On Dignitatis Humanae – A Reply to Thomas Storck

Thomas Pink

1. Introduction

Thomas Storck has challenged my Leonine interpretation of Dignitatis Humanae, the declaration of the Second Vatican Council that teaches a moral right of the individual, based on their human dignity, to religious liberty. My interpretation is Leonine in that it seeks to establish the declaration’s consistency with previous Catholic teaching by reading it as an application for modern times of the magisterial teaching on church and state of Leo XIII.

Storck rejects this reading by alleging that I employ what was at best a political theology of the counter-reformation, the theology of Suarez and Bellarmine. According to Storck this theology was not shared by Leo XIII, was never magisterially taught, and had nothing to do with the drafting of Dignitatis Humanae.

We shall see that none of Storck’s claims is true. The theology of Suarez and Bellarmine was indeed shared by Leo XIII who did magisterially teach it, and this theology remained central to the understanding of Leo XIII’s teaching in official Catholic theology up to Vatican II. From 1964 to 1965 it was Leonine teaching understood in terms entirely consistent with Suarez’s political theology that was applied at Vatican II by the commission drafting Dignitatis Humanae to explain the declaration’s meaning to the council fathers.

2. Leo XIII and Immortale Dei

According to the teaching of Leo XIII in Immortale Dei human life is governed by two distinct potestates or sovereign authorities with the right to coerce – that is, to issue legal directives that impose moral obligations or duties on those subject to them, and to enforce those obligatory directives by sanctions. There is a religious potestas, the church, directing the good of religion and a civil potestas, the state, directing goods other than religion:

The Almighty, therefore, has given the charge of the human race to two coercive authorities (potestates), the ecclesiastical and the civil, the one being set over divine, and the other over human, things…While one of the two authorities [the state] has for its immediate and chief object care of the goods of this mortal life, the other [the church] provides for goods that are heavenly and everlasting. Whatever, therefore, in human affairs is in any way of a sacred character, whatever belongs either of its own nature or by reason of the end to which it is referred, to the salvation of souls or to the worship of God, falls wholly under the coercive authority of the church and is wholly subject to her judgment (id est omne in potestate arbitrioque ecclesiae). Whatever is to be ranged under the civil and political order is rightly subject to the civil authority. Jesus Christ has himself given command that what is Caesar’s is to be rendered to Caesar, and that what belongs to God is to be rendered to God. Immortale Dei §13–§14

The civil potestas may certainly have a duty to do whatever it can to further the good of religion; but it has no competence to direct people coercively just on its own authority for specifically religious ends. The church is sovereign over the good of religion. Likewise the church has no authority of her own to direct people coercively for the civil ends over which the state is sovereign.

A fundamental concern of Leo XIII is for the harmonious interaction of the two distinct authorities of church and state. Since both authorities are divinely instituted, harmony between them must be possible in principle. Indeed Immortale Dei insists that church-state harmony is divinely ordained – it is God’s declared will, even if given human sin this harmony is not always attainable. Essential to harmony between the two sovereign authorities is that they should never impose conflicting duties on those within their jurisdiction:

But, inasmuch as each of these two powers has authority over the same subjects, and as it might come to pass that one and the same thing – related differently, but still remaining one and the same thing – might belong to the jurisdiction and determination of both, therefore God, who foresees all things, and who is the author of these two powers, has marked out the course of each in right correlation to the other. “For the powers that are, are ordained of God” (Rom.XIII,1). Were this not so, deplorable contentions and conflicts would often arise, and, not infrequently, people, like travellers at the meeting of two roads, would hesitate in anxiety and doubt, not knowing what course to follow. Two distinct sovereign authorities would be commanding contrary things, when it would be a dereliction of duty to disobey either of the two. Immortale Dei §13

Conflict is avoided first by church and state being sovereign over quite distinct spheres. The church is sovereign over a legal order of religion in which law is made and enforced for religious ends, and the state is sovereign over a civil order in which law is made and enforced for other non-religious ends. Then because religion is the supreme good but depends on earthly goods that fall within the competence of the state, just as the good of religion takes priority over other goods, so when the good of religion requires the state must subordinate itself to and assist the church.

Leo XIII introduces an analogy with the relation between the intellectual soul and the body in the human person. This analogy was notably and extensively employed by Suarez and Bellarmine, but is far older, going back to Nazianzen in the patristic period.

There must, accordingly, exist between these two coercive authorities an ordained connection which not without reason may be compared to the union of the soul and body in man. Immortale Dei §14

Church and state should stand in a cooperative union for the good of all those subject to their authority somewhat as intellectual soul and body. In any case when vital functioning alone is at stake, determining heart rate and the like, the body acts without reference to the intellectual soul. But in higher intellectual matters, such as how deliberately to pursue the morally good and true, the body acts at the direction of the intellectual soul, for example by moving from place to place as the soul decides. Just so the state is sovereign over questions that are purely civil but must be ready to legislate for the good of religion at the direction of the church.

The point of the analogy is to convey in matters of religion a principal-agent relation between church and state. The Christian state is sovereign in the civil order; but it can act as agent for the church in the distinct and higher legal order of religion. Where it does so, the state acts not simply as civilis potestas, but as the church’s brachium seculare or temporale, providing its own civil authority and jurisdiction to help secure the supreme good of religion. A Latin term commonly used in the theological tradition to convey the state’s agency role in matters of religion is minister – the term for a servant, official or agent. On the soul-body model the state should act as sovereign in the civil order but as the church’s minister in the order of religion.

Not only may church and state govern the same community, but they will do so sharing a responsibility and a concern for the overall flourishing of that community and its members. Concern for the happiness of each person within the community is a basic requirement of Christian love. So the Christian state will desire not only the earthly happiness of its citizens but also their salvation, and it will do whatever it can to secure that salvation as their chief good. It is not as if the church alone should pursue this end or give it priority. And of course, enjoyment of the benefits of religion and of goods of the civil order are deeply connected. The supreme good of religion is of especial importance to the civil order which is the state’s concern. Loss of grace at the supernatural level will degrade humanity at the level of nature and thereby damage the understanding of and conformity to natural morality that is so vital to the civil order, as the nineteenth century popes frequently emphasised in their teaching. So the state has very great reason to further, in so far as it can, the specifically religious good of salvation, because, as Leo XIII emphasised at the very beginning of Immortale Dei the grace that provides that supernatural good provides many earthly benefits too: it supports the natural virtue both of the people and of the civil authorities themselves. But since, for the reasons Leo XIII founded on church-state harmony, legislative competences must be clearly divided, each of church and state must pursue the happiness of those who are both baptised faithful and political citizens within the limits of its own particular authority. The state may properly legislate for religious ends, making laws specifically aimed at fostering true worship and the salvation of its citizens, and indeed may be under a duty to do so when it has the authority. But it can only legitimately so act as agent for the church.

Suarez understood perfectly well that the religious good was vital to flourishing in the civil order. He emphasised nevertheless that it was the church, not the state, that has the authority to legislate and punish for religious ends, and that a state could only so legislate and punish as the church’s agent or minister:

Punishment of crimes only belongs to civil magistrates in so far as those crimes are contrary to political ends, public peace and human justice; but coercion with respect to those deeds which are opposed to religion and to the salvation of the soul, is essentially a function of coercive authority that is spiritual [the authority of the church], so that the authority to make use of temporal penalties for the purposes of such correction must have been allotted in particular to this spiritual power, whether the penalties are to be inflicted directly by the said power, or whether it avails itself of the ministry of its temporal arm (brachium temporale) that all things may be done decently, in order and efficaciously…. Suarez, Defensio Fidei Catholicae adversus Anglicanae Sectae Errores, book 3, chapter 23 §19

Suarez’s view comes from a work commissioned by pope Paul V to explain to James I of England the proper ordering of church and state. This work, though officially commissioned, was not itself magisterial teaching, as Storck is right to note. But Suarez’s account of this ordering remained approved official theology into modern times. It was very much part of the post-1815 restoration Jesuit intellectual formation that Leo XIII received in his youth, and in the mid-nineteenth century was especially recommended in influential theological work by Leo’s friend Ketteler the bishop of Mainz. We shall see how right up to the Second Vatican Council the work of Suarez and Bellarmine remained central at the highest levels of the church to the official understanding of Leo’s own magisterial teaching on church and state. It was Leonine teaching, very obviously understood in Suarezian terms, that, as we are about to see, was invoked by those drafting Dignitatis Humanae.

My argument is that Dignitatis Humanae represents Leonine political teaching, but for a modern situation where the state is no longer publicly Christian – no longer a political community of the baptised existing in a soul-body union with the church.

As human beings created in the image of God we have a right to liberty from subjection to unauthorised threats of force and sanction. This right is not some mere convention but is based on the dignity of our human nature. It is a dictate of natural law that we should not be subjected to coercion without proper authority. Now according to Leo XIII’s teaching the state acting on its own, apart from the church, has no authority whatever to impose legal obligations on us for religious ends. Hence when the state is acting purely on its own authority, purely as civilis potestas as it now does, we have a moral right, based on the dignity of our nature, to religious liberty against the state or any other body acting in the civil order, just as Dignitatis Humanae teaches. We have a right not to coerced by civil authority for any religious end.

2. Thomas Storck’s objections to my interpretation

Storck allows that Suarez and Bellarmine may have believed that religion lay under the authority of the church alone. He denies that this was the magisterial teaching of Leo XIII.

What is his ground for this denial? That the political community depends for its flourishing on the good of religion and on state recognition of and conformity to religious truth, and that therefore, as Leo XIII did indeed teach, the state has a duty to profess religious truth and legislate in favour of religion and religious truth. Storck infers that the state must therefore have a sovereign authority of its own to legislate in matters of religion. Leo XIII cannot then have meant to deny the state that authority. What he meant to reserve exclusively to the church was authority not over religion itself, but over the church’s ‘internal affairs’:

…the attentive reader will see that Leo is not saying anything regarding state coercion or authority in religious matters in the two quotes from Immortale Dei that Professor Pink adduces. Rather, Leo is pointing out that it is the Church’s task to lead us to heaven, and that her internal affairs – her worship and teaching, for example – are solely her concern, not the state’s.

Whence comes, in Stock’s view, the apparently novel right to religious liberty taught by Dignitatis Humanae, and how is the assertion of this right not a contradiction of previous magisterial teaching? This right and its assertion comes, he claims, from a change in political circumstance that is nothing to do with any detachment of the state from the church. It is simply that religious error and its manifestations are now less of a threat than they once were to the public order guarded by the state. Dignitatis Humanae expressly teaches, after all, that states can legitimately restrict religious activity to protect ‘just public order’.

Furthermore, society has the right to defend itself against possible abuses committed on the pretext of freedom of religion. It is the special duty of government to provide this protection. However, government is not to act in an arbitrary fashion or in an unfair spirit of partisanship. Its action is to be controlled by juridical norms which are in conformity with the objective moral order. These norms arise out of the need for the effective safeguard of the rights of all citizens and for the peaceful settlement of conflicts of rights, also out of the need for an adequate care of genuine public peace, which comes about when men live together in good order and in true justice, and finally out of the need for a proper guardianship of public morality. These matters constitute the basic component of the common welfare: they are what is meant by public order. Dignitatis Humanae §7

When in the past the church did approve of the state restriction of non-Catholic religions, Storck claims that this was because non-Catholic practice and proselytization did once constitute an immediate threat to just public order in Catholic societies. But with the disappearance of traditionally Catholic societies this is no longer so, and need for such restriction on non-Catholic religions to protect just public order has been removed. As Storck has put it:

The “just requirements of public order,” the “due limits,” and considerations of the rights of others and of the common good vary considerably from society to society, and in a society overwhelmingly and traditionally Catholic they could easily include restrictions, and even an outright prohibition, on the public activities of non-Catholic sects, particularly on their proselytizing activities. Storck, Foundations of a Catholic Social Order, (Four Faces Press, 1998), pp28-9

It is because just public order no longer warrants such restrictions and prohibitions that Dignitatis Humanae now teaches a right not to be coerced religiously by the state.

I based my Leonine reading of Dignitatis Humanae on the relationes issued by the drafting commission at sessions of Vatican II up to the final vote to explain the declaration’s content to the council fathers. From the time in 1964 that the declaration changed significantly from being a chapter in the decree on ecumenism to being a stand-alone declaration, these relationes repeatedly and explicitly described the declaration as an application for modern times of the political teaching of Leo XIII. My ‘Suarezian’ reading of these relationes and of the Leonine teaching to which they appealed is ‘anachronistic’, according to Storck. It has nothing to do with their true content or what the commission can have meant in issuing them. To support this Storck claims that at the council there was no discussion of an agency relationship between church and state. Further he notes that at least one theologian involved in the declaration’s preparation, John Courtney Murray, viewed the declaration as bearing, at least by wider implication, on liberty in relation to the authority of the church and not just that of the state.

Storck also claims that the Church’s past support for state restrictions on the public religious practice of non-Christians cannot have been an exercise of her ecclesial authority because non-Christians were not baptised and so were never subject to her jurisdiction. So such state restrictions on non-Christian religious activity must have been the exercise of an authority over religion that was native to the state and was simply approved of by the Church, not directed by her. Although I claimed that these restrictions arose as an indirect or defensive exercise by the Church of her jurisdiction, to resist intrusions on her mission and jurisdiction from without, Storck objects that no text was ever provided by me to establish this.

3. A reply to Storck

Storck claims it clear from the text of Immortale Dei that Leo does not reserve sovereign authority over religion to the church, but only authority over her own internal regulation. The text of the encyclical, however, does not support this.

Immortale Dei reserves to the potestas of the church not merely her internal regulation but, quite generally, all responsibility for what is ‘divine’ as opposed to ‘human’, giving the church the charge not merely for this-worldly ecclesial regulations, but for all those goods that are ‘heavenly and everlasting’. The encyclical more specifically reserves for the authority of the church ‘whatever, therefore, in human affairs is in any way of a sacred character’ which means ‘whatever belongs either of its own nature or by reason of the end to which it is referred, to the salvation of souls or to the worship of God’. So the church’s exclusive competence includes anything sacred in human affairs not just in matters internal to the church. Not only Catholicism, not only revealed Christianity generally, but the worship owed to God just as naturally known creator falls within the sovereign competence of the Church.

Religion in general is included, therefore, if we understand religion to be whatever practice involves worship of a kind which is properly owed to God alone. Religion so conceived clearly meets Leo’s criterion for what falls within the exclusive competence of the church. Such worship, even when practised in defective form, such as in polytheistic idolatry, ‘of its own nature’ belongs ‘to the worship of God’.

This extends the exclusive competence of the church well beyond her own internal regulation. It includes, for example, any legislation that might be aimed at encouraging worship in its proper form, based on religious truth, and at discouraging what is specifically opposed (such as idolatry or other falsehoods in respect of religion, such as atheism). That does not mean that the church has the authority to adopt any measure at all to restrict or prohibit any form of falsehood in religion. There are moral limitations on what the church can do through coercive law, even for a specifically religious end. One such limit (and not the only one) comes from her jurisdiction, which extends only to the baptised. But the lesson of Immortale Dei is that state lacks a native authority for such legislation altogether.

Storck complains that my reading of interpretive relationes issued at Vatican II by the drafting commission is ‘anachronistic’. But he does not address these relationes in detail. This is not surprising. His peculiar reading of Leo XIII’s political teaching (clearly not shared by the drafting commission) makes no sense of them at all.

Consider this key relatio of September 1965, just before the final vote in November. This relatio invokes the authority of Leo XIII to distinguish two legal orders – an order of religion over which the potestas or coercive authority of the church is sovereign, and the civil order over which the potestas of the state is sovereign. It then states that the right to religious liberty taught by the declaration is based on the fact that sovereignty over religion belongs to the church and not the state:

For the schema [the declaration’s pre-vote draft] rests on the traditional doctrine between a double order of human life, that is sacred and profane, civil and religious. In modern times Leo XIII has wonderfully expounded and developed this doctrine, teaching more clearly than ever before that there are two societies, and so two legal orders, and two coercive authorities [potestates], each divinely constituted but in a different way, that is by natural law and by the positive law of Christ. As the nature of religious liberty rests on this distinction of orders [sicut ratio libertatis religiosae in hac distinctione ordinum nititur], so the distinction provides a means to preserving it against the confusions which history has frequently produced. Vatican II Acta Synodalia 4.1 p193 (my emphasis)

In other relationes the drafting commission repeatedly emphasised that the declaration did not address the authority of the church in the order of religion, but only coercion in the civil order. Consider this relatio, again from September 1965 just before the final vote:

There this question of religious liberty, since it has to do with the civil order, is to be distinguished from other questions which are of a theological order. The first of these is of the nature and extent of that evangelical liberty by which Christ has liberated us (Galatians 5,1); the other has to do with relations between freedom and authority within the Church herself. Vatican II, Acta Synodalia 4.1 p185 (my emphases)

So according to these relationes the declaration is not addressing the sovereign authority of the church over religion, but only liberty and coercion exercised in the civil order, and so under the authority of the state. Since according to Leonine teaching this authority never extends to coercion for religious ends, we have a moral right against all such coercion in the civil order, as the declaration teaches.

The commission’s reliance on Leo XIII to establish a natural right to religious liberty against the state, at least when the state is acting just on its own authority in the civil order, seems intelligible enough. It is clear how ‘the nature of religious liberty’ might indeed rest on Leo XIII’s distinction of potestates and legal orders. But that of course requires that we do indeed take the relationes, and Leo XIII as invoked by them, to be reserving legislative competence over religion in general to the church. The relationes refer, after all, to ‘a legal order of religion’, and not to a ‘legal order of internal ecclesial regulation’.

Now on Storck’s reading that legal order of ‘religion’ from which the state’s own authority is excluded does concern only the church’s internal regulation. Suppose that had been the drafting commission’s meaning. Then according to these relationes, religious liberty would simply be about excluding the state from the church’s regulation of her internal affairs. It would have nothing to do, for example, with the liberty of non-Christians from state restrictions on false worship. This would be an absurd account of the declaration, which teaches a right to religious liberty had not just by the church but by everyone, non-Catholics and non-Christians included, against authority in the civil order.

Given Leo XIII’s evident and fundamental concern for a clear division of legislative competences, it is worth asking which potestas on Storck’s reading of Leo has a sovereign authority to coerce for religious ends? The state or the church? It must at least be the church. Why else does the church regulate herself internally but for a further religious end beyond that regulation – the good of salvation? Moreover it is the superiority of the good for which the church is competent that establishes, for Leo XIII, a superiority of the church as the higher soul over the state as a lower body. But that superior good is clearly not just her internal regulation, which it would be an absurd and clericalist ecclesiasticism to take as in itself the source of the church’s superiority over the state, but the further ends that it serves, namely worship and salvation, precisely the wider good of religion itself. And if the superiority of religion itself as a good is to establish the superiority of the church over the state, the state cannot also have a sovereign competence over that good. Indeed if as well as the church the state were also a potestas competent to direct for the good of religion, we should end up with exactly the conflict of sovereign potestates and the opposing duties they might impose that Immortale Dei sought to exclude.

Storck’s concern that the state somehow share sovereign authority over religion with the church is in one respect unmotivated. His own conception of a legitimate state restriction of religious practices simply does not require the state to have an authority of its own over religion.

Storck supposes that such state restrictions, when legitimate, were always understood and approved of by the church because needed to protect ‘just public order’. Now if this were so, then the restrictions would not be justified by the good of religion. They would be justified by needs of the civil order. To be fully justified, of course, such restrictions would have to avoid undue damage to the good of religion itself. But in protecting just public order their immediate purpose would not be to foster right religion. Just public order has to do with goods other than religion, and legislation in its defence is to protect flourishing and virtue in forms that are not specifically religious. Just public order, as Dignitatis Humanae stated in the passage from paragraph 7 cited above, has to do with ‘the rights of all citizens’ ‘public peace’ and ‘public morality’. Provided the genuine good of religion was not harmed thereby, Catholic theology always allowed the state a native authority just as potestas for the civil order to restrict activities that might be religious in character but that also posed an immediate threat to non-religious goods, and of course this remains the case after Dignitatis Humanae.

So before the council a widely read and respected theologian such as Lucien Choupin (author of a standard and frequently reprinted seminary text within the Francophone world on ecclesial authority) would distinguish between the state’s restriction and punishment of religious activity to defend true religion itself, and the state’s restriction and punishment of religious activity to defend civil society. Both forms of coercion might be legitimate. But in defending true religion the state was acting in the name of the church, while in defending the civil order the state acted in its own name (see Valeur des Décisions Doctrinales et Disciplinaires du Saint-Siège, pp270 and 526). Another interpretive relatio issued by the drafting commission in November 1964 uses the same distinction between state coercion aimed at protecting true religion and at protecting the civil order. In 1964, however, the distinction is not used to endorse state coercion in protection of religious truth, but to oppose it.

This relatio again makes very clear that, on the commission’s understanding, ‘the order of religion’ where the state lacks sovereign authority extends well beyond the internal regulation of the church. The relatio condemns any state restriction of a religious practice just on grounds of its falsehood as nefas, illicit, and illicit specifically because an intrusion by the state ‘into the order of religion’. By contrast the relatio allows that state restriction of religious practice may indeed be justified to protect of goods of the civil order – what the declaration itself refers to as ‘just public order’. So, for example, the state can ban religious practice that involves human sacrifice, not because this is defective just as a form of worship and so specifically offends against the good of religion (which arguably it does) but because as murder human sacrifice is a violation of people’s right to life under natural law:

But the public power so acts in the civil order, not however in the order of religion as such. On the other hand it is not permissible for the public power to restrict the public exercise of any religion by law or governmental action on the basis that this or that religion is judged to be false or that its exercise proceeds from an erroneous conscience or that it harms the good of the Church. For then the public power’s coercive action would intrude into the order of religion as such, which is unlawful (nefas). Vatican II Acta Synodalia 3.8 pp462-3

Of course, if non-Catholic practice and proselytisation are now less likely to disturb public order at the civil level even in Catholic cultures, there will be less justification on that basis for restricting them. But the church did not historically call on the state to restrict false religions simply because they threatened goods of the civil order. The church, for one and a half millennia, called on the state to restrict false religions, at least limiting the exposure to them of the Christian community, just because those religions were false, and as false opposed right worship and endangered salvation.

But now, at Vatican II, it is state restriction of false religions just as false and so on specifically religious grounds that is condemned as nefas or illicit. Storck’s appeal to the state’s role in the civil order and change in what just public order might require misses the point. It simply does not address the glaringly apparent doctrinal discontinuity. In the past the church called on the state coercively to privilege and protect true religion not simply to preserve just public order at the civil level, but because the religion to be protected was true, and was the way to salvation; and similarly to restrict false religion just because it was false and an obstacle to salvation. But now state restriction of religion on these grounds is opposed by the church as nefas.

Such state coercion on religious grounds is not only condemned in this relatio. It is condemned in the final declaration, and for precisely the reason presented in that very explicitly Leonine relatio of September 1965 – that religion exists in a distinct legal order where the state as civil potestas lacks authority:

Furthermore, those private and public acts of religion by which people relate themselves to God from the sincerity of their hearts, of their nature transcend the earthly and temporal levels of reality. So the state, whose peculiar purpose it is to provide for the temporal common good, should certainly recognise and promote the religious life of its citizens. With equal certainty it exceeds the limits of its authority if it takes upon itself to direct or prevent religious activity. Dignitatis Humanae §3 (my emphases)

It is not then change in what the civil order requires, but the state’s identity simply as potestas responsible for that order and not the order of religion, that precludes the state from coercively legislating for religion on its own authority. But the church had already taught this limit to state authority under Leo XIII, as that relatio of September 1965 so clearly emphasised. As I have argued, what changed in 1965 was that the state was no longer being addressed by the church as her actual or potential minister in the order of religion, but only as an independent potestas for the civil order. That was why a state protection and privileging of religious truth could be endorsed by the church in the nineteenth century, but in the twentieth century come to be condemned by her as nefas.

Storck’s inference from a duty to legislate for a certain good to the possession of sovereign authority over that good is clearly invalid. All that a duty to legislate implies is authority to do so. It is quite another question where that authority comes from. A pope addressing states on the presupposition that they are to be Christian may well assert duties on the state to legislate in favour of Catholicism as the true religion that would be beyond the competence of a secular state. So we should beware an inference from a state’s having a duty to pursue a good, even to pursue it through coercive legislation, to that state’s having a sovereign authority of its own over that good.

Of course it is true, and Leo XIII clearly taught, that the religious and civil flourishing of a community are profoundly interconnected, and equally true that Church and state share a common duty to foster the overall flourishing of an entire human community, civil and religious. But Leo XIII also taught teaching that church and state cannot each have sovereign authority over every respect of human flourishing, even though every aspect of human flourishing should be of concern to each, otherwise we would be back with what Leo XIII taught had to be avoided – the dilemma of an irresoluble clash of sovereign authorities and of the inconsistent duties that they might impose.

Storck ignores Leo XIII’s concern with the need to avoid conflict between sovereign authorities, and his teaching of a division of legislative competence to avoid it. That is why Storck so readily infers from some good’s mattering to the flourishing of a community for which an authority is a sovereign to that authority’s having some sovereignty over that good. But this inference really is invalid. There may be some other authority that has the sovereignty, and the two authorities must work together. Counterexamples to the validity of Storck’s inference are legion outside political theology. A state has a sovereign authority over economic activity within its jurisdiction. But economic flourishing within its jurisdiction may depend very much on economic activity elsewhere, and in having a duty to foster the economic wellbeing of its citizens a state may also have a duty to foster the economic flourishing of others in the world. But a state has no jurisdiction in the matter beyond its borders and any attempt to assert such a jurisdiction would simply lead to conflict with other states. So any state must fulfil its duty to the world economy through cooperation with the other states that are sovereign elsewhere.

I have noted that Storck’s own account of why much state restriction of non-Catholic religion was once legitimate did not in fact depend on the state having any authority for religion. His account presupposed only the state’s authority to protect the civil order. In fact his own explanation why we now have a right to religious liberty against the state that we did not previously have actually requires that the state lack an authority of its own for religion.

Why is it wrong for the state to restrict non-Catholic religions when once it was right? On Storck’s account, these religions were once immediately dangerous to civil order, but no longer are. For example, unlike the Calvinists of sixteenth century Lyon, modern Calvinists no longer express themselves religiously by iconoclasm – such as by smashing statuary belonging to Catholics and Catholic institutions. But suppose that beyond its authority to protect the civil order the state did also have an authority of its own to protect true religion. Would not the state remain just as much justified now as in the past in imposing restrictions on false religions, not because they were a threat to civil order, but simply because they were false? In which case why, on Storck’s theory of a native state authority to do just this, would we suddenly have so comprehensive a right to religious liberty against the state?

Leo XIII very importantly teaches that the state is under a duty publicly to profess that Catholicism is true. This is a duty that certainly does not depend on the state’s acting as an agent of the Church. The state has a duty under natural law to acknowledge as true whatever religion God reveals. It is the mere fact of a Catholic revelation that binds the state to acknowledge Catholicism, not any agency relationship to the church. Storck treats this immediate duty on the state to acknowledge Catholicism as implying an equally immediate authority to impose legal obligations in its support. But this simply does not follow. Given that Catholicism has been revealed, the state is indeed under a duty to confess it. But so are we all, even as private individuals, under the same duty. The duty to acknowledge religious truth implies no authority to coerce on its behalf, since it binds those who lack coercive authority altogether.

The state’s duty to acknowledge religious truth certainly does not then presuppose any authority to enforce it. Indeed the opposite is true. A state can impose legal obligations in support of religious truth only if it has first professed it. The state’s authority is public. If a state is to impose legal obligations for some religious end – such as right worship or salvation – that state must publicly admit its purpose to its citizens and defend it to them. Without the prior public profession by the state of the truth that it is supporting, it cannot legitimately impose legal obligations to privilege that truth.

This means that one interpretation Storck gives of my position is not accurate. He claims that on my view Dignitatis Humanae was simply a policy decision by the church. Though the church always has the authority to use states as her agents for the good of religion, in 1965 she decided no longer to do so, and that was what detached states from legislating for religion. Now this may have been part of what happened in some cases – witness the ecclesial pressure under Paul VI and his successors on formerly Catholic states to repeal laws privileging Catholicism over other religions. But it is equally clear that in much of the world by 1965 the church anyway faced a fait accompli, and that the change in church policy was importantly a response to this. Most states were simply no longer prepared to acknowledge Catholicism as true, mainly because they were no longer in any sense political communities of the baptised. So the church no longer had the capacity to employ these states as her religious agents even if she wanted to.

Storck’s view is that no matter the approval of it given by Paul V at the counter-reformation, the political theology of Suarez did not inform Leo XIII’s magisterial teaching and was irrelevant to the subsequent interpretation of that teaching. We have seen that this view is simply not plausible. Unless we understand Leo XIII’s teaching in broadly Suarezian terms, as reserving religion in general to the sovereign authority of the church, we cannot make sense either of the text of Immortale Dei itself or the use made of Leo’s teaching at Vatican II by those drafting Dignitatis Humanae. It should not be surprising then to find that in the period between Immortale Dei and Vatican II Suarez’s political theology was not forgotten counter-reformation history. It was officially approved of and cited right up to Vatican II, certainly not as magisterial teaching in its own right, but as a safe guide to understanding magisterial teaching.

Consider Alfredo Ottaviani’s Compendium iuris publici ecclesiastici, a manual on canon law and ecclesial authority specially abridged for seminary use from Ottaviani’s longer Institutiones. This went into multiple editions up to Vatican II and references here are to the fourth edition of 1954. This standard vade mecum presents Leo XIII’s Immortale Dei as among the most important magisterial teaching about the proper ordering of church and state and presents the political theology of Suarez as an excellent interpretation of that teaching. Far from disapproving of Suarezian political theology as Storck claims, Pius XII had just made this prominent supporter of it both a cardinal and pro-secretary of the Holy Office.[1]

Appealing to Immortale Dei Ottaviani distinguishes between a temporal end served by the state and a spiritual end served by the church. This spiritual end is not some internal church order but lies, exactly as Leo XIII taught, in the worship of God and in salvation. Ottaviani presents this spiritual end as of another and higher order from that served by the state whose own authority extends only to natural goods, namely the protection of rights, the needs of a natural existence and earthly happiness (Compendium p351). The state should protect and support the Church and her mission, but this role implies no state jurisdiction over the spiritual end. Were there such a jurisdiction the state’s role in spiritual matters would be auctoritativa (as it is not) rather than ministerialis (which it is) (Compendium p365). Where religion is concerned, the state is minister rather than potestas. And a state that is not Christian lacks even that ministerial role (Compendium p360).

This doctrine, Ottaviani claims, was taught not by Leo XIII alone, but by popes and general councils throughout the church’s history. He appeals to Suarez’s description of it, as involving a duty of the rulers of a Catholic state to be to be directed by a superior potestas towards the higher end of salvation for which that superior potestas alone is competent. Ottaviani writes of this teaching as one ‘to which Saint Bellarmine and Suarez applied themselves to give polished doctrinal formulation’. ‘Suarez rightly said [the teaching] is a certain and common conclusion for Catholics’ (Compendium p356).

It is hardly surprising then that the commission drafting Dignitatis Humanae expounded Leo XIII’s teaching of the two legal orders, religious and civil, each with its own governing potestas, in (as has become apparent) such very similar terms. The Vatican II conservative Ottaviani and the Vatican II progressives that had charge of the declaration’s drafting were formed and trained within exactly the same theological culture.

The difference between the conservative Ottaviani and the progressives lay not in their shared Leonine understanding of the two legal orders, but in their view of soul-body union and the possibility or even desirability of a continued ministerial role for the state in defence of religious truth.

Storck says there was no sign of a Suarezian understanding of Leonine political teaching at the council because people made no great issue of the church’s role as a religious agent. But it is perfectly clear why the agency role of the state was not central to discussion. For the progressives on the commission, what mattered was the two legal orders, and the removal of religion from the sovereign authority of the state. That secured the moral right to religious liberty in the civil order. The past ministerial role of the state within this juridical structure was regarded by them as history, and irrelevant to the future of church-state relations. For the conservatives what was desirable and necessary was the continued state privileging of Catholicism not just (pace Storck) to protect the civil order, but to protect true religion and salvation. They viewed the abandonment by the state of its support for true religion as very undesirable, and saw any endorsement of this abandonment by the church as itself contrary to historical magisterial teaching, not least that of Leo XIII. Whether the state’s role in defence of true religion was ministerialis rather than auctorativa was not the issue for them. What mattered was the state’s continued fulfilment of that role, and the spiritual need for it.

For some reason Storck treats John Courtney Murray as a decisive authority for the interpretation of the declaration in its final form. But Murray was unusually radical in his rejection of the political teaching of Leo XIII. So far so that he in fact rejected the entire Leonine theology by which from 1964 to the final vote the declaration was being officially explained. He denied the Leonine framework of the two legal orders and two potestates that those drafting the final declaration publicly invoked. The state was the only sovereign coercive authority in human society:

If an authority exists that is empowered to restrain men from public action in accord with their religious beliefs, this authority can reside only in government, which presides over the juridical and social order. “The Declaration on Religious Freedom,” in Vatican II: An Interfaith Appraisal, ed. John H. Miller (Notre Dame, IN: Association Press, 1966), 565–76.

Since the state lacked the authority to coerce for religious ends there was, in his view, no other potestas that possessed it. There was no legal order of religion with its own governing potestas. So of course Murray wanted to understand the right to religious liberty broadly, as holding against all forms of authority. But that does not give his view force against the relationes that at the time of the declaration’s passing very clearly and repeatedly gave an official interpretation of the declaration otherwise. As Yves Congar acknowledged, in 1966, immediately after the council, the coercive authority of the church herself was a ‘distinct question’ which Dignitatis Humanae did not address. In fact even Murray conceded that ‘the conciliar affirmation of the principle of freedom was narrowly limited – in the text.’ But it was that text that became magisterial teaching, not Murray’s opinions.

Other progressives, Maritain and Paul VI included, certainly did not take Murray’s highly revisionary view of the church and her authority. Maritain, who had gained Giovanni Montini, later Paul VI, as an intellectual disciple, thought not only that the church was indeed the coercive potestas for religion but that her past use of the state as her brachium seculare or minister in this sphere had been entirely legitimate. Maritain addressed this use of the state as an ecclesial agent and its past legitimacy very explicitly just before Vatican II in Man and the State. Such use of the state by the church, though once desirable, was in his view no longer spiritually beneficial now. That meant that in his view though Leo XIII’s teaching of the two coercive legal orders with two potestates, civil and religious, was indeed perennially true, the once legitimate appropriation of the state as her minister by the religious potestas was now an outmoded relic. It was of course Paul VI who was in charge when the relationes were presented that interpreted Dignitatis Humanae in terms of this Leonine division of orders, and who continued after the council in papal addresses to emphasise the identity of the church as a coercive potestas, employing stock New Testament proof texts for this conception of the church familiar from the theology of Suarez and Bellarmine. For example in an address in 1970 Paul VI insisted:

The coercive power is also founded on the experience of the primitive Church, and already St Paul was applying it to the Christian community at Corinth (cf I Co 5).

This referred to a passage in which St Paul called for the good of his salvation for a member of the church at Corinth guilty of incest to be ‘handed over to Satan for the destruction of the flesh’ – a passage that Catholic theologians, Suarez included, had long used as scriptural support for the church’s authority (still assumed in the 1983 Code) to impose temporal punishments on the baptised.

It is not surprising that Ottaviani, a leading canonist, held Suarez in such high regard on questions of church and state. The political theology of Suarez long met with official favour because it made especially good sense of the canonical tradition, of which Suarez was one of the leading theological interpreters of his day. So let us now turn to canonical issues. Storck asks for the textual basis for the so long ecclesially supported restrictions on non-Christians, and in particular for their canonical foundation. These restrictions lay especially on Jews and Moslems, who were present in large communities within parts of Christian Europe. These limited their social contact with Christians, forbad prominent sitings of synagogues and mosques in Christian areas, banned Jews and Moslems from public office in Christian states and the like. Our question is not the overall moral defensibility of these restrictions. Many of us now find them morally very objectionable for all sorts of reasons that are not simply to do with questions of jurisdiction between church and state. Our discussion simply concerns the authority under which these restrictions were enacted. Storck questions whether these restrictions could in any way be canonical in basis, since Jews and Moslems as unbaptised were always outside the church’s jurisdiction and unbound by canon law.

The canonical basis for these restrictions is not mysterious or hard to find, and I have already cited it repeatedly in published work. It is to be found within the Corpus Iuris Canonici, such as among the decretals of Gregory IX. This canonical regulation contained with the Corpus may now be defunct. But there can be no doubt that as so contained it is historical canon law.

The juridical force of all this regulation is not mysterious either, once we consider the soul-body model with precision. These restrictions on the conduct of Jews and Moslems were not to force conversions, or to ban the practice of their religions outright, even at the public level, for which there was no authority. These non-Christian religions were practiced by the unbaptised, and so were not a violation of canon law; and as forms of monotheism they did not violate the natural law that based the civil order either. The aim of these restrictions was not to suppress Judaism or Islam as false, but to protect the Christian community by limiting its exposure to non-Christian religious belief and practice. These restrictions were clearly legislated by church authority. Not only do they form part of the canonical Corpus. They consist, for example, in decrees of general councils such as Lateran IV, decrees that do not simply approve of such restrictions, but are clearly instructions addressed to the baptised rulers of Christian states ordering their imposition.

Jews and Moslems as unbaptised were indeed not bound by any canonical obligation imposed by the Church. But they were bound by state jurisdiction and civil law, and it was the law of the state that obligated them to respect the restrictions, not canon law. This is clearly not a problem for the soul-body model, but an illustration of it. Remember that the Christian state was not simply providing the church with coercive force. It was not simply lending police or troops. The Christian state was making its jurisdiction available, for religious ends. And the good of religion justified such restrictions, to the extent they were ever justified, not to enforce the church’s jurisdiction over non-Christians, which did not exist, but to protect the church’s jurisdiction over Christians and the mission served by that jurisdiction. Only the church was able to authorise coercion for this religious end, and her canonical requirement of it could only bind rulers within her jurisdiction – rulers who were themselves baptised. But once the mandated laws were passed the Christian state then provided the jurisdiction that obligated non-Christian observance of them.

To conclude, there is a common pattern to Storck’s misreading of Immortale Dei, his inattention to the continuing reliance up to Vatican II within the official church on the political theology of Suarez, and his failure seriously to engage with the Leonine relationes by which from 1964 the declaration was officially interpreted to the council fathers about to vote on it. Storck treats the state as if it were in effect really the only coercive potestas, at least for all matters save those strictly internal to the church’s own self-regulation.

We now see that this view was certainly not historical church teaching; nor the view of a leading Vatican II conservative such as Ottaviani; nor the view, at least officially, of the leading progressives who took charge of the final drafting of the declaration on religious liberty and its official interpretation; nor the view of Jacques Maritain and his school, to which Paul VI belonged, and at whose bidding Dignitatis Humanae was being thus redrafted and officially explained. That is quite a consensus against Storck, whose striking amnesia regarding historical church teaching about the church as the unique potestas not only for her own regulation but for the good of religion on this earth is unfortunately now all too common among Catholics.

  1. Citing Ci Riesce Storck presents Pius XII as supposedly opposing Suarez. From the passage cited, it is not clear why. Pius XII observes that God may ‘communicate’ a right to the state to restrict religious error. Indeed he might, but this hardly rules out that the right might be communicated via the church to the state as minister. Storck puts weight on Pius talking merely of political rulers being guided by the church in deciding whether to enforce truth, not explicitly of their being subject to ecclesial permission. But the address is clearly not an exact juridical treatise. Pius might effectively be permitting Catholic rulers to use their own political judgment in hard cases on ecclesial advice. If Suarez’s juridically precise account really had been rejected by Pius XII, Ottaviani would certainly not have been presenting Suarez as a sure guide to the magisterium in this area in a standard manual while helping run the Holy Office.