Church and State

Author(s): Hans Rommen

Source: The Review of Politics, Vol. 12, No. 3 (Jul., 1950), pp. 321-340
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 Church and State

By Hans Rommen

THE problemof Church-Staterelations-if under Churchis un-

derstood the Church universal in its Catholic form-may be
answeredwithout too much difficultyon a high abstractlevel. But
on the contingentlevel of concretehistoricaldevelopmentthe problem
becomesnot only highlyinvolved,but almostinexhaustible.For every
growth in the Church'sdoctrine, (for example,the decreesof the
Vatican Counciland everydeeper-goingchangein the otherpartner's
constitutionalformsor in its philosophicaland ethicaljustificationor a
change in its aims to greater comprehensivecompetencies)poses a
new problem. No wonder,therefore,that in our era of restlessness,
of dynamicsocial changes,of conflictingideologiesfighting for the
baffledminds of the masses, of waveringtraditionsdecomposedby
the acid of nihilist skepticism,the ChurchStateproblemarises in a
new intensityand urgency. The externalsigns are there for everyone
to see: the fury of a Hitler against the "BlackInternational,"the
violent persecutionof the Church in the satellite countriesof the
Russianorbit, and the completesubjugationof the OrthodoxChurch
not to a "Christian"Czar but to the confessedlyatheisticPolitburo.
In minor degree the problem is also botheringthe people of the
United States. A secularistoutlook,indeed,may slur over the reality
and intensity of the true problem. For the secularizedoutlook the
Churchin her essence and even more so the churchesand the sects
-is not differentin generefrom other numerousprivateorganizations
for the furtheranceof more or less rationalaims and longings in a
constitutionallypluralistsociety. The secularistwill, therefore,recog-
nize only one pragmaticrule: toleranceunless the public order and
the competencyof the police power is directly concerned. Public
order includes all too often for the secularisthis reform ideas and
his social ideals based on a relativistpragmatismin ethics and thus
makeshim highly sensitiveto the criticismby a Churchwhich bases
ethics on revelationand on competencieswhich the secularistcan
321
322 THE REVIEWOF POLITICS

only consideras unfoundedand arrogant.Only if the Churchre-

mainsin the privatesphereof privateindividuals and staysin this
"free"spherewherethe secularist will tolerateanymass-idiosyncracies,
only thuswill he condescendingly toleratethe Church.His attitude
be
may explained to a degreeby the fact of an exceedingly strong
religious individualism and a subjectiveand emotionalspiritualism,
inimicalto formand tradition(indigenous to thiscountryandresult-
ing in the easy dissolutionof doctrinalunity into a multiplicity of
sects). This spiritualist "formlessness" of religion,here,makesthe
emphasison organically grownand established formsand on the ob-
jective institutions of religiouslife, so characteristic of the Catholic
Church, a somewhat strange and suspiciousthing. Yet thereis no
avoiding the nature and self-understanding of the Church,if the
problem of Church and State shouldbe approached.Otherwise the
term"Church" wouldstandonly for utterlyprivateopinionsby very
privateindividuals in thatsphereof irrational feelingandunscientific
imagination whichfor the secularistagnosticis religion. And it is
clearthat upon suchsuppositions it wouldfollowthat the political
authority has exclusive and plenarycompetency to judgeaboutthe
compatibility of such a religionwith the policy thepublicorderof
and
the state. The consequence of suchthinkingis the abolitionof the
Church-State problemby the completeelimination of the Church.
The term"Church," then,as usedheremeansandmustmeanthe
ChurchUniversal,the divineinstitutionwith the constitutionand
divinepositivelaw of a supernatural society,witha claimanda com-
petency established directlyby God, and not by the collectivewill of
the faithful. The Churchis "founded"by Christ;thereforeit is
juridicallya "foundation," not a corporation, and its constitution, its
fundamental is
law, givendirectlyby God and not ordainedby the
people. The Church,thoughshe mayparticipate in certainmeasures
in the essentialsof all societies,is nevertheless, a societysui generis-
so muchthat she is necessarily una sancta,in essenceand in history.
The philosopher has to acceptthis theological essenceof the Church
as an established fact. That is the reason,in the last analysis,why
the problemof Church-and-State has alwaysbeenand will alwaysbe
primarily paradigmatically problemof the RomanCatholic
and the
Churchand the temporalstatesin theirhistorical varieties.It is this
Churchalone that standsin perpetualidentitythroughhistoryand
history'smanycontingentcreations-civilizations, cultures,nations,
 CHURCH AND STATE 323

economicsystems - and will so standto the end of history,the final

realizationof the Kingdomof God. All historyof mankindsince
the Epiphanyis necessarily also the historyof the Church. The
philosopher, consequently, to adoptthe theologicaldoctrineDe
has
Ecclesia.This strictobligationis limited,of course,to the accept-
anceonly of that whichis trulyauthoritative doctrineand sententia
he
communis; need not heed that whichis historically conditioned,
that whichis the greatprocessof development of doctrineor that
whichthroughthe testingdisputesof the theological schools,hasbeen
modifiedor abandoned.This does not meanthat the philosopher is
whollyprohibited from applying his methods and the principlesof
his socialphilosophy to mattersconcerning or involvingthe Church.
As canonlaw comprises not only positivedivinelaw but natural
andpositivehumanlawas well,so doestheactiveworkof the Church
includethatwhichis humanandhistorically changing.The Church's
end and constitution areabsolute,alwaysthe same,abovecivilizations
and historicalperiods. The Church'sactivity extends into the
"World";the Churchas thepopuluschristianus livesin the "World."
The Churchas an institutionwill developmethodsand accommoda-
tions,policiesand genuinecompromises of modivivendiaboutmeans
and proximate aimsin meetingthe Worldand challenging its undue
claims. In each civilizationand era of historythe "idea"of "the"
State finds expressionin concreteform,for example,monarchyor
democracy, witha Bill of Rights. Thusthereis produced beyondthe
abstractChurch-State relationshipon the abstract-general levela par-
ticularconcreteChurch-State problemwhichrequiresits own con-
creteanswerwithoutthe sacrifice of the perennial principlesgoverning
Church-State relationships.The State is concretelya changinginsti-
tutionand,thoughbaseduponand ruleddirectlyby the naturallaw,
changesin its historicalform. Thus,the Churchhasexperienced the
paganstate in the formof imperialRome;the mediaevalChristian
empirein theformof thefeudallaw;theGallicannation-state andthe
confessional stateof the "divineright"theory;the Christian stateof
the parityof religiousgroups;and, finally,the modernsecularstate,
neutralformbasedon the naturallawwithout
be it of the religiously
a positiveacceptance of thepositivedivinelaw,or be it in the formof
the intenselylaicistand violentlyanti-clericalstate. In thisperennial
the
dispute, "Aus-einandersetzung" between the Churchand the vari-
ous typesof concreteStates,the doctrineof Church-State relationsis
324 THE REVIEWOF POLITICS

constantly beingtestedandclarified, not in the unchanging essentials,

but in the remoterconclusions developed therefrom. Bellarmine's and
Vittoria'streatises,De SummoPontificeor De PotestateEcclesiae
wereput on the Indexin 1590becausetheyrejectedthedoctrinethat
the Pope had juredivinoa directpowerin temporalibus. After the
deathof SixtusV the treatiseswereremovedfromthe Index. Yet
today,theologians still criticizeBellarmine's potestasindirectatheory
and oftenregardas beingin graveerrorhis thesisthathereticsmay
be persecuted by the secularpowerevento the imposition of the death
penalty(cf. Father Broderick, The Tablet, 1947, no. 5589,p. 10).
Here, if anywhere, delicacyand circumspection arerequired and due
consideration mustbe givento all the fine nuancesin the doctrinal
documents.In the followingdiscussionthe Catholicdoctrineof the
nature,constitutionand authorityof the Churchis presupposed as
thesis.
II
Beforewe go into one of the concreteproblems of the "secular"
neutralState to be definedlaterand into the problemof the Bill of
Rightsand its relationto the Church-State problem,a few brief
remarks are necessary concerning the principleof homogeneity as the
concretebasisof the Stateas a unitasordinis,thatis, as a unitasand
as an ordo. Societiesare distinguished primarilyby theirobjective
ends,by theircommon goods as causae and
finales, secondarily by the
subjective socialacts through which the members integratethemselves
or are directlyand coercivelyintegratedto the realizationof the
commongood. In the naturalsocieties,such as the familyor the
State,this objectiveend,that is the commongood,is predesigned in
humannature,and is beyondthe free and the arbitrary will of the
members.Everysocietyas such is basedupon a homogeneity of
purposeamong the members, and upon theiractualconsent to a set
of rulesdetermined by the commonend or good. This homogeneity
is then,not physicalor biologicalbut,rather,moraland culturaland
may,dependingon circumstances, be broador narrow. If we speak
of a "Catholic" State, then we mean thatthe peopleas the ruledand
the rulers,are"Catholic" and that,consequently, theirreligioushomo-
geneityexpresses and
itselfnecessarily quitenaturally alsoin the state
as thepoliticalformof thisCatholicpeople. Forinstance,theyaccept
the ruleof canonlaw in the matterof the bondof matrimony, and
protectthe Church against slander and libeldirectedagainst Catholic
 CHURCH AND STATE 325

doctrineand Churchinstitutions;
the State,representedby its rulers
or representatives,
worshipsGod in the Catholicreligionpublicly.
and are
Evenhere,however,Churchand Stateare still distinguished
bothin suo ordinesovereignanddo not forma union,completeand
andhelponeanother.Meanwhile
to cooperate
strict,butareordained
the potestasindirectaof the Churchas a superiorpotestascirca tem-
poralianon per se and propterse but by reasonof its superiorend
teaches,admonishes and-under circumstances to be determined by
-
the spiritualpower correctsthe secularpowerof the Catholicruler
and invalidates lawswhichareunjustaccording to naturalanddivine
positivelaw.
Undersuchconditions, wherereligiousunanimity formsthe basis
of politicalhomogeneity, thereoften arisesthe dangerthat religious
conformityis considered the basisof politicalloyalty. As a conse-
quence the religious heretic or non-conformist is consideredto be
politicallydisloyal. Historyteachesus that it was theCatholicprinces
and rulerswho stressedthis, for instance,in theirrepression of the
Jewsand also in theirsuppression of heretics,like the Albigenses,
who all too often endangered that whichwas then consideredby
almostall to be the publicorder,the publicsafetyof a Christian
State. An impartial studyof the Inquisition showsthatit wasoften
necessary for the Popes to admonish the rulers,who soughtall too
frequentlyto use that institution for politicalpurposes,that they
shouldstrictlyobservecanonlaw whichwas,it shouldbe saidto its
honor,morehumanethanthe criminal lawandprocedure of theState.
Nevertheless, the Inquisition is and remainsa "darkhistoricalevent"
andnobodywishesits return(O. Pfiilf,s.J., StimmenderZeit.v. 77,
290 422). RightlyVacandard says(Dict.de Theol.Cathol.vii2066):
"Therepression of heresyhashadforeverdeplorable consequences and
raisedterriblehatredagainst the Church. Violent measures it is con-
cededare obsolete."Vacandard saysfurtherthatsuchmeasures have
been disastrousand are neverto be revived.Furthermore, in this
matterwe aretodaynot speakingof the situationthatoftenwaspre-
supposedin the MiddleAges, of one empire,one greatRepublica
Christiana, one orbischristianus undertwo powers;we are speaking
of two perfectsocieties,eachtrulysovereignin suo ordine,eachhav-
ing its own objectiveend and corresponding orderof law. An inter-
ference of the one, the superiorpowerobjectively speaking,withthe
otheris extraordinary, strictlycircumscribed, maynot be arbitrary,
and
326 THE REVIEW OF POLITICS

aboutthe circumstances
howevermuchthe questionquisjudicabit may
be-and oughtto be-determined in favorof the spiritualpower
whichhas, of course,in justiceand beforeconsciencethe burden
of proof.
III

Butall thisis not a problem of ourtimes.Forhistoricalcontingent

reasonsand becauseof the mistakesof ecclesiastics, we live today
in the religiously neutralstate,thatis, a statewhichthrougha bill of
it
rights(be positivelyformulated or merelyimpliedas a partof mod-
em civilization)declaresthe freedomof worshipor the free exercise
of cults, freedomof conscience, freedomfromstate interference of
the religiouslife of the citizensand the equalityof all beforethe
strictlysecular,though not necessarily"secularized" law, without
regardfor religiousaffiliation.Yet this stateis not wholly"neutral";
for it stillclaimsthe rightto demandof its citizensthattheirreligious
practicesas externalacts do not disturbthe publicorder,meaning
thoseethicalvalueswhichit considersthe basisof its own existence.
Examplesof this are the insistenceupon monogamyas againstthe
polygamyof the Mormons,or the varioustechniquesemployedin
dealingwith the radicalpacifismof the religiouslymotivatedcon-
scientious objector.
Differentdifficulties
arisefromourdualroleas Catholicsandciti-
zens in the modemstate,eitherthe neutralstateor the "Christian"
state,whichalso,now-a-days, recognizesin its billof rightsthefreedom
of conscienceand, almostalways,the freedomof religiouscults
(thoughit mayas a "Catholic" state,like Spain,not grantequality
of cultsbut reservefor Catholicism only the rightto a publicform
of worship). We may disputeaboutthe rise of this neutralstate;
it is the realityin our day. We shouldbe awarethat it is beyond
the realmof possibilityto returnto suchChurch-State relationships
as prevailedin the mediaevalempire,or in the confessional stateof
the counter-reformation withits faults- (the libertiesof the Gallican
Churchareits servitudes to theKing,saidFenelon).Also,the whole
discussionconcerning the jus gladi,a topic that still appearsrather
frequently in thebooksof somescholarsof the juspublicum ecclesias-
ticum,seemsto be moreof historical interest,as FatherCapello,s.j.
(Summajus publ.eccl.p. 270) implieswhenhe saysthatthe dispute
is ratherspeculative becausein practiceone mustsay thatthe use of
 CHURCH AND STATE 327

the jus gladi is foreign to the Church. It is likely that, as Ver-

meerschand many others suggest, the argumentfor the jus gladi,
whichhas neverfound generalacceptancein the historyof the Church
and whichis foreignto the commonlaw, is basedon the overstressing
of the societasperfectaconceptof the Churchin a sense similarto the
State (Tolerance,p. 85). Though it may have been true historically
that the methodsof the Inquisitionhad the initialeffect of preserving
certain countriesfor the Catholic Church, on the other hand, the
violation of consciences,the abuse of force in religiousmatters,and
the almost inevitablepoliticalabuseof what was originallyan ecclesi-
asticalinstitutionservedultimatelyto producesuch evil after-effectsin
some of these countriesthat only recently,that is during the last
century,havewe come to understandthe trueextentof the harmdone.
Before we go on to discussthe relationshipsbetweenthe Church
and the modern,that is, neutral,State, two points shouldbe clarified.
First, the authorityof the Churchis wieldedprimarilyover its mem-
bers, that is, validly baptizedChristians. The potestasindirectacan,
therefore,reach first the Christianruler and citizens in their secular
politicallife, that is the State as a naturallaw institutionfor Chris-
tians (the term "Christians"here, means validly baptizedpersons);
secondly, it can reach, though obviously to a minor degree, non-
Christiansin the ChristianState, such as the Jewsor the Saracensin
the mediaevalcities, and, lastly, it can reachout to the rulersof the
States of infidels. Here the spiritualright of the Churchto send out
missionariesto preachthe Gospel issues into a potestas indirectaof
the Churchto summonthe help of Christianrulersfor the protection
of the missionariesagainstthe resistanceof the infidelrulers,especially
since the latterin theirresistancealso violatea ruleof the jus gentium,
namely that of free internationalintercourse. This was the general
doctrineof the theologiansin dealingwith the questionof the Iberian
colonialism;but they also stressedthe fact that, beyondinsistingupon
the admissionof the missionaries,the Pope has no potestasindirecta
over the infidels. They cannot, for instance,be bereft of their po-
litical power becausethey indulge in unnaturalvices, or becauseas
idolators they blasphemeGod, or because they are generally "bar-
barian." This brief mention of the states of the infidels and their
rights based on the natural law and the jus gentium leads to the
second point which must be made. When the Schoolmenup to the
eighteenthcenturyspeak of a ChristianState they mean a Catholic
328 THE REVIEW OF POLITICS

State; indeed,at Bellarmine's time even the statesof hereticswere

still juridically
CatholicStatesbecausethe theologians couldnot yet
accept the idea that the Reformation had definitely asunderthe
rent
una sancta. If, therefore,we look for a paradigmof the modern
neutralstatein the theoriesof the earliertheologians,theirideaof the
pure naturallaw state of the of
infidels, course, mutatis mutandis,
comesnearestto the patternof the modemsecularstate,overwhich
the Churchcan claimonly a very tenuouspotestasindirecta.And
thisnaturallawStatewasactuallyconceivedof by St. Thomaswhen
he substituted it for the Augustinianidea of the CivitasDei which
had so powerfulan influenceover mediaevalthoughtfromCharle-
magneto Dante. But in the naturallawStatethe morefruitfuland
appropriate doctrinesmaybe thatof the Churchas a spiritual societas
perfecta and of the ecclesiae
libertas and less that of the potestas
indirecta.
The term"neutral" secularstateis chosenbecauseit impliesthe
Bill of Rightswithits civiltolerance,freedomof religionandworship,
freedomof consciences (plural!)and, throughthese,equalitybefore
thelaw. It doesnot meanthe absenceof concordats andcooperation,
as is proved,for instance,by the constitutional provisionsof the
separation of Church and State in the (defunct) Constitutionof
Prussiaof 1920and in the Concordatof 1929. "Neutral,"further-
more,is opposedto the quasi-religious stateas represented
totalitarian
by the national-socialistand the communist statesand as is implied
in Rousseau's statewithits intolerantreligioncivile. Nor does neu-
tralitynecessarilymeanacceptinga philosophy of laicismas was the
case in the FrenchThirdRepublic;for here the fight for religious
freedomturned-as it was intendedto turn by the exponentsof
violentanti-clericalism,or, better,anti-religiousrationalism-into a
fightfor freedom from all and
religion especially againstthe Catholic
Churchin her essence. The neutral secular state is simplya statein
whichthe necessarymoralhomogeneity is basedpurelyon natural
valuesas they are declaredor recognizedin the preambles of the
modernconstitutions and especiallyin theirBills of Rights. These
togetherwiththe preambles, formthe substance andvaluesthatcon-
stitutedemocracy and whichare moreimportant thanthe meretech-
niques of democraticgovernment. Thus, "neutral" meansmerelythat
the Stateand the law mustserveall citizenson the basisof the fun-
damentalrightsand, therefore,as a practicalpoliticalmaxim,must
 CHURCH AND STATE 329

not infringeon or judgethe religiousbeliefsof the citizens-not

becauseall religionsare equallyrightor wrong(whichwouldconsti-
tute theologicalor philosophicalindifferentism), but becausethe
unitasand the ordo mustbe basedon secular,yet on none-the-less
commonly acceptedvalues,irrespectiveof the factthattheologically or
philosophically these values be
may per accidens wrongly motivated.
The neutralstateis not primarily interested in whethera citizenac-
ceptsthe freedomof worshipbecausehe is, like Jefferson, a deistor
whetheranotheracceptsthatfreedombecausehe abhorsany political
compulsion in thismostsacredsphereof the person. The community
refusesto use the powerof the law so long as the exerciseof the
rightof the one doesnot leadto the violationof the rightsof others,
so long as the particular wrongmotivationdoes not resultin such
externalactsas wouldviolatethe publicorder. It is not necessary to
be convincedthat all religionsareequallytrueand good in orderto
be able to honor the genuineconvictionsof one's fellow citizens,
howevererroneousthey may seemto be or are. In respectingthe
convictionsof otherswe do not honorthe "error," but instead,we
give honor to the bona fide conscience and the person of our fellow-
citizen,his freedom and his without
sincerity, regard the objective
for
error. We recognizethe fact that,according to ourowndoctrine,he
is obligedto followhis conscience eventhoughthat conscience may
be erroneous.
And "secular," or perhapsbetter"temporal," stateneednot mean
the "secularized" statesuchas the laicists Francewantany more
in
thannaturallawmeansthe denialof the statusgratiaehowevermuch
the rationalistphilosophyof the 18th century"jusnaturalism" (Don
Sturzo'sgood expression)mayhavethought. Secularmeansa clear
distinctionfrom the spiritualand includesa separationof Church
and State whichneed not be hostile. The CardinalPatriarchof
Lisbonexpressed it neatly(in The Tablet,No. 5654,p. 215) when
he said: "ThePortuguese Stateis essentiallya secularstateby con-
act; the separation
stitutional betweenChurchandState (since1911)
definesthe relationsbetweenthem..." A policyof religioustol-
erancehasbeenadoptedsince1918andsincethenhasbecomeaccen-
tuated,the EstadoNovo (Salazar)developingafter1928this policy
throughthe Concordatof 1940. It shouldbe clearthat the State
cannotbe "secularized" so easily;firstthe rulingclassesor the ma-
jorityof the are
people "secularized," as in the ThirdRepublicand
330 THE REVIEW OF POLITICS

then the laicistlawsare introduced

and thus the stateis secularized
as a reflex,so to speak.
IV
Among non-Catholic citizens,be they believingProtestantsor
secularistliberals,thereprevailsa thesisaboutthe Catholicdoctrine
on Churchand State that, in the last analysis,is equivalentto the
famousdictumascribed to Veuillot(thoughhe neversaidit). "When
you are the majority, demandour libertyon the basisof your
we
principles(the so-calledProtestantprincipleor liberalistprincipleof
indifferentism). When we are the majority,we will refuseyou your
libertyon thebasisof ourprinciples."Consequently, thesecitizensdo
not trustoursincerebeliefin andacceptance of the Bill of Rightsand
of the practicalmaximof religiousand politicaltolerance. They
quoteMirarivos arbitramur and Quantacura;theyquotec. 2198of
the CodexJuris Canonici,accordingto whichif it is opportune, the
Churchmayin the caseof an ecclesiastical delictrequestthe helpof
the brachium saeculare.Theypointoutthatthetheoryof thepotestas
indirectd(whichit maybe concededis oftentaughtwithoutthe nec-
essaryqualifications) must necessarilylead to makingthe Bill of
Rightsimpotent should Catholicsbecomean overwhelming majorityin
a state, despitethe solemnassurances of a CardinalManningand
manyotherdignitaries.
It followsfirst,that we mustshowhow sincerelywe acceptthe
valueswhichthe Bill of Rightsprotects;freedomof worshipand of
religion;freedomof speechand press;freedomof religiousaffiliation
-and this involvesthe sincerityof ourconcernfor theprotection of
religiousnon-conformists in predominantly "Catholic"states. For the
Churchexecutesher missionarywork not only in countrieswith
Catholicmajoritiesbut even more so in states with overwhelming
Protestant, Mohammedan, or Confucianist andherworkis
majorities,
very dependent on the recognition of the principlesof freedomof
religion,of conscience,of speech and of teaching.Consequently the
Churchsincerelyfavorsan international Bill of Rights,as Pius XII
recentlydeclared. She, furthermore, cannotinsist upon a Bill of
Rights in the one "non-Catholic" state and refuseto recognizeit in
the otheraccording to whetherCatholicsarea minorityor a majority
in a particularstate. FatherPribillaquotesin this connection in his
on
excellentarticle "Dogmatical Intolerance and Civil Tolerance"
 CHURCH AND STATE 331

(Stimmender Zeit. vol. 144, p. 27 ss.), the Bulla of GregoryIX of

April 6, 1233 to the Bishopsof Franceconcerningthe protectionof
Jews: "The Jew is to be shown that benignitywhich the Christians
living in pagan countrieswish to experiencefor themselves." Cer-
tainly this is a principleof generalapplication.
Secondly in the matter of the general doctrine of Churchand
State relationswe must distinguishas clearlyas possiblebetweenthe
purely historically-determined, contingent legal systems and theories
and opinionson the one hand, and the essential,superhistorical core
of what is true dogmaticallyand fide catholicaon the other. Finally,
we must make due allowancefor the fact that we often use terms
which are meaningfulin an earlierhistoricalperiod,but which have
today lost much of their formermeaning;we must furtherrecognize
that the Curia uses a certainstyle peculiarto itself just as theology
has its own style and that this style requirestranslationinto modern
language, for example,the term "heretic"when used in connection
with bona-fidenon-CatholicChristians,etc.
We may and must sincerelyacceptthe practicaland constitutional
meaningof the Bill of Rights. We shouldstressthe fact that freedom
of the press and of conscienceand of science (philosophy)was con-
demnedonly insofaras it was demandedon the basis of theological
indifferentismor philosophicalrelativism. We should stress,further-
more, that howevermuch these rights were demandedhistoricallyon
the basis of a wrong philosophy,such as rationalismand deism (for
example,Jefferson) this historicalorigin does not imply a kind of
originalsin with which the rights themselvesare contaminated. We
should go on to show that, on the contrary,these rights are not mat-
ters of theologicalor metaphysicaltruthbut practicalpoliticalmaxims,
that the rights of the person,of the parent,are based on the natural
law which is not abolishedby faith. We must give properemphasis
to the fact that the validityof the thesis "truthonly has rights;false-
hood (error) has no rights,"does not abolishthe rightsof those who
are per accidensand withoutmalefide in errorand do not disturbthe
public order, if this thesis is at all meaningful;for abstractionor
relations--and truth and error are such, if they do not stand for
Christand Satan- have no rights: only personsand organizedgroups
of personshave rights, either as naturalor moral-legalpersons.Fur-
thermore,we have recentlygaineda greaterawarenessof the "psycho-
logical"conditionsof the Faith,and of the searchfor and the acquisi-
332 THE REVIEW OF POLITICS

tion of truththanwaspossessed by the morehomogeneous andmore

ontologicallyand metaphysically orientatedMiddle Ages. A non-
conformist-ecclesiastical as well as politicaland sociological - was
thenvirtuallyprimafacie "guilty."That is the reasonfor the quick
and to us, oftenviolentreactionof the tightand rather"static"and
at the sametimemuchlessindividualist-personalist community, against
the nonconformist. This reaction,havinglittle regardfor the sin-
cerityof the offender'snonconformism, often involvedthe use of
forceuponoccasions whereeventhe most"orthodox" of todaywould
hesitateto employit. We areawareof the apostasyof wholeclasses,
suchas the intellectuals and, later,the proletarian masses,the great
scandalof our times;in bothinstancesit wouldbe difficultto speak
of personalguilt, as Newmandemonstrates in connectionwith his
friendFroude,and BishopKetteleras regardsthe proletarians.We
are, furthermore, and rightfully,awaretodayof the greatdangerof
civil and socialintolerance and recognizethe rightof personsto be
respected in the sincerityof theirconsciences, justas we areawareof
the intrinsicfreedomof the act of faithandof the obligationbinding
on everyone to obeyhis subjectively clearconscience.Fora Protestant
has subjectively the duty (fromwhichfollowsthe obligationof the
community to recognizehis rightto be undisturbed in the fulfillment
of thatduty) to adhereto his churchandits teachingsas long as he
is subjectivelyconvinced of its truth;nay,as longas he is not subject
to the pressure urgentand seriousdoubts,he maynot evengive
of
up his faith (Lehmkul,Theol. Moralisv. I, 415, 1914). The sin-
cerityof the erroneousconsciencedemandsreverenceand has the
rightof beingfreefromviolentintervention, provided, of course,that
the erroneousconsciencedoes not lead to externalacts that are in
obviouscontradiction withthatbasicareaof agreement or assentwhich
makesthe community a unitasordinis,thatis, its "publicorder."Not
only the right consciencehas rights;the sincerethougherroneous
consciencehas rights,too, rightslimitedonly by whatwe call the
"publicorder,"that is, the essentialconditionsof socio-political life,
strictlyunderstood.
Todaywe arenot boundby whattheologians whoweretoo much
affectedby theirtimeandits circumstances taughtconcerning theper-
sonalrights. I fully agreewithFatherCourtneyMurray'sstatement
in his Bellarmine articleabouta "newChristendom" in 2045, after
having studied the opinions of the Doctors from Vittoria to Bellar-
 CHURCHAND STATE 333

mine and the excellentworkof ProfessorJosephHoffner (at the

Seminarat Trier)on Christianity andHumanDignity,The Colonial
Ethicsof the SpanishTheologiansin the GoldenEra (1947). In
suchmattersthereoccursa development of doctrine,as we mightsay,
with all appropriate a development
qualifications, that purifies,en-
lightens,makesexplicitwhatwasearlierimperfectlythoughtout,what
was too quicklyacceptedor only implicitly
heldand thusin its com-
not
plexity fullycomprehended.
V
Let us considerseveralpertinentproblems.First:let us consider
the rightsof parents,to whichFatherJosephSchroteler has devoted
a volumeof 400 pages,(Das Elternrecht [Miinchen,1936]). He is
concerned withthe disputeof the Thomistsand the Scotistsoverthe
compulsory baptismof Jewishchildrenbeforetheyreachthe full use
of reasonand againstthe will of theirparents. FatherSchroteler
also discussesthe still earliercustomof child-oblates,and the more
recentpracticeof compelling Jews in the PapalStates to attendser-
mons of instruction.This last practicewas often defendedin the
missionarytheoryfor the pagansthoughboth Las Casasand Sal-
meronseverelycriticized the practice.FatherSchroteler continuesthe
discussionof parentalrights,treating,among others,the famous
Mortaracase and variousprovisionsconcerningparentalrightsin
modemconstitutions.
If one thingis clearthenit is this: the Scotistviewwas already
givenup by the sixteenthcentury.The Thomistdoctrinethat such
a compulsory baptismis a graveand ordinarily indefensibleviolation
of the parentalrightsis authoritatively establishedin the famous
PostremoMenseof BenedictXIV, the greatcanoniston the Papal
throne. In 1848, Emmanuelvon Ketteler,then the deputyat the
FrankfortParliament and laterthe Bishopof Mainz,statedin the
deliberationof the Bill of Rights:"I demandfor Catholicsand be-
lievingProtestants, the rightto have theirchildreneducatedin the
Catholicor ProtestantFaithjust as I will acknowledge the terrible
rightof the unbeliever to havehis poorchildreneducatedin unbelief."
That is the samedoctrinewhichthe U. S. SupremeCourtacceptsin
the famousOregoncasesof 1925 and whichthe EncyclicalDivini
illiusMagistriby Pius XI quotesas an exampleof the naturallaw.
334 THE REVIEW OF POLITICS

Concerning the compulsory attendance at sermons,Schrotelercomes

to the conclusion that the theologians wouldverylikelyhaverefused
to approveof thispracticeif it hadnot beenusedin thepapalstates.
He finishesthis interesting chapterby sayingthatsuchcompulsion is
a uselessfmeans anyway and would cause the opposite of what is in-
tended;furthermore the use of suchcompulsion wouldeasilyleadto
a similarcoercionof Christianminorities in a non-Christian country
(such as the compulsory attendance of indoctrination-courses in the
Hitler Youth and especiallyin communist countries).If we vehe-
mentlycondemnthis last not only becausewhatis indoctrinated is
atheisticbut also becauseit violatesfreedomof consciences, thenthe
secondpointappliesalso in the casediscussedabove. "We arecom-
ing nearera time,"says FatherPribilla,"in whichall civilizedman-
kind principally rejectscompulsion in spiritual(geistigen)and espe-
ciallyin religiousmatters andregardsthe use of forcein suchmatters
as a formof barbarism againstwhichthe nationsof Westernciviliza-
tion gatherall theirpowers.It canonlybe a blessingfor the Church
if she recognizesthe freedomof conscienceand of religionand re-
nouncesvoluntarily, all meansof compulsion, offeredby the State,
evenwheretheystillmightbe tendered."
FatherPribillaalso pointsout that the Churchwouldlose all re-
spectand in additionwouldnot be successful, if eachact of tolerance
wereconsidered by her as a mere concession,onlyreluctantly granted
and revocableat any time. It maybe remarked herethat Pius IX
blamedratherseverelysomeCatholicstatesof Latin-America because
they admitted non-Catholics as immigrants, but in 1899, the well
knownprofessorof dogmatictheology,JosephPohle,writingfor the
semi-authoritative Wetzer'sand Welte's church-encyclopedia, stated
thatin general,moststatesrecognized the principleof freedomof im-
migration andemigration, thatthelegalgrantof thefreeexercise of re-
ligionandworship in Catholic countriesdoesnot endanger the internal
peace.On the contrarya refusalof sucha freedomwouldverylikely
threatenthe internalpeacefor thesestates:the trendandthe needof
the timeareonceand for all moretowardsfreedomof religionthan
towardscompulsion and restrictionin the exerciseof religion. This
thought is basedobviously on Leo XIII's Immortale Dei (ontheChris-
tian constitution of Statesnot only the NaturalLawconstitution):
theremay arisesocialconditionsin whicha government, remaining
whollyChristian andCatholic,mayandoughtto usetolerance inwhat
 CHURCH AND STATE 335

concernsthe generaldirectionof the state. We mightaddthattoday

the freedomof missionaryactivityon the basisof freedomof religion
and worshiphas becomea generallyacceptedrule of International
Law (Kongo-acts, 1895: Acts of Antislavery Congress, Bruxelles
1890: Art. 22 of the League of Nations Covenant, and now the
already mentioned international Bill of Rights and the Four Freedoms).
What is expressed then, even in international law is a consequence
of a doctrinal development. Since the Middle Ages our sense of the
importance and the rights of consciences, especially of the erroneous
conscience, has been much refined. Whatever one may think of the
development of philosophy from Kant through romanticism and to
Kierkegaard and the Existentialists, one positive feature stands out:
an increasingly higher evaluation of freedom and of personal dignity
as against the impersonalpowers and the intolerant trends of tight and
restrictive collectives which again arise in modem totalitarianism in a
diabolical measure. Along with this personalism increases also the
respect of the innermost sacred sphere of the person where in ultima
solitudine the individual conscience rules. Consequently a non-con-
formist conscience is not, as it was rather customary to explain in the
Middle Ages (and quite often well-founded) an intentional and guilty
one, as of mala fide. By reason of our greater knowledge of psychol-
ogy and of the acts of conscience, especially of the acts of faith and of
the loss of faith, and considering the facts that the process of civiliza-
tion has built up generally acknowledged minimal norms of external
behavior, our reaction against the non-conformist takes more into
account the possible, nay probable, bona fides, the sincerity of the
objectively erroneous conscience and shies away from means which
by reason of our respect for conscience seem inappropriate. Against
Karl Jaspers' fear, that if Catholicism should become influential again,
heretics would once more bum at the stake (Der Philosophische
Glaube, 1947, p. 73), Father Brunner, s.j., affirmsthat the respect for
conscience demands that the religious error of a person be enlightened
by appropriate,that is, spiritual means, by means which do not violate
his freedom and personal dignity, not by force (Stimmen der Zeit,
vol. 143, p. 438). It need not be stressed that the non-conformist
cannot himself deduce from this an uncontrolled right of aggressive
action against the equally-to-be-respectedconsciences of the conform-
ists. We may conclude that there is to be recognized a right of sin-
cerity. For it seems illogical to declare, on the one hand, a right to
336 THE REVIEW OF POLITICS

respectthe erroneousconscience
and,on the other,to enforcean ex-
ternalconformitywhichthe erroneous consciencefeelsgravelysinful.
ProfessorJacquesLeclercsays,therefore, "A
rightly, societyin which
the only chanceto makea careeris by beingCatholicwouldbe a
societywherethat rightof sinceritywouldbe violated. Sucha con-
ditionwouldleadto a forcedconversion witha consequentialpoison-
ing of the Churchof God. Out of love for the Churchand of re-
spectfor humandignitywe do not wantany suchconversions under
forceor pressureby socialconditions"(La Vie Intellectuelle,
1949,
p. 109).
VI
Parallelto this development runsthe otherone whichstressesnot
only the societasperfecta-characterof the Churchas an institutional
framework,
juridical as a Heils-anstalt whichsomecanonistsseemto
overstressperhaps,but the character as the Churchas a Heils-gemein-
schaft,as the populus christianus
and as the materecclesia. In this
problem Father Congar,o.p., states (PourUne Theologiedu Laicat,
Etudes,1948,p. 42): "We havenot yet a satisfactory theologyof
the laymenin the Church. If we do not get it [he says] we shall
have in the face of a laicised(secularized)worldonly a clerical
Church,whichcan not in the strictsensebe 'the peopleof God'."
Readingthis thought-provoking essay,one perceivesthat todayour
problems are not covered either by the two-powers theoryof the
MiddleAges or by the latertheoryof the Churchand State in the
strictsense,but thatthe newpointof viewembraces the ideaof the
Churchalso as the peopleof God, sent to witnessfor God in the
secular society, culture,civilizationas the grown sons of the mater
ecclesia.But then the Bill of Rightsbecomesof paramount impor-
tance. For by it is stakedout that field of privateand communal
activityand initiativewithwhichthe Statehas no rightto interfere.
The Bill of Rights,of the personalrights,separatesthe State from
"Society"and its innumerable of the "saeculum."
free organizations
Thenthe relationChurch-State shifts a degree. Not only,or even
to
primarily,does it becomea questionof potestas;no, the libertas
ecclesiaas Anstaltand as the peopleof God movesinto the fore-
ground.
For this development -and it is such-we have an excellent
examplein a country where this Christian-cultural
and socialmove-
 CHURCH AND STATE 337

mentas the expression of the Churchandas an impression on society

has flourishedand still flourishes:Belgium. The firstclaimof the
Churchas againstthe State, society,nation,is the libertasecclesia.
God lovesaboveall to haveHis Churchfree (Anselm). In orderto
fulfillits supernatural missionthe Churchneedsthe libertas. Even
in thoseageswhenthe potestas-concept seemsto prevailit is actually,
if we lookdeeper,the libertasecclesia which is trulymeant,as becomes
ratherclearif one readsthe documents of GregoryVII or of Boni-
face VIII. The superiority of the Church,herend, herconstitution
are the ultimatebasisfor thisliberty,thoughin ourtimesthe libertas
ecclesiais often indirectlybased,so to speak,on the personalrights
of her children.Belgiumwasthe firststateto establishpopularsov-
ereigntywitha Bill of Rightsin the Charterof 1830,followingyears
of politicalreactionand a revivalof jurisdictionalism and the quasi-
divinerightstheoryof the ancienregime.Some traditionalists and
conservatives attackedthe positiveattitudeof the BelgianCatholic
episcopate towards the Charter.But the latterinsisted:religionneeds
and
liberty liberty needs religion. In ourage we needno otherguar-
anteesfor the fulfillmentof our religiousdutiesexceptlibertyitself.
The Churchneedsnothingmorethanherlibertyin orderto maintain
herselfin her doctrinalpurityand in herplenitude(Merode). The
Catholicin Belgiumcannotbe alonefree;the libertyof all hasbecome
the conditionof their liberty(cf. GeorgesGoyau Catholicisme et
Politique, 1923, p. 112 ss.). The Archbishop of Malineswrote to the
NationalCongress:"We do not wantprivileges, we wanta perfect
liberty with all its consequences" (ibid.p. 117). GregoryXVI, author
of Mirarivos arbitramur, declaredthathe hadno inquietude concern-
ing the and
BelgianConstitution, AdolpheDeschamp couldchallenge
in 1856the anti-clerical Left to cite onepapalwordaboutthe alleged
incompatibility betweenthe Constitutionof Belgiumand Catholic
doctrine(ibid.p. 120).
VII
On the schoolquestion,too, we findthe Belgianexampleinstruc-
tive. It is againstthe principleof justice,oncethe parentalrightsin
the matterof educationare recognized, for the state to refuseto
permitparents to use the schools accordingto those rights. It is
againstjustice that parents should be taxedfor the maintenance of
the publicschoolsand still be compelled to sacrificeincometo make
338 THE REVIEW OF POLITICS

use of theirrights. In Belgium(of course,Belgiumdoes not know

230 differentProtestant sects) the state,represented by the town,has
to establishpublicschoolsof Catholiccharacter if Catholicparentsof
a minimum numberof childrenso demand;in addition,the statepays
the Universityof Louvaina certainamountperstudentto compensate
for the savingsto the stateuniversities throughthe workof Louvain.
Evenin certainpartsof France,townshavelatelydistributed a sub-
sidyto parentsof childrenin theparochial schoolswiththe stipulation
thatthe moneybe devotedwhollyto defraythe costsof theparochial,
so-calledfree schools. This seemsto me to be an application of a
good principle, one that is also used in our countryin to
relation the
educational privilegesofferedunder the Veteran'sBill of Rights. It
is, after all, the child as a futureactivecitizen,represented by his
parents,who has the rightto an education,a rightcorresponding to
the demandof the State that its futureactivecitizensbe educated
and well-informed.These inter-relations are not giventheirproper
considerations in the UnitedStates,possiblybecause,dueto a lackof
discretion, it was too oftencontendedthatthe Churches as suchhad
the superiorrightto determine the education.Instead,as the Codex
JurisCanoniciclearlyproclaims, that rightbelongsprimarilyto the
parentand, consequently, it becomeshis strictduty to exerciseit.
It wouldseemthat in modemtimesthe "rival"of the Churchis
not so muchthe modemdemocratic statewithits regardfor personal
dignity and freedom, but rather the totalitarian
paganmovements,
like Nazismand communism.They are not "states";they are im-
personalforcespossessedof evil. What Mirabeausaid of Prussia,
namelythatwhileStatesordinarily havean army,Prussiais an army
thathasa State,canjustas trulybe saidof theseterriblemovements;
theyare ruthlessgroupswho controland employthe Statesfor their
inhumanpurposes.
VIII
Let us summarize our rathersketchythoughts. For the Church,
libertyis no danger; a sect, it maybe. The difference
for between
sense,is thatthe Churchhasa bodyof doc-
them,in the sociological
trine, depositumfidei, an untouchable
a treasuryof objectivetruth
containing also a minimum of whichis independent
organization of
the "will"of the Churchas a corporate body. The sect is wholly
its organization
spiritualist; it hasno objective
is accidental; depositum
 CHURCH AND STATE 339

fidei; instead,it has only a chanceagreementof individualminds.

Consequently a Churchis internallydogmatically intolerant(cf. the
ProtestanttheologianH. Liermann,DeutscheBeitragezu Amster-
dam,1949,p. 191). This is a fortioritruefor the CatholicChurch.
The firstclaimof the Churchis, therefore, the libertasecclesiae,that
is, its free corporatelife, unhindered by any humanintervention in
her government, in her cult, worshipor her teaching.The positive
guaranteeof this freedomagainstsuchinterference or hindrance by
the seculargovernment, whetherbasedon the Bill of Rights(thatis,
the religiousfreedomof its membersas citizens)and the jus com-
mune,or on the formalprovisions of a concordator on a constitu-
tional provision,is morea matterof historicaldevelopment condi-
tionedby circumstances. In orderthat the Churchmay growand
fulfillits supernatural
function,let us repeat,it needsonlyherlibertas
basedat the minimum on the religiousfreedomof the Bill of Rights
andthe jus commune(U.S.A.), based,in theideal,on thefull recog-
nition of canon law and of the Churchas a societasperfecta,as is the
case in Belgiumwherethe Churchis recognizedas a publiccor-
poration.
A last remark:we mustsinceLeo XIII be carefulwithour ap-
plicationof the thesis that becausepoliticsconcernsmoralityand
consistsof moralacts,it thereforeis subjectsimpliciter
to the authority
of the Church.We mustalwaysdistinguish clearly the sphereof
in
moralitybetweenthe fieldsof religiousand ecclesiastical activity,the
field of political,economic,scientificand artisticactivity,and that
field of intimatepersonalactivityin whichthe personhas to reach
his decisionwholly on his own responsibility.The principleof
"metaphysical hierarchy of values"does not abolishthe equallyim-
portantprincipleof autonomy.
It is truethat the Statehas a dutyunderdivineand naturallaw
to acknowledge its Creatorand to worshipHim. Yet the State is
not a substantial being,not a personin the strictsense;it has no
in se et per se esse. The State acts only throughthe acts of persons;
and,althoughthe commongoodis relatedto religionandmoralityin
thatit is partof the cosmosof endsin ordineto the summum bonum,
and althoughthe postulatethat the State oughtto worshipGod in
thewaythatGodhasHimselfrevealedis true,it stillremainsequally
truethat,in thisworshipandin theState'spositiverelationto religion,
the State cannotact immediately but only throughthe mediationof
340 THE REVIEW OF POLITICS

the personswho constituteits members, thosein authorityand the

citizens. If all-or practicallyall-of these are Catholic,then,
necessarily, worshipand religionbecomea publicduty. But if the
materiaof the State, the peoplewhoseformathe State is, are re-
ligiouslynot homogeneous at all, thenthe "State"cannottreatas res
publica that which is not respublica.SincetheStatecanonlyworship
throughits citizens,if the citizensare in wide disagreement about
worshipand religionin the sense of revealedtheology,to require
themto worshipin a religionoverand aboveone basedon natural
theologywouldonly lead to insincerity and the inevitableviolation
of consciences.A "neutrality" of the Statein religiousmatters,not
as a metaphysical principlebut as a politicalmaxim,wouldbe the
meansby whichthe libertasecclesiaewouldbe best guaranteed.
The temporalbonumcommuneis the properend of the Stateac-
cordingto naturallaw. Thus,evenin the caseof the Christian prince,
if he restrictshimselfto this end withoutputtingany difficulties in
the way of the freedomof the Churchto realizeits end, he would
still fulfillhis strictduty. And to the contentof this bonumcom-
munebelongsthe shapingof the publicorderand the publicinstitu-
tion in suchfashionthatthereexistthe optimalchancesfor the citizen
to find the truth,naturaland supernatural. This seemsto be the
meaning for us today of the sentence that the stateshouldgivepref-
erenceand favorto the truthas againsterror.