The 1997 Lord Acton Essay Competition

The Political Priority of Freedom: Acton and Murray

Kelly Alvin Madden

Monotheistic orthodoxy has long proclaimed that freedom is not an absolute, but a relative good. As Lord Acton put it, "Liberty is not the power of doing what we like, but the right of being able to do what we ought." There is an end, a telos, to human existence; a definition and purpose given to the creature by the Creator. We are free "for" and not just free "from." God has not created humankind to function properly or legitimately independent of His will.

So from Eden onward, it is the prerogative of God as Sovereign Lord to lay down the parameters of freedom for humankind, to define good and evil. Theologically, then, liberty is secondary to morality as an end of human existence. But when we consider the question politically -- and it should be noted that Acton's work primarily concerned political liberty -- we see trouble looming.

Consider this hypothetical argument built on Acton's statement: We do not have the right to do what we ought not to do. Error has no rights. We do not have the right to violate God's laws. None of God's laws is more important than proper worship. (Just consider the first half of the Ten Commandments). Religious group X clearly violates what we have on divine authority in Holy Scripture (or ecclesiastical law). The state therefore has the obligation to suppress at least the public expression of their error.

Or, consider another hypothetical abuse of Acton's claim: We in the Central Committee agree wholeheartedly with your Lord Acton on this -- aristocratic, capitalist running-dog though he may be. What you obscurantists have the 'right' to do and what you 'ought' to do, is to stop celebrating myths and get to work in support of the Party in service of the relentless course of history, the ultimate triumph of....

Because our question involves both the practical-political ("power") and the metaphysical ("right" and "ought"), we are discussing religious freedom, the "first freedom." In response to both of the examples cited, the modern American mind immediately invokes "religious toleration," "free exercise," "no establishment" -- in short, the First Amendment. But logically, this begs the question. Yes, we have these civil doctrines, but they are just that: civil, human, temporal. Where do they come from? What basis in truth does the First Amendment have?

And how does one counter the accusation that what believers really want, at least as an ideal, is the suppression of dissent? "We've been through this all before during the wars of religion," says the secularist, "and we know what happens if religion is allowed into the public discussion. Let's compromise; we'll do it my way." And thus all reference to religion or to the higher norms of the transcendent is driven from public life.

So how do we respond in a language people can understand?

Many students of the issue believe that the Jesuit theologian John Courtney Murray dealt with the problem of religious liberty better than any other thinker of our time. The remainder of this essay will summarize Murray's argument for religious freedom.

The problem with many arguments for religious liberty is that they start from presuppositions not shared by all. Murray's project was to construct an argument commending itself to all reasonable people.¹

Murray held that the argument for religious freedom had to begin as a political and a juridical question. It concerns the horizontal relationship between persons, and not the vertical relationship between a person and his God.

Murray therefore insists first on an important distinction in developing a public philosophy, namely, the distinction between the secular and sacred realms. The political realm does not comprehend all of reality as the monist, totalitarian state claims. All constitutional or limited government recognizes a transcendent reality beyond the material.² Consequently, the state is not competent to evaluate religious claims. No public official is empowered to inquire into the theological credentials of any religious body, or to coerce social expressions of religious conscience, anymore than it may coerce conscience itself. It is not the function of the state to authorize the public existence of any religion, true or false. Indeed, most religions would neither require, nor tolerate, such authorization.³

The question of the rights of the erroneous conscience is, therefore, irrelevant to the political and constitutional question, because the evaluation of the conscience is not a political question. This is not to say that error could have rights. "Nowhere ... is it implied that a man has a right to do what is evil or to say what is false, as if error and evil could be the object or content of a right. That would be moral nonsense."⁴ These rights would not exist before God; in this regard the erroneous conscience clearly has no rights. If there is a right to religious freedom, it is before other persons.

In addition, if any power exists to prohibit religious practice, it must belong to the state. Society does not give the power of coercion to any private person or intermediate social group.⁵

To establish the right to religious freedom, then, one must first establish that the public power has no right to restrict religious freedom but the duty to acknowledge and protect it.⁶ The right of religious freedom has therefore a negative content; it is essentially an immunity from coercion.

It is of the nature of a juridical formula -- in this case, religious freedom -- simply to set outside limits to a sphere of human activity, and to guarantee this sphere against forcible intrusion from without; not to penetrate into the interior of this sphere and to pronounce moral or theological judgments of value on the activity itself. Such judgments exceed the category of the juridical, which is concerned with interpersonal relationships. They likewise exceed the competence of the forces of juridical order -- the forces of law and of political authority.⁷

Murray has rephrased the question to ask, "On what basis does such a political and juridical immunity exist?"

Having thus focused the issue, Murray turns to the grounds of religious freedom and of all freedom: human dignity. "The dignity of the person is not a legal or political principle; it is the foundation of all legal and political principles."⁸ Murray bases his argument on the very existence of the human person, or, if one prefers, "in the objective truth about the human person."⁹

By "dignity" he means that "man is a creature of intelligence and free will called upon to have dominion over his own actions and to be the one who directs the course of his own life."¹⁰ This dignity consists of the person's responsibility before God for himself and for his world. In the fulfillment of this responsibility, he should be free from coercion.

The dignity of the human person has always been confessed, Murray says. But it has not always been properly recognized, and only in recent history has its implications -- the demands this truth makes for human rights -- been affirmed.¹¹ This denotes progress. "Whatever the recent direction of the so-called 'moral curve' in other areas, in the area of human and civil rights it has been slowly upward."¹²

Murray's foundation of human dignity and his logical development of it are discovered through "personal and political consciousness," his term for natural law.¹³ We need to digress briefly to see how he understands natural law. "Its [natural law's] only presupposition is threefold: that man is intelligent; that reality is intelligible; and that reality, as grasped by intelligence, imposes on the will the obligation that it be obeyed in its demands for action or abstention."¹⁴ These, he says, are not even "presuppositions" as such, since they are verifiable. These realities enable people to grasp the natural, prerational human inclination to do good and avoid evil. He calls it the "ethical a priori."¹⁵

This recognition of the reality of good and evil, then, is the basis, the metaphysic behind natural law, which he elaborates and augments in four "premises." First, natural law supposes a realist epistemology; that the real is the measure of knowledge. Second, it supposes a metaphysical teleology; that the natural human inclination draws the person to the fulfillment of his own being. Third, it supposes a transcendent source for all of reality. Fourth, it supposes a morality; a moral necessity deriving from the order of reason and freedom.¹⁶

The third premise -- a transcendent source of reality -- deserves more definition. For Murray, metaphysical decisions cannot be bracketed indefinitely, even in public life. "No one escapes making them; one merely escapes making this one rather than that one." There is no hard Kantian compartmentalization between the material and spiritual realms, though they are distinct. He makes this evident in his explication of this premise:

Thirdly, it supposes a natural theology, asserting that there is a God, Who is eternal Reason, Nous, at the summit of the order of being, Who is the author of all nature, and Who wills that the order of nature be fulfilled in all its purposes, as these are inherent in the natures found in the order.¹⁷

This link to the transcendent is also its connection to the moral imperative. The power of the natural law to oblige moral behavior -- Murray's fourth premise -- resides in human nature. "Reason does not create its own laws, any more than man creates himself." But it is the reflection of the eternal, uncreated Reason of God in human nature that carries a moral mandate. This, in turn, reflects the purpose for which human nature exists, Murray's second premise. It is because we were created for a metaphysical end that we can reason about what ought to be rather than simply what is.¹⁸ The person comes to realize: "My situation is that of a creature before God."¹⁹

The natural law served to lead people as individuals to the development of a personal ethic. More important to our discussion, it served collective society as a tool for the development of a policy ethic, as a universal moral standard against which the actions of a nation can be judged.²⁰

From human dignity, which Murray identifies as the "ontological principle," there follows the "social principle," that the human person is "the subject, foundation, and end of the entire social life." The human person forms the link between the moral and the juridical orders, transcending society and the whole world.²¹ There are distinct political and spiritual realms, but the human person is one, existing simultaneously and indivisibly in both.

It is at this point in the argument, and not before, that Murray appeals to the subjective imperative of the conscience, the human impulse to seek truth, and the moral obligation to the truth once it is found.²²

From the first two principles, Murray points to a logical third, the principle of the free society: "Let there be as much freedom, personal and social, as is possible; let there be only as much coercion and constraint, personal or social, as may be necessary for public order."²³

This points us again to the limited scope of the state. In the Medieval Age it was recognized that the "common good" or the "common welfare" is the responsibility of society as a whole.²⁴ But the essential distinction between society and state was soon lost. Murray insisted that while the "common good" is indeed the responsibility of society as a whole, the state is empowered only to secure part of that common good: the public order.²⁵

He assigned the content of the public order as follows: "the protection of the public peace against serious disturbance, the safeguard of public morality against serious violation, and the vindication of the common rights of all citizens against trespass."²⁶ Coercion against freedom is legitimate only when one of these is violated.

The uses of freedom therefore are not to be limited unless there be a legitimate reason for their limitation. In the social order, freedom is the principle, the rule, the method. If freedom is to be limited, warrant must be shown. Such warrant does not exist antecedently or in the abstract. And it is not created by the sheer fact that a man's life or action is based on some manner of error or falsity.²⁷

Murray's fourth principle, again derivative, is juridical and simply says that all persons are peers in natural dignity and that every person is equally the subject, foundation, and end of human society.²⁸

The fifth and final derivative principle is political: The paramount duty of the public power is to protect the freedom defined by the other principles.²⁹

Murray's argument can be stated succinctly:

The ensuing affirmation is that the dignity of the person requires ... that in the conduct of his life a man should act on his own judgement, with freedom, out of an inner sense of duty, under immunity from outside pressures or coercions.³⁰

Again, the right of religious freedom is an immunity, not an empowerment.³¹

Religious freedom is not just a concession but is a personal and political good. "It is part of the 'establishment of freedom' which, as Acton said, represents the 'highest phase of civil society.'"³² "In fine, a harmony exists between man's duty of free obedience to the truth and his right to the free exercise of religion in society. The duty does not diminish the right, nor does the right diminish the duty."³³

This is Murray's case for religious freedom. Whether he succeeds or not, whether he concedes too much in his attempt to find common ground, whether the argument is compelling to all parties -- these are questions beyond the present discussion. Murray has set the agenda for the ongoing discussion.

Nearly all parties can concur with his conclusion: "Freedom ... continues to be what Lord Acton said it was, the highest political end. [emphasis added]"³⁴ "The primary thing due in justice to the people is their freedom."³⁵

Freedom "for" begins with freedom "from."

Kelly Alvin Madden graduated with a major in political science from the University of Central Arkansas in 1980. Upon graduation, he joined the staff of Campus Crusade for Christ International and worked for 13 years among the students and churches of Francophone Africa. Once that work became self-sustaining, he completed the Master of Divinity program at Gordon-Conwell Theological Seminary. Currently, he is seeking ordination as a Congregational minister and works for Campus Crusade's Community Ministry Resource Office, a traveling ministry consulting team.

Notes

1. Murray notes that "The Declaration on Religious Freedom" of Vatican II, of which he was one of the primary architects, was the only document of the Council addressed to the whole world. John Courtney Murray, "Religious Freedom," in The Documents of Vatican II, eds. Walter M. Abbott and Joseph Gallagher (New York: America Press, 1966), 688 #24.
2. John Courtney Murray, "The Problem of Religious Freedom," Theological Studies 25 (1964): 503­75. Later published as The Problem of Religious Freedom (Westminster, Md.: The Newman Press, 1965), 520­21.
3. Ibid., 527­28; 557­58.
4. John Courtney Murray, "Declaration on Religious Freedom," in American Participation at the Second Vatican Council, ed. Vincent A. Yzermans (New York: Sheed and Ward, 1967), 669.
5. John Courtney Murray, "De argumentis pro iure hominis ad libertatem religiosam," in Acta Congressus Internationalis de Theologia Concilii Vaticani II, ed. A. Schönmetzer (Rome: Vatican, 1968). Translated in John Courtney Murray, Religious Liberty: Catholic Struggles with Pluralism, ed. J. Leon Hooper (Atlanta: John Knox Press, 1993), 231.
6. Ibid., 232.
7. John Courtney Murray, "The Declaration on Religious Freedom: A Moment in Its Legislative History," in Religious Liberty: An End and a Beginning, ed. John Courtney Murray (New York: Macmillan and Company, 1966), 29.
8. Murray, "Religious Freedom," American Participation, 671.
9. Murray, "De argumentis," 240.
10. Murray, "Religious Liberty and Development of Doctrine," The Catholic World 204 (February, 1967): 282.
11. John Courtney Murray, "Religious Freedom," in Freedom and Man, ed. John Courtney Murray (New York: P. J. Kennedy, 1965), 137­38.
12. Ibid.
13. "The common consciousness of men today considers the demand for personal, social, and political freedom to be an exigency that rises from the depths of the human person. It is the expression of a sense of right approved by reason. It is therefore a demand of natural law in the present moment of history." Murray, Religious Freedom, 513­14.
14. John Courtney Murray, We Hold These Truths: Catholic Reections on the American Proposition (New York: Sheed and Ward, 1960), 109.
15. Ibid.
16. Ibid., 327­28.
17. Ibid.
18. Ibid., 330.
19. Ibid., 329. Some interpreters of Murray read him as abandoning any essential and unchangeable content in natural law because of his insistence on the shaping inuence of historical consciousness. But in an important exegesis of Murray, Edmund Anderson has identied in Murray a distinction between the primary and unchanging precepts of natural law, the derivative secondary precepts, and the historically conditioned remote precepts. See Edmund B. Anderson, Jr., "Natural Law and Historical Consciousness in the Writings of John Courtney Murray: A Re-examination," (Master Thesis, Catholic University of America, 1989).
20. Murray, We Hold These Truths, 327­28.
21. Murray, "De argumentis," 238.
22. Ibid.
23. Murray, Religious Freedom, 521.
24. Murray, "Religious Freedom,"Documents of Vatican II, 680 #7.
25. Murray, Religious Freedom, 521.
26. Murray, "Religious Freedom," Religious Liberty, 35.
27. Murray, "Religious Freedom," Freedom and Man, 138.
28. Murray, "De argumentis," 239.
29. Ibid.
30. Murray, "Religious Freedom," Freedom and Man, 138.
31. Murray, Religious Freedom, 559.
32. Ibid., 566.
33. Murray, "Religious Freedom," Documents of Vatican II, 676 #3.
34. Murray, "Religious Freedom," Freedom and Man, 11.
35. Murray, "Religious Freedom," American Participation, 675.