Arguments for the Human Right to Religious Freedom

Arguments for the Human Right to Religious Freedom ¹

John Courtney Murray, S.J.

The following article is the closest that the later Murray came to a "purely natural law," philosophical argument. As mentioned in the general introduction, Murray began his 1945 philosophical argument with "essential definitions" of key terms that he though relevant to that debate—terms such as "conscience," "law," "state," and "God." Here he is defining the term "human dignity" that serves as the philosophical foundation for the right to religious freedom. In doing so, however, he is not delineating a timeless essence. Rather, he is making explicit a notion that, he contends, has emerged within Western societies. After the mid-1950s, natural law had become for Murray a developing tradition of ideas, commitments, and procedures that course through the social and political thought of a secular society that is continuously on the move.

In terms of the structure Murray established in "The Problem of Religious Freedom," this complex, secular notion of human dignity "converges" with the church's own, theologically-based judgments concerning the church's place in human history and its own freedom. That the secular society's and the church's judgments ought to converge is of course based in Murray's notion of Gelasian dualism (and concordia), as is his judgment that the church ought to affirm and defend human dignity as a social good. Since Murray is here simply trying to tone up Dignitatis's philosophical argument, the theological presuppositions of his earlier arguments recede into the background.

Here Murray strengthened his conciliar argument by adjusting the relative positions of the various principles that he had clarified in those conciliar discussions. The reader might especially note the positioning of the principle "as much freedom as possible" in this article, in contrast to its place in "Problem."

Yet a question remains: Is this what Western societies affirm when they proclaim commitments to human dignity? For Murray, the notion is intrinsically social and historical. It involves a view of the human person as constantly active within, and possessing responsibilities toward, the societies in which they live. Some criticisms of Western individualism do not find such a social notion of the human person at the heart of the Western experiment, while others find sociality there, but also a reticence to talk about those implied social commitments. Murray's understanding of human dignity also includes an intrinsic drive toward all that the human mind and heart can question, including the reality of God. Again, some criticisms of Western culture find at its core a constraining materialism. At the least, Murray's exposition perhaps can demonstrate that our alternatives are not simply between individualistic isolation and communitarian emersion, materialistic constriction and spiritualistic escapism. It might be possible to develop an understanding of the human person that preserves both the strong sense of personal integrity and worth of the individualist traditions, the social interdependence of more communitarian traditions, and a strong concern for material existence that is involved in commitments to social justice—Editor.

The Vatican Declaration "Dignitatis humanae personae" affirmed that the human person has a right to religious freedom. It showed that the concept of religious freedom is clear, distinct, and technically exact regarding both its ground and its object, and adequately developed concerning what it embraces. First I will reiterate what the council meant and what generally is meant by religious freedom. Then I will address the more difficult question of how to construct the argument—whether derived from reason or from revelation—that will give a solid foundation to what the Declaration affirms. For nearly four years the conciliar Fathers and experts vigorously debated this justification, eventually completing the brief argument found in the Declaration (n.2,3). Even so, it is fair to say that this argument has pleased or pleases no one in all respects.

We can legitimately debate how better to construct the argument. For the Council's teaching authority falls upon what it affirmed, not upon the reasons it adduced for its affirmation. The Council did not intend that the Declaration establish an apodictic proof. The Declaration was merely to outline certain arguments, mainly to demonstrate that the affirmation of religious freedom is doctrinal.² The church's affirmation is based upon arguments drawn both from human reason and from Christian sources. Please allow me, then, what you have allowed others: to discuss this whole matter briefly.

I. Civil Religious Freedom

To begin with, it will be useful carefully to delimit what we must argue. This will not be difficult if we keep in mind that the concept of religious freedom includes a two-fold immunity from coercion.

First, in the sphere of religion no one is to be compelled to act against his conscience. Nowadays this principle is one upon which all persons of judgement agree, unshakably. Enough, then, to recall that for us Christians this principle derives its strongest argument from the necessary freedom of the act of Christian faith, a doctrine licitly and necessarily extended to the profession of every religion.

Second, in the sphere of religion no one is to be impeded from acting according to his conscience—in public or in private, alone or in association with others. It is around this second immunity that the conciliar debate turned. This second immunity had long been a historical problem; it remains a theoretical or doctrinal problem. It will help to clarify the problem.

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

To clarify this point, let us suppose that there does exist in human society a power that possesses the right to prohibit religious practice. Such a power could only be the public power (the state). Certainly a right of this kind could not be possessed by any private person or intermediate social group. One could argue—indeed, many have so argued—that the public power does possess such a right because of its duty toward the good of society and because it has a monopoly on coercive power that it must exercise for the good of society either by means of legislation or of administrative action.

To establish, then, that the human person enjoys a right to full religious freedom, one must first establish that the public power has no right to restrict religious freedom but has rather the duty to acknowledge and protect it.

Such being the case, clearly our inquiry, although of its nature ethico-juridical, is nevertheless finally and formally political, or what is called constitutional. By this I mean that it deals with the duties and rights of the public power—their nature, their extent, and their limits.

The classic difficulty in this matter is well known. It begins in the human person's obligation to act intelligently, i.e., according to his conscience. Yet it sometimes can and often does happen that someone who acts according to his conscience can act contrary to the objective order of truth—for example, by practicing a form of public worship not wholly in agreement with the divine ordinance or by disseminating religious opinions not in conformity with divine revelation. Surely spreading religious errors or practicing false forms of worship is per se evil in the moral order. About this there is no doubt. But our inquiry is not about the moral but about the juridical order. Does the public power have the duty and the right to repress opinions, practices, religious rites because they are erroneous and dangerous to the common good?

The Vatican Council's Declaration denies that such duty and such right fall within the competence of the public power. Yet we still must ask: On what justifying argument does this denial rest? Why may the limitation placed on the public power in matters of religion be considered just and legitimate? Thus is the state of our question. I will now evaluate the various arguments that were put forward to confirm the person's right to freedom in religious matters.

II. Arguments for Religious Freedom

First we must note that the doctrine of the Declaration is today supported by the sense and near unanimous consent of the human race. This is also intimated at the very beginning of the Declaration. The Declaration also suggests that this consent does not rely upon the laicist ideology so widespread in the nineteenth century but upon the increasingly worldwide consciousness of the dignity of the human person. It relies, therefore, upon an objective truth manifested to the people of our time by their own consciousness. Before adducing other arguments, then, the presupposition obtains and prevails that the teaching of the Declaration is also true. Securus enim iudicat orbis terrarum.³

From this it follows that the Council's sole purpose in adducing the argument in favor of the right to religious freedom is to clarify and strengthen under the light of both reason and Christian revelation the more of less confused contemporary consciousness of human dignity.

A: From Conscience

The first conciliar attempt to do so was laid out in the arguments of the first and second schemata.⁴ The basis of that argument was the moral principle that in religious matters man in held bound to follow his conscience even if erroneous. From this moral principle the schema deduced, as if immediately, the moral-juridical principle that to man is due the right to be free in society to follow his conscience.

This moral argument if correctly expounded has its force. But ultimately it is defective because unable to demonstrate what, in line with our statements above, has to be demonstrated.

The moral principle is entirely valid that man is duty-bound always to follow his conscience. From this follows the moral-juridical principle that man has the right to fulfill his duty. No difficulty arises if the conscience in question is right and true. This is evident. But if the conscience in question is right but erroneous, it cannot give rise to a juridical relationship between persons. From one human being's erroneous conscience no duty follows for others to act or perform or omit anything. Some might insist that the first two schemata additionally presuppose that the public power lacks any right to prevent human beings in society from acting according to erroneous consciences. Perhaps it does, even though this is not immediately apparent from the text. Even so, the schemata's argument failed to demonstrate why the public power lacks this right.

This being the case, the argument fails to support that immunity upon which our whole inquiry hinges. Hence it is not surprising that the Council's third schema—entitled "corrected text"— abandoned this line of argument that would ground the right to religious freedom in the dictates of conscience. From the third schema down to the promulgation of the Declaration, the foundation for the right to religious freedom is placed in the dignity of the human person. Rightly and wisely.

I shall leave aside the justifying arguments found in the subsequent schemata and come at once to the final, definitive text. The text sets forth two main arguments and, to give completeness to the doctrine, a third additional argument based upon the faith.⁵

B. From the Obligation to Search After the Truth

In keeping with the wishes of many council Fathers, the first argument attempts ontologically to ground religious freedom in the fact that all men "are impelled by their nature and are bound besides by a moral obligation to seek the truth, especially truth regarding religion. They are also bound, once they have learned the truth, to adhere to it and to regulate their whole lives according to its demands" (no.2). From this moral obligation the argument next deduces the human right to immunity from external coercion in fulfilling his obligations. The further assertion is made that "the exercise (of this right) cannot be impeded if the just public order is preserved."

Obviously this argument aims to vindicate the whole concept of religious freedom insofar as it imports the double immunity from coercion. What are we to think of this argument?

The argument is valid and on target. Undeniably the demand for freedom has its basis in man's intellectual nature, in the human capacity to seek, to embrace, and to manifest by his way of life the truth to which he is ordered. In no other way can he perform his duty toward truth than by his personal assent and free deliberation. What is more, from this single consideration it is already clear that no one is to be forced to act against his conscience or against the demands of the truth that he has in fact found, or at least thinks that he has found. If so forced, he would be acting against his intellectual nature itself.

Yet we may still ask whether this demand for freedom, which flows from the source just mentioned, has enough power to establish a true right in keeping with which no one is to be impeded from acting according to his conscience in religious matters. Put differently: Are man's natural and moral links to truth powerful enough to engender a political relationship between the human person and the public power so that the latter is duty-bound not to prevent the person from acting according to his conscience—whether the person acts alone or in association with others? It seems not.

Man is certainly impelled by his nature, and is obliged morally, to seek the truth so that he might conform his life to the truth, once found. Yet quite a few, either after searching for religious truth or not searching for it, actually cling to more or less false opinions that they wish to put into practice publicly and to disseminate in society. To highlight again the point upon which our investigation hinges, let us imagine public powers speaking to these erring people as follows:

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

Is this proclamation imaginary? Hardly! Time and again over the centuries public powers have issued similar statements. And what answer can the poor people make who are thus judged to be living in error? None, certainly, if we stay within the principles laid down in the Declaration's first argument. For we can grant the premiss of those principles: that those in error have an obligation to seek the truth in order to learn it and act in keeping with it. But we deny that from those principles the conclusion follows that those in error have the right not to be impeded from acting in public according to their consciences. It seems correct to deny this conclusion, since it appears to extend beyond its premisses.

Assuredly those judged to be misguided would like to object that the public power has no right to issue judgements about objective truth in the religious sphere, that even less has it the right to transform those judgements into coercive legislation, thereby preventing its citizens from acting according to their consciences. This is as valid an objection as can be. But I ask: Does its validity proceed from the ontological basis of religious freedom as the Declaration claims and conceives that it does? It seems not.

For it may be said, and some at times have so claimed, that the right of civil power to repress false forms of worship or religious errors is compatible with man's moral obligation to seek the truth in order to act according to it. For such repression does not in the least prevent the quest for truth, nor does it prevent acting according to the truth. What it does prevent are public activities that proceed from a basis in error and that thus cause harm to the public good. This opinion is not to be scorned. It has even been widely received at times within the Church itself.

Admittedly it was mainly pastoral considerations that led the Fathers to accept this first argument in the Declaration, the argument that situates the ontological roots of religious freedom in the obligation to seek the truth. Some Fathers feared the establishment of a kind of separation between truth and freedom, or more exactly, a separation between the order of truth and the juridical order that equips man with right against others. Of course this was an entirely legitimate concern. Still, the speculative question remains: Is it correct to place the ontological ground for religious freedom in man's natural and moral relationships to truth? On this point doubt may be allowed.

C. From the Person's Social Nature

The same pastoral uneasiness apparently controls the second major argument in the Declaration. This argument begins with the divine law to which every human being is subject and in which his nature makes him a participant. From this premise the argument at once concludes to man's moral obligation to investigate what the precepts of the divine law might be. The point is made that this investigation ought to be conducted in a social manner. The argument then lays down another moral principle—that man perceives the dictates of the divine law through the mediation of his conscience, which he is therefore always bound to follow. After positing these moral principles, the argument proceeds to a conclusion that is juridical: that not surprisingly man has a right to the two immunities that form the object of the right to religious freedom.

I acknowledge the value of this argument, provided the following distinction is made that always must be made. Indisputably the argument validly shows that no one is to be forced to act against his conscience, for by so acting a person would be doing wrong. But the second question recurs. Does it follow from this argument that no one is to be prevented from acting in public according to his conscience? To establish immunity from this kind of coercion—and this is specific to religious freedom in its modern meaning—the argument appeals to the necessary connection between internal acts of religion and those outward acts by which, in keeping with his social nature, a human being displays his religious convictions in a public way. Given this connection, the argument runs as follows: A purely human power cannot forbid internal acts; it is therefore equally powerless to forbid external acts.

But does not the fallacy of begging the question somehow lurk in this argument? It supposes that in society no power exists with authority reaching far enough to warrant its legitimately forbidding public acts of religion, even acts that transgress objective truth or divine law or even the common good. This must be established; it is the very heart of the matter under discussion. It is not proved by stating that persons are morally obliged to obey divine law as known by them through the mediation of their consciences. Nor is it proved by stating that human nature is social and requires that people profess their religion in a public and communitarian manner.

D. From the Limits of Public Power

Finally, there remains the third argument of the Declaration. It does concern the limits of the public power. This argument is introduced with the word Praeterea ["Furthermore"]. This suggests that the argument is added as a complement to the argument so far presented, a complement to an argument that is presumed in itself sufficient to justify the human right to religious freedom in its double sense.

But if the state of the question about this human right is examined thoroughly, it is at once evident that this political argument is of primary importance. Without it any other argument would not sufficiently settle the question. For the very question concerns the limits of public power in religious matters.

The Declaration makes the felicitous assertion that public power "must be said to exceed its limits if it should presume to direct or to impede religious acts" (n.3). Felicitous, I repeat, and altogether true. But it is a simple assertion for whose truth no reasons are brought forward. May I be permitted, as long as time allows, to develop this political argument. I proceed in outline form, schematically, by enumerating the principles without further development. The intention of the argument I offer is the same as that prefixed to the Declaration: "to develop the teaching of recent Popes about the inviolable rights of the human person and about the juridical ordering of society" (n.1).

The argument begins properly from a first principle: Every human person is endowed with a dignity that surpasses the rest of creatures because the human person is independent [in charge of himself, autonomous]. The primordial demand of that dignity, then, is that man acts by his own counsel and purpose, using and enjoying his freedom, moved, not by external coercion, but internally by the risk of his whole existence. In a word, human dignity consists formally in the person's responsibility for himself and, what is more, for his world. So great is his dignity that not even God can take it away—by taking upon Himself or unto Himself the responsibility for his life and for his fate. This in the Christian tradition, especially from the Greek Fathers on, is the dignity of the person conceived, fashioned in the image of God. The person's intellectual nature is a prior condition, the absence of which would render his assumption of responsibility impossible. Formally, however, human dignity consists in bearing this responsibility.

Now, from the first, ontological principle (the dignity or the human person), there follows a second principle, the social principle, which Pope Pius XII and later John XXIII began to develop somewhat fully. The social principle states that the human person is the subject, foundation, and end of the entire social life.⁶

For our purpose, the chief force of the social principle lies in its establishing an indissoluble connection between the moral and the juridical orders. This connection must not be conceived in some abstract manner but in a wholly concrete way. For the connection is the human person itself, really existing, in the presence of its God and Lord, in association with others in this historic world, but in such wise that it transcends by reason of its end both society and the whole world. The human person exists in God's presence as a moral subject bound by duties toward the moral order and toward the historical order of salvation established by Jesus Christ. The human person exists with others in society as a moral-juridical subject furnished with rights that flow directly and altogether from human nature, never to be alienated from that nature. The juridical order cannot be sundered from the moral order, any more than the human person can be halved.

Evidently, in this subordinate place we can and ought to collect and situate those things that the Declaration said so beautifully about the natural human impulse to seek truth and about the person's moral obligation to live according to the truth once found. They do illustrate the first ontological principle and the second social principle.⁷

Now, from the first and the second principles, the ontological and the social, taken together, there follows a third principle, the so-called principle of the free society. This principle affirms that man in society must be accorded as much freedom as possible, and that that freedom is not to be restricted unless and insofar as is necessary. By necessary I mean the restraint needed to preserve society's very existence or—to use the concept and terms of the Declaration itself—necessary for preserving the public order in its juridical, political, and moral aspects

Parallel with the third principle, a fourth issues from taking the first two, the ontological and the social, together. This principle is juridical and maintains that all citizens enjoy juridical equality in society.⁸ This principle rests upon the truth that all persons are peers in natural dignity and that every human being is equally the subject, foundation, and end of human society.

Finally, there follows a fifth principle, the political principle. It is admirably expressed in the following words of Pius XII, later quoted by John XXIII. "To protect the inviolable rights proper to human beings and to ensure that everyone may discharge his duties with greater facility—this is the paramount duty of every public power."⁹ This constitutes for the public power its first and principal concern for the common good—the effective protection of the human person and its dignity. This definition of the paramount function of public power rests clearly upon the first four principles.

Further, all five principles cohere with one another in such a way that they form a kind of vision of the human person in society and of society itself, of the juridical ordering of society and of the common good considered in its most fundamental dimensions, and finally of the duties of the public power toward persons and society. Upon this vision, which recent pontiffs have newly elaborated while working within the tradition, rests the whole doctrine of the Vatican Declaration on Religious Freedom. In other words, the five principles just enumerated taken together finally bring our whole investigation to a point of decision. For they are sufficient to constitute that relationship between the human person and the public juridical power. Together they fully characterize the notion of religious freedom.

They are also sufficient to confirm the other human and civil freedoms with which John XXIII dealt in an eminent manner in his Encyclical Pacem in Terris. Along with these freedoms religious freedom constitutes an order of freedoms in society. Religious freedom cannot be discussed apart from discussion of this whole body of freedoms. All human freedoms stand or fall together—a fact that secular experience has made clear enough.

This said, it is not difficult to construct an argument for the human right to religious freedom.

III. A needed Argument

The first thing to note is that the dignity and the freedom of the human person should receive primary attention since they pertain to the goods that are proper to the human spirit. As for these goods, the first of which is the good of religion, the most important and urgent demand is for freedom. For human dignity demands that in making this fundamental religious option and in carrying it out through every type of religious action, whether private or public, in all these aspects a person should act by his own deliberation and purpose, enjoying immunity from all external coercion so that in the presence of God he takes responsibility on himself alone for his religious decisions and acts. This demand of both freedom and responsibility is the ultimate ontological ground of religious freedom as it is likewise the ground of the other human freedoms.

Now, this demand is grounded upon the very existence of the human person, or, if one prefers, in the objective truth about the human person. Therefore it is revealed as a juridical value in society, so that it can impose upon the public power the duty to refrain from keeping the human person from acting in religious matters according to his dignity. For the public power is bound to acknowledge and to fulfill this duty by reason of its principal function, the protection of the dignity of the person. Once this duty is demonstrated and acknowledged, the immunity from coercion in religious matters demanded by human dignity becomes actually the object of a right. For the juridical actuality of a right is established wherever a corresponding duty is established and is acknowledged, once the validity of the ground for a right is assured and recognized.

Furthermore, the above mentioned principle of a free society—taken together with the principle of the juridical equality of all citizens—likewise sets the outer limits on just how far the public power must refrain from preventing someone from acting according to his conscience. The free exercise of religion in society ought not be restricted save insofar as it is necessary, that is, save when a public act ceases to be an exercise of religion because proven to be a crime against public order.

The following considerations will clarify this. The foundation of human society lies in the truth about the human person, or in its dignity, that is, in its demand for responsible freedom. That which in justice is preeminently owed to the person is freedom—as much freedom as possible—in order that society thus may be born toward its goals, which are those of the human person itself, by the strength and energies of persons in society bound together with one another by love. Truth and justice, therefore, and love itself demand that the practice of freedom in society be kept vigorous, especially with respect to the goods belonging to the human spirit and so much the more with respect to religion. Now this demand for freedom, following as it does from the objective truth of the person in society and from justice itself, naturally engenders the juridical relationship between the person and the public power. The public power is duty-bound to acknowledge the truth about the person, to protect and advance the person, and to render the justice owed the person.

Again, from this follows the conclusion that no one is to be prevented in the matter of religion from acting according to the demands of his dignity or according to his inmost religious convictions. Nor does this immunity cease except where just demands of public order are proven to have the urgency of a higher force.

Quod erat demonstandum. Or rather, this argument from the five principles mentioned is sufficient; nothing else is required.

IV. The Question of a Theological Argument

Of course there remains the argument for religious freedom as drawn from Christian revelation, but this is a lengthy question and my discussion has already been too long.

Suffice it to say that the line of argument that the Declaration follows is entirely valid and sound. It embraces three major statements. (1) The human person's right to religious freedom cannot itself be proven from Holy Scripture, nor from Christian revelation. (2) Yet the foundation of this right, the dignity of the human person, has ampler and more brilliant confirmation in Holy Scripture than can be drawn from human reason alone. (3) By a long historical evolution society has finally reached the notion of religious freedom as a human right. And a foundation and moving force of this ethical and political development has been Christian doctrine itself—I use "Christian" in its proper sense—on the subject of human dignity, doctrine illuminated by the example of the Lord Jesus.

Difficult and important questions remain. The primary one concerns the relationship between the Christian freedom proclaimed in Holy Scripture, especially by St. Paul, and the religious freedom we have been speaking of, to which our contemporaries lay claim.¹⁰ On this question no consensus exists. According to some, these two freedoms are so different from their inception that only a limited harmony can exist between them. According to others, of whom I am one, in the very notion of Christian and gospel freedom—or, better—in free Christian existence itself—a demand is given for religious freedom in society. To demonstrate this is no mean task. Add to this the difficult historical question, as yet not investigated: Why has humanity had to travel so long a journey on so tortuous a course to reach at last a consciousness of its dignity and to bring to fulfillment in civil society all that that dignity demands?

Evidently these question belong to the ecumenical order. Equally evident and pressing is the need for us to enter into conversation with our separated brothers and even with our non-believing brothers. These have contributed much and still contribute toward the establishment and preservation in society of the full practice of freedom, including also religious freedom.