "[H]e is entering a new, broader area of influence. In the months to come, serious Ameri- cans of all sorts and conditions - in pin-stripes and laboratory gowns, space suits and housecoats - will be discussing his hopes and fears for American Democracy." "We Hold These Truths" is a timely book. At any time it would deserve and command the interest of thoughtful lawyers and warrant attention in legal journals. But today, as Russia pollutes the air with radioactive

t The present article is reportorial not scholarly. Consequently, the reader will find few footnotes. For the most part the discussion follows the order of the book itself and the subheadings, many of which are Father Murray's own, should serve as sufficient guides to parallel passages in the book, We Hold These Truths: Catholic Reflections on the American Proposition, by John Courtney Murray, S.J. © Sheed and Ward, Inc., 1960. An attempt has been made to express the author's thoughts accurately and, when- ever possible, in his own words. Where this attempt has failed or where the argu- ment has been truncated, the reader is referred to the book itself for the complete text. - A.B., St. Joseph's College (1934); LL.B., St. John's University (1942); LL.M., Harvard Law School (1943); J.S.D., (1957); Professor of Law (1946-59) and Dean (1952-59) St. John's University School of Law; Editor, The Catholic Lawyer (1955-59); Superior, Vincentian Fathers' Residence, Brook- lyn, N. Y. 1 Father Murray has been Professor of at Woodstock College since 1937, and editor of Theological Studies since 1941. During 1951-52, he was Visiting Pro- fessor of Philosophy at . He is presently a consultant to the Center for the Study of Democratic Institutions of the Fund for the Republic, and Catho- lic Departmental Editor for the Encyclopaedia Britannica. 2 We Hold These Truths: Catholic Reflections on the American Proposition, by John Courtney Murray, S.J. © Sheed and Ward, Inc., 1960. AMERICAN PHILOSOPHY fallout and shakes the foundations of the Some solutions have been suggested but United Nations, as our Judaeo-Christian for the most part the author has merely civilization faces attack by philosophical indicated the direction in which solutions and political(barbarians, as intellectual cir- may fruitfully be sought. It remains for cles celebrate "the demise of God," every many minds over a period of many years American lawyer, Catholic or non-Catholic, and through the media of many volumes philosophical or practical, has a duty to his to further the development of solutions. country and to his profession to ponder There will then still remain the difficulty of well the matters which Father Murray dis- demonstrating to the American Bar and cusses so lucidly and forcefully. the general public that the resultant phi- No book review will suffice; no summary losophy of law is compatible with Amer- is adequate. The book itself must be read. It ica's history, ideals and aspirations. must be studied. More - it must serve as a The pages which follow constitute to starting point for further reflection and some extent a summary of "We Hold These discussion. These are not the exuberant Truths." An attempt has been made to words of an over-enthusiastic reviewer. They provide herein a bird's-eye view of Father are the considered conclusions of many Murray's philosophy of law for the busy lawyers who have a deep concern for the and particularly for the non-philosophically welfare of America. trained lawyer. In the pages of "We Hold These Truths" It will, of course, satisfy no one. Father Father Murray has sketched the outline of Murray himself can find scores of instances a public philosophy of law as the back- where his exactmeaning has been lost; his ground for a discussion of a series of prac- argument truncated; his view misinter- tical and vital problems which threaten the preted or improperly emphasized. unity and perhaps the survival of America. Lawyers will complain that the style is It is by no means a comp'ete philosophy philosophical, the language interspersed of law. That was not the intention of the with terms such as epistemology, meta- author. But it does provide a framework physics, theodicy and cosmology; they will wherein a philosophy may be developed likewise complain that the content lays and a starting point from which a begin- much more emphasis on philosophy than ning may be made. on law. The lawyer who understands the ieta- Philosophers will dissent according to phor of the law's being a "seamless web" the various schools whose views they es- will appreciate the difficulty of discussing pouse. Even Catholic philosophers will not any part of a philosophy of law without be satisfied. They will recognize the inad- some references to other phases of that equacy in this summary (and perhaps even philosophy. in the original) of the treatment of many Consequently, Father Murray's book is concepts which are extremely complex and welcomed because of the broad area of highly technical. Some will even take issue philosophy which he has managed to en- with particular theories which reflect long- compass and for the great number and standing points of disagreement among wide range of philosophical and legal prob- Catholic scholars or which represent a de- lems which he has posed. parture from venerable and widely held 7 CATHOLIC LAWYER, AUTUMN 1961 concepts of the relationship of and can Proposition rests on the more traditional state. conviction that there are truths; that they However, the present effort does not can be known; that they must be held; for, if they are not held, assented to, consented to, strive to satisfy anyone, much less every- worked into the texture of institutions, there one. It merely proposes Father Murray's can be no hope of founding a true City, in book and the thoughts which he expresses which men may dwell in dignity, peace, 5 therein as a vehicle for a discussion of a unity, justice, well-being, freedom. philosophy of law which will satisfy the America is a religiously pluralist soci- needs of America. ety. By pluralist, Father Murray means the Even this limited goal is somewhat pre- coexistence within one political commu- sumptuous. No single person can achieve nity of groups who hold divergent views it and by its very nature the task of formu- with regard to religious questions - those lating a philosophy which will provide for ultimate questions that concern the nature changing circumstances will be an unend- and destiny of man within a universe that ing one. But a start must be made and stands under the reign of God. Pluralism, "We Hold These Truths" is proposed as a therefore, implies disagreement and dis- starting point. sension within the community. But it also The foreword to "We Hold These implies a community within which there Truths" declares Father Murray's thesis: must likewise be agreement and consensus. It is classic American , immortally If society is to be at all a rational process, asserted by Abraham Lincoln, that the new some set of principles must motivate the gen- nation which our Fathers brought forth on eral participation of the community. On the this continent was dedicated to a "proposi- other hand, these common principles must tion."... not hinder the maintenance by each group Every proposition, if it is to be argued, of its own different identity. The problem supposes an epistemology of some sort.... of pluralism is, of course, practical; as a [T]he American Proposition rests on the project, its "working out" is an exercise in forthright assertion of a realist epistemology. civic virtue. But the problem is also theoreti- The sense of the famous phrase is simply cal; its solution is an exercise in political in- this: "There are truths, and we hold them, telligence that will lay down, as the basis for and we here lay them down as the basis and the "working out," some sort of doctrine. 6 inspiration of the American project, this con- stitutional commonwealth."'3 In a thought-provoking Introduction, the author sketches the background of the Father Murray then makes the flat dec- chapters which follow. laration: "If this assertion is denied, the American Proposition is ... eviscerated at 4 The Civilization of the Pluralist Society one stroke." The American Proposition is, he con- America is a pluralist society. Protes- tants, Catholics, Jews and secularists, each tinues, with their own histories, faiths, prejudices, In many respects a pragmatic proposition; but its philosophy is not pragmatism. For the fears, suspicions, hopes, aspirations, have pragmatist there are, properly speaking, no struggled to attain a society and a govern- truths; there are only results. But the Ameri- ment which will protect the legitimate in- 3 MuRRAY, WE HOLD THESE TRUTHS vii-ix (1960). 5 Id. at ix. 4 ld. at ix. (Emphasis added.) 6 Id. at x. AMERICAN PHILOSOPHY terest of each group without demanding Catholic and Protestant distrust each an abdication of principles. other's political intentions. There is the mem- Discourse on public affairs, on the af- ory of historic clashes in the temporal order; the Irishman does not forget Cromwell any fairs of the commonwealth, and particu- more readily than the Calvinist forgets Louis larly on the problem of consensus, inev- XIV.... The Catholic regards Protestantism itably moves upward into realms of some not only as a heresy in the order of theoretical generality - into metaphysics, but also as a corrosive solvent in the order ethics, theology. Rather than carrying the of civilization, whose intentions lead to chaos. The Protestant regards Catholicism discussants into areas of agreement or dis- not only as idolatry in the order of religion agreement, however, it creates, as a rule, but as an instrument of tyranny in the order a confusion of ideas, a clash of conflicting of civilization, whose intentions lead to cleri- positions in which the issue of agreement calism .... 9 or disagreement becomes irrelevant. There is the ancient resentment of the Jew, who has for centuries been dependent One does not know what the other is for his existence on the good will, often not talking about. Moreover, one withholds as- forthcoming, of a Christian community. sent to, if he even adverts to, the immediate Now in America, where he has acquired argument, wondering what the man who social power, his distrust of the Christian makes it is really driving at. community leads him to align himself with the Take, for instance, the question of natural secularizing forces whose dominance, he law, of which there will be much discourse in thinks, will afford him a security he has never known .... 10 the pages that follow. For the Catholic it is simply a problem in metaphysical, ethical, The secularist too, is at war. Historically political, and juridical argument. He moves his first chosen enemy was the Catholic into the argument naturally and feels rela- Church and it still must be the enemy of tively at ease amid its complexities. For the Protestant, on the contrary, the whole doc- his choice for two reasons. trine of is a challenge, if not an First, it asserts that there is an authority affront, to his entire style of moral thought superior to the authority of individual reason and even to his religiosity. The doctrine is and of the political projection of individual alien to him, unassimilable by him. He not reason, the state .... Second, it asserts that only misunderstands it; he also distrusts it. by divine ordinance this world is to be ruled ... [In fact,] "Catholic appeals to natural by a dyarchy of authorities, within which the law remain a source of friction rather than temporal is subordinate to the spiritual, not a basis of deeper understanding" as between instrumentally but in dignity. This assertion Protestant and Catholic .... 7 is doubly anathema. It clashes with the Protestantism in America has forged an socio-juridica! monism that is always basic identification of itself, both historical and to the secularist position when it is consis- ideological, with American culture, particu- tently argued. In secularist theory there can larly with an indigenous secularist unclari- be only one society, one law, one power, fled mystique of individual freedom as and one faith, a civic faith that is the "uni- somehow the source of everything, including fying" bond of the community, whereby it justice, order, and unity. The result has been withstands the assaults of assorted plural- Nativism in all its manifold forms, ugly and isms. 1 refined, popular and academic, fanatic and liberal .... You are among us but you are In concluding his introduction, Father not of us." . .. 9 Ibid. 1 7 Id. at 17. 0 d. at 19. 8 Id. at 20. 11 Id. at 21. 7 CATHOLIC LAWYER, AUTUMN 1961

Murray voices expectations which he calls nate and what is its authority? How can "modest and minimal.." We could limit the the development of a consensus be fostered? warfare and enlarge the dialogue. We could lay down our arms and take up argument. The Nation Under God Internecine strife, beyond some inevitable human measure, is a luxury we can no The first truth to which the American appeal is the funda- longer afford. We can no longer put off a Proposition makes of Inde- serious effort to solve the problem of reli- mental thesis of the Declaration over nations gious pluralism and civic unity. pendence: God is sovereign as well as over individual men. Part I: The American Proposition This conservative Christian tradition of America differs from the Jacobin laicist The American Proposition is under at- tradition of Continental Europe which pro- tack at home and abroad. Never before has claimed the autonomous reason of man to America had a greater need to be clearly be the first and the sole principle of politi- conscious of what it proposes, to be articu- cal organization. In contrast, the first arti- late in proposing, to be purposeful in the cle of the American political faith is that realization of the project proposed. the political community looks to the sov- For over a decade, Father Murray has ereignty of God as the first principle of addressed himself to the American Propo- its organization. sition or, as it is otherwise called, with In support of this position may be cited nuances of meaning, the public consensus the proclamations of Presidents John or the public philosophy of America. His Adams, Lincoln and Eisenhower and opin- present collection of previously published ions of the Supreme Court in 1815, 1892, essays, edited to supply a thread of unity, 1931 and 1952 to the effect that "We are discusses the Proposition in its uniqueness, a religious people whose institutions pre- in its continuity with, and progress over, suppose a Supreme Being." the longer civilizational tradition of the In its affirmation of what Lincoln called West, in certain of its applications and in "this nation under God," the American some of its problematic aspects. In particu- Proposition embraced a whole constella- lar, the author has felt obliged to raise the tion of principles founded upon the tradi- question, whether and to what extent this tion of natural law and natural rights and nation, now no longer new, still remains bearing upon the origin and nature of dedicated to the conception of itself that society, the function of the state as the first constituted us a people organized for legal order of society, and the scope and action in history. limitations of government. The Constitu- The first five chapters discuss the Amer- tion defined the areas where authority is ican Proposition first with regard to politi- legitimate and the areas where liberty is cal unity and then with regard to religious lawful. It is, therefore, at once a charter pluralism. How are political unity and reli- of freedom and a plan for political order. gious pluralism reconciled? Does the origi- nal American consensus still survive? Is The Principle of Consent there a need for such a consensus? Where may we look for such a consensus to origi- The American consensus included a AMERICAN PHILOSOPHY great act of faith in the capacity of the should not be imposed from the top down, people to govern themselves. as it were, but. should spontaneously flower In distinguishing between the absolute outward from free obedience to the re- and the constitutional monarch Sir John straints and imperatives that stem from Fortescue (d. 1476), Chief Justice of the inwardly possessed moral principles. Court of King's Bench under Henry VI, said, "The secounde king (the constitu- Human and Historical Rights tional monarch) may not rule his people The American Bill of Rights differs es- by other laws than such as thai assenten sentially from the Declaration of the Rights to. And therefore he may set uppon thaim of Man in the France of 1789. The latter non imposicions without their consent." was a parchment-child of the Enlighten- But in America this principle was given ment, a top-of-the-brain concoction of a an amplitude of meaning never before set of men who did not understand that a known in history and resulted in a new political community, like man himself, has synthesis which Lincoln formulated in the roots in history and in nature. They be- phrase "government by the people." Corol- lieved that a government could be a work lary thereto was an agreement on the ne- of art which abstract human reason could cessity of free speech and a free press as fashion of itself. conditions essential to the conduct of free, In contrast, the men who framed the representative, and responsible govern- American Bill of Rights understood his- ment. tory and tradition. They began with the On reviving the distinction between so- tradition of freedom which was their her- ciety and the state, which had perished itage from England. Its roots were not in under the advance of absolutism, the the top of anyone's brain but in history; American Proposition likewise renewed the in the medieval notion of the homo liber et principle of the incompetence of govern- legalis, the man whose freedom rests on ment in the field of opinion. Government law. The "man" whose rights are guaran- submits itse'f to judgment by the truth of teed in the face of law and government is society; it is not itself a judge of the truth the Christian man, who had learned to in society. know his own personal dignity in the school of Christian Faith. A Virtuous People that free It is not an American The American Consensus Today government is inevitable but only that it is possible. Its possibility can be realized The foregoing principles, according to only when the people as a whole are in- Father Murray, were basic to the Ameri- wardly governed by the recognized impera- can consensus; the American public phi- tives of the universal moral law. To be losophy of law. But, he asks, does that free a people must understand, in Acton's consensus exist today? phrase, that "freedom is not the power of There are some who contend that it doing what we like but the right of being does; that the American people in general able to do what we ought." still accept the validity of these proposi- A free civil society demands that order tions despite the attack upon them in 7 CATHOLIC LAWYER, AUTUMN 1961

American universities by secular philoso- unity, Father Murray then pursues an phers who deny that there are any basic, analysis of the American Proposition with ultimate, self-evident truths or that we can regard to , especially as know them with certitude. this proposition is embodied in our funda- Certainly the participation of Catholics mental law. In the course of this analysis in the American plan of government has he lays bare the reasons why American been full and free, unreserved and unem- Catholics accept on principle the unique barrassed, because the contents of the con- American solution to the age-old problem. sensus - the ethical and political principles drawn from the tradition of natural law - The unity asserted in the American de- approve themselves to the Catholic intelli- vice E pluribus unum is a unity of a lim- gence and conscience. ited order. The one civil society contains Perhaps there will one day be wide dis- within its own unity the communities that sent from the principles which underlie are divided among themselves; but it does our American philosophy of government: not seek to reduce to its own unity the the idea that government has a moral basis; differences that divide them. The pluralism that the universal moral law is the founda- remains as real as the unity. Neither may tion of society; that the legal order of soci- undertake to destroy the other. And the ety - that is, the state - is subject to two orders, the religious and the civil, re- judgment by a law that is not statistical but main distinct, however much they are, and inherent in the nature of man; that the need to be, related. eternal reason of God is the ultimate origin The American solution to the problem of all law; that this nation in all its aspects put by the plurality of conflicting - as a society, a state, an ordered and free within the one body politic is deposited in relationship between governors and gov- its legal form in the first amendment to the erned - is under God. federal : "Congress shall make This possibility is not foreclosed. But no law respecting an establishment of reli- should widespread dissent from these prin- gion or prohibiting the free exercise ciples develop, the guardianship of the thereof .. original American consensus, based on the Western heritage, would have passed to When Catholics are asked, "Do you the Catholic community, within which the really believe in the first two provisions of heritage was elaborated long before Amer- the First Amendment?", Father Murray is ica was. It would be for others, not Catho- reminded of the famous query put by Bos- lics, to ask themselves whether they still well to Dr. Johnson, "whether it is neces- shared the consensus which first fashioned sary to believe all the Thirty-Nine Articles the American people into a -body politic (of the Creed of the Church of England)," and determined the structure of its funda- and the Doctor's answer, "Why, sir, that mental law. is a question which has been much agi- tated. Some have held it necessary that all The Articles of Peace be believed. Others have considered them Having discussed the basis of the Amer- to be only articles of peace, that is to say, ican consensus with regard to political you are not to preach against them." AMERICAN PHILOSOPHY

Theologies of the First Amendment is not necessary to give them a religious assent, but only a rational civil obedience. An analogous difference of interpreta- In a word, they are not articles of faith but tion seems to exist with regard to the first articles of peace; that is to say, you may articles of the first amendment. On the not act against them, because they are law, one hand, there are those who read into and good law. them certain ultimate tenets. On the other Father Murray rejects the notion hand, there are those who see in these arti- that any sectarian theses enter into the content cles only a law, not a . or implications of the first amendment in The first class may be further divided such wise as to demand the assent of all into three groups: American citizens. (1) Those who see in these clauses cer- If this were the case the very article tain Protestant religious tenets. For this that bars any establishment of religion group they are true articles of faith. Hence, would somehow establish one. it is necessary to believe them, to give The Federal Republic [would] suddenly them a religiously motivated assent. become a voluntary fellowship of believers (2) A second group is constituted by either in some sort of free-church Protestant- the secular liberals who see in these clauses ism or in the tenets of a naturalistic human- certain principles which the secular liberal ism. The notion is preposterous. The United States is a good place to live in; many have philosophy requires to be held with all the found it even a sort of secular sanctuary. certainty of a dogma, although the name But it is not a church, whether high, low, or dogma may be anathema. broad. It is simply a civil community, whose (3) The differences between these two unity is purely political, consisting in "agree- groups tend to disappear in a third group, ment on the good of man at the level of performance without the the so-called secularizing Protestants, who necessity of agree- ment on ultimates."... As regards important effect an identification of their Protestant- points of ultimate religious belief, the United ism with American secular culture, con- States is pluralist. Any attempt at reducing sider the church to be true in proportion this pluralism by law, through a process of as its organization is commanded by the reading certain sectarian tenets into the fundamental law of the land, is prima facie norms of secular democratic society, and 12 illegitimate and absurd. bring about a coincidence of religious and secular-liberal concepts of freedom. The Appeal to History To those who see in these articles only Theologians of the first amendment, a law, not a dogma, the constitutional whether Protestant or secularist, are accus- clauses have no religious content. They tomed to appeal to history. In the end it answer none of the eternal human ques- is always Roger Williams to whom appeal tions with regard to the nature of truth is made. Admittedly, he was the only man and freedom or the manner in which the in pre-federal America who had a con- spiritual order of man's life is to be organ- sciously articulated theory. The difficulty ized or not organized. Therefore they are is that the Williams who is appealed to is not invested with the sanctity that attaches a Williams who never was. Professor Perry to dogma but only with the rationality that Miller's recent book "Roger Williams" attaches to law. In further consequence, it 12 Id. at 54. 7 CATHOLIC LAWYER, AUTUMN 1961

shows that Williams was a seventeenth- solid ground on which the validity of the century Calvinist who somehow had got first amendment rests. hold of certain remarkably un-Calvinist ideas on the nature of the political order The Necessity for Public Peace in its distinction from the Church. His Religious liberty and separation of premises and purposes were not those of church and state in America came into the secular-liberal democrat any more than being under pressure of their necessity for his rigidly orthodox Calvinist theology is the public peace. Four factors contributed that of his Baptist progeny. Williams to this necessity: actually exerted little or no influence on (1) The great mass of the unchurched. institutional developments in America; only Some were cut off from religion by the after the conception of liberty for all de- nominations had triumphed on wholly other hardships of the frontier; others were care- grounds did Americans look back on Wil- less of religion by reason of their preoccu- liams and invest him with his ill-fitting pation with material things; others were halo. concerned with religion in the personal The Work of Lawyers sense as indispensable to morality and or- dered civil life but were hostile toward From the standpoint of history and of organized religion. There was little anti- contemporary social reality the only ten- religion in the sense of militant, anti-cleri- able position is that the first articles of the cal Continental laicism. first amendment are not articles of faith (2) Multiplicity of denominations. The but articles of peace. Like the rest of the sheer fact of dissent and sectarian antago- Constitution these provisions are the work nisms was a particularly important motive not of theologians, not of political theorists, of the federal constitutional arrangement. but the work of lawyers. They are not true dogma but only good law. That is praise (3) The economic factor. The mer- chants of New York, New Jersey, Virginia enough. This is the Catholic view but it is not a "sectarian" view. It is the view which and the South were as emphatically on the any citizen with both historical sense and side of religious freedom as on the side of common sense can take. commercial profits. Persecution and dis- The artisans of the American Republic crimination were as bad for business affairs and its Constitution were not radical theo- as they were for the affairs of the soul. rists intent on constructing a society in (4) Effect of widening of religious free- accord with the a priori demand of a doc- dom in England. The struggle between trinaire blueprint with utter disregard for Anglicanism and Nonconformism would what was actually given in history. They eventually result in religious freedom (ex- were for the most part lawyers looking to cept for Catholics), conjoined with estab- the common good, which is normative for lishment. America, having no single es- all law. And social peace, assured by equal tablished re'igion, was able to go one step justice in dealing with possibly conflicting farther. groups, is the highest integrating element In view of these factors any other course of the common good. This criterion, which but and separation of is a legal criterion, is the first and most church and state would have been disrup- AMERICAN PHILOSOPHY

tive, imprudent, impractical, indeed im- Father Murray concludes that the con- possible. But this solution did not consti- sent given to the religious clauses of the tute a reluctant concession to force Constitution is given on grounds of moral majeure. In the science of law and the art principle. To speak of expediency here is of jurisprudence the appeal to social peace altogether to misunderstand the moral na- is an appeal to a high moral value. Behind ture of the community and its collective the will to social peace there stands a di- moral obligation toward its own common vine and Christian imperative. This is the good. The origins of our fundamental law classic and Christian tradition. are in moral principle; the obligations it Father Murray then calls attention to imposes are moral obligations, binding in Pius XII's reference to the parable conscience. One may not, without moral of the tares in the course of his discourse fault, act against these articles of peace. to a group of Italian jurists on December 6, 1953. The fundamental theoretical princi- The Distinction of Church and State ple, says the Pope (and one should under- The distinction of church and state, one score the word, theoretical,- it is not a of the central assertions of the genuine question of sheer pragmatism, much less of Western tradition in politics, received in expediency in the low sense), is this: the Constitution a special embodiment, [W]ithin the limits of the possible and the adapted to the peculiar genius of American lawful, to promote everything that facilitates union and makes it more effective; to remove government. The area of state - that is, everything that disturbs it; to tolerate at legal - concern was limited to the pur- times that which it is impossible to correct suit of certain enumerated secular pur- but which on the other hand must not be poses. Thus made autonomous in its own permitted to make shipwreck of the com- sphere, government munity from which a higher good is looked was denied all com- for.13 petence in the field of religion. This higher good, in the context of the The concrete applications of this, in it- whole discourse, -is "the establishment of self, quite simple, solution have presented peace." The quotation from Pius XII great historical and legal difficulties. It still continues: remains to be seen whether government The duty of repressing religious and can make effective the primary intention moral error cannot therefore be an ultimate of the first amendment, the guarantee of norm of action. It must be subordinated to freedom of religion, simply by attempting higher and more general norms which in to make more and more impregnable what some circumstances permit, and even per- haps make it appear the better course of ac- is called, in Roger Williams' fateful meta- tion, that error should not be impeded in phor, the "wall of separation" between order to promote a greater good.... church and state. [I]n certain circumstances God does not But for Catholics the embodiment in the give men any mandate, does not impose any duty, and does not even communicate the American Constitution of the traditional right to impede or to repress what is er- principle of the distinction between church 4 roneous and false.' and state is of great and providential im- 13 Id. at 61. portance for one major reason. It serves 14 Id. at 61-62. sharply to set off our constitutional system 7 CATHOLIC LAWYER, AUTUMN 1961 from the system against which the Church free people under a limited government, a waged its long, drawn out fight in the nine- theory that is recognizably part of the Chris- teenth century, namely Jacobinism, or (in tian political tradition, and altogether de- fensible in the manner of its realization Carlton Hayes' term) sectarian Liberalism, under American circumstances.1 5 or (in the more definitive term used today) It may indeed be said that the American totalitarian democracy. constitutional system The Jacobin free state did not effect exaggerates the dis- tinction between church and state by its separation of church and state but con- self-denying ordinances. But this stituted perhaps the most drastic unification is quite different than to abolish the distinction. In of church and state which history had the latter known. Moreover this was done on prin- case the result is a vicious monis- tic society; in the former, a faultily dualis- ciple -- the principle of the primacy of the tic one. The political, the principle of "everything within vice in the Jacobin system could only be condemned the state, nothing above the state." by the Church, not in any way condoned. The fault in the This was the cardinal thesis of sectarian American system can be recognized as Liberalism, whose full historical develop- ment is now being witnessed in the totalitar- such, without condemnation. ian "people's democracies" behind the Iron Curtain. As the Syllabus and its explicatory The Freedom of the Church documents - as well as the multitudinous In contrast to the Jacobin system in all writings of Leo XIII - make entirely clear, its forms, it was this thesis of the juridical omnipotence the American Constitution does and omnicompetence of the state which was not presume to define the Church or in any the central object of the Church's condem- way to supervise her exercise of authority nation of the Jacobin development. It was in pursuit of her own distinct ends. The because freedom of religion and separation juridical result of the American limitation of church and state were predicated on this thesis that the Church refused to accept of governmental powers is the guarantee them as a thesis. to the Church of a stable condition of free- This thesis was utterly rejected by the dom as a matter of law and right. founders of the American Republic. The The reason for the extension of this rejection was as warranted as it was provi- guarantee to the Church as an organized dential, because this thesis is not only theo- society as well as to the individual member logically heterodox, as denying the reality of the Church; it is also politically revolu- lies, according to Father Murray, in the tionary, as denying the substance of the lib- fact that the American state has no sover- eral tradition. The American thesis is that eignty in the classic Continental sense. No- government is not juridically omnipotent. where in the American structure is there Its powers are limited, and one of the princi- accumulated the plentitude of legal sov- ples of limitation is the distinction between ereignty possessed state and church, in their purposes, methods, in England by the Queen and manner of organization. The Jacobin in Parliament. Within society, as distinct thesis was basically philosophical; it derived from the state, America recognizes that from a sectarian concept of the autonomy of there is room for the independent exercise reason. It was also theological, as implying a of an authority which is not that of the sectarian concept of religion and of the church. In contrast, the American thesis is state. simply political. It asserts the theory of a 15 Id. at 68-69. AMERICAN PHILOSOPHY

The American Experience parchment. It is in the tone of this tradi- tion of American political writing that one Although pure pragmatism cannot be should argue for the first amendment. made the philosophy of law, nonetheless the value of any given law is importantly Is There an American Consensus? pragmatic. The first amendment surely Having discussed the political unity and passes this test of good law. religious pluralism of America, Father First, America-has proved by experience Murray then asks two questions: (1) Does that political unity and stability are possible the United States have a public philosophy? without uniformity of religious belief and (2) Does the United States need a public practice, withouTthe necessity of any gov- philosophy? ernmental restrictions on any religion. The Founding Fathers certainly pos- Secondly, American experience has been sessed a public philosophy and indicated it that stable political unity, which means per- in the forthright statement of the Declara- during agreement on the common good of tion of Independence: "We hold these man at the level of performance, can be truths ...... strengthened by the exclusion of religious The function of their public philosophy differences from the area of concern al- was threefold: lotted to government. (1) To determine the broad purposes Thirdly, the most striking aspect of of our nation as a political unity organized the American experience consists in the for action in history. fact that religion itself, and not least the (2) To furnish (a) the standards ac- , has benefited by our free cording to which judgment is to be passed institutions, by the maintenance even in on the means that the nation adopts to exaggerated form, of the distinction be- further its purposes, and (b) the basis of tween church and state. communication between government and In the final analysis, any validation of the people and among the people them- the first amendment as good law - no selves; a common universe of discourse in matter by whom undertaken, be he Protes- which public issues can be intelligibly tant, Catholic, Jew, or secularist - must stated and intelligently argued. make appeal to the three arguments devel- (3) To indicate the content of the pub- oped above - the demands of social neces- lic philosophy. sity, the rightfulness within our own cir- Moreover, the original American public cumstances of the American manner of philosophy had as its focal concept the asserting the distinction between church idea of law. The authors of the Constitu- and state, and the lessons of experience. tion held in common a concept of the na- In a curiously controlling way this tone ture of law and its relationships to reason was set by the Federalist papers. It has and will, to social fact and to political pur- even been pointed out that the only real pose. They had an idea of the relationship slogan the Revolution produced was: "No between law and freedom; between the taxation without representation." It has not order of law and the order of morals. They the ring of a trumpet; its sound is more understood the use of force in support of like the dry rustle of a lawyer's sheaf of law. They had an idea of good law, norms 7 CATHOLIC LAWYER, AUTUMN 1961 of jurisprudence that judge the necessity of of any morality other than national mores law and determine the limits of its useful- having no greater warranty than custom or ness. They had an idea of justice, of social fashion or convention; morality is either equality. They distinguished between state contextualistic or a matter of situation- and society, between the relatively narrow ethics, a problem of individual decisions in order of law as such and the wider order whose making no appeal may be made to a of the total public good. They understood moral order since there is no moral order. the notion of law as a force for orderly Inevitably the argument is advanced that change, for social progress as well as for the American consensus is nothing more social stability. They knew the value of than an agreement to disagree. The con- law as a means of educating the public con- sensus is purely procedural; it involves no science to higher viewpoints on matters of agreement on the premises and purposes of public morality. political life and legal institutions; it is Finally, they understood that the consen- solely an agreement with regard to the sus on a public philosophy does not put method of making decisions and getting the dissenter beyond the pale of social or things done, whatever the things may be. civil rights. But it is the function of the As a result of his observation and expe- consensus to identify dissent as dissent and rience, Father Murray fears that there is it is the function of dissent not to destroy at present no American public philosophy. or undermine the consensus but to solidify Among all too many men and women it and make it more conscious and articu- equipped by formal education and training late. to take an intelligent interest in public af- On more than one occasion Father Mur- fairs, there is a vacuum on the intellectual ray has outlined the case for an American level. Nor can we any longer rely upon consensus based on reason only to be met the body politic by reason of its patrimony with the question of whose reason shall of political wisdom to sense in some in- determine the question. By implication the stinctive fashion the basic errors in gov- objector takes the position that there can ernmental policy, even when the politicians be no philosophy which is public because themselves get lost in their technical argu- philosophy is a private affair. Others main- ments and partisan feelings. tain that the business of America is busi- ness and technology and that philosophy The Need for a Public Philosophy has nothing to do with it. Still others main- The apparent lack today of an American tain that there is no truth but scientific consensus or public philosophy has not truth, reached by the methods of science, discouraged Father Murray. Instead of la- whether classical or statistical. menting the loss of a consensus he would The pragmatist joins the argument and have us examine the need for one. If public declares that only those ideas are true affairs are going badly, the basic reason is which survive competition and that the the absence of a public philosophy. Today forces of history have made a vacuum there is need for a new moral act of pur- where once there was, or may have been, pose and a new act of intellectual affirma- a public philosophy. tion, comparable to those which launched Another dissenter denies the existence the American constitutional common- AMERICAN PHILOSOPHY wealth, that will newly put us in possession Adolf A. Berle in "Power Without Prop- of the public philosophy, the basic con- erty." Eight points are significant. sensus that we need. (1) A public consensus is a set of ideas To say that our national purpose is widely held by the community and often simply "survival" is to indicate the depth by the (business) organization itself and of political bankruptcy to which we may the men who direct it, that certain uses of have plunged. Moreover, if this be our power are wrong and generally recognized only goal we shall not even achieve sur- as being contrary to the established interest vival. Communism is not the basic cause and value system of the community. of our present confusion. Communism (2) It is not a spontaneous fact in the merely exploits the world's disorder; it did minds of many individuals but is the prod- not create it. The disordered state of the uct of a body of thought and experience. world itself puts to America the question: (3) The principles of the public con- What are your truths? sensus, some of which are well enough The confusion and ineffectiveness in the defined as to be inchoate law, have never various areas of American policy are due been stated. Yet men in each industry are to the absence of a public philosophy. The fairly well aware of them. With time, effort does not need to look for a and thought, they could manage a tolerable public philosophy with regard to the uses outline of the public consensus as it applies of force; it has one. That philosophy may to them. be damnable but even a damnable philoso- (4) It is not a finished but a developing phy is more effective than no philosophy at body of doctrine. all. In the area of foreign aid there is like- (5) It is not identical with public opin- wise need for a public philosophy. Even if ion but distinct, though related. It furnishes no imperialist advances were being made the basis for public opinion. from Moscow, the United States would (6) The depositaries and agents in the have to have a world economic policy of development of the consensus are myriad: a rational kind, based on a coherent phi- educated men and women, students, writ- losophy. Moral altruism awakes no reso- ers, specialists, financial analysts, business nance in the public mind and it collides men, economists, university professors, re- with the "tough" argument that self-interest sponsible journalists, the solid pronounce- is the final controlling factor of political or ments of respected politicians, - all these, economic policy. and men and women like them, are the What is our purpose? What are our real tribunal to which the American system values? These are crucial questions that is finally accountable. need to be answered and the answer can- (7) The public function of the consen- not be found except in the context of a sus is to act as final arbiter of the legiti- public philosophy: an American consensus. macy of economic power and the rightful- ness of its uses. The Origins of a Public Consensus (8) The consensus itself includes set- In discussing the nature and origin of a tled principles of law applicable to eco- public consensus Father Murray finds val- nomic power. But it also includes capacity uable aid in the concept developed by Prof. to criticize that law. 7 CATHOLIC LAWYER, AUTUMN 1961

The Authority of the Consensus The structure of natural-law thought rises, and its style of argument appears in Economic life, like all life, is no more the following manner: than a stream of contingent "facts." The (1) Human reason in an a priori man- public consensus is not merely the facts. It ner and without any need for argument is a set of principles or standards in terms can come to the knowledge of the primary of which to pass judgment on the facts. truth of the intellectual order that what is The question then recurs: What is the .non- true cannot at the same time and under contingent element of thought in terms of the same respect be false. Likewise it can which the economic facts are transformed reach the primary moral truth that what is into issues that may be argued and then good ought to be done and what is evil decided in a form of decision that assumes avoided. the status of a principle, a criterion of (2) After some elementary experience permanent judgment on passing situations in the basic situations of human life, intel- of fact? ligence can grasp the meaning of "good" The consensus cannot be simply a re- and "evil" in these situations and therefore flection of fact, as if whatever is must be know what is to be done or avoided in considered right; nor can it be a mere them. technique of success, i.e., whatever works (3) Intelligence, with the aid of simple be considered true and good. The must reasoning, can know, and know to be obli- must have the character of a consensus gatory, a set of natural-law principles that experience that is public. But moral moral are derivative. These, in general, are the experience assumes intelligibility only in basic moral laws of human life such as are terms of a -moral theory. contained in the Ten Commandments, laws The author thus comes to the proposi- sanctioned by reason as well as by their tion that only the theory of natural law is inclusion in the Jewish and Christian codes. able to give an account of the public moral This is not to say that men cannot go experience that is the public consensus. astray in particular instances since man's guide to moral action is practical judgment The Doctrine of Natural Law and this is not infallible. Opponents of the doctrine sometimes (4) Finally, there are the particular object that one cannot accept the doctrine principles which represent the requirements of natural law unless one has antecedently of rational human nature in more complex accepted "its Roman Catholic presupposi- human relationships. The discovery of tions." This of course is quite wrong. The these principles is difficult and can usually doctrine of natural law has no Roman be achieved by-those whom George Wash- Catholic presuppositions. Its only presup- ington referred to as "the wise and honest." position is threefold: (1) that man is in- Technically, the contents of the consen- telligent; (2) that reality is intelligible; sus embrace principles and rules which are (3) that reality, as grasped by intelligence, among these more remote precepts of nat- imposes on the will the obligation that it ural law. In consequence, they are reached be obeyed in its demands for action or by careful inquiries and by a thorough abstention. analysis of all the facts and circumstances. AMERICAN PHILOSOPHY

This is not the job for mere common sense. embrace all who are willing and able to In consciously articulated and reasoned participate in the intellectual task of shap- form, the consensus exists among the "wise ing the consensus. As instances of men and honest." In the form of simple affirma- who have a "care" for the public good but tion or accepted conviction, it exists among who are not "interested parties" (in the the people. usual sense of the latter phrase), Father The inherent authority of the consensus Murray points out: is that it has been found to be in accordance There was, for instance, a Jeremiah S. with right reason. Once they have been Black, who in 1883 refused a retainer to instructed, those who are of lesser reflec- argue the railroad case against public regu- tive capacity can grasp the reasonableness lation of railroads, because (he said) he was "pledged to the people on the issues at of the conclusions even though they are stake." There was a Louis D. Brandeis; when incapable of the "careful inquiry" that led asked to represent the interests of a great to these conclusions. investment banking group in a proxy fight We shall always have among us those involving the Illinois Central Railroad, he "required" (he said) to be "satisfied who have no fear of or regard for God or of the justness" of the bankers' position. This is man. The generality of men, however - the style of man 1one6 seeks, whose "care" is even the most powerful - has some strong not an "interest." natural inclination to act according to rea- son in what concerns their power. That is, Pluralism and the University they naturally seek to establish the legiti- Although Father Murray's earlier use of macy of their power and also to have their the word "University" transcends the scope uses of it publicly recognized as legitimate. of that word as applied to an organized They are naturally disinclined to appear to faculty and student body, the university in themselves or to others as unreasonable. the more limited sense of the term has a In a word, they are somehow inclined to special function in the development and be "natural" men who recognize and obey articulation of the American consensus. the remote principles of natural law that One may question, however, how well the constitute the public consensus. Or, if this university community is assuming its moral inclination fails, as it is likely to fail responsibility. in the face of the contrary imperatives of On all sides one may see decadence self-interest, these men of power are at within the area of intellectual life. There least "natural" enough to submit to the is a dissolution of the idea of the unity of just interventions of the public power in truth. There is the consequent dissolution support of the public consensus. of the idea of truth itself, to the point In search of a term for George Wash- where no assertion may claim more than ington's "wise and honest," the men who the status of mere opinion, to be granted are to do the work of reason, of reflection an equality of freedom with any other opin- on the changing economic facts, Father ion. For many to whom the word truth Murray suggests the word "University" as still has a meaning, that meaning is re- distinct from the church and the state. The duced to those conclusions which are based "University" would include universities but upon the empirical method of science. This it would have a wider connotation and 16 Id. at 123. 286 7 CATHOLIC LAWYER, AUTUMN 1961 theory is the denial of the possibility of right and duty of the university to require philosophy in the meaning that the word that his quest of religious knowledge should has had since Plato. be pursued in the high university style - Finally, there has taken place a decay of under properly qualified professors, in the political intelligence, a loss of confidence courses of high academic content, in ac- in the power of reason to fix the purposes of cordance with the best methods of theo- political life and to direct the energies of logical scholarship. in such a way as to impose a due freedom The university should aim at a genuine measure of human control upon the forces of history, upon the automatisms of tech- understanding of the epistemology of reli- nology, and upon the hurrying pace of gious truth - or, if you will, an understand- events. But perhaps the ultimate tendency of ing of the nature of religious faith. It should the pluralisms created by the era of modern- also aim at an understanding of the various ity is felt .... [in the fact that today we not systems of belief, precisely as systems, in merely] hold different views but that we have (whatever become different types of men, with differ- their inner organic consistency ent styles of interior life. We are therefore it may be) and in their relation to other 7 uneasy in one another's presence.' areas of human knowledge (insofar as The university is committed to the task these relations are intellectually discern- of putting an end, as far as it can, to intel- ible). Moreover, the proper qualification lectual savagery in all its forms, including of the professor who would wish to com- a major current form which is the savagery municate a critical understanding of a par- of the American student (perhaps also the ticular religious belief is that he believe it professor?) who in matters religious and himself. That he possess the faith. theological is an untutored child of the Yet the function of the university is not intellectual wilderness. The university is Messianic. If man hopes for salvation, he committed to the task of putting an end to must set his hope elsewhere than on the prejudice based on ignorance. The univer- university. sity is committed to its students and to Henry Adams' gratitude to Harvard for their freedom to learn. its contribution to his intellectual develop- the- uni- Whatever may be the university's duty ment is the highest gratitude that versity can merit from man in search of (or right or privilege or sin) of non-com- salvation. Harvard, said Adams in effect, mitalism, the fact is that many of its stu- did not get in my way. But this is no small dents are committed religiously. They cause for gratitude when the issue at stake 18 believe in God. They are Protestants and is salvation. Catholics and Jews. The university as such Part II: Four Unfinished Arguments has no right to ignore the fact of these commitments much less to require that for Part I of "We Hold These Truths" pre- four years those students be committed to sents the basic principles and postulates of scientific naturalism. Father Murray's theses that America is a The major issue here is the student's religiously pluralistic society and that it has of a public con- freedom to learn - to explore the full in- need for the reaffirmation tellectual dimensions of the religious faith sensus. The author then turns to what he to which he is committed. And it is the calls four unfinished arguments in the con- 18 Id. at 139. 17 Id. at 130. AMERICAN PHILOSOPHY tinuous development of the consensus, ar- nally took into consideration the changed guments which have inherent importance circumstances and resulted in the decision and also serve to illustrate and further de- that the doctrine of "separate but equal" velop the discussion contained in Part I. facilities for Negroes is incompatible with the present-day American constitutional The School Question Today concept of civic equality within the unity Changes in the religio-social structure of of the body public. America have profoundly altered the under- The public school merits strong defense standing which nineteenth-century Amer- but the notion of "public education" as ica had of itself. From a socio-religious meaning a unitary and monolithic school point of view, American society has as- system which singly and alone is entitled sumed a new pluralist structure, notably to public support has been rightly called different from the structure it exhibited a (by Mr. Robert E. Rodes, Jr.) "an aber- century ago when the public school system ration in the general picture of our society, had its beginnings. Originally, the public which is pluralistic." school was viewed as vaguely Protestant or When we think of the religious school purely secular; a vehicle for the inculcation as serving, for instance, the Catholic Com- of "democracy" as a quasi-religious ideol- munity, we have not to do with a small ogy or for the transmission of spiritual and eccentric group, existing on the periphery moral values in some non-sectarian sense. of American society, whose needs might None of these four concepts fits with possibly be overlooked in the interests of the present facts of American life. Amer- some greater good. On the contrary we ican society is neither vaguely Protestant have to do with a segment of our society, nor purely secular. The religion of Amer- fully integrated into its pluralist structure, ica is not "democracy," nor is it some gen- which has now become so large that its eralized faith in "values." Religion in educational needs and interests have be- America has a form, a precisely defined come public needs and interests, at the form, a pluralistically structured form. This same time that they remain special to the is the fact. particular community. There is something In consequence the historical pattern of wrong when American government fails to the public school as the single publicly reckon fairly with the diverse educational supported school, and the church-school as needs of the pluralist community which it barred from public support is outdated. is supposed to be serving. And the realiza- Father Murray that the injustice tion that something is wrong is forcing of the present situation will be resolved itself upon an increasing number of Amer- slowly and with difficulty but certainly. In ican citizens who understand both the na- any event, the dynamism of change will be ture of our society and the principles of the familiar one that continually operates our government. in American life, a growth in moral in- The most fatal thing would be the com- sight, assisted by a realistic grasp of socio- placency of supposing that the problem of religious reality. religion in education is settled by the Mc- There is some analogy in the develop- Collum rule of absolute and complete sep- ment of constitutional doctrine which fi- aration of church and state. So, far from 7 CATHOLIC LAWYER, AUTUMN 1961

solving the problem, this has made it more sense of logic may well be a menace. acute. Until the problem is solved with all The problem of censorship is even more justice and realism, the American ideal of acute in a pluralist society such as Amer- ordered freedom, for which the Bill of ica. After noting that all religious groups Rights stands, will not have been achieved. are - from the sociological, even if not of view - mi- The Question of Censorship from the statistical, point nority groups, Father Murray lists four The second unfinished argument is the rules which the consensus should include. question of how and to what extent the First, within the larger pluralist society government should limit freedom of speech each minority group has the right to censor or freedom of the press. for its own members.... Law and morals cannot and should not Second, in a pluralist society no minority be equated. To do so would produce chaos. group has the right to demand that govern-: ment should-impose a general censorship Law would be used to flout morality. Mo- ... of materials that are judged to be harm- rality would be invoked to sanction any ful according to the special standards held sort of law. Nor should public and private within one group. morality be equated. Third, any minority group has the right It is a fact of political history that every to work toward the elevation of standards of public morality in government has always claimed what the pluralist society, is through the use of the methods of persuasion called police power as an attribute of gov- and pacific argument. ernment. The power in itself is simply the Fourth, in a pluralist society no minority principle of self-preservation and self-pro- group has the right to impose its own religi- tection transferred to the body politic. In ous or moral views on other groups, through the use of the methods of force, coercion, or the interests of public morals, public health, violence.' 9 public safety, public order, and the general Economic pressures such as trade unions comfort of society, the government, acting use may be neither undemocratic nor un- as the agent of society, is entitled to impose rightful but Father Murray deems them restraints on property rights and personal incongruous when used by a religious freedoms. The question is, how far and in group. In the name of prudence he cau- what circumstances may the government tions against their indiscriminate use by exercise this principle? Catholics lest the Church itself be identi- If you impose a constraint on freedom fied in the public mind as a power- in one domain, in order to increase freedom association. in another, you may take the risk of dam- Although censorship gives rise to the aging freedom in a third domain with question of who shall censor, Father Mur- consequences more dangerous to the ray would not discount the value of what community. is called the "common estimation" of men. There is a second and consequent con- People in general have a fairly clear notion sideration. Because social freedoms inter- of what obscenity is and in general can lock so tightly, it is not possible to know make for themselves a pretty good judg- antecedently what the multiple effects of ment on whether a particular work is a regulation will be. For this reason the obscene. social reformer whose only strength is a 19 Id. at 168. AMERICAN PHILOSOPHY

The aims of censorship should be min- The Gelasian Thesis imal but one proper area would be the "Two there are, august Emperor, by "pornography of violence." which this world is ruled on title of original Finally, Pope Leo XIII, who revised the and sovereign right - the consecrated au- Index of Forbidden Books, also pointed thority of the priesthood and the royal out the great danger in not reading good power." books. In this celebrated sentence of Gelasius I, written to the Byzantine Emperor Anasta- Christianityand Human Values sius I in 494 A.D., the emphasis laid on the word "two" bespoke the revolutionary The third unfinished argument involves two problems. First, is there a place in good character of the Christian dispensation. Herein theology for the human values which lies the fourth unfinished argument. America has historically emphasized or do The Gelasian text has been called the the social conditions, institutions and ideals "Magna Charta of the whole freedom of have only -the character of a necessary the Church in medieval times." Not only evil? Second, does the cultivation of human was the Church free as a spiritual authority to teach, to rule and to sanctify - free of values by human energies contribute to the any subordination coming of the Kingdom of God or is it to the state as instru- irrelevant like the work of the monk who mentum regni, a tool of the state - but the people wove a basket one day and unwove it the themselves were free; free to have access to the teaching of the Church, to .next as a means of spending an interval, obey her laws, to receive at her hands the necessary to the frail human spirit, between sacramental ministry of grace, and to live periods of performance of the only task within her fold an integral supernatural that did matter, the contemplation of heavenly things? life. This freedom of the Church as the spir- To ask these questions is to raise the itual authority question of the relation between history served as the limiting prin- and the Church and to invite a journey ciple of the power of government. The down avenues of mystery, which are legiti- freedom of the Church as the "people of mate avenues of reverent Christian inquiry. God" furnished the ultimate directive prin- But if in doctrinal affirmations the Church ciple of government. is confident, in the area of practice she is In modern times the distinction between prudent, even cautious. The Church stoutly state and society which had been the secu- lar political outgrowth of the Christian dis- defends reason and its powers of knowing tinction and of harmonizing its knowledge with its between church and state, was to Christian beliefs. She is less certain of man some extent retained but the freedom of the himself in his total being and less confident Church as a mediating principle between of his power to harmonize his whole human society and the state was discarded. Instead, effort with his Christian faith, in that ever a secular substitute was adopted in the form precarious synthesis known as Christian of free political institutions. The only sovereign spiritual authority humanism. It is in this same spirit of both would be the conscience of the free man. confidence and prudence that the problem The freedom of the individual conscience, is to be approached. constitutionally guaranteed, would supply 290 7 CATHOLIC LAWYER, AUTUMN 1961

the armature of immunity to the sacred contemporary idolatry of the democratic order, which now became, by modern defi- process. What is urged is a monism, not nition, precisely the order of the private so much of the political order itself, as of conscience. And through free political in- underlying stitutions, again constitutionally guaranteed, a political technique, but the the moral consensus of the community idea is a monism of power: "One there is would be mobilized in favor of justice and whereby the world is ruled - the power in freedom in the secular order.... the people, expressing itself in the pref- The rejection of the Gelasian thesis has erence of the majority; and beyond or been common to all the prophets of modern- beside or above this power there is no ity, from Marsilius of Padua onwards. All of them have been united in viewing the free- other." dom of the Church, in the sense explained, But the unitary hypothesis has not been as a trespass upon, and a danger to, their one able to sustain itself under the test of ex- supreme value - the "integrity of the politi- perience. Post-modern man has become cal order."... most uneasily aware Over the whole of modern politics there of the limitations of has hung the monist concept of the indivisi- the state even in the discharge of its own bility of sovereignty: "One there is." This functions. He fears that the modern experi- has been true even in those states in which ment may-prove to be simply an interlude the sovereignty, remaining indivisible, has between despotisms - between the known been institutionalized according to the prin- 20 and limited despotism of the past and the ciple of the separation of powers. unknown despotism of the future. The dynamism behind the assertion "One there is" has, of course, been varied. In the If the post-modern man continues to pursue the mirage which seventeenth and eighteenth centuries it was bemused modern royal absolutism. In the nineteenth century man, a spiritual vacuum will increasingly the dynamism was the Revolution, that be created at the heart of human experi- whole complex of forces which created ence. The rejection of the Christian mode Jacobin democracy and proclaimed the of existence will result in the development rdpublique indivisible in the name of the at the heart of human life of an explicitly non-Christian mode sovereignty of the people, understood as the of existence. social projection of the absolutely autono- The non-Christian man of modern times mous sovereignty of individual reason. In does not yet realize what it means to live the twentieth century the most successful in a non-Christian civilization. Yet in these dynamism has been Soviet Communism, last decades the realization has been dawn- which makes the assertion "One there is" ing on America of what such an existence in the name of the unitary class which is might be like as it watches the frightening destined for world sovereignty, and in the emergence and multiplication of that "senseless, faithless, heartless, name of its organ, the Party, whose func- ruthless" tion is to be the servant and ally of the man whom Paul met on the streets of non- materialist forces of history. Christian Corinth and described in his In the twentieth century too, the ancient Letter to the Romans. mon.stc drive to a oneness of society, law But a dreadful chaos of vio'ence is not and authority has also appeared in the inevitable. Reason itself, and its high ex- totalitarianizing tendency inherent in the ercise in argument, could lead us to the 20 Id. at 206-07. recognition of a law, even more basic than AMERICAN PHILOSOPHY

the pragmatic law, which our forebears of To the pragmatist this is silly. It is silly! the modern era failed to reckon with. But it happened. It is possible of course that some basic Part IH: The Uses of Doctrine changes may take place in Soviet doctrine In the first and second parts of the book but this is unlikely. The official is under discussion, Father Murray expresses necessary in order that the individual may doubt as to whether we Americans as a claim no moral rights against the state and people "hold these truths" or any truths no freedom except within the "collective as determinative of our purposes and di- freedom" of the state. The exploitation of rective of our policies. History attests that the individual in the service of the state the Founding Fathers- practical men, all is necessary as the premise of forcing of them- were well aware of the uses of further the gigantic technological develop- doctrine. Today there is evidence that we ment. The maintenance of the myth of have no use for doctrine - or perhaps even ' "danger from without is necessary in order no to use. to justify the continuance of the police state The Primacy of Communist Dogma and to explain why the state is not wither- ing away. Finally, the personal security of If now there is a vacuum where once the Soviet rulers and the continuing priv- there was substance, this fact is serious in ileges of the "new class" are dependent view of our present confrontation with upon the maintenance both Soviet Russia. Unless one understands of the empire and of the revolutionary doctrine that sus- Soviet doctrine he cannot understand the tains it. logic of Soviet action. How else can one explain the strategy of forceful aggression Communist Dogma and American Policy at the very moment in 1945 when Russia had attained security by sufficient territorial In consequence of communist doctrine depth on all sides and when in the United America can expect the Soviet Union to States, Britain and France a mood of gen- yield only to calculations of power and eral, if not unbroken, good will towards success; negotiation in itself will effect Russia prevailed to a degree that was al- nothing. You must first know what you most pathological. want. This is foreign policy. Negotiation is Communist doctrine holds that the cap- simply the means of getting what you want. italist camp is irreconcilably hostile. Social Two things should be kept in mind. (1) democracy is inherently untrustworthy and The Soviet Union will always act on its own ought to be destroyed because it only de- doctrine. (2) It will ignore arguments ceives the worker and confuses the issue based on such things as "freedom" or any by its pretension to be a third force between other Western "ideals." communism and capitalism. Conflict is Anti-communism in America has ad- necessary. It is the necessary means to vanced to the point where everybody now world revolution. Finally, the doctrine holds mortally hates and fears what is known, that at the end of a war the capitalist camp rather vaguely, as "the communist men- must be in a state of weakness and that ace." America owes a debt of gratitude to that is the moment for the strategy of force- those who raised the cry of subversion. Yet ful aggression. America would probably not entrust the 7 CATHOLIC LAWYER, AUTUMN 1961 task of combatting the menace abroad, in so that it will have ready under every cir- the field of foreign policy where the mas- cumstance strategy and tactics and the sive menace lies, to those who were most means of implementing the strategy and successful in pointing out the menace. By tactics for the attainment of carefully a contrasting irony, many of those who took planned national goals. a sound view in matters of foreign policy were fuzzy on the issue of internal sub- War as a Moral Problem version. It was not strange that the public, Father Murray here discusses the uses with some instinctive feeling that the quar- of a doctrine on the uses of force. In so rel was not getting anywhere, should have doing he reviews the classical Catholic grown bored with it. We can only hope moral teaching on war and relates it to that the public will finally achieve a more statements of Pius XII. lasting and effective defense against the The advent of the possibility of nuclear menace than last-minute rushes to the re- war has not negated the justification of war sources of pragmatism in all its' forms under any circumstances but it is apparent (notably including military technology) to that the classical doctrine of war needs meet particular issues as they arise. more theoretical elaboration. There is need of a far more vigorous cultivation of The Uses of Force politico-moral science, with close attention Soviet doctrine as a whole dictates a to the enormous impact of technological policy of maximum security and minimum developments on the moral order as well as risk. It does not act under external provo- on the political order. cation but under an internal dynamism. Our It is the function of morality to command policy, therefore, should envisage a mini- the use of power, to forbid it, to limit it, mum of security and a maximum of risk. or, more in general, to define the ends for Only by such a policy can we seize and which power may or must be used and to retain the initiative in world affairs. judge the circumstances of its use. But At the same time, Soviet doctrine serves moral principles cannot effectively impart to warn us to be wary of the facile per- this sense of direction to power until they suasion now being spread about that have first, as it were, passed through the "Russia doesn't want war." Russia still order of politics; that is, until they have wants war- the kind of war, in the time first become incarnate in public policy. It and place, which would help to further the is public policy in all its varied concretions revolution. It is all a matter of the measure that must be "moralized." This is the need of risk that war would entail and of the of the moment. measure of its usefulness to the world revolution. The Moral Vacuum America's hope for the future lies first But one may well point out, the real of all in a realization of the nature of the issue does not concern the moral quality Soviet doctrine and the fact that the Soviet of this or that element of American foreign Union will follow that doctrine in every policy. The real issue concerns the nature detail. Secondly, it behooves the nation to of morality itself, the determinants of moral develop its own doctrine of the use of force action (whether individual or collective), AMERICAN PHILOSOPHY the structure of the moral act, and the gen- simple yeas and nays upon political, so- eral style of moral argument. One cannot cial and economic reality without any care- argue moral issues until they are stated; ful prior analysis of the realities in question. but by what methods do you arrive at your On the other hand, the newer American principles and establish their relevance, and morality moves towards a situation in which what is your analysis of the fact situation? the absoluteness of principle tends to get As these issues are touched, or as they are lost amid the contingencies of fact. Whereas avoided, the whole argument flies off in all the older morality saw things as so simple directions. that moral judgment was always easy, the An important event, of relatively recent new morality sees things as so complicated occurrence, has been the recognition of the that moral judgment becomes practically shortcomings and falsities of an older impossible. American morality that dominated the nine- Whereas once this nation was built on teenth century and still held sway into the the foundation of the tradition of natural twentieth. Its style was voluntarist; it sought law, that tradition, once vigorous in Amer- the constitution of the moral order in the ica, is now thought by many to be dead. will of God. The notion that certain acts Except for the Catholic community it may are intrinsically evil or good, and therefore be questioned whether America is the re- forbidden or commanded by God, was re- pository of the tradition of reason on any jected. In its sources the older morality was moral issue at all. scriptural in a fundamentalist sense. It went The Eternal Return of Natural Law directly to the Bible and took its words at There can be no doubt that many theories face value. When the Gospel tells the Christian not to resist evil but to turn the called "natural law" are dead. Father Murray lists a number of what he con- other cheek, the precept is clear and abso- lute. The old morality was subjectivist. siders to be misunderstandings of natural order to make the point that: What matters is not what you do but why law, in you do it. An act is moral only when mo- [T]hose who dislike the doctrine, for one tivated by love. If any element of self- reason or another, seem forever to be at work, as it were, burying the wrong corpse. interest creeps in, the act is corrupt and For my part, I would not at all mind stand- sinful. ing with them, tearless, at the grave of any of Within the last generation this morality the shallow and distorted theories that they 21 has come under severe criticism. It did not mistake for the doctrine of natural law. go beyond the false notion that society is The nineteenth century exhibited exten- simply the sum of the individuals living in sive powers of learned misunderstanding it and that public morality is no more than which it possessed to an astonishing degree the sum of private moralities. It had no when it supposed that the law of nature of sense of the differential character of moral- the Age of the Enlightenment was the ius ity and legality, no distinction between naturale of an earlier and in many ways a private sin and public crime. more enlightened age. As late as 1902, Sir In consequence, the older morality pos- John Salmond wrote: sessed no resources for discriminating The idea of a law of nature or moral moral judgment. It tended to thrust its 21 Id. at 298. 7 CATHOLIC LAWYER, AUTUMN 1961

law... has played a notable part in the ceptance of certain political consequences: history of human thought in the realm of (1) Liberal individualism. Individual ethics, theology, politics and jurisprudence. It was long the accepted tradition of those rights are simply individual material inter- sciences, but it has now fallen on evil days, ests so furnished with an armature by posi- and it can no longer be accepted as in tive law as to be enforceable by the power harmony with modern thought on those 22 of the government. In this view the state matters. is simply an apparatus of compulsion with- In 1927, when Parker edited the ninth out the moral function of realizing an order edition he was impelled to add the cautious of justice. footnote: "Sir John Salmond's view that (2) The Marxist concept of human the doctrine in all its forms is now dis- rights as based solely on social function, credited cannot be considered correct." To- economic productivity; an extreme reaction day, when modern thought has caught up from individualistic liberalism. In this view a bit more with the past, it would seem that all rights are vested in the state which is the ancient tradition of natural law is be- the sole determinant of social function. ginning to climb out of the footnotes of (3) Modern evolutionary scientific hu- the learned books into the very text of our manism; the new "rationalism." It is new time. because it maintains (with Spinoza) that It is beyond the scope of Father Mur- man is something more than reason. it ray's purpose to formulate a complete identifies natural law (though the term is statement of the natural law. Having dwelt not frequent with it) with the "drive of the briefly on the law of nature as expounded whole personality whereby men strive to by Locke and Montesquieu, he contents live ever more fully." It denies to man all himse:f with some brief comments on the transcendental reference. All human values vital resources inherent in the idea of nat- are man-made and all human "rights" ura', law, that indicate its new validity. which are the juridical expression of these Of primary importance is its metaphysi- values look only to man for their creation, cal character, its secure anchorage in the realization and guarantee. The ordo juris order of reality - the ultimate order of is conceived after the fashion of the modern beings and purposes. As a metaphysical schools of sociological jurisprudence or idea, the idea of natural law is timeless and realistic jurisprudence, as a pure instru- for that reason timely. Our reflection, mentality whereby lawmakers and judges, therefore, on the problem of freedom, recognizing the human desires that are human rights and po'itical order must in- seeking realization at a given moment in evitably carry us to a metaphysical decision human society, endeavor to satisfy these in regard to the nature of man so that we desires with a minimum of social friction. may be able to justify our assertion that The new rationalism is at bottom an ethical the rights we list are indeed rights and relativism pure and simple. As such it is therefore inviolable, and human rights and open to all the criticisms that have been therefore inalienable. advanced against that ancient mode of There are four decisions open to our thought since Socrates first argued against making and each carries with it the ac- the Sophists. It is unreasonable and it is 22 Id. at 299. ruinous of sound political philosophy. AMERICAN PHILOSOPHY

These objections will be vehemently re- He has an objective idea of the "just" in pudiated but Father Murray maintains that contrast to the "legal." His theoretical by a curious but inevitable paradox, the reason perceives the idea as true; his prac- relativism of the new rationalists must find tical reason accepts the truth as good, its native political expression in a new and therefore as law; his will acknowledges the subtle form of state absolutism. law as normative of action. (4) The option of natural law in the Natural law is the work of reason but old traditional sense. Here the decision is not of an absolutely autonomous reason. genuinely metaphysical. One does not opt It is immanent in nature in the sense that for a rationalization (f power but for a it consists in the dictates of human reason metaphysic of right. This phi'osophy is con- that are uttered as reason confronts the sequent on the initial furnishing of a phil- fundamental moral problems of human osophy of right, justice, law, juridical order existence. Reason does not create its own and social order. Man is regarded as a law. Above the natural law is the eternal member of an order instituted by God and law, the Uncreated Reason of God, which subject to the laws that make the order appoints an order of nature - an order of an order - laws that derive from the nature beings, each of which carries in its very of man, which is as essentially social as it nature also its end and purpose;; and it is individual. In the natural-law climate of commands that this order of nature be pre- opinion (very different from that set by the served by the steady pursuit of their ends on "law of nature"), objective law has the the part of all the natures within the order. primacy over subjective rights. Law is not simply the protection of rights but their Natural Law and Politics source, because it is the foundation of The major contents of the political ideal duties. as it emerges from natural law may be The Premises of Natural Law summed up as follows: The whole metaphysic involved in the (1) There is the supremacy of law, and ideal of natural law may seem alarmingly of law as reason, not will. complicated; in a sense it is. Natural law (2) The source of political authority is supposes a realist epistemology. It supposes in the community. a metaphysic of nature, especially the idea (3) The authority of the ruler is limited; that nature is a teleological concept, that its scope is only political and the who'e of the form of a thing is its final cause. It human life is not absorbed in the polis. supposes a natural theology and a God, (4) Various sub-political groups such Who is eternal Reason. Finally, it supposes as the family, the local community, the pro- a morality, especially the principle that for fessions, the occupational groups, the mi- man, a rational being, the order of na- nority cultural or linguistic groups within ture is not an order of necessity to be ful- the nation, etc., have the right to exist and filled blindly, but an order of reason and to unite in the organic unity of the state therefore of freedom. without losing their own identity or suffer- This sounds frightfully abstract. Actual- ing infringement of their own ends, or hav- ly, any man who protests against injustice ing their functions assumed by the state. is thinking in the categories of natural law. (5) There is a popular sharing in the 7 CATHOLIC LAWYER, AUTUMN 1961 formation of the collective will, as expressed to the new rationalism in regard of a sense in legislation or in executive policy. of history and progress, the emerging po- tentialities of human nature, the value of Conclusion experience in settling the forms of social Here in briefest compass are some of life, the relative primacy in certain respects the resources resident in natural law. It does of the empirical fact over the preconceived not furnish a detailed blueprint of the theory. order; that is not its function. Nor does In brief, natural law furnishes the basis it pretend to settle the enormously compli- for a firmer faith and a more tranquil, be- cated technical problems, especially in the cause more reasoned, hope in the future. economic order, that confront us today. It If there is a law immanent in man - a dy- is a "skeleton law," to which flesh and blood namic, constructive force for rationality in must be added by that heart of the political human affairs, that works itself out, because process, the rational activity of man, aided it is a natural law, in spite of contravention by experience and by high professional by passion and evil and all the corruptions competence. of power - one may with sober reason be- Its concern for the rights of the individual lieve in, and hope for, a future of rational human person is no less than that shown progress. And this belief and hope is in the school of individualist liberalism. It strengthened when one considers that this can match Marxism in its concern for man dynamic order of reason in man, that as worker and for the just organization of clamors for expression with all the impe- economic society, at the same time that it riousness of law, has its origin and sanction forbids the absorption of man in matter and in an eternal order of reason whose fulfill- its determinisms. Finally, it does not bow ment is the object of God's majestic will.