Catholicism and Religious Freedom : Renewing the Church in the Second Vatican Council [1 ed.] 9783657789009, 9783506789006

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Catholicism and Religious Freedom

Karl Gabriel | Christian Spiess | Katja Winkler

Catholicism and Religious Freedom Renewing the Church in the Second Vatican Council With a Foreword by José Casanova

Ferdinand Schöningh

Umschlagfoto: Lothar Wolleh

Bibliografische Information der Deutschen Nationalbibliothek Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über http://dnb.d-nb.de abrufbar. Alle Rechte vorbehalten. Dieses Werk sowie einzelne Teile desselben sind urheberrechtlich geschützt. Jede Verwertung in anderen als den gesetzlich zugelassenen Fällen ist ohne vorherige schriftliche Zustimmung des Verlags nicht zulässig. © 2019 Verlag Ferdinand Schöningh, ein Imprint der Brill Gruppe (Koninklijke Brill NV, Leiden, Niederlande; Brill USA Inc., Boston MA, USA; Brill Asia Pte Ltd, Singapore; Brill Deutschland GmbH, Paderborn, Deutschland) Internet: www.schoeningh.de Einbandgestaltung: Evelyn Ziegler, München Herstellung: Brill Deutschland GmbH, Paderborn ISBN 978-3-506-78900-6 (paperback) ISBN 978-3-657-78900-9 (e-book)

Contents Foreword vii José Casanova Introduction 1 1 Dignitatis humanae: Development of the Text. The Genesis of the Declaration of the Second Vatican Council on the Right of the Person and of Communities to Social and Civil Freedom in Matters Religious 5 1.1  The Document of Fribourg (27 December 1960) 5 1.2  The Second Document in the Preparatory Phase (18 June 1962) 11 1.3  The First Conciliar Version of the Text (19 November 1963): The Fifth Chapter of the Decree on Ecumenism 13 1.4  The Second Conciliar and First Independent Text Version: De libertate religiosa (23 September 1964) 20 1.5  Religious Freedom at the Height of the Council Controversies: The Revised Text of the Declaration (17 November 1964) 27 1.6  Further Uncertainty and Turbulent Discussions: The Fourth Conciliar Version of the Text (15 September 1965) 37 1.7  On the Way to Promulgation? The Fifth Conciliar Version of the Text (18-25 October 1965) 45 1.8  The Eighth Text on Religious Freedom in the Final Weeks of the Council (17-19 November 1965) 47 2 Modernity – Religion – Catholicism 51 2.1  The Concept of Modernity 51 2.2 Religion and Modernity 56 2.3 Catholicism and Modernity 62 2.4 Summary 65 3 Religious Freedom 67 3.1  The Concept of Religious Freedom 67 3.2 Religious Freedom in the Doctrine of the Catholic Church prior to the Second Vatican Council 73 3.3 Religious Freedom as Interpreted by the Second Vatican Council 84 3.4 Summary 94

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4 Continuity – Change – Break? Attempts at Explaining the Path Taken by Catholicism to Recognizing Religious Freedom 97 4.1  Strict Continuity of Church Doctrine as a Theological Prerequisite: Arthur Fridolin Utz’s Thesis 98 4.2 Autonomy and Theonomy: Walter Kasper’s Thesis of a Constitutional and a Theological Level 113 4.3 Qualitative Change in the Course of a Learning Process: Rudolf Uertz’s Thesis of a Personal-Ethical Turn 131 4.4 Transfer of Religious Freedom from Secular-rational Law into Catholic State Doctrine: Ernst-Wolfgang Böckenförde’s Thesis of a Break in Tradition 155 5 Factors of Change 171 5.1  National Socialism and the Second World War 171 5.2 Declaration of Human Rights and Global Organizations 182 5.3 Economic Development: The Golden Age, 1950-1973 194 5.4 East-West Confrontation and the Cold War 197 5.5 US Catholicism and John C. Murray’s Contribution 204 5.6 Plurality Internal to Catholicism 212 5.7 Political Catholicism, Catholic Parties, and Christian Democracy 224 5.8 The Catholic System of Clubs and Associations 235 5.9 Council Dynamics and Papal Charisma 244 6 The Path to Recognizing Religious Freedom as a Two-stage Learning Process 257 References 265 Acknowledgements 293

Foreword José Casanova, Georgetown University It is a pleasure to have the opportunity to offer some prefatory remarks to the English edition of Catholicism and Religious Freedom. The book offers what is arguably the most comprehensive account of the tortuous road through which the Catholic Church arrived at the official recognition of the modern principle of religious freedom as an inalienable individual human right grounded in the sacred dignity of the human person. The Declaration on Religious Freedom, Dignitatis Humanae, was in fact the last official document of the Second Vatican Council. The highly revised and amended final draft was finally voted upon and approved by an overwhelming majority of the Council Fathers and was officially promulgated by Pope Paul VI on December 7, 1965, the last day before the closing of the Council. The account is comprehensive in its interdisciplinary approach, its multifaceted and multivariable analysis, and its nuanced and balanced interpretation of the complex historical processes, before and during the Council, which culminated in the Declaration. Nobody can seriously question the fact that the Declaration represents a historical watershed in the official doctrine of the Catholic Church vis a vis church-state relations, the modern secular world, the use of coercion in upholding Truth, constitutional civil liberties and individual rights. In this respect, the Declaration can be interpreted rightly as a paradigm shift from “the right of Truth and tolerance of error” to “the rights of the person”, as well as a shift in emphasis from the defense of libertas ecclesiae to libertas personae. What has remained controversial and highly contested since the end of the Council until the present is whether such historical watershed and paradigm shift ought to be interpreted as an accommodation to liberal secular principles, which amounts to a radical rupture with the Catholic tradition, as famously argued by the German Constitutional Judge and legal scholar Ernst-Wolfgang Böckenförde. Or, alternatively, whether it represents a theological reformulation which maintains nonetheless “strict continuity” with the Church’s teachings, as argued by the German scholar Arthur Fridolin Utz. The argumentative thrust of the book through its many layers is to show that the alternative of rupture vs continuity entails a simplistic and false dichotomy. Instead, the book reconstructs the historical path that led Catholicism to the recognition of religious freedom as a complex collective learning process,

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which was historically contingent and open-ended. The argument emphasizes three different though interrelated important points. First, one should not regard “Catholicism as a self-contained unity”, apart from and untouched by its socio-historical surroundings, nor should one assume “an internally homogeneous Catholicism that changes at the same time in its entirety.” That means recognizing the plurality of hierarchies and actors, of traditions and theological interpretations, of religious and lay organizations, of socio-cultural and socio-political milieus of the many different local churches, which together constitute the global Catholic Church. Only then can one take into account the crucial relevance that the experience of American Catholicism, the argumentation of the American theologian John Courney Murray and the interventions of the North American bishops had for the redefinition of the meaning of religious freedom for the entire Catholic Church at the Council. This could explain how “the position of the Church’s periphery suddenly seemed more plausible than the traditional position held by the Church’s center.” Secondly, one needs to take into account the entire context of world-historical transformations – from the catastrophic experience of National-Socialism and World War II, to the Universal Declaration of Human Rights by the United Nations, the Cold War between “the Free World” and “Atheist Communism” and the triumph of Christian Democracy within Catholic Western Europe –, which made possible the redefinition of the meaning of religious freedom, outside as well as within Catholicism, and prepared the ground for the convocation of the Second Vatican Council by Pope Johannes XXIII as a process of aggiornamento. Finally, one must take into account the crucial relevance of the collective experience of the Council itself as a contingent yet highly relevant world-historical event full of unintended consequences for the history of the Church and one can say confidently today for the history of the world. The book reconstructs in detail the history of the seven preliminary drafts of the Declaration, the first two pre-conciliar drafts and the four different drafts that were produced by different committees with much bureaucratic intrigue, theological disputation and factional divisions throughout the sessions of the Council. It also emphasizes the role of Johannes XXIII’s 1963 encyclical Pacem in Terris in first legitimating the modern discourse of human rights in general and religious freedom as a human right in particular. No less relevant for the final conciliar debates on religious freedom was the discourse of Pope Paul VI before the United Nations General Assembly on October 4, 1965. In his address the Pope “praised and supported the United Nations for its proclamation of the fundamental rights and duties of the human being, of his dignity and freedom,

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and above all of religious freedom. For precisely in this is expressed the sacred character of human reason and existence.” There is little doubt that ultimately it was the experience of the Council itself that explains how the majority of Council Fathers came to support the paradigm shift from the traditional defense of tolerance of error to the unambiguous defense of religious freedom, not as a break with the Catholic tradition, but as a new revelation of the fundamental truth always present in Biblical revelation and in the authoritative tradition of the Church, namely, that God’s gift of salvation can only be accepted freely and without coercion. In theological language, this means that the Council itself was experienced by the Council Fathers, in the words of Pope Johannes XXIII, “as a new Pentecost.” In Durkheimian sociological language, one can explain the same phenomenon as the experience of creative “collective effervescence” which serves as the social foundation for new moral norms and sacred values. While the book’s analysis recognizes the role of the American Catholic periphery in transforming the Catholic center, the entire argument is still framed within a predominantly German and Western European perspective, which fails to recognize sufficiently the role of all the other global Catholic peripheries from Latin America and the Caribbean, from Africa, from Asia and from Oceania in the great paradigm shift that all the Documents of the Second Vatican Council, and not just the Declaration on Religious Freedom, represent for the Catholic tradition and for the tradition of ecumenical councils of the Church. The great German theologian, Karl Rahner, was the first to call attention to the fact that this was the first truly global ecumenical council of the Church, with tremendous repercussions for the experience of all the Council Fathers, for the synodal dynamics present in the lengthy drafting and debates that accompanied most of the documents, and most particularly the last three Documents of the Council: the Declaration on Religious Freedom, Dignitatis Humanae; the Declaration on the Relation of the Church to non-Christian Religions, Nostra Aetate; and the Pastoral Constitution on the Church in the Modern World, Gaudium et Spes. The drafting and the passage of Dignitatis Humanae cannot be understood or explained properly without reference to the drafting and passage of Nostra Aetate and Gaudium et Spes. The drafting of all three documents was closely interrelated. The draft of the document on religious freedom was originally intended as chapter 5 of a decree on ecumenism, of which the draft of the Decree on the Jews, which eventually became Nostra Aetate, was going to serve as chapter 4. Both drafts and the debates on the entire document on ecumenism became from 1964 till the end of the Council also closely related with the

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famous and equally contested and controversial Schema VIII, “On the Church in the Modern World.” All three documents went through lengthy and heated debates through various sessions of the Council. This meant that they were not so much drafted before the Council, but truly emerged from the floor of the council itself in the synodal debates. All three were the last documents to be approved in the last and final session of the Council: Nostra Aetate on October 28, 1965, and Dignitatis Humanae and Gaudium et Spes literally on the last working day of the Council, on December 7, 1965. All three were passed by similar overwhelming majorities, while being opposed by the same traditionalist minority. Nostra Aetate was passed with 2,221 votes in favor and 88 against. Gaudium et Spes was passed with 2,307 votes in favor and 75 against, while Dignitatis Humanae was approved with almost identical support, 2,308 yes and 70 nay. The opposition came from the same core group of traditionalist Curia cardinals, a large number of Italian bishops and the majority of Spanish bishops, who came to the Council convinced that the Franco authoritarian National-Catholic regime represented the ideal Catholic traditional model of church-state relations. What united the three documents moreover was the similar hermeneutic of discerning “the signs of the times,” to which all three refer. Gaudium et Spes in the introduction states that “the Church has always the duty of scrutinizing the signs of the times and interpreting them in the light of the Gospel.” Nostra Aetate, the document which recognizes religious pluralism as an irremediable fact and as “signs of the times” of “our global age,” begins with the words, “In our time, when day by day mankind is being drawn closer together, and the ties between different peoples are becoming stronger, the Church examines more closely the relationship to non-Christian religions. In her task of preaching unity and love among men, indeed among nations, she considers above all in this declaration what men have in common and what draws them to fellowship” (#1). Interreligious dialogue would seem to follow naturally from such fellowship and thus, the text continues, “The Church, therefore, exhorts her sons that through dialogue and collaboration with the followers of other religions … they recognize, preserve and promote the good things, spiritual and moral, as well as the socio-cultural values fund among these men.” (#2) It is obvious that the defense of religious freedom here has a very different source than the secular reason of the liberal state or of European secular modernity. European secular modernity advocates freedom of religion as the freedom of individual conscience from the confessional state church but has little interest in or experience of religious pluralism, as the Westphalian principle, cuius regio eius religio, led throughout Western Europe first to homogeneous

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religious confessionalization and then to homogeneous secularization without the recognition, preservation or promotion of religious pluralism. Dignitatis Humanae recognizes the same reality of a post-secular global age characterized by religious pluralism, when in its concluding paragraph it discerns “among the signs of the times,” “the fact that men of the present day want to be able to freely profess their religion in private and public” and that therefore “religious freedom is greatly necessary especially in the present condition of the human family … All nations are coming into even closer unity. Men of different cultures and religions are being brought together in closer relationship.” (#15) Without yet having a word for it, the global Council Fathers were clearly recognizing the reality of globalization among “the signs of the times”, that humanity was entering indeed a new global age distinct from the preceding age of hegemonic Western secular modernity. The entire text of Gaudium et Spes can be read as a critical and prophetic discernment of both the positive dynamics and the negative consequences brought by globalization: “This Second Vatican Council, having probed more profoundly into the mystery of the Church, now addresses itself without hesitation, not only to the sons of the Church and to all who invoke the name of Christ, but to the whole of humanity.” (#2) “Today the human race is involved in a new stage of history … Never has the human race enjoyed such an abundance of wealth, resources and economic power, and yet a huge proportion of the world citizens are still tormented by hunger and poverty. Although the world of today has a very vivid awareness of its unity and of how one man depends on another in needful solidarity, it is most grievously torn into opposing camps by conflicting forces …” (#4) “The history of the human community has become all of a piece, where once the various groups of men had a kind of private history of their own.” (#5) This was not a self-referential church, nor one still obsessed with its conflict with liberalism and Western secular modernity. It was rather a global church, open to the entire world in dialogue with global humanity, a church scrutinizing prophetically global trends decades before those ideas became platitudes in global media and in social science jargon. This fact, better than anything else, explains in my view the paradigm shift which the Declaration on Religious Freedom represents in the history of the Church’s proclamation of Catholic doctrine.

Introduction Fifty years ago, in its declaration on religious freedom at the Second Vatican Council, the Catholic Church renounced coercion as a means of enforcing its claim to truth. This renunciation of coercion in Dignitatis humanae is an act of self-imposed restriction regarding religious claims to truth that is exceptional in the history of religions. It is still extremely difficult to explain even today how an institution so steeped in tradition as the Catholic Church could have altered its position so fundamentally. The sincerity of the “turn” to religious freedom is hardly disputed, and its effects are obvious – the church’s role as an advocate of human rights is widely accepted, as is its role as the engine of the so-called “third wave of democratization” in the 1980s and 1990s. But what is disputed still is how the church arrived at such a position, what reasons and motives led it to reposition itself, what shape this process of change took, and the steps that comprised the process. The characteristics, conditions and dynamics of the path taken by Catholicism to recognizing religious freedom in all its diversity were the object of research of the project “Renouncing coercion in religious traditions: modern Catholicism in the field of tension between distinction and integration”, which was carried out in the Cluster of Excellence “Religion and Politics” at the University of Muenster. This volume, which appears as Volume 2 in the series “Catholicism between religious freedom and coercion”, draws on the findings of the previous volumes, which were compiled as part of the research project. We shall discuss the following working hypothesis (already formulated in Volume 1): “On the one hand, the increased identity of each religious tradition influences how it can behave with regard to contextual factors – and therefore determines to some extent the range of possibilities in which development [in this case, modernization] can be realized. On the other, different contextual embeddings can lead to very different developments on the part of religious traditions – and therefore determine to some extent the realization of one particular possibility from the range of potentialities” (Gabriel/Spiess/Winkler 2010a, 13-14)1. It has become apparent that we should recognize two factors in particular as being decisive when it comes to analyzing and interpreting the modernization process undergone by Catholicism. First, we cannot regard Catholicism as a self-contained entity; we can therefore not assume an internally homogeneous 1  Where we cite a text published originally in German in this volume, the English version given is our translation.

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Catholicism that changes in its entirety all at the same time (Gabriel/Spiess/ Winkler [Eds.] 2012). Rather, Catholicism comprises a plurality of actors, lines of reasoning and contexts, which means that processes of modernization occur at different times and also sometimes unintentionally. It has become apparent, for example, that the opposition between “anti-Catholic liberalism” and “antiliberal Catholicism” is much less clear and unambiguous than is sometimes assumed in the research. A multilayered approach to investigating the conditions that led to the paradigm shift concerning religious freedom both inside and outside Catholicism therefore seems appropriate (Gabriel/Spiess/Winkler [Eds.] 2013). Second, we must assume that a collective learning process, such as the one undergone by the Catholic Church, was, and still is, a contingent and open-ended historical process. We have to bear in mind that the process of establishing religion as an autonomous entity can certainly not be regarded as an intentional process. This is why we have also not, or not only, chosen to approach the subject through the logic of differentiation.2 Political calculation and motivational charisma, for example, had a decisive influence on the course taken by the learning process; but neither can really be explained by pointing to the logic of differentiation. A more general approach, one that takes into account the whole discursive process in its various facets and temporally bound dynamics, and that pays particular attention to the prevailing conditions, therefore appears necessary. Our interpretation emphasizes neither break nor continuity. Instead, we describe a collective learning process that in character is both multidimensional (with manifold links within Catholicism on the one hand, and between the framework conditions and church groups and actors on the other) and openended. The thesis that we wish to develop here therefore describes a historical process that leads into the debates at the Council. Diverse factors facilitated and drove the shift to religious freedom up until the Second Vatican Council; at the Council itself, a window of opportunity opened in a sense, and it became possible to argue for religious freedom and to build a majority for that argument. Since the events at the Council constitute, as it were, the culmination of the learning process, we will begin by presenting in our first chapter the stages of development of Dignitatis humanae. Besides describing dynamic processes within the Council and the tenacious struggle for majorities, we will focus on the question of what arguments played a role in the course of the Council, and what effect they were able to have in the different conciliar phases. 2  See the contributions in: Gabriel/Spiess/Winkler (Eds.) 2010.

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In order to be able to describe the learning process undergone by Catholicism adequately, we will explain key terms in our second and third chapters. We can of course only deal with the vast theme of religion and modernity in a very limited way – that is, by restricting ourselves to a number of developments that concern the Catholic Church. Since Dignitatis humanae is concerned with the renunciation of political coercion, we will discuss in our second chapter the church-state relationship in the modern period (2.1), and present the changes to the religious landscape in increasingly pluralistic contexts (2.2), especially where this affects Catholicism (2.3). We will develop in our third chapter a concept of religious freedom (3.1), so that we can then discuss the different interpretations of religious freedom and tolerance within the church. Since we distinguish between church state doctrine regarding religious freedom before the Second Vatican Council (3.2) from its state doctrine at the Council (3.3), we can already begin at this stage to make clear the lines of development and changes in how Catholicism interpreted the relationship between the religious claim to truth and political coercion. Our fourth chapter provides a kind of typology of the theses that have been put forward to answer the question of how it was that the Catholic Church embraced religious freedom. The spectrum ranges from the view of almost complete continuity (4.1: Arthur Fridolin Utz), through the view of a theological mediation between continuity and change (4.2: Walter Kasper), to the thesis of a fundamental normative reorientation (4.3: Rudolph Uertz), and finally to the idea of a complete break with tradition (4.4: Ernst-Wolfgang Böckenförde). Building on these foundations, we will then present in our fifth chapter certain factors of change that have proven relevant in the discourse around Catholicism and religious freedom. We will first focus on the importance of National Socialism and the Second World War (5.1). After 1945, there was an attempt to strengthen international organizations, as well as the Universal Declaration of Human Rights. This must also have had an impact on the church’s position on human rights (5.2). Economic development in the shape of the post-war boom (5.3), and the East-West conflict (5.4), both promote a tendency on the part of the church and Catholicism to embrace from the 1950s onwards a specific form of “ties to the West” in political and economic terms, as well as a fundamental, albeit hesitant and gradual, turn to a liberal and democratic political model. Alongside, or indeed even because of, these external framework conditions, changes also take place within the Catholic Church: US Catholicism (5.5) has a fundamentally positive experience of the separation of religion and politics, of religious freedom and ideological pluralism – and itself develops a positive attitude to liberal democracy. This experience and this position could still be kept under control from the Roman center before the

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Council; but, at the moment that they were presented at the Council, they were able to gain importance across the whole church. The position of the church periphery suddenly seems more plausible than the traditional position of the center. However, the factor of plurality internal to Catholicism (5.6) shows that liberal and democratic principles were already in place in different parts of Catholicism before they were approved by the church’s magisterium. There was to a certain extent a practice of freedom and democracy that preceded the magisterium’s position. This applies – in parts – to political Catholicism (5.7), and especially to the Catholic clubs and associations (5.8), which enabled and promoted the integration of the church and Catholicism into modern, differentiated and ideologically plural societies, and (where they existed) into modern, secular constitutional states. There was therefore – not only in the US, but also, for example, in the emerging post-war democracies of Central Europe – something like a de facto renunciation of political coercion among Catholic organizations (and also among some national bishops’ conferences), without the church’s magisterium having already beforehand endorsed this renunciation. This did not happen until 1965 and the Second Vatican Council, within whose dynamics (5.9) the framework conditions and developments mentioned interacted and – driven forward at decisive moments by the two conciliar popes, especially John XXIII, but also Paul VI – finally led to the overdue renunciation by the church of political coercion in the state, and thus to the recognition of religious freedom. This volume appears more than 50 years after the final vote and promulgation of the declaration on religious freedom on 7 December 1965, one day before the end of the Second Vatican Council. It takes stock of the different interpretations of this major event of church history in the 20th century. It also reconstructs the developments both before and during the Council that made this decision possible. It places the decision in a matrix of contextual factors that together opened a window of opportunity for this turning-point in the relationship of the church to the liberal state. The aim of the volume is to contribute to a broader and deeper understanding of the learning process undergone by the Catholic Church – a process unexpected in many respects. It is only when learning processes are understood and internalized that they can be deemed irreversible. Whether our analyses tell us something about further steps that need to be taken to change the Catholic Church, or about processes of change undergone by other religious traditions, is something that only time can tell.

chapter 1

Dignitatis humanae: Development of the Text

The Genesis of the Declaration of the Second Vatican Council on the Right of the Person and of Communities to Social and Civil Freedom in Matters Religious What is revealing for the issue of the Catholic Church’s doctrinal development from rejecting to recognizing the human right to religious freedom is the development of the text that was finally promulgated as the declaration on religious freedom at the Second Vatican Council. It is in fact a text that was initially pieced together from two source texts and then developed in a relatively steady and straightforward way – although the document did undergo considerable expansions and deletions. The individual phases of development and intermediate stages of the text reflect the debate within the church about religious freedom, and sometimes also the influences that came from outside. The intentions and means of argumentation used by proponents and opponents of the turn to recognizing religious freedom become just as clear as the problems that actually existed with regard to the compatibility of the new position on religious freedom with the tradition. In this chapter, we will differentiate eight individual versions of the text: two were developed prior to the Council, five were presented, discussed, and again modified during the Council, and one was finally adopted as Council decision, and announced by Paul VI on 7 December 1965. 1.1

The Document of Fribourg (27 December 1960)

One document that can be regarded as the first preliminary text to the later Council declaration on religious freedom was discussed in Fribourg in the last days of December 1960 by two bishops and two theologians – namely, by Franz Charrière, bishop of Fribourg, and Emil-Joseph De Smedt, bishop of Bruges, as well as by Georges Bavaud, professor of dogmatics in Fribourg, and Jérôme Hamer, already since 1960 consultant to the Secretariat for Promoting Christian Unity, and also a theologian teaching in Fribourg, but sometimes in Rome and at a faculty of Dominicans in France, too. The group did not conceive this text out of nothing, of course, but rather on the basis of one text on “The freedom of conscience” and another on “Religious freedom” (see Hamer 1967, 59). Three

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questions were at the centre of the considerations that marked the three major challenges that the Catholic Church saw itself as facing. First, the question of tolerance; second, the question of the church’s relationship to persons and collectives who did not share its beliefs; and, third, the question of the relationship of the Catholic Church to the societies in which it existed, as well as to governments and to the international community and its organizations. The question of tolerance offered on the one hand an obvious point of entry to the issue of religious freedom, since it is thematically at least adjacent to it, and was traditionally chosen in doctrinal teaching as a means of dealing with the phenomenon of different ideological beliefs and resulting questions of coexistence or its legal organization (see, for example, Pius XII 1954) – we will return repeatedly to the church’s doctrine on tolerance in the period prior to the Second Vatican Council. On the other, it was also precisely here that the difficulty of approaching the idea of religious freedom lay, since the doctrine of the church had up until then shaped the idea of tolerance in such a way that it was very strongly opposed to a fundamental and comprehensive right to religious freedom (in the sense of a liberal right to freedom). The thesishypothesis formula of the Catholic doctrine of tolerance tended to provide arguments against religious freedom rather than a bridge to its recognition; and taking up the idea of the doctrine of tolerance brought very much into play the problem of doctrinal continuity. However, it would have been barely possible, and let alone credible, to speak about religious freedom from a Catholic point of view without also talking about tolerance – precisely because the church always spoke about tolerance when it wanted to talk about questions of religious freedom. The second focus (the question of the relationship to persons or collectives with different beliefs or with no beliefs) points already to the relationship between religious freedom and ecumenism, a relationship that was also purely externally discernible in the further course of the Council since the statements on religious freedom were initially supposed to be part of an ecumenical constitution. However, ecumenism raised profound theological questions that would in fact later lead to considerable conflict at the Council. Religious freedom was justified in the further course of discussions in a more or less theological way, but the question of religious freedom was no longer seen as an essentially theological problem, but rather as a constitutional issue – and many interpreters of the Catholic Church’s positioning on religious freedom place great value on this fact. Against this background, it was then appropriate for both strategic and substantive reasons to remove religious freedom at a later date from the ecumenical context and to deal with it in its own declaration.

The Document of Fribourg

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But the early Fribourg document still shows the relationship between the two issues (namely, the theological and the constitutional). Finally, the third focus of the Fribourg document was the aspect that was later intended to be the focus of the proclaimed declaration. The relationship to societies, governments, and the international community of states was the problem that Dignitatis humanae largely clarifies: What is the position of the church with regard to the (legal) shaping of the phenomenon of ideological plurality? How does the church relate to the democratization and liberalization of politically constituted communities? How does it define its political claim to power and its role within ideologically plural societies and its status vis-à-vis states? The first chapter of the document sees tolerance as a virtue that should govern the relationships between human persons who are not agreed in their beliefs (see Hamer 1967, 60). This rather vague approximation to the concept of tolerance, which barely allows us to think of a basic right to religious freedom, is followed by a closer specification by means of three references: to the nature of the human being, to the nature of belief, and to the contemporary development of the world. The nature of the human being is explained in its relevance to the present question as follows: Natural law, the objective sense of interpersonal relationships, leads us to see the other not as an object, as a means or thing, but as a subject, as a being who consciously and freely takes his life into his own hands, as master of his actions, as source of initiative and responsibility. The human person, who must consciously and freely realize his destiny according to the judgment of his conscience, is as a subject irreplaceable and inviolable. Quoted from Hamer 1967, 60

Clearly, then, the reorientation in relation to religious freedom (at least in this Fribourg document) is preceded by a reorientation in regard to the philosophical manner of argumentation. It is noticeable in any case that the line of reasoning chosen at this point is neither from traditional natural law and nor is it resolutely theological; rather, it is a line of reasoning that reminds us of liberal moral philosophy, and results logically in the further course of the document to the sentence: “This inviolable dignity of the human person determines the positive content of tolerance” (Ibid.). This fundamental opening-up to a liberal political philosophy is not altered by the fact that a longer passage on freedom of conscience follows, and that religious freedom is strongly tied in the third

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Dignitatis humanae: Development of the Text

chapter to freedom of conscience. It is written in the context of a list of human rights that must be protected: In the religious sphere, the person has equally the obligation and the right to be faithful to his conscience, since he can live the exigencies of his relationship to God only to the extent that he accepts this relationship into his conscience: this right is called religious freedom. Ibid.

The increasing reflection on human dignity in connection with the autonomy of conscience leads inevitably to a rejection of practices that contradict or violate the self-determination born of freedom, and ultimately to the recognition of the right to religious freedom as an inalienable human right because it is rooted in human dignity. Both – human dignity born of autonomy, and freedom of conscience – will still undergo a development full of change in the further course of the writing of Dignitatis humanae. It is important to note that both aspects play a central role in the earliest phase, too. It is in some ways fitting that the second – theological – reference has a clear “liberal-theological” tendency: faith is a fruit of grace, something that one obtains not through force, but through prayer. “From the point of view of the human, faith is a free answer to the free initiative of God. A prescribed faith is thus a contradiction in terms” (Hamer 1967, 60). This theological line of reasoning therefore also results in rejecting any practice that disavows the free and self-responsible decision of faith. The third reference seems to fit less well to these first two references – and in two respects. One, reference is made to the doctrine of tolerance of Pius XII; and, two, tolerance is assigned and subordinated to love. The thesis that love stretches much wider than tolerance is to be maintained; for, it explains certain aspects of the later development of the text, and in particular its wording (see Hamer 1967, 60). Overall, the impression emerges that the first reference of the first chapter goes furthest on the path to recognizing religious freedom, while in contrast the third part of the first chapter still remains almost entirely within the conventions of the old doctrine of tolerance. The second part can in a way be understood as a link between the two parts, as perhaps a theological attempt to mediate between the church tradition of the 19th century and the liberal ethos of freedom. It is as though they wanted to say: we have attained norms of dignity and freedom through theological reflection, without abandoning the ground of traditional church and theological self-understanding.

The Document of Fribourg

9

But there can already be no doubt about the intended direction of development in this first document, with its authors by no means avoiding making clear statements. The formula of the “right of truth” is not simply ignored, but subtly withdrawn from circulation; not of course by denoting the formula as “false”, but by denoting it as “ambiguous”. The church has therefore always meant the right thing; because of the ambiguity of how it expresses itself, however, it might have been misunderstood. Thus, the relevant formulation represents a revealing and (to some extent) seminal example of the delicate problem of dealing with the tradition and with the danger of breaking the tradition: This formula is ambiguous. Taken literally, it means that truth has no rights. The real subject of the law is the human person and are human communities insofar as they consist of human persons. Truth is that persons have duties with regard to the truth. Quoted from Hamer 1967, 61

In the second chapter, the ecumenical challenges are in essence evaded, with the authors making their argument by pointing to the duties that all people have towards the Creation, and including therefore Christians of every denomination. In the third chapter, they argue in the context of an initially Biblical line of reasoning (namely, a comparison between the “theocracy of the Old Testament” and the “Church of the New Covenant”) that the relationship between church and state is shaped by a separation of areas of authority. They first make clear that the religious claim and mission of the church is universal. But, following the state doctrine of Leo XIII, the authors make a sharp and fundamental distinction between the secular power of the emperor and the spiritual authority of the church. But, just as religion or the church clearly recognizes and acknowledges its limits on the one side, so must the state do the same on the other. The state must refrain from making direct religious statements, and may through acts of law give direct support to those citizens and communities that represent a spiritual authority and its values. The right to religious freedom is therefore in essence absolute; nonetheless, it can and must be limited in actual communities according to the common good and public morality. Apart from the obvious problem of defining what is meant by the common good and public morality (we would at least have to know whether this definition is ceded entirely to the society that forms itself democratically, or whether the church does not in fact believe that it can formulate prior – and, indeed, religiously motivated – criteria), the privileging of the common

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Dignitatis humanae: Development of the Text

good over worldviews and professions of faith is of crucial importance; and not least because this caveat of the common good is of course equally valid for all worldviews and professions of faith. “The state owes worship to God” in these two respects: by fulfilling its own duties as determined by the common good; and by ensuring religious freedom according to the requirements defined by the common good. Understood as the practice of a cult, however, the worship of God is not a matter for the state, and nor is it a civic act; rather, it is a matter for the church and a spiritual act. In addition, the Fribourg document rejects the wording “the state owes worship to God” as ambiguous and misleading – precisely because the interpretation of this wording sketched above brings more confusion than clarification. The document manages better in this third chapter (when it comes to defining the relationship between church and state) than it does in the first chapter (in relation to the actual justification of religious freedom) to reconcile theological tradition and church self-understanding on the one hand, with a decisive recognition of the separation of religion and politics, and the recognition of religious freedom, on the other – and it does so by referring to the Bible and to the state doctrine of Leo XIII. The differences in the line of reasoning point to a fundamental problem: while the “new” line of reasoning (renunciation of political violence, separation of religion and politics, recognition of religious freedom on the basis of human dignity) is certainly compatible with some parts of the tradition, there are discrepancies and contradictions in relation to other parts, and these can barely be concealed with clever reasoning. This concerns above all the clear and unequivocal rejection of liberal rights of freedom in around the middle of the 19th century, but also the doctrine of tolerance that was prominent up until the middle of the 20th century. This doctrine of tolerance still assumed the ideal case of an alliance between politics and the Catholic faith, but provided for the toleration of the practice of different religions in the case of when the Catholic faith found itself in a minority position (see also 2.2 and 3.2 below). It is precisely with regard to this thesis-hypothesis formula, as it was still developed and reinforced by Pius XII, that the Fribourg document discovers in the end, and unlike in the third part of the first chapter, a clear positioning. The distinction between thesis and hypothesis that formed the backbone of the Catholic doctrine of tolerance may have been rejected for several reasons: because it is unclear, misleading and ambiguous; because it leaves itself open to the accusation of opportunism (whether this accusation is justified or not); and because it contradicts the rejection of theocracy anchored in the Biblical, theological and church tradition, and the necessary separation of secular power and spiritual authority.

The Second Document in the Preparatory Phase

11

The document sets the course. On the one hand, by basing human dignity on the autonomy of the subject, by presenting a theology of free decisionmaking in terms of faith, by clearly separating the areas of responsibility of secular and spiritual authority (and thus of politics and religion). And, on the other, by clearly rejecting formulations of the “right of truth”, the “obligation of the state to worship God”, and the thesis-hypothesis distinction used in the doctrine of tolerance. It sets the course both at the practical level of giving legal recognition to religious freedom, as well as at the theoretical level of grounding this recognition in the dignity of the human person. 1.2

The Second Document in the Preparatory Phase (18 June 1962)

The Fribourg document was discussed and altered by the subcommittee led by the bishop Emile-Joseph De Smedt and the Dominican theologian Jérôme Hamer in 1961 and 1962. The presentation of the Fribourg document was thought to have shown in particular that the relationship between religious freedom and the church’s doctrine of tolerance still required further clarification, and that the Fribourg document had created connections between the two that were somewhat cumbersome. The president of the Secretariat for Promoting Christian Unity presented a schema on religious freedom to the Central Commission on 18 June 1962. This schema builds on the Fribourg document, but also differs from it in important ways. The church’s position on religious freedom had in the meantime become a topic of discussion in the press, which led the church to make repeated statements of clarification. Reiterating the Fribourg document’s cumbersome connection between religious freedom and the doctrine of tolerance, the press statement relating directly to the schema of 18 June 1962 is unclear: The Secretariat [for Promoting Christian Unity] has dealt in relation to (religious) freedom with the right of the human to follow also in the field of religion his own, appropriately formed conscience; it discusses equally the rights and obligations that arise from this in civil society, which is obliged to respect this right of its citizens in practice. This was the question that Pius XII dealt with in his well-known address to Catholic jurists on 6 December 1953. Easy to see is that this is an extremely relevant and difficult question for our contemporary pluralistic society. Quoted from Hamer 1967, 63-64

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Dignitatis humanae: Development of the Text

In the well-known address mentioned, however, Pius XII presented the church’s doctrine of tolerance in all its clarity, thereby affirming its opposition to a general fundamental right to religious freedom. This press release is indeed surprising because there had been between the Fribourg document and the second pre-conciliar document a decisive change: the word “tolerance” had disappeared from the text. Thus, the press release attempted to combine the new position on religious freedom with the previous statements on the doctrine of tolerance. Like the Fribourg document, the second pre-conciliar text was also divided into three chapters. The first chapter no longer contained a (new) definition of the concept of tolerance, but, as we have said, did away with the expression “tolerance” altogether. Instead of “Tolerance”, the title was now “On the goods of faith that are to be promoted in love” (see Hamer 1967, 65). This change appears programmatic in that it corresponds to a change to the three parts of the first chapter. First and foremost is now the section on belief and the theological justification of religious freedom (“Nature of belief”), with the section on the personal autonomy and subjectivity of the human, and the (moral-) philosophical justification of religious freedom (“Nature of man”), taking a secondary position. Biblical reflection occupies more space; the presentation of developments in the contemporary world (in the third section of the first chapter), less. Two changes therefore come to the fore: overall, the argument is made much more along theological lines than it was in the Fribourg document; and, very much in contrast to what the press statement cited might suggest, it avoids the cumbersome connection to tolerance. Two concerns may lie behind these changes. While the Fribourg document clearly still intended to deal directly and (as it were) head-on with its own tradition, since it did not exclude reinterpreting the understanding of tolerance on the basis of liberal-philosophical reflection (human dignity born of autonomy), the second pre-conciliar document reflects on its own, genuinely theological line of reasoning – and avoids confronting the old doctrine of tolerance on the one hand by recognizing religious freedom on the other. While the Fribourg document was interested in dealing with religious freedom in the context of a new interpretation of tolerance, the second document now attempted a new theological approach to religious freedom, one freed from the old idea of tolerance and consistently governed by the formula: we do not talk (any longer) of tolerance, but rather of religious freedom. And, indeed, as a result, the document no longer deals with tolerance. The alterations give the document a Christian, Biblical, pastoral character, of course, but this should not obscure the fact that the pre-conciliar schema becomes clearer than the Fribourg document in a different respect: religious freedom is repeatedly

The First Conciliar Version of the Text

13

defined as freedom from external compulsion, whereas previously it was linked very strongly to freedom of conscience. Thus, the line of reasoning gains a new, and more strongly legal, emphasis. This already points in the direction that religious freedom is to be understood as a legal norm, and not as a theological positioning. There are hardly any indications of this distinction in the Fribourg document. In the same session of the Central Committee, which lasted from 12 to 20 June 1962, an alternative text was also presented, one that represented a completely different view on the question of religious freedom – namely, an attitude of rejection that insisted that all conciliar statements be strictly tied to the church tradition. Advocates of the right to religious freedom did not question these ties in principle; but how the connections to the doctrine of tolerance were dealt with shows that the problem of ensuring these ties was extremely virulent. The question of how the Council would deal with this problem was still very much open. Would it be able to force itself to endorse the right to religious freedom? How could it reconcile this step with the tradition? Or would it renew the traditional doctrine of tolerance once again? Or could the solution lie in foregoing clarification – that is, could the issue be “postponed”? 1.3 The First Conciliar Version of the Text (19 November 1963): The Fifth Chapter of the Decree on Ecumenism The first version of the text on religious freedom that was discussed during the Council sessions followed in essence the second document of the pre­paratory period after the Fribourg document, insofar as it shared its intention to advocate the right to religious freedom and continued its line of reasoning. It was the text of a sub-commission of the Secretariat for Promoting Christian Unity – the text was presented not in the first session (from 11 October to 8 December 1962), but in the third session (from 29 September to 4 December 1963). The fact that this text was able to shape the further development of the Council was on the one hand due to certain conditions, and on the other tied to considerable discussions. Among the conditions was the fact that Pope John XXIII raised the Secretariat for Promoting Christian Unity to the rank of a Council commission in October 1962, which allowed the Secretariat to submit official text drafts itself. We can hardly overemphasize the significance of this, since one text corresponding to the texts presented above might not have been introduced as an official text into the Council negotiations had the Secretariat for Promoting Christian Unity itself not had the opportunity to do so.

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Dignitatis humanae: Development of the Text

To a certain extent a rival to the Secretariat’s schema Constitutionis de libertate religiosa was a text produced by the Theological Commission that, entitled “Relations between Church and State and Religious Tolerance”, dealt as a chapter of the schema on the church above all with “the duties of the state in regard to religion” (Soetens 2000, 276). Both texts were submitted to the Council’s Central Preparatory Committee, and led to a quarrel there between the cardinals Ottaviani and Bea, a quarrel that could only be settled temporarily by the Pope through the establishment of a “mixed commission” that was given the task of mediating between the two texts and the two tendencies – but the commission never came together. There were of course two opposing tendencies here: one that wanted to maintain the doctrine of tolerance and the fundamental claim to political power of the Catholic Church (or at least that did not wish to exclude in principle and explicitly such a claim), and another that wanted to establish the recognition of the right to religious freedom by the church. There may have been both primary and secondary reasons here for rejecting the recognition of religious freedom: primary, insofar as there were theological objections to religious freedom as a right of freedom, or objections to it that were grounded in traditional Catholic state doctrine; secondary, inasmuch as it would be very difficult to communicate too great a leap – if not indeed a turn – in church doctrine, which still claims to be true doctrine and must therefore demonstrate a certain continuity. The motives may well have been similar on the other side: as much as fundamental reasons were cited (such as human dignity, freedom of conscience), there also existed a pressure for change that came not least from the World Council of Churches, which clearly expected an unambiguous and positive statement from the Catholic Church as the basis for serious ecumenical exchange. It was in any case possible to ignore and block the text of the Unity Commission for a while, until finally the US cardinal and archbishop of New York, Francis Joseph Spellman, wrote a letter with the support of almost the entire US episcopate. In this letter, which was addressed to all those in positions of responsibility in the Council, he strongly urged that “the subject of religious freedom be reintroduced into the agenda with the secretariat’s text as the basis of discussion” (Soetens 2000, 280). It was also Spellman who had previously requested the admission of John Courtney Murray as an advisor to the Council – the US theologian Murray who, after serious clashes with Cardinal Ottaviani in particular, had been forbidden by the Roman leadership to publish on the issue of religious freedom, and who would go on to make a significant contribution at the Council to changing the church’s position on religious freedom (see Pelotte 1975). And it was also Cardinal Spellman who

The First Conciliar Version of the Text

15

apparently also depicted in a personal letter to the Pope the urgency of dealing with the problem and the matter of the deliberate delay. For, Paul VI issued Cardinal Ottaviani shortly afterwards with the task of assembling his commission to provide the expected statement. But, whatever form the intervention by the episcopate of Cardinal Spellman may have taken, it is certain that it had a decisive influence. Thus, on 11 November 1963, the Doctrinal Commission discussed the text of the Unity Commission on religious freedom, and approved it, so that it could finally be submitted to the Council on 9 November 1963. The text was treated as the fifth chapter of the planned decree on ecumenism, and no longer as a constitution, as it had been in the preparatory phase; but it would become apparent that seeing it as an ecumenical issue did not make sense and could not endure in the long run. The text presented should be seen in the context of the report by Bishop De Smedt. Since it was probably more the report than the text that shaped the subsequent general debate, we provide a longer quotation here to give an impression of De Smedt’s contentions: Many bishops have wished for the Council to deal with religious freedom. What are the main reasons for this wish? 1. Truth: the church must teach and defend the right to religious freedom, since it is the truth that has been entrusted to it by Christ. 2. Vindication: the church cannot be silent when today almost half the human race has been taken by religious freedom through an atheistic materialism that manifests itself in various forms. 3. Peaceful coexistence: today, in all the nations of the world, people who confess different religions or have no religion are called on to live in peace in a single and equal human society; the church must in the light of truth point the way to peaceful coexistence. 4. Ecumenism: numerous non-Catholics harbour a dislike for the Catholic Church, or at least suspect it of a certain Machiavellianism, since, in their view, we seem to demand religious freedom where Catholics are in a minority in a country, but then pay little respect to, or even withhold, the same religious freedom where Catholics are in the majority … Expressed positively, religious freedom is the right of the human to practise his religion freely, in accordance with the demands of his conscience. Expressed negatively, religious freedom is the absence of any external constraint in personal relationships with God, as are demanded by human conscience. Religious freedom includes human autonomy – not ab intra, but ab extra. Ab intra, the human is not exempted from his

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Dignitatis humanae: Development of the Text

obligations with regard to religion. Ab extra, his freedom is impaired if he is prevented from following the voice of his conscience in religious matters … The non-Catholic, who certainly follows his conscience, does not accept the Catholic faith, and errs in matters of belief, should be respected and valued by all members of the Catholic Church … It has been proposed to the Council to make a formal demand for religious freedom for the whole family of humanity, for all religious groups, for every human person, whether their conscience with regard to faith is proper and true, or proper but erroneous, if they only follow the voice of their conscience. Quoted from Hamer 1967, 70f.

De Smedt’s report also already contains a formula for the problem of doctrinal continuity, the latter clearly being made vulnerable by such a position – one would, even against the backdrop of an anti-religious laicism, at least adapt the facts somewhat to read the Syllabus as a positive affirmation of freedom. The formula was that the development of church doctrine took place according to a “double rule”, one that should never be lost sight of when interpreting the documents of the apostolic chair. Or, according to “two rules”: namely, a rule of continuity with regard to the freedom of the human created in the image of God, and a rule of progress with regard to a deepening in keeping with circumstances. According to the rule of continuity, the church always remains true to itself, and teaches in regard to religious freedom, for example, that to decide and to act out of freedom corresponds to the dignity of the human person grounded in divine likeness. The rule of progress opens up the possibility of specifying this fundamental doctrine with regard to the circumstances present in each case – as had indeed happened in the 19th and early 20th century with the rejection of the laicist and anti-religious concept of freedom on the one hand, and was now happening with the recognition of religious freedom as a human right and the renunciation of claims to political power on the other. With that is outlined at least the basic tendency, which would determine the further course of the Council. The distinction evidently comes from John Courtney Murray, and entered the Council discussion through Murray’s Ratio schematis, a document that then provided important elements for the relatio of Bishop De Smedt in the Council chamber on 19 November 1963. It is worth noting that, in his statement (which, fundamentally, makes the case for the text and for the full recognition of religious freedom), De Smedt cited with passages from Quanta cura precisely those points of Catholic state doctrine

The First Conciliar Version of the Text

17

that cause the greatest difficulties with regard to the relationship between continuity and progress. Thus, it clearly was for the protagonists a real “struggle for the truth”, and not a strategic ploy. The advocates of the recognition of religious freedom were therefore concerned in the ensuing debate, and up until the Council’s final days, with showing “the permanence of principles beneath the variations in behavior, but also the priority of one principle (the dignity of the person) over the others; the question, then, was to know how to interpret the tradition (Soetens 2000, 284-285). The text itself had largely become a tract on the (erroneous) conscience, and thus placed itself in a relationship of tension that already existed within Catholic doctrinal teaching, since the interpretation of freedom of conscience, as well as of correct and (if necessary) erroneous conscience, is, as we know, theologically disputed. This concentration on freedom of conscience could also have been strategically motivated, since it offered a way of connecting with the tradition, and especially with the academic, theological-philosophical tradition. The problem is that, by focusing exclusively on questions related to freedom of conscience, one avoids the real issue – namely, religious freedom in the liberal constitutional state. But now there was a further connection to papal doctrinal teaching, a document in which freedom of conscience also played a central role – namely, the encyclical Pacem in terris, which Pope John XXIII published on 11 April 1963, a few weeks before his death (in the meantime, on 21 June 1963, Paul VI had been elected successor to John XXIII). There, the Pope stresses that, on the basis of natural law, every human being has the right to honour God according to the right dictates of his or her own conscience, and the right to profess his or her religion privately and publicly (in Denzinger 2012, 831). Besides the new draft text and the relatio of Bishop De Smedt, which in principle goes far beyond the draft text in its line of reasoning, two points of view seem to be especially relevant to the development of the position on religious freedom: namely, the role of Pope John XXIII and the role of the Secretariat for Promoting Christian Unity. The publication of the encyclical Pacem in terris and the elevation of the Secretariat to the rank of a Council Commission, the latter occuring between 19 and 22 October 1962, are likely to have been extremely important events between the first statement on the issue in the preparatory phase (18 June 1962) and the adoption of the statement on the issue in the fifth chapter of De oecumenismo (19 November 1963), events whose significance for setting the course for recognizing religious freedom can hardly be overestimated. Since John XXIII must be considered the author of the encyclical and the patron of the Secretariat, the view and attitude of the Pope gain

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Dignitatis humanae: Development of the Text

particular importance at this stage of the debate on religious freedom. There is no consensus on whether Pacem in terris has a clear position on the human right to religious freedom. On the one hand, reference is made to the ambiguity and lack of clarity of the encyclical with regard to religious freedom, with commentators also pointing out that it would have “been strange” in “such a situation” (i.e., in the ongoing conciliar process of discussion) “had the encyclical anticipated the decision” (Sebott 1977, 116-122); on the other, commentators emphasize the unambiguity and clarity of the encyclical with regard to religious freedom (see Murray 1963b), as well as the congruence between encyclical and conciliar text draft: “the doctrine of the text is identical with the doctrine of the encyclical” (Murray 1963a, 704). The debate allows itself to be systematically escalated into a conflict about the understanding of the formula ad rectam conscientiae suae normam. Are the right dictates of conscience bound to the one religious truth, and correct insofar as they correspond to this truth? Or is conscience correct when, for good reasons, it reaches its own conception of the truth? Since “it is not to be doubted that John XXIII clearly knew that there were ultimately two different doctrines among Catholics concerning the right to religious freedom”, he may have been of the opinion “that, in such a complex matter, further studies are not only opportune, but also necessary” (Hamer 1967, 79). It would therefore not have been the Pope’s intention to decide the debate in one way or another, but rather to open the debate up to two possibilities. “This could explain the fact that [the right to religious freedom … in Pacem in terris] was formulated in a way that does not cut off further disagreements”, i.e., “neither confirms nor rejects one or the other doctrinal position” (Pavan 1965, 357). Even if we adopt a cautious interpretation of the encyclical’s statements on religious freedom as a human right, there is no doubt that it added a new dimension to the papal state doctrine. Even if the draft text of the Commission for Christian Unity had been completed before the encyclical was promulgated, it seems appropriate to see the relevant statements in Pacem in terris as part of the textual development of Dignitatis humanae. For, on the one hand, the supportive position on religious freedom and the designation of religious freedom as a human right in Pacem in terris would hardly have been conceivable without the stage reached in the debate; and, on the other, the text of the encyclical provided the Council with the first positive papal statement on the right to religious freedom, a statement that considerably and decisively expanded the spectrum of possible points of reference. In other words, the question was now no longer how to justify the recognition of religious freedom in the face of papal doctrine (especially papal doctrine of the 19th century). Rather, it was how the recognition of religious freedom could be justified in

The First Conciliar Version of the Text

19

the broad spectrum of different statements from, say, Gregory XVI and Pius IX, through Leo XIII and Pius XII, to John XXIII – with this spectrum of papal doctrinal statements now including a relatively unambiguously positive statement on the human right to religious freedom. It is difficult, though, not to interpret the Pope’s behaviour in the last months of his pontificate as a signal for his fundamental support for a renunciation of political coercion by the church and for ideological and religious freedom. John XXIII distances himself from Italian politics in general and the Democrazia Cristiana in particular, although the Christian Democrats were coming under increasing pressure.1 After being awarded the Peace Prize of the International Balzan Foundation (with the support of its Soviet members) on 1 March 1963, John XXIII received on 7 March 1963 the President of the Republic of Italy and representative of the Balzan Foundation to tell him that he would “be happy to accept the prize as a tribute to the activity of the Church on behalf of peace”, although “the general tenor of his address on March 7, in which he came out in favor of the Church’s ‘political neutrality’, caused a sensation.” (Grootaers 1997, 498). The fact that he granted on the same day a personal audience to Alexis Adschubai, the director of the newspaper Izvestia (and son-in-law of Nikita Khrushchev) provoked irritation in public opinion, consternation in the milieu of the Roman Church, and disapproval in the Roman curia. While all of this does not imply a clear position in favour of the human right to religious freedom, it does characterize the attitude of the Pope, is part of the background to the encyclical Pacem in terris, and thus also to the course of debate on the attitude of the church to religious freedom. “The openness of every kind that Pope John advocated could only mean, to them, the Church’s abandonment of a politics of power” (Grootaers 1997, 501). And it is clear that this attitude would, given the overwhelming approval that John XXIII enjoyed worldwide (and not least after his death), have an impact on the development of the Council and of the church. There were subsequent debates about presentation and discussion of individual chapters of the decree on ecumenism. While the first three chapters were discussed in detail, discussion of chapters IV (De Iudaeis) and V (De libertate religiosa) was no longer possible. The document was therefore worked on 1  The Pope refused to support an intervention by the Italian episcopate in the election campaign before the election on 28 April 1963, in which a virtually unambiguous call was made to vote for the Democrazia Cristiana; see Osservatore Romano of 30 March 1963 and of 7 April 1963, where the election appeal was printed and commented upon approvingly. The DC lost 13 seats in the parliamentary election, while the Communist Party gained 26 additional seats. The accusation was levelled at John XXIII that he had both in his speeches and his silence allowed himself to be used by the Communist Party.

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Dignitatis humanae: Development of the Text

further, and also removed from the context of the ecumenical issue. Before the first independent version of the Council document on religious freedom could be presented in September 1964, consideration had to be given not only to 380 proposals for improvement; this period also saw the intervention of John C. Murray, whom we can see as having had a great influence on how the doctrine of religious freedom developed (see Scatena 2010; Komonchak 2010). 1.4 The Second Conciliar and First Independent Text Version: De libertate religiosa (23 September 1964) As we have already mentioned, John C. Murray, a theologian who had for years had a “ban on publication” with regard to the issue of religious freedom, became, at the request of Cardinal Spellman, an advisor to the Council (see Komonchak 1996). And the fact that the issue of religious freedom returned to the Council’s agenda at all was also probably due in large measure to Cardinal Spellman’s intervention. In turn, Murray intervened after the presentation of the fifth chapter of the ecumenical decree on religious freedom with a fourpage memorandum, with each of these interventions being strongly supported by the US episcopate (see Komonchak 2010, 165f.). The main contents of the memorandum were published in a paper by Murray in the journal America (Murray 1963a). The text is seen as decisive for the church’s attitude towards religious freedom. Murray describes religious freedom as an “American issue”, and the declaration on religious freedom in the different stages of development as an “American schema”. In his article, Murray emphasizes the importance of the issue of religious freedom, and praises Spellman’s efforts at taking the issue into account in the discussions of the Council. For Murray, there are actually two texts on religious freedom: one, the text of the fifth chapter of the decree on ecumenism; and, two, the relatio, i.e., Bishop Emile De Smedt’s detailed position on the issue. This second text is, for Murray, the more important, since it develops a comprehensive justification for the line of reasoning used in the fifth chapter of the decree. The text of the Unity Secretariat had already been drafted before Pope John XXIII published his encyclical Pacem in terris; but Murray describes the doctrines of these two texts as “identical”, and points repeatedly to the encyclical to support the Council text. This doctrine contains two main aspects for Murray. First, that every man by right of nature ( jure naturae) has the right to the free exercise of religion in society according to the dictates of his personal conscience. This right belongs essentially to the dignity of the human person as such. Secondly, the juridical consequences of this right are asserted, namely,

The Second Conciliar Version of the Text

21

that an obligation falls on other men in society, and upon the state in particular, to acknowledge this personal right, to respect it in practice, and to promote its free exercise. This is, in a mode of general statement, the heart of the matter (Murray 1963a, 704). Among the reasons for the proclamation of this doctrine, Murray counts, besides a universal patronage of the Church for human dignity, the protection of human rights – including religious freedom – and ecumenism, since “we are living in an age in which a great ecumenical hope has been born” (Ibid.). According to Murray, Bishop De Smedt’s relatio includes the clarification of confusions and misunderstandings regarding a concept of religious freedom that is a legacy of the conflict in the 19th century between the church on the one hand and the laicist ideology resulting from the Enlightenment and the French Revolution on the other. It is now not only the case, argues Murray, that the church should adopt an attitude to religious freedom that is adapted to the given conditions, but also that it should of course continue to reject what was rejected in the 19th century: namely, the ideology of religious indifferentism and doctrinal relativism. These 19th-century ideologies, which still exist among us in one or other way, falsified the notion of religious freedom, just as they misconceived the dignity of man. Man is not God; he is only the image of God … In consequence of his personal dignity, man, in his quest for God, has a right to be free from all manner of coercion or compulsion that might be brought to bear on him by other men, by social or political institutions or by the power of human law … This is itself a divine law, which is written in the nature of man and written even more clearly in the gospel of Christ. True religious freedom therefore consists, negatively, in the immunity of the human person from a coercion in what concerns his personal relations with God, and, positively, in the free exercise of religion within civil society. Murray 1963a, 705

Murray considers this concept to be not yet adequate, but tending towards being correct. What is still lacking, he argues, is clarification of the question of the principles by which the exercise of the right to religious freedom in a society can be limited in a just and legitimate way, or what responsibility the government has in regard to the exercise of religion in a civil society: “Religious freedom is not simply an ethical or moral problem. It is also a constitutional problem” (Ibid.). With this, Murray laid down an important marker for the later Council doctrine: namely, the formulation of the right to religious freedom as

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a constitutional question. With this in mind, argues Murray, the doctrine of the church at the Council must take a step beyond the present texts and also beyond Pacem in terris. To this end, he recommends the principles of the US legal system: first, man is endowed by his Creator with certain inalienable rights; second, government and the order of law exist primarily for the protection and promotion of these rights. These principles were clearly affirmed by Pius XII and by John XXIII. However, the American system also enshrines another principle, namely, the incompetence of government as judge or arbiter in the field of religious truth, as also, for instance, in the field of art and science. Ibid., 706

The government of the liberal constitutional state has only secular competence and would therefore exceed its competences if it were to judge the one religion as true and the other as false – and even more so if it were to enforce upon citizens, by the medium of law, any kind of theological judgment. The principle of the non-competence of secular political authority in the field of religion is, for Murray, not only embedded deeply in the political tradition of the Christian West, but is also confirmed by the theological tradition of the church – for example, when Leo XIII explains that political authority has “no part whatsoever in the care of souls (cura animarum) or in the control of the minds of men (regimen animorum)”. For Murray, the dimming of this principle in Europe has – fortunately for the church and the American people – never taken place in the US, which is the reason that the “true tradition” could be preserved “in the American constitutional system” (Ibid.). The text thus contains a strategic and a systematic motive. The strategic motive attempts to explain the anti-modernist criticism levelled at human rights and religious freedom by the popes of the 19th century as being a reaction to anti-religious and anti-church tendencies in the modern period (laicism, relativism, indifferentism). For Murray, criticism of rights of freedom therefore did not relate to liberal political philosophy as such, but instead to a secularistic and liberalistic aberration. But, according to Murray, the Council is now faced in essence with a different question: namely, the recognition of religious freedom, which, as the church has always taught, is grounded in the dignity of the human being. Murray therefore sees the recognition of religious freedom as being in a relationship of continuity with church doctrine. This strategic motive thus opens up the possibility of recognizing in principle the human right

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to religious freedom and the separation of state and church, without thereby abandoning the Catholic tradition. We could roughly sketch the systematic motive as follows: Murray has naturally assumed that liberal human rights are based on the dignity of the human being, and that this, in turn, is based on the image of God in human beings. However, with regard to the free exercise of religion, there is outside the church – and especially in the Anglo-American political tradition, which was not familiar with the bitter religious wars of Europe – a different understanding of human dignity and its consequences for the free exercise of religion, one that includes a fundamental separation of religion and politics, as well as a relatively wide (individual and collective) space for each person to practise his or her own religion. While this understanding of human dignity and the idea of freedom linked to it do not in any way contradict church doctrine, this doctrine was long developed largely in conflict with the historical conditions in Europe, and was therefore shaped against the challenge of aggressive secularism. It is for this reason that the church must now to a certain extent take on a different political-historical context “from the outside”. Murray’s text clearly underlines what dealing with religious freedom must be about in contrast to the old Catholic doctrine of tolerance: namely, the unconditional recognition of the human right to religious freedom under the condition of the separation of religion and politics. It was under this condition that the first independent text version of the Council document on religious freedom was developed. Thus, when the text was presented on 23 September 1964, it was “unmistakably clear” that two positions were diametrically opposed to each other. On the one hand, a faction that wanted to maintain that “truth alone has a right to freedom, while only a relative tolerance could be allowed to error, and then only ‘to avoid greater evils’” (Miccoli 2003, 97). If the Catholic Church is in a theological sense in possession of the truth, then this therefore stretches to the realm of law, too. “In this vision the ideal model of civic organization was the Catholic state, which had the duty to guide and govern society” (Ibid.). In essence, the opposing side did not have a comparatively solid line of reasoning until Murray’s intervention; the line of reasoning was obviously (that is, measured against the text drafts submitted up to this point) pragmatically motivated by the enormous gap between the axioms of Western civilization on the one hand, and the Catholic state doctrine that the opposing side wanted to defeat on the other. For, the dissemination of the idea of human rights was, as before, opposed by magisterial objections at least to fundamental rights of freedom. This gap had long ceased being only between the church and the modern world; it was now also within Catholicism – for instance, between

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the magisterium and political Catholicism, the latter playing a decisive and constructive role in the shaping of Christian or Christian-democratic parties in several liberal democracies of Europe. Murray’s intervention makes clear not least that a systematic conception for the magisterial recognition of religious freedom was lacking on the part of those powers that were open to the recognition of religious freedom. “It was driven … by several considerations”, one of which was “a growing uneasiness with a doctrine seen as increasingly alien to the direction taken by contemporary culture and the contemporary public mind” (Miccoli 2003, 98-99). Discussion about the recognition of religious freedom presented a double problem. On the one hand, it was about whether the idea of tolerance or the idea of human rights was the objectively more appropriate response to the phenomenon of increasing religious plurality. On the other, the question also always arose of how church doctrine can evolve, which changes are possible, and what degree of continuity is necessary so that the church does not lose its credibility (see Siebenrock 2010, 32-34). The second question related of course not only to the church’s attitude to religious freedom, but became to a certain extent a test case – which explains why the debate was so tortuous. But, with Murray’s intervention and De Smedt’s relatio, there were papers available that were groundbreaking in both a systematic and a strategic sense; that is, proposals to solve the double problem that saw an unconditional recognition of religious freedom as an inalienable human right, and that legitimated religious freedom by distinguishing between two different objects of church doctrine – and by providing a declaration of belief in the continuity of doctrine from Mirari vos to the Syllabus errorum to Pacem in terris, and beyond. This path of development forbade ripping the papal texts from their respective “historical context”, but at the same time swore a “fidelity of doctrine to itself” safeguarded “in substance”. However, just as this approach was unable to satisfy the opposition, neither could it fail to give rise to uncertainties and difficulties even in those who maintained that, a century after the Syllabus, a generous and open acknowledgement by the Church of religious freedom for all was more urgently needed than ever. There was an unresolved tangle of pressures, questions, and contrasting demands which the De libertate religiosa continued to carry with it and which made its entire journey through the Council especially rough and difficult. Miccoli 2003, 102

It was therefore by no means simply (and only) the case that the modernizers with their clear conception of renewal were confronted by the dark powers of

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the past with their traditional conception of the (sometimes tolerant) state of Catholic truth. Rather, it was (also) about the persistent struggle with an idea of the further development and careful renewal of Catholic state doctrine, an idea that even those in favour of renewal had to convince themselves of first (see Scatena 2010). Especially for those who were in principle in favour, but who still saw difficulties with regard to recognizing the right to religious freedom, the revision of the text was based on a list of criteria. First, the notion of religious freedom should be clarified to eliminate any false or ambiguous interpretation. Second, the right of religious communities to enjoy complete freedom should be discussed much more thoroughly than before. Third, it is important to clarify under what precise conditions the right to practise a religion can be subject to legal restrictions. Fourth, the objective truth of divine law, together with all its demands, should be expounded in order to rule out any danger of subjectivism and indifferentism. Fifth, reference to the current conditions of human life should explain how far the proclamation of religious freedom appears necessary and useful (Miccoli 2003, 104). The text does then in fact present an argument of justification at the beginning: “Created in the image of God and called to participate in the divine nature (ad consortium divinae naturae vocati), human beings have the duty and the honour to follow in religious matters the will of the Creator and Saviour according to the decision of their conscience” (quoted from Hamer 1967, 82). Even if this argument would disappear again from the text, Hamer believes that it is of considerable importance: the religious act is given a special place within moral action, because it is about the choice of the ultimate goal and the focus of one’s whole life on this goal; such a choice, argues Hamer, constitutes the highest good for the subject, which is why it can demand unconditional respect; this is the first time that the concept of human dignity or the dignity of the human person appears in the Council’s statements on religious freedom (Hamer 1967, 82). The wording of the subtitle, “On the right of the person and of communities in religious matters”, implies on the one hand an apparently self-evident transition into the realm of law, and on the other a modest line of reasoning based on natural law, insofar as it concerns a pre-positive personal law that is nonetheless unburdened by the controversial terminology of natural law. The law applies not only to individuals, but also to religious communities; in line with the list of criteria, the rights of communities are discussed in great detail. The text describes the inviolability of self-determination in “religious matters”, thereby also including more or less explicitly an atheistic stance. The statements on (correct) conscience in the earlier draft version are abridged; instead of the concept of the common good, the concept of the “goal of society” is introduced, which – in line with the encyclicals Mater et Magistra and Pacem in

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terris – means in substance a concept of the common good that is understood as embodying those social and political conditions that enable or facilitate the person to develop his or her values to the full. The (US) conception of religious freedom that Murray introduced was quite evident in the text, although, as we will see, not with the level of clarity desired by Murray. The text did contain, though, the basic idea that religious freedom is primarily a political and constitutional question that can and must be supported with theological and ethical arguments, as well as the affirmation that the state is absolutely not competent to judge whether a religion is the true one or not. After no official discussion took place during the second session on the then fifth chapter of the ecumenical decree, the first great debate on religious freedom was intended to follow the presentation of the revised, and then independent, text De libertate religiosa. Despite the clarifications, the text was apparently presented by Bishop De Smedt rather defensively in the 80th General Congregation on 23 September 1964, and announced as being “in need of improvement” – whether from systematic or strategic considerations. His statement was also shorter than that in the second session. Bishop De Smedt also justified the use of the term “religious freedom” (which Pope Paul VI had indeed already used on 18 April 1964 in a text for the Osservatore Romano). For the first time ever, according to Bishop De Smedt, a discussion on religious freedom is taking place at a Council, which means also that no one can give contradictory statements to the new reflections, and that the relevant teachings of the popes of the 19th and 20th century therefore related to something completely different. De Smedt added that the material was per difficilis, while “prudently omitting a reminder that the difficulties arose precisely from the fact that teaching on the subject did exist and that it moved in a direction opposite to that taken in the declaration” (Miccoli 2003, 105-106). The decisive new element is in any case the transition of church doctrine from the concept of tolerance in its Catholic neo-scholastic form to the concept of religious freedom, which, according to De Smedt, has assumed a very precise meaning in modern language usage. The new concept of religious freedom is related in essence of course to an old matter: namely, to the question of the political treatment of religious plurality, or of different religious confessions, as well as to the question of the connection or separation of religion and politics, of (Catholic) church and state, to which the old concept of tolerance was also related. Thus, the transition does not signify a marginal linguistic detail, but actually a veritable paradigm shift, since the concept of tolerance as interpreted by the Catholic magisterium makes no reference to a fundamental right to religious freedom. Rather, as we know, it is concerned with acceptance under certain conditions, rather than with a fundamentally unconditional recognition of the religious orientation of people.

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Thus, the objections were massive; and the Council debate was fierce. Bishop De Smedt’s presentation of the new text was followed by a great debate in the Council. Hamer names in his retrospect the following “characteristic” points of criticism made by the opponents of the declaration: following Cardinal Ruffini, the lack of a distinction between a system founded on truth that emerges from the “right of truth” on the one hand, and a system based on tolerance that results from the needs of human coexistence on the other; following Bishop Granados, the formula “right of truth and tolerance of error”; following Cardinal Browne, the distinction between rights of the correct conscience and rights of the erring conscience (with reference to the appropriate contentious passage in John XXIII’s encyclical Pacem in terris on the “right dictates of conscience”; see above); following Cardinal Ottaviani, who played a particularly important role in the faction of those opposed to recognizing religious freedom, and who had already been a curial antagonist of Murray’s in the decades before the Council, reference to the absence of a solemn declaration that the original right to religious freedom only belongs subjectively and objectively to those who adhere to the true religion; following Bishop Levèbvre, the relativistic tendency of the text, which is not founded on the rights of Christ and of the church; following Bishop Granados, the fact that the indiscriminate recognition of a right of religious truths and errors represents an innovation in the doctrine of the church, and therefore raises questions of continuity; following Cardinal Ottaviani, the excessive sinfulness of the schema when it asserts that those who follow their conscience, even when they are deceiving themselves, are still worthy of respect (see Hamer 1967, 86f.). But objections are reported as coming also from Council Fathers who had no fundamental objections to the schema: for example, following Bishop Dubois, on account of a lack of theological justification; following Bishop Garonne, because of a lack of discussion of historical development or doctrinal continuity, which could lead to doubts as to the integrity of the church; and, following Cardinal Leger, a lack of a comprehensible explanation of the reasons for advocating a human right to religious freedom. 1.5  Religious Freedom at the Height of the Council Controversies: The Revised Text of the Declaration (17 November 1964) The now fifth version of the Council text on the question of religious freedom is directly connected to the fierce controversies of the Council in the autumn of 1964 (Schema declarationis De libertate religiosa seu de iure personae et communitatum ad libertatem in re religiosa, in: Acta Synodalia sacrosancti concilii oecumenici Vaticani II, Vol. III/8, 426-449). It had long become clear that in a

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number of areas the agenda was being set that would be of great importance for the Catholic Church’s future constitution, its self-understanding, and its role in contemporary societies. The position of the church in the question of religious freedom became a central aspect in these agendas, and thus also a political issue in the conflict between a Council majority that advocated a clear declaration on this issue in favour of religious freedom (a majority that in itself was by no means homogeneous), and a “conservative minority”. The latter can be described as such because it was concerned not only with maintaining the rejection of a “right of error” (which was more at the content level), but also (more at the formal level) with the preservation of the tradition, with doctrinal continuity, and in this case especially with observing the doctrine of the popes of the 19th and 20th century up until the doctrine of tolerance of Pius XII. The resubmission of the text at the end of the third session therefore coincides with a phase of intense debate about the course of the church and about the Council itself. In both October and November 1964, the document on religious freedom was the subject of intense controversy, which meant a crisis in that there was a real danger (in retrospect as well as from the perspective of those involved at the time) that the text would no longer be adopted at all, and that the repositioning of the church regarding religious freedom would be blocked. 1.5.1 The Attack on De libertate religiosa and De Iudaeis – The Crisis in October 1964 In October 1964, a few days after the discussion described, a massive attack was launched against the draft declarations De libertate religiosa and De Iudaeis, with this attack leading to a great crisis in the Council that in a sense would continue to fester for decades and still has an effect today. The attack intended to prevent a redefinition of the church’s attitude towards the Jews on the one hand, and towards the question of religious freedom on the other. At the meeting of the Secretariat for Promoting Christian Unity on 9 October 1964, Cardinal Bea made public two letters from general secretary Pericle Felici. One reported on a decision made at a joint meeting of the Presidential Council, the Coordination Commission and moderators to address the issue of the Jews in the second chapter of the schema De Ecclesia, and at the place where mention is already made of the people of Israel. The other letter told of the Pope’s wish to produce a new version of the text on religious freedom by 20 October 1964, since the present version obviously does not meet the objective that it was set.2 According to the letter, Cardinal Bea should therefore appoint a few 2  See Acta Synodalia sacrosancti concilii oecumenici Vaticani II, V/2, Vatikanstadt 1990, 763f.; Miccoli 2003; Hamer 1967. According to Hamer (1967, 90), the Secretary-General let

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members from the Unity Secretariat to sit on a mixed commission that would also include members of the Congregation for the Doctrine of the Faith, among whom were three who had clearly opposed the schema during the debate that had ended two weeks ago. “This mixed commission will include not only His Eminence Cardinal Michael Browne, Their Excellences Marcel Lefebvre and Carlo Colombo, but also the Most Important Father Aniceto Fernández … The press thought it possible to say that the appointment of these four members had taken place on the initiative of the General Secretariat of the Council” (Hamer 1967, 90). The news struck “the small world of the Council like a bomb” (Robert Rouquette SJ), and its impact spread immediately in the press. It was clear that transferring the Council text to the mixed commission was an attempt to steer the issue in a different direction. For one, because most of the theologians proposed had already clearly opposed recognizing religious freedom; and, two, because the Unity Secretariat and its president, Cardinal Bea, were brushed aside insofar as their work was treated with obvious contempt. In addition, the secretariat’s dignity and role as a conciliar commission also were under strong attack, while the authority and prestige of its president, Cardinal Bea, were seriously undermined; and all this would surely have extensive implications for all the labors and trends of the Council … The instructions that Felici passed on to Bea and Ottaviani imposed a common fate on the two declarations: for the De libertate, a complete rewriting; for the De Judaeis, a shift to a new setting that was clearly intended to change its character. Miccoli 2003, 168

In retrospect, we can identify the following dynamics that obviously typified the Council debates – and indeed how the Council was received decades later. While on the one hand there is the tendency to achieve with the Council changes and corrections in important church positions, there is also on the other a tendency to prevent the Second Vatican Council from making substantial changes. The tendency towards renewal and corrections is strongly rooted in a periphery of the world church, insofar as it was especially the intervention of Murray and the US Council participants in the question of religious freedom that contributed so greatly to the text version that its opponents were it be known in the letter “that, at the request of the Pope, the Cardinal Secretary of State had decided that the Declaration [on religious freedom] should be examined by a mixed commission”.

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now so desperate to halt. In contrast, the tendency aimed at preventing substantial changes was prompted above all by important representatives of the church’s curial centre. These included above all Cardinal Ottaviani, who, before, during and after the Council, held high positions in the Holy Office and in the Congregation for the Doctrine of the Faith, as well as being heavily involved in preparing and running the Council, and who, as already mentioned, had already been an antagonist of Murray’s before the Council. But also the Cardinal Secretary of State, Amleto Giovanni Cicognani, who on 30 September 1964 sent a letter to the Council secretary, Pericle Felici, whose wording is similar to that used in the later letters from Felici to Cardinal Bea. In this letter, the Cardinal State Secretary initially emphasized in a somewhat obscure way “that the current text of the Council’s schema obviously does not serve the purpose that it set itself”. And then he told of “the wish of the illustrious Pontifex that the drafting of a new text of the schema mentioned be undertaken. The current members of the Commission are to be joined by a number of other persons who are particularly competent in the fields of theology and sociology”. Felici was therefore instructed to “take the suitable steps to this end” (Miccoli 2003, 169). However, we should not crudely oppose a periphery comprising the world church that is pushing for change on the one hand, and a church centre fixed on preserving the tradition on the other – and not least if we take a more nuanced view of the Pope’s position. That he was critical of the draft text of De libertate religiosa is beyond doubt; but why he was critical is not clear. It was by no means due to the Pope’s approval of the fundamental thesis put forward by those who had criticized the schema in the Council chamber by referring to the Syllabus and the traditional doctrine regarding thesis and hypothesis. As we should emphasize over and over again, there was also dissatisfaction with individual draft texts among those advocating the recognition of religious freedom. Even Yves cannot help repeatedly recording in his diary his criticism of and dissatisfaction with the text (Congar 2012). Paul VI was evidently under pressure from two sides. On the one side, from supporters of De libertate with its emerging modification of doctrine; and, on the other, from critics of the schema, who were warning that changing doctrine in such a way constituted a break with the tradition. The Pope’s actions here can probably be seen not so much as “hesitation”, but rather as a serious consideration of different positions. That a pope who sees himself as having to mediate between different tendencies is affected by the fact that there are completely opposite and irreconcilable views on an important issue, and that he himself shows uncertainty, is not so much strange as perfectly normal. The mood in the curial centre of the Church church also worsened with regard to

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the increasingly detested Council there, which it saw as being guilty of rapidly driving the church into ruins. Among the curias and the other members of the minority grew impatience towards the Council as such, against the manner in which it was approaching the problems, and against its whole point of view. It is difficult to imagine that Paul VI would have been insensitive to this climate. And a certain fact was, something that he had often said and had been leaked, that he wanted to appear as an impartial arbitrator between the parties. This made it necessary to achieve the greatest possible consensus among the Council Fathers during the Council assembly (see Miccoli 2003, 166-180). In such a constellation, the Pope’s insistence on having a precise and sound text is again perfectly normal. That the Pope hesitated not because he fundamentally rejected the declaration on religious freedom, but because he harboured reservations about formulations that seemed unsound to him is also indicated by the further course of events. The Pope’s uncertainty was certainly used, and perhaps also abused, by the minority of those who did not wish to see a redefinition of the church’s attitude to religious freedom. Their attempt to withdraw the declaration on religious freedom from the jurisdiction of the Secretariat for Promoting Christian Unity was a cleverly designed attack on the reformist orientation of the Council as such. For, attacking the Secretariat for Promoting Christian Unity and the two texts De libertate and De Iudaeis meant hitting the Council in an area and in an activity that had most powerfully characterized its will to reform and renew itself. But Bea replied together with several cardinals, including the cardinals König, Frings and Döpfner.3 The Cardinals wrote a joint letter to the Pope (“Non sine magno dolore …”), which reached the Pope on the evening of 11 October 1964, or on the morning of 12 October, and was then published in Le Monde on 17 October 1964. Then by 16 October 1964 the matter regarding De libertate was settled. Almost everything, if not absolutely everything, had become again how it had been before. It was essentially a victory for Bea. That was also the view of the majority of the Council. There was a single meeting of a consultative committee (which the mixed commission had now turned into). Comprising ten cardinals, half from the Theological Commission and half from the Unity Secretariat, and chaired by Cardinal Bea, the committee examined the draft 3  That is, cardinals from Germany and Austria, behind whom were the theologians Karl Rahner, as peritus to König, and Joseph Ratzinger, as peritus to Frings. German theologians also therefore played a certain role in the process of recognizing religious freedom, although not as protagonists and pioneers, but as moderate supporters. That becomes clear in this crisis, as they attacked courageously, positioned themselves clearly, and also went out on a limb (with the letter) with regard to the Pope, whose own attitude in this situation was difficult to estimate.

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submitted by the Secretariat for Promoting Christian Unity (that is, it did not work on a new text). The text could then be submitted on 9 November 1964 to the Holy Office for the nihil obstat (see Hamer 1967; Miccoli 2003). The secretariat – subcommissions and plenary body – worked at top speed so that it might present the two declarations to the fathers and have enough time left for voting on them before the end of the period. But the adventures of the two documents were not finished. Once again, during the “black week” in November, both were in danger of being overwhelmed by the delaying maneuvers of a minority that was not at all disposed to surrender its arms. Miccoli 2003, 193

1.5.2 The “Black Week” of the Council in November 1964 – A New Attack on the Declaration on Religious Freedom of 1964 Shortly after Bea and other cardinals managed to repel the attack on De libertate and De Iudaeis in October, the “Black Week of the Council” followed, which also impacted on the text on religious freedom. Overall, the strategy now adopted by the traditionalist minority was that of delay. If the Council were to end soon, and if (among other things) the text on religious freedom were to be postponed, then the tiresome issue would be removed from the table. For whom was the week so dark? Not, of course, for the more intransigent wing of the minority, who were delighted with the events. For those who wished the Council to continue on the progressive path it had been traveling for the first two years of its life, however, the surprises of the week seemed to have the cumulative effect of slowing down the renewal that the Council had been pursuing. The blows came at the very end of the period when, even if the majority wished to respond forcefully, it also had to be careful not to compromise the fate of entire texts and of the Council itself. By the end of the week many felt that they had approved texts severely weakened by the concessions granted in order to win over a defiant minority. Tagle 2003, 387

The latest version of De libertate religiosa was presented to the Council on 17 November 1964, together with the written and oral report on it to the Fathers. The vote was announced for the day after next, 19 November. But objections

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were raised to the tight timescale, which were based on the argument that a thorough discussion of the declaration required more time. In accordance with Council rules, numerous Fathers had asked for more time to study and re-examine the document in peace, as it differs so greatly from the earlier ones. Through the pressure from two directions, comprising the parts of the second version on the one side, and the advancing text of the new schema on the other, the document made the extent of the newly inserted parts immediately apparent. There were broad white spots in the left-hand columns. Some even counted the number of lines. The new text had 556 lines, while the old one had only 271 lines, of which only 75 were repeated in the new version – these objections and requests for postponement are understandable from a practical point of view, and are certainly not due only to the strategic manoeuvrings of a conservative minority (see Hamer 1967, 90-100). Since this was a text altered in substance, and moreover a text of such importance, it does not seem absurd to read and examine this text thoroughly. But the text at the centre of the disputes was indeed new in content and in its basic orientation. Murray and Pavan had made use in their recent editorial work of new foundations and methods that greatly differed from those of the previous text (see Tagle 2003, 397-401). The new draft presented on 17 November 1964, which, for Hamer (1967, 91), was “more a reworked than a merely revised text”, had “reverted to a certain ‘professorial’ presentation” and was now divided into four points: “I. General aspects of religious freedom”, “The doctrine of reasoning on religious freedom”, “III. Practical consequences”, and “IV. The doctrine of religious freedom in the light of revelation”. This structure itself provoked critical questions because the theological perspective had been pushed to the end and, coming after the “Practical consequences” section, could almost seem like a superfluous appendix. This did in fact correspond in essence to the manner of argumentation used by Murray, who, drawing on the pre-modern tradition of scholastic natural law on the one hand, and on the modern tradition of liberal natural law on the other, grounded religious freedom as a basic and inalienable right of every person within the dignity of the human being. For Murray, every act of coercion is already excluded from a theological point of view. This would be to contravene the essential law of the divine economy of salvation, which is that men must accept God’s gift of grace freely, or not at all. Therefore the theology of the act of faith obliges Christians to an attitude of respect and reverence toward others who do not share their faith … All this is quite clear. But the decree and the relatio enter

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another area, which is most difficult. Religious freedom is to be a right whose exercise takes place in society – in a civil society that is politically organized, that receives its structure from a juridical order, and that is governed by duly constituted political authority. Here, the difficulty begins. Murray 1963a, 705

From this follows the intention to identify the reasons for recognizing religious freedom in generally plausible arguments, which are only to be confirmed by reference to the religious tradition of Christianity or revelation. This line of reasoning has a high degree of plausibility on its side, since a general right to religious freedom cannot be founded from a particular tradition, but instead requires generally binding reasons. But the line of reasoning thereby tends to follow in the way that it argues a traditional system based on natural law – a system that is nonetheless bolstered by reference to modern liberalism. Murray clearly does not need theology for this purpose, which some members of the Council who did not belong to the “conservative minority” must also have found somewhat strange. The core of the argument is now that religious freedom is a true right, founded on the dignity of the human person. Hereafter, the draft endeavours to provide an answer to a question that the world is posing. What is this question? Today’s society is asking the church what it thinks of a system from which every human compulsion in religious matters is banished and legally excluded. The church replies that such a system does not violate Catholic doctrine, but is legitimate because it is founded on the dignity of the human person. It corresponds to a real right of every human being … The preceding schema, which justified freedom with the “divine call” already referred indirectly to the dignity of the human person. In the new text, this dignity constitutes in itself, uniquely and alone, the foundation of freedom (Hamer 1967, 92). In addition to the “divine call” as a basic argument, the “errant conscience” has also disappeared as a central motif from the text. Conscience binds people and is an expression of their freedom. As to a certain extent autonomous, conscience is not objectively right or wrong, but subjectively correct and binding – assuming a careful formation of conscience, of course. The human being can only achieve his or her ultimate goal by following the judgment of a wisely formed conscience. The schema was fundamentally shaped by the “arguments of the system of natural reason”. Against the backdrop of grounding the right to religious freedom within general human dignity, the schema differentiated between

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“freedom of the individual conscience and freedom to worship publicly” (Burigana/Turbanti 2003, 533). A Quaestio historica was devoted to the problem of doctrinal continuity, which emphasized that the condemnations of the 19th century were aimed at the tendencies of relativism, indifferentism, and laicism. The insertion resulted from the wish of the Council Fathers to have this clarified, but it “could find no mercy in the eyes of demanding readers” precisely because it did not so much explain historical change as preclude it: “In the effort to show that the true doctrine of the church does not alter, an ill-advised section left the impression that the Syllabus should be divorced from its historical context and, as it were, placed into an absolute and immutable sphere” (Hamer 1967, 96). Against this background, there can indeed be no doubt that there were also sound reasons not to vote on the text in haste. At the same time, though, the sound reasons were not in the foreground; rather, it was the political controversy that fuelled the debate. De Smedt, as the relator responsible, again read out a commentary on the text on 19 November 1964 – although it was already clear at this point that the text would no longer be put to the vote during the third session, and that corrections and suggestions for improvement would be submitted up until January 1965. “One can imagine the audience’s agitation” (Hamer 1967, 100). De Smedt therefore gave his speech in the midst of a tense and confused situation; a good orator, he was able to hold and energize his audience. The thunderous and prolonged applause that interrupted his speech became an occasion for assembly members to manifest their shock, frustration, disbelief, and anger at the turn of events. The speech ended with the longest applause accorded an intervention during the Council. Tagle 2003, 401

The confused situation therefore offered the opportunity to redouble support for the church’s repositioning on the issue of religious freedom. This is also true since not everybody who gave De Smedt’s address ovations were convinced of the text in every detail. Even De Smedt himself was not completely behind the position that (originating from Murray) was shaping the text of the declaration. There was also widespread understanding – from Congar to Murray, and therefore also among the determined supporters of the declaration – of the need to study the text thoroughly. But everybody of course also knew that the driving forces behind the postponement of the vote were not about a thorough study of the text, but about a fundamental rejection of the

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declaration. It was not so much the case that the scale swayed wildly between supporters and opponents of the declaration on religious freedom. Rather, as demonstrated, for example, by the strong support shown for De Smedt and his relatio, it was the case that on the one hand a clear majority explicitly supported the declaration while not refraining from casting a critical eye over the details, and on the other a minority disturbed proceedings with their tactical manoeuvrings. Pope Paul VI was also keen to see the adoption of a declaration on religious freedom that had the underlying tendency of the previous drafts. Standing on the side of the majority in favour of reform both in the second session as pope, and before that as a Council Father, “in this third period, however, he seemed to emphasize his role as moderator and mediator between the component parts of the assembly.” (Alberigo 2003, 633). His behaviour certainly does not in any case cast him in the role of a villain who sided with the belligerent minority, but perhaps rather even as the victim of machinations in which bureaucratic obstacles and complaints about procedures were used as the main instruments to effect suspending the vote (Tagle 2003, 404). The Black Week certainly confirmed what had already become clear during the October crisis: namely, his aim of achieving the most unanimous result possible, of taking seriously doubts as to whether the declaration was “sound doctrine”, and in any case of saving the declaration on religious freedom – even though his agreement to postpone the vote led to anger and resentment among numerous Council Fathers who supported the majority position. But to present a text with obvious weaknesses for a hasty vote in such a situation of conflict would in retrospect not have been particularly wise on the part of the supporters of the declaration. The “lack of vigilance” shown by the Council majority and the Unity Secretariat in ensuring that they held the ground already won contrasted sharply with the minority’s capacity for perseverance (Tagle 2003, 406). But it is also true – as it was with De Smedt’s success in the Council chamber when it came to the highly controversial matter of postponing the vote – that the document ultimately benefited from being adopted in a slow and reflective manner. For, the document could be improved, assent could become broader and more stable, and the impression could be avoided in an issue of such importance to the Council and the church that a document that was very different to the preceding version would be adopted with undue haste. To this extent, the postponement and the new opportunity to submit comments were less annoying for strategic reasons than they were appropriate for objective reasons.

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1.6  Further Uncertainty and Turbulent Discussions: The Fourth Conciliar Text Version (15 September 1965) The Secretariat for Promoting Christian Unity set to work once more. And it did so under massive pressure and with great intensity. With the schemas on religious freedom and on non-Christian religions, the Secretariat was working on two of the most contentious documents of the Council, and it thus clearly made the Council reformist in character. But the Secretariat was by no means a homogeneous force in the dynamics of the Council discussions; rather, it was shaped for its part by opposing positions that became all the more noticeable when, after the autumn of 1964 and on the basis of submissions, a decision had to be made on a new or revised text. The current draft’s relatively strong grounding in general legal philosophy rather than in theology (quite clearly due to Murray) was contentious not only in the Council chamber, but also in the Unity Secretariat and in the sub-commission responsible. The structure of the argument – which initially offers a rational justification that can be comprehended beyond the ideological perspective (or claims to be comprehensible) in order then to add confirmation based on revelation theology – actually corresponds less to the style of the Second Vatican Council with its otherwise strong theological references and Biblical foundations than it does to the “classical” style of Catholic social and state doctrine, a style that had shaped doctrinal teaching since Leo XIII in particular, but that had no longer been (consistently) pursued since John XXIII. It is for this reason that Pacem in terris, for example, largely lacks a systematic justification for and differentiation of human rights. Two tendencies therefore developed in the sub-commission: on the one hand, the position of Murray, supported by Pavan, which defended the present order in the text, with the rational argument placed first; on the other, the “French” position, which proposed a more theological approach to the problem and would have the biblico-theological discussion precede the rational argument. Burigana/Turbanti 2003, 535

These dynamics within the Secretariat for Promoting Christian Unity and the sub-commission responsible for the schema on religious freedom were confronted with more than 200 written statements and suggestions for revising the text, including twelve interventions submitted jointly by several Fathers. There were also whole alternative drafts and detailed statements among them, numerous works worth mentioning that we cannot discuss in detail here (see

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Acta Synodalia sacrosancti concilii oecumenici Vaticani II, Vol. IV/I, 605-881). “The revision of the text could not simply ignore these petitions” (Ibid.) The interventions also urged a more theological, and almost biblic-theological, line of reasoning. There may also have been misunderstandings of a thoroughly fundamental nature in the background of the debate within the group of supporters of the recognition of religious freedom, based on different preconceptions, different semantics of freedom. In this sense, Scatena (2010) distinguishes between the various semantics of freedom and facets of the semantics of “religious freedom”. The statements tended on the whole to voice bitter criticism of the schema. In particular, there appeared to be strong opposition to the basically juridical approach taken, while many of the observations showed a tendency to bring back traditional distinctions in the teaching on religious freedom in order to defend the rights proper to the true religion against those claimed by other religions; they showed in large measure a desire to return to the approach based on the principle of tolerance. Burigana/Turbanti 2003, 534-535

The suggestion that the text be given a more theological line of reasoning – a suggestion supported above all by Yves Congar, and opposed by (among others) Murray and Hamer – was taken up in the form of a biblico-theological preface. This preface Congar added to with a portrayal of the history of salvation as a path to liberation and a nurturing of the human towards freedom (Ibid.). This could then be connected to the further line of reasoning that followed in its essential features the version presented the previous November, although the historical retrospect was no longer in the new document. Murray was given the task of rewriting the text – with the significant exception of the theological additions written by Congar. The revised and extended text was presented to the Unity Secretariat general assembly at the beginning of March and then submitted with a few corrections to the Congregation for the Doctrine of the Faith on 27 March. Working the interventions that again followed into the text was a task that fell to the same periti who had already overseen the text: Congar, Feiner (or White), Murray and Pavan. They altered the text again slightly in May, and Murray focused on completing the report. The Pope also intervened. On the one hand, regarding an even clearer restriction of religious freedom to the area of law; and, on the other, against the theological foreword. This intervention was consistent: a strong theological line of reasoning, and especially one focused on the notion of liberation and of nurturing the human

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towards freedom, might give the impression that it is not only about constitutional questions, but also about freedom at a religious or theological level. It became clear in the meantime that Cardinal Bea also intended to encourage the deletion of the preface. At the meeting of the Unity Secretariat on 11 May 1965, Johannes Willebrands also then signalled that he was in favour of deleting the preface, and Bea followed suit, arguing that the preface raises questions that could lead to difficulties. It was clear that this was the position of the Pope, and, when it came to vote, it was clear that the result would be a unanimous vote to eliminate the premium (see Burigana/Turbanti 2003, 543). This was understandably a great disappointment for Congar. This is very clear from (the published parts of) Congar’s diaries, which describe in great detail – namely the entries in the second volume on the relevant days of May 1965 – the developments and Congar’s reactions (see Congar 2012). It is, of course, not only a question of a strategic failure on the part of Congar; it is also a theological failure, and that is in the central point of the theological interpretation of the history of salvation. In effect our Declaration – whose doctrine I accept – is going to have some unforeseen consequences over two or three centuries. I am convinced that it will bear some good fruit: it will dispel some of the accumulated distrust with regard to the Catholic Church. But we must not delude ourselves: in practice, it will cause to turn faster the mills of religious indifference and of the conviction, so widespread today, that ALL rules of morality are a matter of sincerity and subjective intention. We will not be creating this disposition: it already exists. But it is up to us, conscious of our pastoral responsibility, to do all we can to struggle against these erroneous dispositions. I did not have much success. I realised that my colleagues did not see eye to eye with me on this point. All the same, I was able to save a section on the Libertas Ecclesiae as being of positive divine right, irreducible to the common right based on the freedom and dignity native to the humans person. Congar 2012, 759-760

The new draft was to be submitted to the Council in September. There were clear signs of fatigue due to the tough negotiations, and also amongst the Council Fathers in favour of reform. It was precisely the fatigue of the Council that made difficult the assessment of the different opinions on holding a fourth session in either 1965 or after a few years’ postponement (Alberigo 2003, 644). A long deferment would have had unforeseen consequences not only for

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the declaration on religious freedom, but also, for example, for the later pastoral constitution, which, as “Schema VIII”, was also highly contentious – and was heavily criticized by most German bishops and German-speaking theologians, especially Karl Rahner and Joseph Ratzinger, as well as Oswald von NellBreuning (see Rahner 1965; Ratzinger 1965; Routhier 2006; Congar 2012, 778ff.). The date was finally set in January for the autumn of 1965, with Congar noting: “Yesterday evening it became known that the Fourth and last (phew!!) Session of the Council will open on 14 September 1965” (Congar 2012, 701). The Unity Secretariat also still had during the intersession to prepare the schema declarationis de Ecclesiae habitudine ad religiones non-christianas. In the meantime, national bishops’ conferences also concerned themselves with the outstanding documents, which gave rise to further statements and positionings. Polemics against the schema on religious freedom also reached the public domain, the press, but also the Osservatore Romano. The new text (Acta Synodalia sacrosancti concilii oecumenici Vaticani II, Vol. IV/I, 145-167), which was to be discussed in the Council chamber in September and passed as quickly as possible according to the will of Unity Secretariat members (Cardinal Bea was obviously trying to accelerate the process in view of the Pope’s appearance before the UN General Assembly on 4 October), has essentially the same tendency as the draft from the previous November. But it also shows, especially in comparison with the version of November 1964 and the relevant submissions by Murray, that a certain willingness to compromise was intended to facilitate the document’s adoption. On the other hand, many of the opponents’ views, as well as those voiced by moderate critics, are not in the text. For example, there is still no consistent justification based on revelation theology, since Congar’s suggestions regarding this were eliminated, even though the section of the text dealing with revelation theology was expanded somewhat, and mention is also made of “nurturing towards freedom”. The detailed Quaestio historica was deleted and replaced by a brief explanation of the historical genesis of the church’s attitude to religious freedom. The discussion now more clearly stated in the text of affording constitutional privilege to a particular religion (or religious community) was demanded above all by the British side (by Cardinal Heenan); as we know, the United Kingdom is familiar with such a privileging of the Anglican Church in the context of religious freedom. Compromises can be seen above all in the insertions in the rational justification of religious freedom that emphasize that the freedom of the human being (in the sense of religious freedom) is grounded in reason, but also and above all in the revealed Word of God. In the relatio, which was worked on primarily by Murray and Pavan, but which of course was

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the responsibility of De Smedt, the concept of freedom is elucidated in a differentiated manner. This is because a fundamental problem was identified in the divergent ways that the Council Fathers understood freedom (or, to follow Scatena (2010) again, in the different “semantics of freedom”), and especially with regard to the consent of those Council participants who wished to assent to religious freedom in principle, but who had made critical comments on the understanding of freedom. Questionable not least was how freedom in religious matters affects authority within the church, and how it relates to the revealed freedom of the New Testament (freed into freedom through Christ). “In order to facilitate this distinction, the written report explains the differences between religious freedom, physical freedom, psychological freedom, moral freedom, Protestant freedom, and church freedom” (Hamer 1967, 103). Against this background – which, as said, was discussed extensively in the relatio, but not in the text of the declaration – it then becomes plausible to give priority for rational reasons to the justification of religious freedom according to the constitution, for revelation contains no such justification that relates clearly to this civil freedom. That revelation cannot be the basis of civil religious freedom, but can only confirm its legitimacy, exonerates the church’s statements on religious freedom in earlier historical phases. For, it was not possible then to adopt a position regarding this issue on the basis of revelation alone, as it is possible today, when the rational justification of religious freedom is regarded as a basic political right of the human being – that in any case may have been the intention of the authors of the new draft text. The debate in September 1965 was characterized by intensive preparations: the new text had been revised in response to the objections of the previous year and to the 218 interventions made, and had been given to the Council participants early enough for them to be able to discuss the text at national bishops’ conferences (and in other circles). What was not incorporated directly into the text was explained in the relatio. If we were to take a critical view, though, we could also gain the impression that the interventions were echoed predominantly in the relatio, while the text remained the same in its basic structure and substance. The widespread attitude of consent with reservations outlined above was now even more in evidence, so that between the strong supporters and the strong opponents of the declaration there emerged a via media that was significant enough to nurture the hopes of the moderates. In accordance with the mood among the German bishops and periti, who had discussed the schema on religious freedom critically, but who had also focused above all on schema VIII on the “Church in the world of today”, Cardinal Frings (whose peritus was Joseph Ratzinger) also gave fundamental

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assent to the declaration, while at the same time expressing serious criticism of essential points; for example, he called for a clearer definition of the limits to religious freedom (thereby joining many other critics in pointing to an inadequate definition of the concept of public policy or of the common good marking the limits to religious freedom), and for the renunciation of the part in which the foundations of religious freedom have been developed from arguments based on reason (see Routhier 2006). Despite the substantial criticism that they contained, the meaning of such calls can be interpreted positively, since on the one hand they represented a fundamental agreement with the schema, and on the other the criticism was not intended as a polemic against the project of recognizing religious freedom as such. This led to the fact that criticism was no longer exclusively or predominantly shaped by the position of those strongly opposed to the declaration. It was precisely in this manner that the relatively small group of active and fundamental opponents, composed mainly of the Spanish episcopate and some of the Italian episcopate or members of Coetus Internationalis Patrum, declined in importance. Those strongly supporting the declaration, a group composed mainly of the US episcopate, the Canadians, and parts of the French episcopate (who, as explained above, understood religious freedom a little differently), as well as those in the milieu of the Unity Secretariat, recognized that they had to respond to each of these different types of criticism in an appropriate manner: fundamental criticism had to be repelled with the decisiveness with which it was made, while criticism made by those fundamentally in favour of the declaration had somehow to be taken up productively in order to satisfy this large and important group. It was neither foreseeable that the critical supporters of the declaration, a group that included the Pope, would ultimately decide in favour of the declaration; and nor was there a fully unanimous position among the strong supporters, which also contributed to uncertainty and to strategic disadvantages. While the opponents were conducting an intelligent and seemingly wellorchestrated campaign, there seemed to be no coordinated action of the majority in support of the text. Only the interventions of the United States bishops, who had become truly involved in the Council only after the end of the third period, seemed to have been planned with care. The “higher authority”, whose opinion would certainly count, had not yet completely endorsed the schema, even though the Pope wanted a declaration on religious freedom … He had also received letters very critical of the schema, even from bishops in favor of religious freedom, and his judgment on the text was therefore nuanced. Routhier 2006, 80-81

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In any event, the uncertainty with regard to the further course of the debate and possibly the result of a vote now shaped the situation more strongly than the fierce confrontation in the third session, with this uncertainty among staff in the Unity Secretariat also affecting their own work. The issue of the declaration on religious freedom was by no means only a strategic problem of overcoming stubborn opponents. It was also an objective problem with regard to the question of how to understand religious freedom systematically; to justify it philosophically and theologically; to relate it to the objectively very different circumstances in the different parts of the world; to conciliate it with the more or less plausible claims and suggestions for improvement made by the Council Fathers; and to reconcile it with the tradition of the Catholic Church. The speeches of the Americans could no longer bring about a breakthrough in this situation, however sophisticated and nuanced they may have been. Rather, it was those Fathers who had not been involved decisively in the schema’s process of development who ultimately initiated the slow clarification of opinion formation. Cardinal Joseph (!) Lefebvre offered in the Council chamber a critical and nuanced criticism of the schema (Acta Synodalia sacrosancti concilii oecumenici Vaticani II, Vol. IV/I, 384-386). His answers to them, derived from the text of the declaration, were more closely and systematically argued than any previous responses to the critics. With great self-assurance and serenity, the Cardinal dismantled all the structures built up by the opposition during the previous week” (Routhier 2006, 89). Two Fathers from Eastern Europe also now intervened in the debate in a particular way. The intellectual and moral authority of Cardinal Lefebvre should, with the speech of Cardinal Joseph Beran from Prague, be placed alongside the “authority of a confessor of the faith” (Routhier 2006, 90). Cardinal Wyszynski of Warsaw pointed to different (ideologically founded) understandings of freedom that, in the context of historical materialism, could lead to a different interpretation of religious freedom than that intended by the leading authors of the schema, thereby also supporting the declaration. Also making the case for recognizing religious freedom in what were apparently impressive contributions were the Belgian cardinal and founder of the Young Christian Workers, Joseph Cardijn, representing a particularly successful youth work; the archbishop of São Paulo and chair of the Brazilian bishops’ conference, Agnelo Rossi, representing Catholicism in a large and strongly Catholic country; and John Willem Gran, the bishop of Oslo who had converted at the age of 20, representing a country with a Lutheran state church. Important substantive suggestions for revision related to making a clearer distinction between religious freedom as a constitutional or civil freedom on the one hand, and moral freedom on the other; to avoiding misleading

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statements on freedom of conscience; to simplifying the part of the text on the Holy Scripture; to providing a clearer explanation of the concepts of public peace, public order and the common good in the context of the limits of religious freedom; and to emphasizing more strongly the duty of the individual to seek religious truth, to recognize the laws of God, to honour Him and to respect the authority of the church (see Hamer 1967). Continuity of doctrine also of course remained a key problem, and it can in no way be assumed that the protagonists in and around the Unity Secretariat, and the other Council Fathers in favour of the declaration, did not regard this issue as a major problem, one that filled them with unease – let alone that they consciously and purposefully wanted to bring about a “Copernican revolution” in the sense of a break with the tradition or the like. Rather, we can see in the relevant statements a great and undoubtedly sincere respect for the tradition, albeit one linked to the awareness that this tradition had in the light of historical changes to be developed further and modified in certain respects. After the gradual emergence of a stronger tendency towards supporting the schema at the content level, the opponents, who now included Bishop Marcel Lefebvre, once again went on the attack at the formal level, trying to undermine the jurisdiction of the Secretariat for Promoting Christian Unity, criticizing its revision of the schema and its drafting of the relatio as biased and partisan in favour of recognizing religious freedom, and therefore demanding, as they had before and during the third session, the participation of members of the Congregation for the Doctrine of the Faith in the further elaboration of the declaration (see Routhier 2006). When an initial preliminary vote of principle was finally debated, Paul VI, whose trip to New York was imminent, hesitated to begin with – perhaps fearing an unclear vote that he would then have to defend before the UN General Assembly. But he then asked the General Secretariat to decide on a vote of principle. This was on the urging of Cardinal Bea, and now had precisely the opposite intention, since he wanted to appear before the United Nations with a vote for religious freedom, which is made clear by the changed situation of discussion in favour of recognizing religious freedom. But, in the assembly of the Presidential Council called by Felici, the moderators, and the coordination commission, the opponents of religious freedom, particularly the cardinals Eugène Tissarant and Ernesto Ruffini, succeeded in turning the debate once more in their favour (and against the will of the Pope), and in bringing about the rejection of a vote. However, the Pope then responded strongly to this and, after another “exchange of ideas” with high-ranking cardinals, arranged for the vote to take place. This was therefore due to the tenacious interventions of Cardinal Bea on the one hand, and the now decisive readiness of Pope Paul VI to show leadership in this crucial phase on the other. We cannot say for sure

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whether this readiness had its roots in his upcoming speech before the United Nations, or in his memory of how he had hesitated in the “Black Week” of the preceding November, or simply in his factual conviction in view of the course of the discussion. The vote took place on 21 September 1965 on the following question: “Do the fathers endorse the newly revised text on religious freedom as the basis for the final declaration, which, in accordance with the Catholic doctrine of the true religion and in consideration of the changes suggested in the Council pronunciation and to be approved according to the rules of procedure of the Council, is to be approved later?” (Hamer 1967, 105). The result, with 1997 placet votes and 224 non placet votes of the 2222 votes cast, was a large and, in this form, unexpected confirmation for the Unity Secretariat and its ideas of a declaration on religious freedom (Acta Synodalia sacrosancti concilii oecumenici Vaticani II, Vol. IV/1, 564). But the result also encouraged those opposed to the declaration to make new proposals for a joint commission, with Cardinal Ottaviani, for example, proposing this to the Pope, and suggesting names of suitable members from the Congregation for the Doctrine of the Faith (Acta Synodalia sacrosancti concilii oecumenici Vaticani II, V/3, 380). The Secretariat for Promoting Christian Unity and other experts began to revise the schema once more, however – now working for the first time in the context of a fundamentally shared assent of the Council to such a declaration. Thus, Paul VI was in actual fact able, with a little tailwind from the Council, to go before the United Nations General Assembly on 4 October 1965 and praise and support the United Nations for its proclamation of the fundamental rights and duties of the human being, its proclamation of the human being’s dignity and freedom, and above all its proclamation of religious freedom. For, precisely in this proclamation was expressed the sacred character of human reason and existence.4 1.7 On the Way to Promulgation? The Fifth Conciliar Version of the Text (18-25 October 1965) The circle of persons entrusted with the revision was this time larger than it had been in the previous revision phase, but was coordinated by the subcommission and the Unity Secretariat, and ultimately by De Smedt. There 4  Acta Apostolicae Sedis 57 (1965), 877-885, 833: “Ce que vous proclamez ici, ce sont les droits et les devoirs fondamentaux de l’homme, sa dignité, sa liberté, et avant tout la liberté religieuse. Nous sentons ques vous êtes les interprètes de ce qu’il y a de plus haut dans la sagesse humaine, Nous dirions presque: son caractère sacré”.

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were several texts in circulation, each more or less reflecting the personal opinions of their authors. Some of the central actors in the previous periods of revision were showing signs of exhaustion. Yves Congar, for example, was exhausted, drained by his efforts, and weary of the work.5 John Murray had to interrupt his participation for reasons of health, and could only make his argument from his hospital bed, having already still managed to submit his version of the text. De Smedt was therefore able to shape the document even more strongly. There was now also in the text as a result of an intervention by Bishop Alfred Ancel in the name of more than a hundred French bishops an emphasis on the “ontological foundations of religious freedom”: namely, the “obligation to seek the truth” (Hamer 1967, 105). It is clear that the absence of Murray from the numerous meetings now taking place influenced the tone of the text. Its theological dimension was now more strongly emphasized at the expense of the ultimately legal and rational line of reasoning that Murray had proposed. This led to the curious fact that the new text that was approbated by Paul VI on 18 October differed more strongly from the previous text voted for with great success than it differed from the text that preceded it – namely, the text that had caused the bitter controversies and intense debates from the autumn of 1964 to the late summer of 1965. The Pope also liked the text, telling De Smedt, according to Congar, that it was “a major document” that “establishe[d] the attitude of the Church for several centuries” (Congar 2012, 795). The now seventh text, or fifth conciliar text, on religious freedom (Acta Synodalia sacrosancti concilii oecumenici Vaticani II, IV/5, 77-98) has only two parts: the foundations of religious freedom (libertatis religiosae ratio generalis), and religious freedom in the light of revelation (libertas religiosa sub luce revelationis). Jeróme Hamer presents the following points as important innovations, most of which have already been mentioned and explained above. The text emphasizes more clearly that the issue is about social and civil freedom in religious matters, and not about freedom with respect to God or the church. It affirms that the one true religion is present in the Catholic Church. It includes the statements on the ontological basis of religious freedom, as requested by Bishop Ancel. It discusses the compatibility of a state religion with religious freedom. It relates religious freedom to Biblical revelation, which meant 5  Congar 2012, 801 (entry for 5 October 1965): “For myself, I can’t stand up – yes, simply stand up – except with great difficulty. The sessions in St Peter’s exhaust me to an incredible extent”. A month later (entry for 5 November 1965), Congar (2012, 833) notes: “I would never have thought this work could be so tedious and so tiring. It is awful: there is no intellectual object to be pursued, but simply attention to be given successfully to a litany of disparate comments”.

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rewriting the first two chapters and redrafting the section on revelation once more. The text was characterized by its concession to the moderate critics and by a less stringent line of reasoning according to liberal political philosophy. It seemed less closed than the previous two texts, and appeared more of a collage of sections of texts from different origins, which indeed it actually was. While the draft was in any case torpedoed in the usual way by its opponents, there was also now criticism from the outside of a declaration that was again more strongly based on the notion of religious truth, and that therefore mingled theological and legal explanations. On 25 October 1965, De Smedt once again presented the text and a relatio in which he tried to demonstrate above all that the inputs had been taken seriously and had been incorporated into the text. The voting on individual parts of the new text now scheduled were actually positive in that a comfortable two-thirds majority was achieved for all votes, even if a considerable number of counter-votes were also counted in each case (see Hamer 1967, 118-120). There was in the complicated voting procedures on 26 and 27 October the opportunity in the case of some votes to vote in addition to placet or non placet also placet iuxta modum, although the modi had to be submitted by 29 October and then processed by the Commission. Congar’s diary entries mentioned above, where he talks of the unbelievably bleak and exhausting work processing the litanies of disparate remarks, stem from this period. But the Commission also passed this test, and tried to do justice to most modi; and, with the new text approbated by the Secretariat for Promoting Christian Unity and handed over to the Pope, the work seemed to be at an end. The Unity Secretariat set the course: distribution of the text on 12 and solemn proclamation on 18 November. But the last turns had not been reckoned with yet. 1.8 The Eighth Text on Religious Freedom in the Final Weeks of the Council (17-19 November 1965) The Council was almost at its conclusion when – as we should emphasize: among other things – the document on religious freedom had still not been approved but continued to be the subject of bitter dispute. The Pope was still receiving statements in mid-November, when the paper was already ready for printing. After the Unity Secretariat had once again checked six modi given to it by Paul VI, and ensured that there were relevant explanations in the relatio, the Pope authorized printing and the text could be distributed to the Fathers on 17 November (Acta Synodalia sacrosancti concilii oecumenici Vaticani II, IV/6, 703-718).

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One important change was the issue of doctrinal continuity, which of course the text confirms, since the traditional Catholic doctrine of the moral duty of the human being and of societies towards the true religion and the only Church of Christ is maintained, but also carried forward (see Dignitatis humanae, 1). One further change relates to the definition of the common good, which consists in the sum of those conditions of social life by which man can pursue their own perfection more fully and with greater ease; it chiefly consists in the protection of the rights and duties of the human person. Care for the right to religious freedom is the responsibility of citizens, social groups, civil powers, the Church, and other religious communities, in virtue of their duty toward the common good, and in the way that is proper to each. Dignitatis humanae, 6

The definition corresponds to the definitions in the encyclicals Mater et Magistra and Pacem in terris of John XXIII. The limits of religious freedom are also defined more clearly; namely, with an interpretation of “public order”. In addition, since civil society has the right to protect itself against abuses that could be committed under the pretext of religious freedom, it belongs especially to the civil power to afford protection of this sort. This protection should not be provided in an arbitrary fashion, however, or by unjustly favouring one particular group, but according to juridical norms that conform to the objective order. Dignitatis humanae, 7

Public order is dovetailed with the common good, but the text stresses the latter’s more liberal interpretation in line with a “subsidiary architecture”: as much freedom as possible; as much restriction on freedom as necessary. For the rest, the customary practice of the fullness of freedom in society should be upheld, according to which man’s freedom should be acknowledged as far as possible, and should not be restricted except when and insofar as necessary. Ibid.

The text was launched on 19 November 1965 when De Smedt presented his report again. In the subsequent vote on the changes and on the schema overall,

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the distribution of votes was very similar to that on the previous draft; almost 250 Fathers still voted with non placet against the schema, now to the surprise of those working in the Unity Secretariat who had responded relatively strongly to the needs of those wanting to preserve the tradition. In the eyes of some observers, it seemed clear from reading the text that the members of the Secretariat had given more consideration to the objections of the immobilisti than to the feelings of the majority. But that would mean ignoring all the efforts made by the supporters of the schema not to weaken it too much, and yet to bring it to a conclusion. Since the declaration could not be promulgated as planned at the public session on 18 November, the opportunity again arose for the opponents to intervene. The still relatively high, and above all constant, number of non placet votes gave hope to its opponents that the declaration could still be prevented after all – namely, by having it removed from the agenda. It was known that the Pope wanted a result in the vote that was as close to unanimous as possible, but the approval rate of less than 90% was still a long way from this. After the votes of 19 November, there still remained only the decision of the Pope as to whether to place the schema of the declaration on religious freedom on the agenda of the next public session. It was on 8 December 1965, the Feast of the Immaculate Conception, or the “Feast of the Conception of the Blessed Virgin Mary”, that the Council concluded. The declaration on religious freedom had been voted on the day before. After the text was accepted with a clear, though not complete, majority of 2308 placet to 70 non placet votes, it could be promulgated. Whether the last session had “improved” the text in qualitative terms can remain disputed. On the one hand, we can complain about the systematic fuzziness and a certain structural erosion that the revisions and the task of taking into account the most diverse interests inevitably gave to the final text drafts. On the other, we should acknowledge that there were not only the fundamental objections of traditionalists, but also the wishes of those supporting the document for corrections to be made. It is therefore not only the case that a small minority made life difficult for the Council majority, and that the Pope took excessive care to placate this minority. Especially the major changes made in 1965 were incorporated into the text not primarily because of the objections of the traditionalist minority, but because of the objections raised by the majority who were in principle in favour of the text. Therefore, as much as it was conflict with the opponents that shaped the history of the text on the one hand, so it was also the struggle within the majority that made the development of the text so difficult and time-consuming on the other. It is not enough from the point of view of the Council’s work that a theology has been developed by one theologian or by one group of theologians; it must be ‘synodalement’, as

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is aptly said in French – “synodal” (see Hamer 1967, 116). And the differences within the group around the Unity Secretariat, which had made a great contribution to the declaration, are also reflected in the process of development. Not least, the work of the Secretariat made the Second Vatican Council into that epochal event that it is now perceived as being. In the eyes of some, the “refinements” in the process of developing the text limited the sustainability of the declaration. “But, for most people, the declaration was a major success of Vatican II” (Routhier 2006, 122), or even a “decisive document in the history of humanity” (Hünermann 2006, 451). The protagonists undoubtedly saw their struggle not as a break with the Catholic tradition, and nor as the overcoming of the tradition; rather, they saw it as the continuation of the tradition, as precisely the preservation of the tradition through continuing and moderately adapting it to a changed historical situation, in the sense of an attempt to retrieve from the tradition and doctrine of the church something new that is in harmony with the old (Dignitatis humanae, 1). To this extent, the difficult process of developing the text of the Council’s declaration on religious freedom can also be seen in a positive way as the genesis of a conciliar theology is both senses. This theology must have the time to strengthen itself, to spread itself out, to be accepted outside the circle of specialists, to reveal its pastoral echo – in a word, to become a fact of the church. The years of the Council, with its extraordinary possibilities of contact and shared sense of growing awareness, enabled the doctrine on religious freedom to reach true synodal maturity. Hamer 1967, 116

Current debates show that the process of maturation for a theology did not end with the cessation of the Council, but can continue for decades. But this was made clear a few days after the conclusion of the Council, when Cardinal Ruffini, protagonist of the struggle against the declaration, sent a letter to the Vatican Secretariat of State on 26 December 1965 – on the matter of religious freedom (see Acta Synodalia sacrosancti concilii oecumenici Vaticani II, Vol. V/3, 657). So began the declaration’s reception, which still had a great future before it (see Routhier 2006).

chapter 2

Modernity – Religion – Catholicism 2.1

The Concept of Modernity

It is of course not possible here to do full justice to the current academic discussions on the concept of modernity. However, we can select individual aspects that are relevant to the following analyses in order to outline an understanding of modernity that we can then use to discuss the modernization of Catholicism. Analyzing the path taken by the Catholic Church to recognizing religious freedom means investigating Catholicism under the conditions of modernity and as part of modernity. If modernity is understood as an epoch, then it is usually seen as beginning in the late 18th century; it is then shaped by the intellectual revolution of the Enlightenment, the political revolution especially in France, and the industrial revolution above all in England (see Kaufmann 1998, 17). The influence of the emerging bourgeoisie is decisive for the 19th century; propertied and educated, the bourgeoisie was the carrier of emancipation movements at the outset of the modern period. As far as religion is concerned, the 19th century can be described as a period of secularization, but also of confessionalization and in certain contexts of revivalist movements. If modernity is characterized until the end of the 1950s by the implementation of democracy and the constitutional state, as well as the growing independence of church structures and an industrial form of economic activity accompanied by increasing economic growth, then this direction shifts in the 1960s. The distinguishing feature of the so-called second period of modernity is steadily increasing individualization, with all its risks and uncertainties, an individualization that is linked among other things to the diminishing power of major organizations to bind people to them (see Beck 1992). The two points of fracture of modernization – namely, the late 18th or early 19th century, and the 1960s – are particularly important for Catholicism, too. The first coincides with the transition from late scholasticism to neoscholasticism; that is, with the beginning of the neo-scholastic epoch, which had a decisive impact on the Catholic Church right up until the Second Vatican Council. The second marks the decline of the Catholic milieu and is also reflected in the Second Vatican Council and the shift that took place there to recognizing religious freedom (see McLeod 2007; Brown 2006, 224-277 and 2009, 170-192).

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We can distinguish three aspects to characterize the concept of modernity: (a) a structural aspect, which relates to the modern social system and marks the gradual differentiation and rationalization of functional structures in different areas, (b) a cultural aspect, which points to certain central patterns of modernity, especially to ideological plurality, constant change and individualization, and (c) a normative aspect, which encompasses certain central ideas and ideals, i.e., certain ethical orientations and concepts (for example, autonomy and human dignity, individual rights to freedom and human rights), as well as forms of justification. The structural features (a) of modernity are the dissolution of hierarchical social structures or normative orders, and the development of subsystems, with each having its own functionality. Functional differentiation … states that a function to be performed in the system as a whole is given a point of orientation in a subsystem that has been especially differentiated for this purpose (for example, in politics, science, economics, family, law, religion or education). Pollack 1988, 54

Functionally differentiated societies have no dominant centre. This polycentric world of networked systems is characterized by an increase in rationality and productivity, but also by a growing contingency of social conditions generated by the multitude of dynamic processes. Thus, the state-political or legal sphere is characterized by the legal and constitutional state, and the legitimation of power by procedures and the protection of private rights; the scientific sphere is oriented to the production of new knowledge; the economic sphere can be characterized as an area of the free movement of goods and of autonomous economic subjects integrated by the market mechanism; private, intimate familiality develops as a space shaped by reciprocal recognition based on feelings; and the church-religious domain develops into its own sphere of life, a sphere in which concern is no longer with integrating the whole of society, but instead with personal religious practice, i.e., primarily with the religiosity of the individual. Horizontal differentiation, i.e., the development of function-oriented social subsystems, is to be distinguished from vertical differentiation, which relates to the development of different levels of social reality. Social processes take place at the levels of interaction between those present, of organization, and of society (in the sense of a comprehensive communication system), with the process by which organizations are formed being a particularly important or typical element of modernity. “Between the system of society and the

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individual interactions is emerging more and more in modern social orders a third type of social system: that of organization” (Ibid., 51). Modern societies provide space for a multitude of organizations that are based on determinable membership and structures; these organizations are oriented to specific purposes, outputs, and objectives that can only be realized collaboratively (see Gabriel 1997, 23). With the advance of organizational structures in virtually all functional areas outside forms of private life, the organization has differentiated itself over the last two centuries as an autonomous level of system and reality. Ibid., 22

A network of mutually interacting organizations results, with this network also leading to organizational alignment; that is, to the internal modernization of communities. Organizations exceed the sum of individual persons and display an increased rationality. Encouraged by a certain formalization, they become a collective actor in modern societies and assume a mediating function between individual person and society. The three social levels, to which we should add a fourth, which is the level of individual practice (namely, that of individual experience), point to the multi-layered character and growing complexity of modern societies, where options for action constantly expand. It does not seem possible with regard to the present discussion to relinquish structural differentiation in its fundamental form as a hallmark of modernization. But we nonetheless certainly need to loosen the concept somewhat, and precisely so when it comes to understanding religious phenomena. Instead of assuming some kind of “autonomous differentiation”, there is, for example, a tendency to emphasize more strongly the importance of actors, and thereby to shift the focus onto causal connections (see McLeod 2007). Thus, it can no longer be the case that functional differentiation realizes itself fully in a certain evolutionary, progressive sense, since this would imply that there are non-equal variants of modern societies. Under the meta-concept of differentiation, the different subsystems relate to one another in very different ways. The different “paths of modernization” are therefore shaped by the different possibilities and forms regarding how the subsystems relate to each other, with modernization processes therefore being far from uniform. If we do not assume a specific development to a certain form of structural differentiation into functional subsystems, then there is much to be said for a multiplicity of types of modernity, with the focus on Western modernity therefore remaining out of play.

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At the level of cultural patterns and states of consciousness (b), modernity relates primarily to shifts in collective self-understanding. Such selfunderstanding is shaped in the modern period by the “acceleration of social change and the legitimation of this change as a necessity of existence or development” (Kaufmann 1989, 35); it is therefore about being conscious of dynamics and mutability, as well as accepting and appreciating them, something that was not present in this form in traditional societies. Part of the dynamics of modernity is that it foregrounds itself as historically created and mutable. This specific type of permanent reflection is abandoned above all to ideological discourses, and to that extent alternatives to modernity lie ultimately in modernity itself; these alternatives are therefore themselves modern. In this sense, traditions, and especially religious traditions, that appear at first glance to be classifiable as pre-modern also become possible only in the context of modernity, since they are based on a demarcation from modernizing phenomena. Thus, the concept of tradition understood correctly can only arise in the “modern” context, since what constitutes the concept is that something differs strikingly from contemporary practice. Tradition has to be continually reinvented in the modern period. The process of reflection involved in the formation of tradition, a process that absolutely requires reference to the concept of modernity, and ultimately so in the form of negative reference or negative integration, is thus a modern process, since it would ultimately be superfluous or not even be able to occur in this form in pre-modern, integrated societies. Further characteristics of modernity include growing pluralism and the constructive character of all knowledge. We can observe that economic and social mobilization lead to the destruction of communally shaped lifestyles; that is, to a loss of unity, which is still often presupposed for pre-modern societies. This loss of the illusion of a comprehensive order leads to individual perspectives; that is, to a multitude of cultural perspectives of interpretation. The plurality of forms of rationality constantly develops further in modernity, and leads to a steady expansion and multiplication of fundamental ideological pluralism. Recognizing this diversity of perspectives and their constructedness is again of key importance in characterizing the concept of modernity. How each pluralistic-heterogeneous society is structured is, in turn, dependent on context (Knöbl 2010, 83-97). In this respect, the factor of contingency also becomes a feature of the modern. The contingency of modernity is particularly evident with regard to power-political calculations.1 Thus, communities can 1  According to Wolfgang Knöbl (2007, 102-103), Eisenstadt ignores the power-political component, and explains social integration mainly through his analyses of interactions between elites, and between elites and the population.

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be integrated via imperial power, for example, and (power-)political support leads in turn to the spread and stability of cultural patterns (of value) in general (Knöbl 2007, 11ff.). Finally, modernity also includes, and especially as the hallmark of the socalled second modernity, the aspect of individualization. The pressure to individualize and the formation of identity shape the human being of the modern period. A “dissolution of subcultural collective identities” and a “growing distance of individuals from different types of organizations” can be observed in the second period of modernity. Modern life is shaped by flexibility and mobility; in addition, a growing lack of clarity regarding the conditions of existence may lead under certain conditions to difficulties of orientation among individuals (Kaufmann 1998, 18). As far as the normative aspect (c) is concerned, the separation of the ideological realm of the good life from the sphere of law or justice is constitutive for modern liberal political philosophy (Taylor 1998, 1-14; 2002, 93-139). The separation exists fundamentally for the sake of individual freedom. The philosophical-ethical reflection of modernity is initially characterized by the “turn to the subject”. The idea of autonomy, the concentration on subjective rights to freedom, and the formulation of human rights are therefore directly related to one another. The transcendental-anthropological idea of the human as rational, autonomous subject can be viewed in the history of ideas as the basis for political attempts to achieve freedom; what takes centre stage is the person as an end in him or herself and his or her self-realization.2 The unconditional prioritization of individual freedom makes a hierarchization of society and also a corporative organic political order impossible politically, since a fundamental privileging of certain groups – and that means collective interests, which in some cases contradict individual interests – can no longer be justified in the context of modernity. Politically, therefore, the interests of the individual are to be given priority, and individual freedoms guaranteed as equally as possible; this opens up possibilities for realizing individual conceptions of the good, which can also include religious conceptions. The thesis that the state has an obligation to demonstrate strict neutrality towards all ideas of what constitutes a valuable and contented life is connected to the separation of the two ethical fields of practice.3 In contrast to 2  The justification of human dignity in the spectrum of liberal conceptions is very different, although the majority of contemporary positions dispense with this justification because of the problematical claims to ultimate justification. The imperative to respect human dignity is often understood only as moral intuition. 3  As we know, the area of the good comprises the existential purposes and aims of human life; that is, ideological questions. Generally, such questions of the good are found in the private

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pre-modern ethics, it no longer seems possible to determine in general what kind of life is more valuable, more human, more exemplary. The separation is therefore accompanied by a restriction of state coercion. The contemporary modern state attempts politically to do without normatively honouring a specific notion of the common good. But it is at the level of justifying norms that the separation becomes most clear, and that is in natural law as rational law. In general, we should distinguish to begin with between a manner of justification based on natural law and one based on legal positivism – that is, between an ethical form of argumentation and one that is immanent to the system and pragmatically functionalist. Natural law in the widest sense therefore takes on and formulates with regard to positive law a moral foundation or a moral yardstick that is ultimately indispensable for every kind of justification of human rights and democracy that has a moral claim. Contemporary theories of liberalism are (mostly) in the tradition of thought of modern natural law, the foundation of norms is only possible through the autonomous subject, and thus also is the legitimation of norms through procedures. Liberal theories crystallize in human rights as rights to freedom, and, depending on how they are conceived, primarily in their negative, active or positive status. The configuration of liberalism is thereby dependent on context; two types can be distinguished (Berlin 1958; Taylor 1992, 119-121). So-called Liberalism I is characterized by the concept of negative freedom, a strong orientation towards procedures, an atomistic understanding of the person, and, politically, by policies of equality. Liberalism II is characterized by a conception of positive or concrete freedom, an orientation towards ethos, the assumption that persons are fundamentally in relations of dependence, and a politics of difference. 2.2

Religion and Modernity Instead of deriving the characteristics of a world religion in a static way from the ideational difference with modernity, and thereby contrasting tradition with change, or faith with science, the thesis of modernity invites us to analyze exactly how religions embrace modernity, how they

sphere, since notions of value and meaning are ultimately personal and individual, although they do not of course arise unaffected by social contexts. Issues of justice concern the good order of the public social sphere; that is, it is concerned with the foundations that are to provide the standard by which structures are to be formed. Questions of what is just aim at what is good for all and what general standards are necessary for people to live together well within a community.

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relate permanently and creatively to the challenges and possibilities, to the models and ideas, to the movements and problems, posed by modernity, and how they at any time can form themselves anew. Hellemans 2005, 18

The relationship between religion and modernity can in turn be formulated according to the three levels outlined above. (a) The question of the status of religion in the modern period becomes particularly evident in discussions about the secularization thesis. Casanova’s criticism of the (traditional) secularization thesis in Public Religions and his subsequent revisions and further developments of his own theory are decisive here (Casanova 2006; 2008a). By writing that “what usually passes for a single theory of secularization is actually made up of three very different, uneven and unintegrated propositions: secularization as differentiation of the secular spheres from religious institutions and norms, secularization as decline of religious beliefs and practices, and secularization as marginalization of religion to a privatized sphere” (Casanova 2006, 211), he is arguing in essence for a nuanced analysis of so-called modernization processes. When it comes to the question of the status that religion has in modern societies, he criticizes above all the theses of decay and privatization, and attempts instead to prove the “deprivatization” of religion (Casanova 2006, 65-66). Casanova preserves the differentiation thesis, the distinction between the religious and the secular sphere in terms of their own internal logic, in its basic features as a structural feature of secularization.4 But the separation of religion and politics that is in line with the differentiation paradigm should be determined more precisely according to its nature. For example, this differentiation cannot simply be equated with the separation of state and church; at the very least, the reciprocal restraint on power expresses itself differently in different modern contexts. From the perspective of the secular state, which openly recognizes religious freedom on the basis of a constitutional separation of church and state that is as strict as possible, we can identify for the US and also for Europe a trend towards denominationalism (Casanova 2006, 213-214). Religions or denominations are legitimate political actors that have found their place in the social contexts of Western modernity – above all, as actors in civil society. Casanova distinguishes between three types of “public religions”, which can be distinguished on the basis of different spheres of the public domain, and which can be empirically demonstrated in country 4  He has relativized this somewhat in recent publications, though (see Casanova 2008b; 2010, 29-44).

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studies:5 at the state level, the national church and state church; at the political level, denominational parties and religious institutions that focus on the political mobilization of voters (with the aim of self-preservation or orientation to the common good); and, at the level of civil society, religious communities representing wide-ranging claims to shape society, or religious groups that intervene in the public domain (for example, for human rights and democratization) (Casanova 2006, 218-219). In line with the conventional legal distinction between the three statechurch models (the interdependence model, the cooperation model, and the separation model), Casanova distinguishes between three models of the “historical arrangements of the separation and the church-state relations in Europe”, which he characterizes as establishment, quasi-establishment, and dis-establishment (Casanova 2008a, 111). However, since these models are very static, it is very difficult to use them to define in a nuanced way the attitude of the state to the churches or religious communities, and conversely the attitude of the churches or religious communities to the state. Even more difficult is to identify the complex relationship between religion and politics in a particular community: how friendly or hostile is a society to religion, for example? And how pronounced is its ideological pluralism? By drawing on the concept of twin tolerations, we can, according to Casanova, come to a better understanding of the different nuances in the relationship. This analytical concept relates specifically to democratic state forms, and focuses on the following question: which are the minimum degree of toleration democracy needs from religion and the minimum degree of toleration that religion needs from the state for the polity to be democratic … Are all, or only some, of the world’s religious systems politically compatible with democracy? (Stepan 2001, 213) The concern here is ultimately with the different kinds of relationship between religion and politics in processes of democratization or democratic societies, and in particular with how religion and politics restrict the power that the other has.6 This means that what is focused upon are the minimum requirements that politics is to make of religious communities, and in turn 5  Antonius Liedhegener (2006a) points out that the spheres cannot always be distinguished. In Casanova (2008a), he relativizes the focus on the sphere of civil society. 6  See Ibid.: “Democracy is a system of conflict regulation that allows open competition over values and goals that citizens want to advance. In the strict democratic sense this means that as long as groups do not use violence, do not violate the rights of other citizens, and advance their interest within the rules of the democratic game, all groups are granted the right to advance their interests, both in civil society, and in political society. This is the minimal institutional statement of what democratic politics entails and does not entail. No more and no less”.

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that religious individuals can make of political actors or the state. Casanova is therefore agreeing here with Stepan in arguing that a strict separation of the two sub-areas is not a prerequisite for democracy, especially since in reality hardly any community has such a separation (Casanova 2008a, 111-113). When the view is held that this strict separation has to be a prerequisite for democracy, Casanova argues, then this view itself often becomes a problem since, as a secularistic, anti-religious tendency, it impedes civil interaction and ultimately the peaceful intercourse with religious groupings (Casanova 2008a, 67-68). Determining the appropriate relationship becomes the site of fierce struggle that occurs in a continuous process and in the most diverse contexts. When it comes to the separation of religion and politics, we should therefore bear in mind that there are diverse patterns of differentiation. Casanova draws attention to the fact that differentiation could only become an instrument to analyze secularization processes in retrospect. For Casanova, the Western perspective or the European concept of secularization must ultimately be overcome, and in favour of a concept of multiple secularizations or multiple modernities. Only then can we understand the role of religions in modernity. According to Casanova, this by no means devalues the European path, but only relativizes it in a certain respect; that is, it is seen as one possibility, one path of modernization (especially as this path is now being increasingly interpreted as a special path of modernization – albeit as a particularly influential special path) (Casanova 2009, 88-100). The transnational or global dimension of public religions is also important in this context, which becomes clear with regard to the migration movements and the organizational status of the Catholic Church as a world church. (b) According to Shmuel N. Eisenstadt, the deconstruction of the postulate that the world is a cosmos ordered by God can be regarded as a key pattern of meaning of modernity, one that remains constant through its various manifestations. Concern is therefore with the loss of the foundations of certainty in favour of the expression of various rationalisms that can no longer be restrained by religion. According to Eisenstadt, this reflexivity occurs for the first time in the cultures of the axial period (800 to 200 BCE),7 initially still immanent to religion (i.e., in connection only with religion or with religious beliefs), and then in an increasingly secular way, particularly in connection with the issue of sovereignty (i.e., with the accountability of rulers). Charles Taylor takes up Eisenstadt’s thoughts, and in a certain way sharpens his thesis by identifying 7  The cultures of the axial period can be located in the time between 800 and 200 BC, and are usually characterized by the occurrence of a tension between transcendental and secular order (see Shmuel Eisenstadt 2002, 1-29).

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the beginning of modernity as the secular age with the advent of the option of non-belief (the secular option, as he calls it) (Taylor 2007). Religion is thus clearly a modern, secular category, and is virtually connected with modernity in its origins. The semantic content of the religious is generated – in an apparent paradox – only in secular societies, and we can therefore build the concept of religion only in distinction from the concept of the secular (see Asad 2003). The binary subdivision of religious vs. secular is one of the most important global trends, according to Casanova, and is in clear opposition to the “subtraction narrative of secular modernity”: social change cannot be viewed as a process that in a way causes religion to lose its significance (Taylor 2007; Casanova 2006; Hellemans 2010, 33-40 and 126-133; Gabriel 2008a, 9-15). This is accompanied by the view that traditions, including above all religious traditions, are an integrally modern and highly dynamic phenomenon, and have their place in the plural ideological landscape. A decisive factor in [the] perspective of religious modernization is that modernization and modern are no longer equated with an enlightened, liberal or progressive habitus. Orthodox, conservative, or traditionalist people are no less modern than liberal or progressive people. The former are equally of the modern age; they simply judge this age very differently … The idea behind this is to consider the relationship between religion and modernity inclusively instead of exclusively. Hellemans 2005, 20-21

Besides these anti-liberal, traditionalist worldviews, there are also in ideologically plural, modern societies liberal and secularistic views that play a key role in shaping the relationship between religion and modernity.8 The current debate around secularism points to two interpretations of secularity: namely, secularity as a political doctrine of the state, and secularity as an ideology within liberalism. In the last point, secularity goes to a certain extent hand in hand with the thesis of the special path of modernization in Europe, a path characterized by a decidedly antireligious or antichurch attitude (Casanova 2009, 103-104). Casanova even goes so far as to speak of the “raw secularistic heritage of Europe”, and to connect the antireligious (mainly anti-Catholic) current in the 19th century with current developments in Europe, and especially with anti-Islamic tendencies and tendencies critical of Islam; he thereby makes a parallel between the motives (Casanova 2008b, 70-74). For Casanova, 8  And there can also arise surprising coalitions; for example, religious fundamentalists and secularistic atheists agree that faith and modernity contradict each other.

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secularistic ideology arises out of an unjustified essentialization of the religious and secular, with the religious being defined as in essence irrational, intolerant and particularistic, and the secular as rational, tolerant and universalistic. These attributions of natural properties encourage the formation of prejudices against religion, and create an asymmetrical relationship or ultimately an ideological homogenization (Casanova 2010, 37-41). The fact that a group’s status as a particular worldview is denied tends to promote conflict. Not least because of this tendency to conflict is the role of religions in social processes of modernization also to be evaluated differently.9 We can, however, assume a lasting social relevance of religion in modern societies (that is, under conditions of ideological pluralism), a relevance, though, that is accompanied by a certain dynamic in the religious landscape. This dynamic is dependent on contingent factors or events. For example, communities can be integrated through religions and/or imperial power, and (power-)political support leads in turn to the spread and permanence of religious institutions. On the other hand, there is a thesis that religions influence and support power-political interests, be it intentionally or when religion is used.10 It is not only this link that points to the complex context-dependent interrelationships in which religions find themselves in modern societies. (c) Ideological controversies tend to increase in pluralistic societies, and sometimes pose a threat to social integration. What is politically as well as legally at stake here is both dealing with the minority status of religious communities, and their historically evolved claims as majority religions that shape culture and have political influence. Given the phenomenon of an ever-multiplying ideological landscape, however, political conflict-solving strategies also become increasingly relevant at the horizontal level – that is, between ideological communities and also between minorities (see Taylor 2011). The key social-ethical issue is how to reconcile specific claims that are based on differing convictions (Taylor 2009, 675). According to Charles Taylor, the modern society is a place of complex relationships between belief and unbelief; within this, relations are entered into that are characterized by partial 9   For example, we still need to clarify in more detail the reasons behind the antimodernism of the Catholic Church in the Europe of the 19th century, and in connection with this the contribution of Catholicism to modernization. Another example is the question of the contribution of religions to democratization; see, for example, the debate between Samuel Huntington (Huntington 1991) and Alfred Stepan (Stepan 2000, 37-57). 10  The tendency of the Catholic Church up until the Second World War was primarily to fight for its particular rights, to pursue power-political interests in different contexts, and to refrain from an “objective” assessment of state forms. It opposed any regime that interfered with or did not recognize its autonomy.

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correspondences; in turn, these correspondences are of decisive importance for social cohesion. The key questions are: Are there specific conditions for religious communities with regard to their capacity for pluralism, their integration, their political and their civil-social participation, and their potential for modernization, and how far does this internal modernization need to reach? For example, does the truth claim of religious communities already obstruct their integration into liberal pluralistic communities? For Taylor, it is no longer possible when addressing the question of social integration to revert to the concept of civil religion or of anti-religion in the secularist sense, since there is now a wide diversity of worldviews: “We are condemned to live an overlapping consensus” (Taylor 2011, 48); that is, to a consensus between people who pursue very different conceptions of the good life. Taylor speaks of a political ethics whose contents are shared consensually “by people of very different basic outlooks (what Rawls calls ‘comprehensive views of the good’)” (Taylor 2011, 37). For Taylor, the principles that belong to the overlapping consensus are human rights, equality, constitutionalism, and democracy. He also speaks in this context of the necessary “different founding views on a common philosophy of civility” (Taylor 2011, 48). On the one hand, an overlapping consensus therefore contains both areligious and religious positions. On the other, the neutrality of the modern state, which extends to the sphere of the good life outside the overlapping consensus, of course relates in societies whose ideological spectrum increasingly branches and multiplies not only to religious, but also equally to antireligious, worldviews. An antireligious secularism must as such be perceived as a particular idea of the good life, so that the political implication that religion is perceived as a threat, and the epistemological implication that religion or religiosity is based on a deficient form of reason, can be excluded (Taylor 2011, 51). 2.3

Catholicism and Modernity Catholicism itself represents … a modern movement whose existence was bound up with the achievements of revolution and secularization – a modern movement against modernity, so to speak, but one that could not wage a total attack on modernity for reasons of self-interest alone, but instead carried elements of modernity within itself and, by replacing lost feudal support through the social and political mobilization of the Catholics, partially modernized the church. Loth 2012, 83

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Components of this Catholic modernity are (a) structurally, the process of becoming independent organizationally, which is accompanied by processes of centralization and juridification. This means that, through its degree of organization, the church gains a form that is compatible with modernity, and thereby achieves a high level of stability (Gabriel 1998, 13-14); (b) culturally, integration into the pluralistic society, accompanied at the same time by a sharp demarcation. The dialectic of anti-modernism and modern action – or, so to speak, anti-modernism with modern means – characterizes Catholicism above all in the 19th century, and (c) normatively, the neo-scholastic doctrine of natural law, in which the close connection between divine and human law is relaxed, thereby leading to a partial modernization in normative terms. A now established research branch that reinterprets the history of Christianity highlights the modern aspect of Catholicism in structural terms.11 In doing so, it establishes a correspondence between the developments of the Catholic Church and certain paths of modernization; it seems obvious to link the characteristics of the so-called ultramontane, neo-scholastic Catholic Church with developments in the early European modern era, to distinguish this from church developments in the context of the Second Vatican Council, and finally to examine them separately from each other. Drawing on the work of Bill McSweeney and Staf Hellemans, for example, Altermatt proposes the following three-phase periodization scheme: (1) anti-modernism of the church after the French Revolution, (2) pragmatic strategy of preservation in neoscholasticism, and (3) partnership with liberal-democratic societies and recognition of pluralism with the Council as a high point (Altermatt 2010, 69). It goes without saying that there are no rigid boundaries between these phases. Rather, the transitions are fluid, and it is by no means possible to talk of unity within the phases, but at most of dominant tendencies that have shaped the view of the church in certain historical contexts. To understand the modernization of Catholicism, and especially the question of the learning process of Catholicism with respect to fundamental rights of freedom, we consider it sensible to expand the period of investigation, and to include developments before the French Revolution and the turn to neo-scholasticism. A rough outlining of the tendencies of the church in the Late Middle Ages and of late scholasticism enables us to describe, classify and analyze better the role of neo-scholasticism. The Catholic Church has in any case been intertwined with modernization processes at various levels, and depending on the context of modernization, 11  Representatives of this research direction are, for example, Urs Altermatt, Danièle Hervieu-Léger, Frédéric Lenoir and Staf Hellemans, to name but a few.

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and has influenced modernization processes differently in each case. Hellemans presents the following major structural patterns of modernity that are important for the modernization of Catholicism: the emergence of translocal cultures and markets, and functional differentiation at the macro level, the success of associations and organizations at the meso level, and individualization at the micro level (Hellemans 2005, 34). Catholicism itself can be defined as a “religiously ecclesial, massively effective power in life”, whose degree of churchification varies (Gabriel 2000, 194). “Only since the 19th century has the term ‘church’ been used to denote the social connection of denominationally socialized Christians” (Kaufmann 1989, 6). One defining feature of the Catholic Church in the spectrum of religions is that it has forms of organization and representation at the global level. Churchification indicates a process of organizational independence: “In its response to the breakthrough of the modernity of industrial society in the 19th century, [the Catholic Church] expands its organizational character” (Gabriel 1997, 28) It is precisely this building of organization by the Catholic Church that Altermatt depicts as “anti-modernism with modern means” (Altermatt 1991). However, as a highly institutionalized form of religion, the church is not a static and unchanging entity. Damberg and Hellemans point out in this context that we can by no means speak of a “decline of the church” or of an “obsolete major power”. They identify instead a process of transformation undergone by the major European churches in the advanced modern age. This process is borne by intermediary entities internal to the church, whose relevance is above all at the organizational level. And this process of transformation and renewal undergone by the major European churches, a process shaped above all after the Second World War at the diocesan level, is accompanied by a process of “delocalization” (see Damberg/Hellemans 2010). Involved in the process of modernization are various forms of collective Catholic actors: namely, magisterium, scholarship, living environment, and political actors. But we should note here that, despite all authoritarian churchliness, “Catholicism, as a social and political movement, emerged not from the orders of the church hierarchy, but from the initiatives of many individuals and groups, with laity more often setting the tone than clerics” (Loth 2010, 83). These different actors shape in different ways the different “aggregate forms of Christianity”: namely, the forms of expression in society and outside the church, the forms of transformation at the level of personal meaning-making and way of life, and the ecclesial-institutional constitution (Matthes 1968, 126). Catholicism as a phenomenon and segment of modern society occurs in various forms, with different meanings and temporal variances. “[It] is a specific

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response of the Catholic tradition to the challenge of modern social development” (Kaufmann 1989, 17). The neo-scholastic state doctrine of the Catholic Church, which is fundamentally opposed to liberal political philosophy, is decidedly antimodernist. We should note with regard to this Catholic tradition of natural law that a differentiation in a normative sense is understood in a certain way through the distinction between divine and human law. However, because the neoscholastic church defines itself as the decisive interpreter of natural law, the differentiated or the political-liberal argument is again to a certain degree reined in (see Kaufmann 1973, 126-164). But from the dealings of the church with modernity and the strategies of demarcation, there also developed to a certain degree the specific profile of the neo-scholastic doctrine of natural law in the sense of a “special good” that is given an “original presence in modern society”. Through the differentiation of natural law, “something positive” could be gained from “functional differentiation”, while at the same time maintaining the “connection with theology”. The teleological orientation allowed a certain “de-moralization of political questions” (Möhring-Hesse 2010, 305-306). Neo-scholastic ethics is characterized by the fact that it derives its legitimation of norms from nature. Nature is considered here as a trans-temporal entity; that is, as contextually unbound, and at the same time as being as integrated in the argumentation as extensively and in as much detail as possible. Not least, neo-scholasticism was also accompanied by the development of social principles. In contrast to the political philosophy of modernity, neo-scholasticism condenses material claims to truth based on natural law into a whole normative conception that is as closed as possible (Anzenbacher 2002; Böckle/Böckenförde 1973; Baur 2010; Bohrmann 2010). However, the neo-scholastic interpretation of the doctrine of natural law is not to be distinguished from modern liberal philosophy alone; it is, despite its intention and self-understanding, also to be distinguished from the doctrine of lex naturalis of Thomas Aquinas. This difference was made clear in the 1970s and 1980s, when a number of authors reread Thomas Aquinas’ theory of natural law (see Korff 1987; Merks 1976). 2.4 Summary Criticism of the classical modernization paradigm relates mainly to the evolutionary understanding of differentiation and to the development of so-called ideological liberalism or secularism.

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Structural differentiation as the fundamental separation of the religious from the political sphere, each with its own internal system of logic, and the accompanying separation of church and state in such a form that the church no longer makes any claims on political power – both are specific structural features in modern contexts. There are different patterns of differentiation, however; the state-church relationship exists in various forms, and the secularization thesis must at least be relativized insofar as the decline of religion and its privatization can barely be identified across the board. Culturally, the secular option distinguishes modernity; that is, the ideological sphere is no longer, if ever it was, homogeneous, and the religious can be separated from the secular. However, this does not mean that there is only a direct confrontation between religious and secular actors. Rather, the ideological landscape undergoes a process of multiplication and change, a process that is accompanied ultimately by the recognition of plurality. Normatively, modernity is distinguished by the separation of the levels of praxis of justice and the good life; this separation is due to the primacy of individual freedom. However, social integration is made possible in the face of pluralism by the construction of an overlapping consensus, whose form and breadth are nonetheless the object of contention. We should remember that it is problematical to project back into history the outcome of a historical learning process or a modernization process (for example, structurally, the differentiated society with autonomous subsystems; culturally, ideological pluralism; and normatively, liberal democracy with its recognition of human rights). It is essential to take into account the fact that a collective learning process such as the Catholic Church underwent was and still is a contingent and open historical process. This must be the starting-point in our analysis, and it must always be taken into account in every single consideration of the various factors that led the Catholic Church to recognizing religious freedom.

chapter 3

Religious Freedom In order to investigate the movement of Catholicism towards the human right to religious freedom, we need to clarify the notion of religious freedom. We sketch here a possible systematic approach to the notion of religious freedom. This we contrast with a particular Catholic doctrine of tolerance that for its part was embedded in a Catholic state doctrine that oscillated especially in the epoch of Pope Leo XIII between affirming and confronting the liberal political philosophy of modernity. Besides this account of the position of the church before the Second Vatican Council, we will finally explain the understanding of religious freedom that was discussed at the Second Vatican Council, and that shaped in particular the declaration on religious freedom, Dignitatis humanae. 3.1

The Concept of Religious Freedom

Religious freedom as the right to the free exercise of religion on the one hand, and freedom from religious coercion on the other, is regarded as one of the central human rights, and therefore features as such in the important human rights documents. It is of considerable importance for the development of the relationship between politics and religion, and between state and church, with the differentiation between these two subsystems being one of the important steps in the modernization process. However, the question as to the relationship that ultimately exists (or should exist) between politics and religion in a society that we call modern has been answered as little as the question of what role religions play (or will play) in advancing modernization. Religious freedom emerges as a problem in quite different ways. While the debates at the Second Vatican Council still centred on the question of what kind of relationship church and state should essentially have, discussions about religious freedom are being increasingly shaped today by the challenge posed by the coexistence of different religions and denominations in contexts in which religious freedom exists, or in which politics and religion are separated in one way or another. Thus, in general, the question of whether religious freedom should be put into effect is followed increasingly by the question of how religious freedom should be implemented. This also means that the discussion shifts from negative to positive religious freedom. The process whereby religion and politics become differentiated is by no means complete; rather, as we know, there

© Verlag Ferdinand Schöningh, 2019 | doi:10.30965/9783657789009_005

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are significant regional differences in the course that this process takes, and, especially if we take a global perspective, then the question of whether and to what extent religious freedom should be implemented has not yet been answered definitively and is a question that arises again and again. Liberal political communities usually comprise today people with different geographical and cultural origins, different ideological convictions, different sexual orientations, people with different life plans and preferences, etc. There is also broad consensus at a basic normative level at least that this plurality should exist or be possible. The human right to – negative as well as positive – religious freedom is important with regard to this plurality, since it is characterized not least by different religious affiliations. Irrespective of other problem areas in other historical situations or in other regions of the world, we can initially differentiate the notion of religious freedom with regard to liberal political communities in the following way: the tension between negative and positive religious freedom is – again: in the case of established liberal systems – no longer primarily about the freedom from religious coercion that has been widely implemented; rather, it is about on the one hand the “right of the person to continue living as a foreigner in a local world that is different from the world that he or she comes from … in those forms that are familiar from his or her homeland, or are perhaps even sacred”, and on the other “the right of the indigenous population to see the ways of life and values (including normative bonds) that they have experienced respected by those who have migrated to their country” (Grimm 2002, 135). However, questions of religious freedom concern not only migrant religions, but also autochthonous religions and those long domiciled in a certain context – for example, the practice of treating men and women unequally in Catholicism (in granting access to priesthood), or legal regulations governing the hanging of crucifixes or crosses in classrooms at state schools. Against this background, we can distinguish between eight dimensions of religious freedom, although closer inspection reveals four aspects of freedom and four of equality (see Spiess 2009, 226-231). Each dimension can be illustrated by well-known examples from the European context. Distinguishing between aspects of freedom and equality also expresses in a certain way the distinction between negative and positive religious freedom. The following table provides a rough overview of the dimensions of religious freedom. The examples assigned to the dimensions can only be indicated in brief here, and many examples can be viewed from different viewpoints, or from the perspective of different dimensions of religious freedom.

The concept of Religious Freedom table 1

Differentiation of religious freedom into eight dimensions or types of claim

General basic right to religious freedom

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being allowed not to do something for religious reasons (e.g., exemption from the requirement to wear a helmet) being allowed to do something religiously motivated (e.g., shechita) forbidding something that is “less freedom”: otherwise allowed (e.g., same-sex restriction of partnerships) freedoms on demanding something that is religious grounds otherwise not demanded (e.g., wearing a headscarf) “equality externally”: privileging other religions dealing with different (e.g., recognizing a prayer practice) religions through law treating other religions equally (e.g., public holidays for religious festivals) and politics “equality internally”: treating unequally those otherwise treated equally (e.g., no ordination dealing with people of women) within religious treating equally those otherwise communities treated unequally (e.g., equal treatment of children) “more freedom”: greater freedoms for religiously motivated practice

Demands for freedom relate on the one hand to freedoms for religions, which on the other hand may also mean that it is permitted to restrict freedom on religious grounds; that is, that political freedom to restrict personal freedom is claimed as it were on religious grounds. The first case (that is, the demand for greater freedoms for religiously motivated actions and behaviour) may be (a) demands to be allowed to do more than others (for example, the slaughtering of animals in accordance with religious rites), or (b) demands to be allowed not to do something that others have to do (for example, the exemption from wearing a helmet for Sikhs, as is the case in the United Kingdom). The second case (that is, the entitlement to restrict personal freedoms in a religious collective on religious grounds) may be something that on the one hand (c) is prohibited in a religious community that is otherwise (that is, under general law)

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permitted (for example, going to the swimming pool), and on the other (d) is bidden or expected/demanded that others do not have to do (for example, wearing a headscarf or veil). Such privileges become interesting of course only when they collide more or less directly with state legislation; that is, when, for example, the religious prohibition on going to the swimming pool conflicts with the obligation that state schools have to provide swimming lessons for their pupils. There are therefore four types of demand for freedom on religious grounds, with two types (a and b) demanding more freedom for religion, and two types (c and d) demanding that freedoms be restricted. We can also distinguish four types of demand for equality. Demands relating to equality or equal treatment may relate to equality between religions or to equal treatment of religions, or it may relate to equality or equality of treatment within a religion. Both types arise again as demands for equal treatment and as demands for unequal treatment. Equality between religions is about on the one hand (e) the demand to be treated equally with other religions (for example, through recognizing religious holidays belonging to migrant religions as legal holidays), and on the other (f) the demand not to be treated equally with other religions, but instead according to a separate set of rules and standards (for example, by providing special prayer times and sometimes prayer rooms during the working day or in state schools). With regard to equality within religions or religious communities, demands may on the one hand be (g) for people to be treated unequally who otherwise (i.e., under general state law) must be treated equally (e.g., the non-admission of women to the important offices of consecration in the Catholic Church), and on the other (h) for people to be treated equally who otherwise (i.e., under general state law) are treated unequally (it would be possible, for example, to treat adults and children or adolescents equally, although they are treated differently under general law). There are of course in practice overlaps between these types of demand, and they can all to an extent be traced back to a single basic right to religious freedom. Differentiating them seems helpful in analytical terms, however, since doing so at least shows how unclear and diverse individual questions of religious freedom can be – and demonstrates that simply referring to “religious freedom” is not always useful when it comes to concrete problems. The distinction between collective and individual religious freedom is no more specifically denoted in this overview than the distinction between negative and positive religious freedom. But it is above all the distinction between individual and collective religious freedom that plays a role in several of the types of demand mentioned. Since religious demands are frequently made by religious communities, or from the perspective of religious collectives,

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our overview pays particular attention to the importance of these demands. Religious collectives and religious individuals are indeed not simply two different and parallel sources of demands for religious freedom, but together form a network of demands. For instance, religious communities sometimes demand quite specific behaviour or attitudes from their members; individuals to a certain extent cede their individual right to religious freedom to the collective. This happens, for example, when people relinquish the right to be treated equally within the religious community (such as do Catholic women who feel that they have a calling to the office of priesthood but do without the sacrament of ordination because as women they are excluded from this office), even though they themselves may well feel for the deepest religious reasons that they should be treated equally (and would, for example, like to be ordained into the priesthood)1 There is no violation of human rights here, provided that the assumption can be made that the decision to submit to the opinion of the collective on the relevant question is or has been taken voluntarily. This criterion of voluntariness corresponds to the exit option, which is absolutely to be implemented and guaranteed for the sake of the human right to religious freedom: individuals must always have the opportunity to leave a religious community. But this exit option poses a greater challenge than at first seems the case: members of religious communities must have the opportunity to reflect (even critically) on their own religious community, and, if they leave such a community, then they must be able to pursue a life free of repression outside the religious community – that is, neither the religious community itself nor any other party may exert pressure on people who have left a religious community. Political tasks are involved here: especially political communities that on the one hand allow religious communities a great deal of freedom must on the other have available to them effective political concepts to implement the exit option. Although religious freedom is as a rule a basic right that is acknowledged by and in collectives, it is primarily an individual right, and only secondarily (if one can say so at all) a collective right. If we understand the general right to religious freedom as outlined above, then a very wide scope for specifying religious freedom still remains. We can, for example, distinguish between a formal and a specific concept of freedom with regard to the notion of religious freedom in particular, and to the notion 1  In other words, it is not about “religious freedom within religious communities”. This is not to dispute the fact that the problem associated with this can have considerable relevance for religious communities, if, for example, the demand for religious plurality externally comes into conflict with a suppression of plurality of religious beliefs or interpretations internally.

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of freedom in general. While the formal concept of freedom essentially determines only liberties, the specific concept of freedom includes assumptions and demands regarding the material conditions and prerequisites for the actual realization of freedom. This can also be easily related to the issue of religious freedom. In a more negative sense, is it simply a question of excluding a compulsion to religious conviction and a prohibition on religious practice? Or, in a more positive sense, is it also a question of facilitating religious practice, and creating favourable conditions for religious life and for transmitting religious convictions? If we choose a concept of formal religious freedom, then its borders are determined by the formal rights of freedom of others: what is allowed is what does not restrict the freedom of others. But, if we choose a concept of specific freedom, then we bear a greater burden of decision-making as to which forms of religious life and convictions are to be encouraged, and which are not: what is encouraged is what appears worth encouraging on the basis of religious-political considerations and democratic deliberation (see Kymlicka, 107-130; 152-172). Because the fundamental right to religious freedom is interpreted in such different ways, a situation has arisen in the secularized societies or political communities of the Western type in which the human right to religious freedom is not generally called into question in fundamental terms, but whose implementation nonetheless follows very different paths. Thus, laicist models exist alongside models with an actual dominance of one particular religion or denomination; or state-church models are combined with a multiculturalistic policy on religion, etc. The scope to practise religion that religious communities other than the state religion have can therefore be considerably broader in a state-church model than in a laicist model or in a model with an actual dominance of one religion or denomination. Applying identical benchmarks to such different contexts that have grown historically appears absurd (see Casanova 2008a, 113). Rather, religious freedom can be implemented in different ways – religious freedom is different in traditionally laicist France than it is in the UK, which constitutionally has a state church, but which is extremely multiculturalist in terms of its religious politics – without our being able to say that France has not implemented the human right to religious freedom.2 2  A material criterion for the question of its realization does not include the formal right to religious freedom. There is therefore a need for such a criterion for the development of a political position on questions of the realization of religious freedom. If a suitably differentiated concept of tolerance that is subordinate to the fundamental right to religious freedom is assumed, then tolerance could be proposed as such a criterion. However, religious freedom would then have to be conceived as a normative framework within which tolerance as a supplementary normative orientation provides reference points for the concrete shaping of the

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3.2 Religious Freedom in the Doctrine of the Catholic Church before the Second Vatican Council The concept of tolerance as advocated above all in the 19th and 20th century represents the counter-model to a general basic right to religious freedom in the development of the position of the Catholic Church. This model distinguished between the “thesis” of the dominance of the Catholic faith that was to be connected with political power, and the “hypothesis” of a lack of Catholic political power or of a Catholic minority position. In the “thesis” case, Catholic dominance and political power were not to involve as a matter of principle tolerance towards other religions; it was only in the “hypothesis” case, where Catholicism lacked political power or had a minority position, or where there were a number of powerful religious groups in a political community, that there should exist the right to the free exercise of religion, since this could be seen in this case as the lesser evil – and was opportune from the point of view of the Catholic Church (see 4.2.2 below for the position taken by Kasper; see Unterburger 2010b). This position is self-evident and is in a certain way understandable if we begin from the assumption that religious truth is contained in the Catholic faith, is governed by the church, and that this true religion is to be received as a precious commodity – the right to religious freedom as a right to err certainly seems absurd against this background. Religious tolerance can be legitimate only on serious grounds to do with the common good. As little as the Catholic doctrine of tolerance was understandable in its time, so much must we take account of the historical constraints of each step in the development of religious freedom. Debates over religious tolerance and how to deal with different religious faiths always arose wherever different religious faiths existed side by side. Particularly important here for our discussion is the period of transition from medieval feudal structures to the slowly evolving religious pluralism of the modern age. But those observations that would shape church positions in the

coexistence of different cultures and religions (see Spiess 2009; see Murphy 1997). However, two things have to be taken into consideration here. First, the concepts of religious freedom and of tolerance are in a tense relationship both historically and systematically. Second, the concept of religious freedom connected with negative religious freedom has a side that is critical of religion, and this side must not be suppressed; each contextual ethos of religious freedom cannot only include a pronounced sense of tolerance, but must also include the reservation against patronizing and unenlightened tendencies of religious traditions. That such a concept of tolerance differs substantially from that of the Catholic doctrine of tolerance is self-evident.

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centuries to follow were already available in principle in the work of Thomas Aquinas. Crucial for Thomas were above all the two questions of whether unbelievers could have power over believers (“utrum infideles possint habere praelationem, seu dominium supra fideles” [Thomas Aquinas 1927, II-II q. 10 art. 10]), and whether religious practice or rituals based on false religious beliefs were to be tolerated (“utrum infidelium ritus sint tolerandi” [Ibid., II-II q. 10 art. 11]). On the first question, Thomas makes the following remarkable distinction between two levels of law with regard to the existing dominance (“dominio vel praelatione jam praeexistenti”) of unbelievers over believers: namely, the distinction between human and divine law. According to Thomas, the existing dominance of unbelievers over believers is based on human law (“dominium et praelatio introducta sunt ex jure humano”), while the distinction between believers and unbelievers is based on divine law (“distinctio autem fidelium et infidelium est ex jure divino”). But divine law, which results from divine grace, does not override human law, which results from natural reason (“Jus autem divinum, quod est ex gratia, non tollit jus humanum, quod est ex naturali ratione”). Therefore, the distinction between believers and unbelievers does not in itself nullify the dominance of unbelievers over believers (“Ideo distinctio fidelium et infidelium secundum se considerata non tollit dominium et praelationem infidelium supra fideles”). This can only be done through the intervention of the church, which of course speaks with divine authority (“Potest tamen juste per sententiam vel ordinationem Ecclesiae auctoritatem Dei habentis tale jus dominii vel praelationis tolli”) (Ibid., II-II q. 10 art. 10). With regard to the second question (that is, the question of the legitimacy of tolerating the rites of unbelievers), Thomas decides primarily for the truth and secondarily for pragmatic considerations or for a weighing-up of goods or for a clever calculation of benefits, with this calculation of benefits appearing to be employed earlier in his work than in his neo-scholastic interpreters. In principle, the practice of rites based on a false belief is an evil. However, this evil can be allowed for the purpose of pursuing or not obstructing the pursuit of other goods, or of preventing a worse evil. While the rites of the Jews are certainly to be tolerated because of their significance in the history of salvation (Ibid., II-II q. 10 art. 11: “Ex hoc autem quod Judaei ritus suos observant, in quibus olim praefigurabatur veritas fidei quam tenemus, hoc bonum provenit, quod testimonium fidei nostrae habemus ab hostibus; et quasi in figura nobis repraesentatur quod credimus. Et ideo in suis ritibus tolerantur”), other rites that do not contribute anything true, or otherwise anything useful from the viewpoint of the true faith, are to be tolerated only if by doing so prevents,

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for example, discord or rebellion.3 Thomas justifies this weighing-up of benefits by arguing that human governance is derived from divine governance and therefore imitates it, and that the omnipotent and wholly good God himself allows numerous evils to prevent even greater evils or to make benefits possible. Such acts of weighing-up can and should therefore also be performed by human governance. On the one hand, Thomas’ reflections show that the question of religious freedom, understood broadly as a question of the political force bound to the truth and the toleration of religious doctrines that do not belong to the truth, was of course a question of religious truth. On the other, though, they also seem to suggest already the direction in which a solution would be sought for the problem of different and coexisting faiths and rituals, each with its own claim to truth (that is, for the problem of religious pluralism), since alongside the weighing-up of benefits appears the motif of separating divine from human law. The phenomenon whereby different religions or confessions existed side by side in one or in neighbouring regions led historically to different political conceptions of tolerance. The historical phenomenon of pluralism thus led to various arrangements in the coexistence of religions and confessions. Opportunistic considerations should be distinguished from normative considerations here (notwithstanding the fact that the former also of course have normative implications). The acceptance of deviating religious beliefs and practices may be due to a calculation of benefits on the part of those with political power, but it may also result from a normative orientation. Acceptance in the sense of a politics of enlightened absolutism, for example, is not recognition of religious freedom as a human right, but it does undoubtedly represent in a historical context a significant step on the path to renouncing coercion on the part of religious traditions. But this is true in only a very limited way (if, indeed, true at all) of the Catholic doctrine of tolerance of the 19th and early 20th century. The Catholic Church increasingly opposed the separation of church and state when the papal states came under pressure and the close ties of political power that other political entities had with Catholicism were at stake. Functional differentiation on the one hand, and the fundamental 3  Or also if, under certain conditions, the toleration of an erroneous ritual serves the purpose of turning unbelievers to the true faith; see Ibid., II-II q. 10 art. 11: “Aliorum vero infidelium ritus, qui nihil veritatis aut utilitatis afferunt, non sunt aliqualiter tolerandi, nisi forte ad aliquod malum vitandum; scilicet ad vitandum scandalum vel dissidium quod ex hoc posset provenire, vel impedimentum salutis eorum qui paulatim sic tolerati convertuntur ad fidem”.

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normative demand developed in the political philosophy of liberalism for the separation of religion and politics, of church and state, on the other, presented the church with a challenge, which it met by renewing its doctrine of tolerance and strongly rejecting liberalism and the right to religious freedom. Instead of taking up strands in its own tradition that would have enabled it to view rights of freedom and the democratic idea positively, the church developed a neo-scholastic theology that in several crucial respects did not in actual fact follow scholastic or late-scholastic theology and philosophy, but distanced itself from this in several areas.4 Thus, the renewed doctrine of tolerance that was developed in the 19th century and still advocated by Pius XII is by no means entirely in line with the tradition of Christian ideas of tolerance; rather, it connects only to a certain part or to a motif of the tradition, and emphasizes this motif to such an extent that the Catholic understanding of tolerance can be shaped in essence into the counter-model to a general basic right to religious freedom. This point is of considerable importance when we address the question of whether Dignitatis humanae continues, or breaks, the Christian and Catholic tradition. If the neo-scholastic doctrine of popes and theologians does not fully represent the tradition of the church, then, even if the Council does break with this doctrine, then this certainly does not necessarily mean also a break with the tradition; rather, it could even be the case that the Council represents a stronger regard than the neo-scholastic period for the tradition. The strong rejection of liberalism, as well as basic liberal and democratic rights, as exemplified by the encyclicals Mirari vos (MV) of Gregory XVI of 15 August 1832 and Quanta cura (QC) of Pius IX of 8 December 1864 (with its 4  This distancing is only in terms of content or fact, while references especially to high scholasticism are all the more clearly pointed to in rhetorical terms. Some examples of the repudiation in terms of content of neo-scholasticism in particular by Thomas Aquinas: in the doctrine of property, a natural right to private property was formulated (against Thomas), which had to resort to the liberal argument of John Locke (see Spiess 2004, 144-155). In the doctrine of tolerance, one limited oneself – against Thomas – to an opportunity model, one that allowed religious tolerance precisely where it was unavoidable or where it was advantageous from a Catholic perspective. In bioethics, one turned – against Thomas – away from the idea of the successive creation of the soul or the creation of the soul in the course of the process of development of the embryo in order to bring forward the beginning of life to the moment of conception or the fusion of egg and sperm cells, and with reference to Thomas’ biological ignorance with regard to the female ovum – that is, whether one embryo fused from ovum and sperm cell could not also be animated successively or after the fusion (see Richter 2008, 97-207 [on the position taken by Thomas] and 209-224 [on the debate today]; see Lehmann 2001, 8-24, esp. 8-10; but also see Rahner 2002, 498-524). Surprisingly, these obvious and unambiguous breaks in tradition are problematized far less than the reorientations of the Second Vatican Council.

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Syllabus errorum, which summarized the most significant errors of the time), was also a response to the “growing sympathy for liberal ideas among certain Catholic circles” (Aubert 1977, 442). In addition, the Catholic elite was concerned by the fact that, “wherever they had power, the liberals immediately initiated anti-church legislation” (Ibid.). Ultimately, the popes of the 19th century may well have been pushed into their strong rejection of liberal rights of freedom and the separation of religion and politics by their historical experience of the steadily increasing pressure under which church and theology had been placed intellectually, scientifically, socially, and politically – although Pius IX, for example, was certainly interested in and open to liberal ideas to begin with. To this extent, the strong stances taken by the popes in the 19th century relate to concrete experiences, to the manifestation of liberalism in their day. Attempts have been made to relativize the attitude of the popes as a whole by referring to this concrete anti-religious and anti-church manifestation of liberalism. Thus, it has been argued, for example, that this attitude was concerned “less with the essence of liberalism as such than with the concrete manifestation of the liberal system that prevailed at the time, and perhaps even more with liberal practice” (Ibid., 448). However, the condemnations are so clear and, as in the case of the Syllabus, for example, they are so fundamental and so detailed, that this explanation does not appear to hold water. Moreover, it is quite clear from the documents that some statements do relate to concrete liberal practice, but that others relate fundamentally to the ideas of liberalism and of democracy as such. Thus, although the strong anti-liberal position of the popes (as well as of other church actors) becomes understandable against the background of the strong anti-Catholicism of a militant liberalism (see Borutta 2010), it also does imply a systematic rejection of rights of freedom and civic rights of participation. There are nuances, though, in the stance taken by Leo XIII, whose texts largely avoid the roughness of those written by his predecessors and are in general more sophisticated. This certainly does not necessarily mean that the church’s pronouncements now become more liberal and modern overall, but rather and above all that the line of reasoning becomes sharper, which also leads for the most part of course to a clearer delimitation from the central assumptions and postulates of liberalism: the church’s anti-modernism becomes intellectually sharpened to a certain extent, since its thesis-hypothesis model is foregrounded and the orientation towards the common good takes centre stage in its ethical judgment of the state. Leo already outlined the basic direction in his encyclical Inscrutabili Dei consilio, and he made this more precise three years later in Diuturnum illud: those who may be placed over the State may in certain cases be chosen

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by the will and decision of the multitude, without opposition to or impugning of the Catholic doctrine … There is no question here respecting forms of government, for there is no reason why the Church should not approve of the chief power being held by one man or by more, provided only it be just, and that it tend to the common advantage … But it is a great error not to see what is manifest,  … that men, as they are not a race of solitary wanderers, are born, independent of their own free will, to [form] a natural community of life.. It is plain, moreover, that the pact that they allege is openly a falsehood and a fiction and that it has no authority to confer on political power such great force, dignity, and firmness as the safety of the State and the common good of the citizens require. Then only will the government have all those ornaments and guarantees, when it is understood to emanate from God as its august and most sacred source. DI 6-12

People therefore have the right to resist only when something “is demanded of them that is openly repugnant to the natural or the divine law” (DI 15). Since society can hold together just as little “unless some one be over all”, and individuals cannot do without their “fellow men”, so ruling authority, no less than society itself, has its source in nature, and has, consequently, God for its Author. Hence, it follows that all public power must proceed from God … The right to rule is not necessarily, however, bound up with any special mode of government. It may take this or that form, provided only that it be of a nature of the government, rulers must ever bear in mind that God is the paramount ruler of the world, and must set Him before themselves as their exemplar and law in the administration of the State. ID 3-4

With this, Leo XIII is nearing the central motif of his reflections: “it is evident that the origin of public power is to be sought for in God Himself and not in the multitude” (ID 35). Therefore, the church judges that the various ways of worshiping God may not have the same right as the true religion. But it does not condemn those rulers who, for the sake of securing some great good or of hindering some great evil, allow patiently custom or usage to be a kind of sanction for each kind of religion having its place in the State. And, in fact, the Church is wont to take earnest heed that no one shall be forced to embrace the Catholic faith against his will (ID 36).

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The encyclical Libertas praestantissimum (LP) of 1888 deals with liberty, “the highest of natural endowments” (LP 1), which, “being the portion only of intellectual or rational natures, confers on man this dignity – that he is ‘in the hand of his counsel’ and has power over his actions” (Ibid.). “As the Catholic Church declares in the strongest terms the simplicity, spirituality, and immortality of the soul, so with unequalled constancy and publicity she ever also asserts its freedom” (LP 4). Of course, freedom lends the possibility of following the moral good, but it also carries the risk of deviating from the good. In man’s free will, therefore, or in the moral necessity of our voluntary acts being in accordance with reason, lies the very root of the necessity of law (LP 7). Identifying the good is the function of natural law, “which is written and engraved in the mind of every man” (LP 8). To “demand, to defend, or to grant unconditional freedom of thought, of speech, or writing, or of worship, as if these were so many rights given by nature to man”, is “quite unlawful” (LP 42); but these freedoms – as we already know – can be accepted for the sake of the common good (see LP 10-11). This is the basis of the thesis-hypothesis conception of the tolerance doctrine. We can, as already stated above, read this argument normatively or strategically. Read normatively, it is an argument for the common good and a weighing-up of benefits, with the common good weighing more or being able to weigh more than the prohibition on religious practice that does not correspond to the religious truth. While this is therefore by no means a fundamental right to religious freedom, it is nonetheless a normatively differentiated notion of tolerance. Read strategically, it is a piece of opportunism that is simply intended to leave the Catholic faith enough space for religious practice where it is in a minority position. It would then not be a normative notion of tolerance, but an opportunistic calculation of benefits. Although the line of reasoning in the late 19th century seems anachronistic, and of course self-interest played a role, we cannot completely deny the Pope’s moral honesty and earnestness. He is after all still arguing against the background of the assumption that the law is tied to the religious truth. If we proceed from this tie, then there can actually be no other possibility than to understand tolerance normatively in the sense of toleration or acceptance. 3.2.1 A Document of Transition? The Address on Tolerance of Pius XII Of particular interest is the address by Pius XII on Religious tolerance in a state community to the National Convention of Italian Catholic Jurists. The address was given on 6 December 1953; that is, in the period after the Second World War and the announcement by the General Assembly of the United Nations of the Universal Declaration of Human Rights. At an end were the fascist regime

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in Italy and national socialism in Germany and Austria; in their place were liberal democracies, or, in East Germany as well as in Eastern Europe, a Soviet socialism. The question is whether these changes influenced the Pope and the church in terms of how they viewed the issue of religious freedom. We still find in the remarks made by Pius XII no move towards the idea of religious freedom as a human right; instead, we find a sharpening and clarification of the specific Catholic doctrine of tolerance, which precisely avoids seeing religious freedom as a basic human right – and now in a way that no longer leaves much scope for a normative interpretation of tolerance that is any way positive: God reprobates error and sin. But “He permits them to exist. Hence the affirmation: religious and moral error must always be impeded, when it is possible, because toleration of them is in itself immoral, is not valid absolutely and unconditionally” (Pius XII 1954, V, 134, emphasis in the original). Tolerance towards religious communities that do not represent the full religious truth appears exclusively as an emergency solution. This is expressed in the two well-known “principles” (as Pius calls them) of the address on tolerance: Thus the two principles are clarified to which recourse must be had in concrete cases for the answer to the serious question concerning the attitude which the jurist, the statesman and the sovereign Catholic state is to adopt in consideration of the community of nations in regard to a formula of religious and moral toleration as described above. First: that which does not correspond to truth or to the norm of morality objectively has no right to exist, to be spread or to be activated. Secondly: failure to impede this with civil laws and coercive measures can nevertheless be justified in the interests of a higher and more general good. Ibid., 135

There is in the background of course the rejection of the complete separation of religion and politics, or of church and state, which the church in “principle, that is, in theory, she cannot approve” (Ibid., VII, 137). Pius even explicitly downgrades tolerance in favour of “approval”, with tolerance standing for unavoidable acceptance, and approval for consent (Ibid., 138). Thus, for Pius, the church’s signature to a concordat holds for everything contained therein, but “it may not hold in the same way for everything. It may signify an express approval, but it may also mean a simple tolerance, according to those two principles” (Ibid., 138). Pius XII by no means refers only to a particular – secularistic or laicistic, or at any rate anti-church – manifestation of liberalism; rather, “[d]epending upon the religious belief of the great

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majority of citizens, or by reason of an explicit declaration of law”, he distinguishes “peoples and member states of the international community” as “Christian, non-Christian, indifferent to religion or consciously without it, or even professedly atheist” (Ibid., IV, 132). It would also be absurd to claim that the Pope is concerned exclusively in his address on tolerance with theological, but not with constitutional, questions. Apart from the fact that his audience comprises jurists, the Pope deals expressly with theological and constitutional questions: a community of peoples “does not look, as to a unique and ultimate norm, to the will of the States but rather to nature, to the Creator” (Ibid., II, 130). Since “every state becomes a part of the system of international law, and hence of natural law”, it can never be sovereign, “in the sense of being entirely without restrictions” (Ibid., 130-131). “The right to existence, the right to respect from others and to one’s good name, the right to one’s own culture and national character, the right to develop oneself, the right to demand observance of international treaties, and other like rights, are exigencies of the law of nations, dictated by nature itself” (Ibid., 130). Religious freedom is not listed here; the relevant issue is instead shifted into a double line of reasoning, insofar as theological and constitutional aspects are distinguished: with regard to the unconditional denial of “everything that is religiously false and morally wrong”, “there never has been, and there is not now, in the Church any vacillation or any compromise, either in theory or in practice” (Ibid., VI, 136). That also remained the case after Dignitatis humanae. But the question is how to deal with the fact that citizens are legally permitted to hold their religious convictions, as well as their moral and religious practices, within the penal framework of each state: can Catholic jurists, politicians and states “give their consent to such a ruling when there is question of entering and remaining in an international community?” (Ibid., IV, 133). As we already know, they can – although not on the basis of a human right to religious freedom, but rather on the basis of the hypothesis of the tolerance doctrine. Whether the condition of the hypothesis is verified in the concrete must be judged “[b]efore all else” by “the Catholic statesman”, who “will permit himself to be guided by weighing the dangerous consequences that stem from toleration against those from which the community of nations will be spared” (Ibid., V, 135). We should of course understand all statements made by Pius XII on the freedom of religious practice against the background of this systematically sharpened conception of tolerance: when, for example, he speaks in his Christmas message of 1942 of the fundamental personal rights “to maintain and develop [one’s] physical, intellectual. and moral life, and in particular the right to a religious training and education” (Pius XII. 1942)., he cannot mean against the

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background of the tolerance doctrine any basic human right to religious freedom. The doctrine of Pius XII may in many ways have meant a strengthening of the motif of human dignity and personal rights; but this does not apply to religious freedom. To see the address on tolerance that Pius XII gave as an important step in a systematic sense on the path to recognizing religious freedom does not appear obvious against this background, but is not entirely impossible. It is an attempt to react pragmatically to the changed political and social conditions, without altering the traditional doctrine. We may speak of a “shift of accent towards tolerance”, which is related to the fact that “tolerance is defined in a human way, and, with moral law, a universalizable norm is introduced as a criterion, a norm that is not developed from knowledge of faith alone” (Siebenrock 2009, 151). Shift to tolerance then means that the church, on the basis of the thesishypothesis conception, widened the scope for the practice of a religion that differed from what it considered to be the true religion. But we “cannot yet speak” of religious freedom when Pius XII stresses that “error has no right to exist” (Putz 1991, 115). In a sense, the 1953 address on tolerance is even an intensification of the tolerance doctrine, and thus a rejection of religious freedom as a human right.  Document of Transition during the Council – The Encyclical Pacem A in Terris by John XXIII In this respect, the step towards recognizing religious freedom as a human right that John XXIII took ten years later in Pacem in terris (PT) represents an even more conspicuous change in papal doctrine. In the human rights tract on “Order between men” (PT 8-27, John XXIII 1963), he first of all argues along the lines of both rational law and theology: because the human as a person is by nature endowed with intelligence and free will, he has inalienable “rights and duties, which together flow as a direct consequence from his nature” (PT 9). Considered theologically “from the standpoint of divine revelation” (PT 10), the dignity of man should be valued much more highly. He then immediately lists the natural rights and human rights in detail, beginning with the “right to live”, the “right to bodily integrity and to the means necessary for the proper development of life” (PT 11). In the quite extensive list of human rights that follows, religious freedom also appears as a human right without restriction or further ado, and that is with extensive recourse to Leo XIII’s Libertas praestantissimum (LP) and with massive anchoring in the tradition: 3.2.2

Also among man’s rights is that of being able to worship God in accordance with the right dictates of his own conscience, and to profess his

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religion both in private and in public. According to the clear teaching of Lactantius, “this is the very condition of our birth, that we render to the God who made us that just homage which is His due; that we acknowledge Him alone as God, and follow Him. It is from this ligature of piety, which binds us and joins us to God, that religion derives its name” Hence, too, … Pope Leo XIII declared that “true freedom, freedom worthy of the sons of God, is that freedom which most truly safeguards the dignity of the human person. It is stronger than any violence or injustice. Such is the freedom which has always been desired by the Church and which she holds most dear. It is the sort of freedom that the Apostles resolutely claimed for themselves. The apologists defended it in their writings; thousands of martyrs consecrated it with their blood”. PT 14

The line of reasoning is therefore structured in the following way: John XXIII avoids any reference to the Catholic doctrine of tolerance and instead places the question of the free exercise of religion in the context of human rights. He draws the line of continuity for recognizing religious freedom as a human right from statements in the tradition that claim that the free exercise of religion was always a central and often unrealizable concern for Christians. He also reinforces this with the semantics of freedom of the state doctrine of Leo XIII – which may well be impressive to read, but only if one is prepared to ignore the fact that it is precisely religious freedom that is not included in Leo’s statements. Since John XIII speaks of human rights and expressly (essentially, approvingly) refers to the Universal Declaration of Human Rights (PT 75), we can assume that he advocates both positive and negative religious freedom. The text does not mention negative religious freedom; that is, it neither expressly demands nor rejects it. However, since he views the Declaration of Human Rights positively, and precisely because it solemnly recognizes “the personal dignity of every human being” and asserts “everyone’s right to be free to seek out the truth” (PT 144), we certainly cannot argue that he rejects negative religious freedom. The encyclical is of central importance in the development of the recognition of religious freedom, even though it often falls under the shadow of the Council declaration Dignitatis humanae, as indeed it does in this study, too. Although Pacem in terris already belongs “to the textual genesis of [Dignitatis humanae] itself” (Siebenrock 2009, 151), it is nonetheless instructive in that we see the Pope – even if he relies on already existing statements on the question of religious freedom – clearly positioning himself in the Council’s dynamics; and not only inwardly, into the Council itself, but also outwardly, into the

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keenly watching public comprising all people of good will. This enormous church and political step on the part of John XXIII will have to be properly taken into account when assessing the shift of Catholic tolerance to religious freedom. The systematic point of being silent with regard to the doctrine of tolerance lies in the negation of the old distinction between thesis and hypothesis. Issues to do with freedom of religious practice are now no longer treated according to two yardsticks, but only by one: the human right to religious freedom. On the one hand, it is to a certain extent the case that only indirect mention is made of the religious freedom of members of other denominations or religions, in that the pursuit of religious freedom is presented as a Christian pursuit. On the other, though, human rights are mentioned without restriction or ambiguity, these rights of course applying to all people in fundamentally the same way, so that there is no room for the opinion that the right to religious freedom belongs in principle in different ways to members of different religious communities. In other words, proving the plausibility and legitimacy of religious freedom from a Christian perspective, John XXIII extends religious freedom to all people through its universally ethical definition as a human right. The fact that he at the same time leaves behind the old doctrine of tolerance points to the fact that this doctrine was much less suitable for a church doctrine that recognizes religious freedom as a human right than the state doctrine of Leo XIII or even older works in the tradition. Again, this does not suggest that the Catholic doctrine of tolerance is to be seen as a step in the systematic sense towards recognizing religious freedom. To put things a little more pointedly, we could say that the new papal doctrine on religious freedom as a human right appears more amenable to the tradition than the neo-scholastic doctrine of tolerance. This would be revealing because the question of continuity would then be quite different: the question would no longer be whether John XXIII and the Second Vatican Council mark a break in continuity in the question of religious freedom, but rather whether the neo-scholastic position does not in fact itself break with the continuity of the tradition. 3.3  Religious Freedom as Interpreted by the Second Vatican Council The position of the Catholic Church on religious freedom, which was developed at the Second Vatican Council, can be reconstructed essentially from two documents – namely, from Dignitatis humanae (DiH), of course, but also from Gaudium et spes (GS).

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In the pastoral constitution Gaudium et spes on the “Church in the modern world”, the Catholic Church positions itself in the modern world and acquires a new attitude to modernity. This attitude can be outlined from three points of view. (a) Recognition of the autonomy of earthly affairs: the church takes a position on the functional differentiation of social subsystems. This is relevant to the question of religious freedom since it also affects the relationship between the subsystems of religion and politics. The point of departure of the statements is therefore that “many of our contemporaries seem to fear that a closer bond between human activity and religion will work against the independence of men, of societies, or of the sciences” (GS 36 in Abbott/Gallagher 1966, 233). However, the statements remain quite ambivalent. First of all, it seems that the differentiation theorem is treated largely affirmatively, in that it is even aligned with a theology of creation. If by the autonomy of earthly affairs we mean that created things and societies themselves enjoy their own laws and values which must be gradually deciphered, put to use, and regulated by men, then it is entirely right to demand that autonomy. Such is not merely required by modern man, but harmonizes also with the will of the Creator. For by the very circumstance of their having been created, all things are endowed with their own stability, truth, goodness, proper laws and order. Man must respect these as he isolates them by the appropriate methods of the individual sciences or arts. GS 36, Ibid., 233-234

But this theological interpretation of functional differentiation is then sharpened in a way that is almost sufficient to counteract the positive statements about the autonomy of earthly affairs. But if the expression, the independence of temporal affairs, is taken to mean that created things do not depend on God, and that man can use them without any reference to their Creator, anyone who acknowledges God will see how false such a meaning is. For without the Creator the creature would disappear. For their part, however, all believers of whatever religion have always heard His revealing voice in the discourse of creatures. But when God is forgotten the creature itself grows unintelligible. GS 36, Ibid., 234

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If related to the sub-areas of religion and politics, then this second passage from the pastoral constitution could in a certain interpretation be understood without further ado as directly compatible with the state doctrine of Leo XIII – that is, as a rejection of the separation of religion and politics. That in a different interpretation it is also compatible with a separation of religion and politics, with the renouncement by the religious community of political claims to power, with human rights to religious freedom, is therefore at least not entirely clear (see Losinger 1989; see Kreutzer 2006). (b) Condemnation of discrimination on religious (and other) grounds: the Council condemns in Gaudium et spes discrimination on religious and other grounds. Actual equality between people does of course not exist, but “every type of discrimination, whether social or cultural, whether based on sex, race, color, social condition, language or religion, is to be overcome and eradicated as contrary to God’s intent” (GS 29, in Abbott/Gallagher 1966, 227-228). With a perhaps somewhat surprising air of self-evidentness, the Church church laments the fact that “fundamental personal rights are not yet being universally honored”, and cites as an example discrimination against women, who are “denied the right and freedom to choose a husband, to embrace a state of life or to acquire an education or cultural benefits equal to those recognized for men” (GS 29, Ibid., 228). Also when dealing with atheism, the church laments discrimination between believers and unbelievers, as well as “ignoring fundamental rights of the human person. The Church calls for the active liberty of believers to build up in this world God’s temple too” (GS 21, Ibid., 220). (c) Emphasizing the character of religious freedom as a fundamental right of the human person: the pastoral constitution links the centrality of the human person for all reflections on social-ethical questions and on the common good on the one hand with an emphasis on the importance of freedom for the dignity of the human on the other to a basis of argumentation in order to build upon it a strong support for the fundamental rights of all people. First, to the person: the social order and its development must unceasinglywork to the benefit of the human person if the disposition of affairs is to be subordinate to the personal realm and not contrariwise. GS 26, Ibid., 225

Second, to freedom:

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Only in freedom can man direct himself toward goodness. Our contemporaries make much of this freedom and pursue it eagerly; and rightly so, to be sure … For its part, authentic freedom is an exceptional sign of the divine image within man … Hence man’s dignity demands that he act according to a knowing and free choice. Such a choice is personally motivated and prompted from within It does not result under blind internal impulse nor from mere external pressure. GS 17, Ibid., 214

And finally, building on this, to the fundamental rights to freedom, including religious freedom: Therefore, there must be made available to all men everything necessary for leading a life truly human, such as food, clothing, and shelter; the right to choose a state of life freely and to found a family, the right to education, to employment, to a good reputation, to respect, to appropriate information, to activity in accord with the upright norm of one’s own conscience, to protection of privacy and rightful freedom even in matters religious too. GS 26, Ibid., 225

The simple fact that religious freedom is expressly mentioned as a fundamental right of man on the one hand, and that no mention is made of the doctrine of tolerance on the other, can lead to only one conclusion: that Gaudium et spes also performed the turn to recognizing religious freedom. Some formulations may be inexact or misleading, but it seems clear that in substance there was a turning away from the rejection of religious freedom associated with the neo-scholastic doctrine of tolerance. We could say that, with Gaudium et spes, the Catholic Church locates itself in the modern period, but that it does so hesitantly and not without reservations. It perceives as signs of the modern world “[p]rofound and rapid changes” that “are spreading by degrees around the whole world” (GS 4, Ibid., 202). “Thus, the human race has passed from a rather static concept of reality to a more dynamic, evolutionary one” (GS 5, Ibid., 204). This constant change is judged positively as being a feature of modernity, but reference is also made to its ambivalence. Whether the hesitation that characterizes the church’s rapprochement with modernity is due to the echo of the neo-scholastic epoch, or to a carefully nuanced evaluation of modernization in the sense of a dialectic of enlightenment (or to both) can be left open here. What is decisive for the question of religious freedom is that

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Gaudium et spes performed in essence the transition from the doctrine of tolerance to the human right to religious freedom. There is finally in Dignitatis humanae a comprehensive definition of religious freedom. The declaration … represents in the development of church doctrine a milestone, the significance of which can hardly be overstated. In it, new ground is gained for the doctrine of freedom and the right of the human person, of the tasks and powers of the state in religious matters, and of the relation of the legal with the moral order, ground that allows us to relinquish outdated and unsustainable positions of church doctrine, without questioning the claim to truth of the Catholic faith. Böckenförde 2007, 231

The enormously complicated process that led to the form of the text promulgated, and the different ways of looking at the content and meaning of the text, are discussed elsewhere in this volume. Here, we wish to provide a systematic outline of the notion of religious freedom that the Council Fathers struggled to develop, and that the Catholic Church found with the Second Vatican Council. That the motif of change plays a role for the Council Fathers is already apparent in the opening statements of the foreword, which explains the cause and intent of the declaration. Men and women of our time are becoming more conscious every day of the dignity of the human person. Increasing numbers demand that in acting they enjoy and make use of their own counsel and a responsible freedom, not impelled by coercion but moved by a sense of duty. They also demand that juridical limits be set to the public power, in order that the rightful freedom of persons and associations not be excessively restricted. This demand for freedom in human society is chiefly concerned with the goods of the human spirit, first of all those that concern the free exercise of religion in society. Carefully attending to these desires of men’s hearts, and proposing to declare to what degree they are in conformity with truth and justice, this Vatican Council searches the sacred tradition and teaching of the Church, from which it draws forth new things that are always in harmony with the old. DiH 1 in Schindler/Healy 2015, 3

The paragraph juxtaposes and correlates in a remarkably concise and precise manner the following points of view: first, the turn of the (modern) world to

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the dignity and freedom of the person; second, the special significance of the “free exercise of religion” in this context; third, the attitude of the church to these matters, with the ability of the Council always to extract from the tradition something new that is in harmony with the old being emphasized, as it were, programmatically. Untouched by the reflections on the question of religious freedom is still the question of the truth of the faith. The text separates the realm of theological reflection on truth from the realm of normative reflection on the human right to religious freedom, and thus, in effect, takes the decisive step towards the recognition of religious freedom – namely, by differentiating between questions of faith and legal questions, between religion and politics. On the one hand, “[w]e believe that this one true religion subsists in the Catholic and apostolic Church, to whom the Lord Jesus committed the task of spreading it among all people” (DiH 1, Ibid.). On the other, religious freedom, “which men and women demand in order to fulfill their duty to worship God concerns immunity from coercion in civil society”, and therefore “leaves intact the traditional Catholic teaching on the moral duty individuals and society have toward the true religion and the one Church of Christ” (DiH 1, Ibid., 5). Against the background of this separation, the Council then declares that the human person has a right to religious freedom. Such freedom consists in this, that all men and women should be immune from coercion on the part of individuals, social groups or any human power, so that no one is forced to act against his conscience in religious matters, or prevented from acting according to his conscience, in private or in public, whether alone or in association with others, within due limits. In addition, this Council declares that the right to religious freedom has its foundation in the very dignity of the human person, as known from both the revealed word of God and reason itself. This right of the human person to religious freedom must be acknowledged in the juridical order of society, so that it becomes a civil right. DiH 2, Ibid.

However, legal freedom is then immediately tied to the moral obligation to seek the truth, and above all the truth regarding religion. Both are grounded in the dignity of the human person – both the right to religious freedom and the obligation to seek the truth and to order one’s life according to the truth. It is precisely because it is the moral obligation of man above all to search for and to live according to the religious truth that he must be granted and guaranteed freedom. For people cannot discharge these obligations,

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unless they enjoy psychological freedom as well as immunity from external coercion. The right to religious freedom does not have its foundation in the subjective disposition of the person, therefore, but rather in his very nature. Consequently, the right to this immunity persists even for those who do not satisfy their obligation to seek the truth and to hold fast to it; the exercise of this right is not to be impeded, provided that just public order is preserved. DiH 2, Ibid., 7

Overall, the declaration builds a complex line of reasoning; that is, it does not focus on one argument, but combines several arguments at different levels. At least two levels can be distinguished: namely, a level of primary arguments justifying the human right to religious freedom, and a level of secondary arguments confirming, supporting and reinforcing religious freedom. We can distinguish two arguments regarding the justification of a general right to religious freedom: namely, an argument based on modern natural law or rational law, and – subordinate to this – a theological argument. Particularly noteworthy is the argument based on rational law, which anchors religious freedom in the sense of a liberal natural law in the reason and free will of the human person. This pre-positive right of the human person “to religious freedom must be acknowledged in the juridical order of society, so that it becomes a civil right” (DiH 2, Ibid., 5). With this “Copernican shift” from the right of truth to the right of the person, the church places the issue of dealing with different religious convictions “on new ground, based on the legal freedom of the human person” (Böckenförde 2007, 235; in more detail, see 4.4 below). Persons are human beings insofar as they are “endowed with reason and free will and therefore privileged with personal responsibility” (DiH 2 in Schindler/ Healy 2015, 5). The right to religious freedom is founded on the “dignity” of the human person, anchored in the “nature” of the person, and is therefore not merely a positive, but a natural, right of all people (see Böckenförde 2007, 231). This rational justification of religious freedom undergoes a certain anthropological extension in that reference is made to the “social nature” of man, a nature that “demands that he express these interior religious acts externally, participating with others in religious matters and professing his religion in a communal way” (DiH 3 in Schindler/Healy 2015, 9). The second argument is theological. It is on the one hand subordinated to the philosophical argument (which recognizes that “the right of man to religious freedom [has its] foundation in the dignity of the person”), and on the other emphasizes that “this teaching on freedom has its roots in divine revelation, and for this reason must be observed by Christians all the more

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faithfully” (DiH 9, Ibid., 17). While the declaration can in the first part connect to the philosophical tradition, to a moral philosophy that foregrounds human reason, and to the historical propagation of the idea of human dignity and of human rights, it overcomes in the second part the challenge of confirming religious freedom from its own theological perspective. It is a challenge because the books of Holy Scripture were written in a period of history when there was still no human right to religious freedom as a universal right of freedom, and because its own doctrinal development had until quite recently decisively rejected this right. “The crucial insights set forth in the first part of the declaration were accrued by the church from others, and not least from its (‘apparent’) adversaries” (Siebenrock 2009, 185). But if these “crucial insights” could not also be justified and explained from its own tradition, then they remained fundamentally alien or “external” to the doctrine of the church, and mere “pragmatics or even opportunism” (Ibid., 185-186). For this reason, too, is the question important as to whether the recognition of religious freedom marks a break or a line of continuity in the doctrine of the Catholic Church. Precisely because the [Council] Fathers did not make things easy for themselves, we can see today that in these articles there comes into play a new relationship barely fully exploited in the reception of the Council between philosophy and theology, between thought, (historical) experience and interpretation of revelation. The second part of [DiH] is a concrete example of the call of the pastoral constitution to interpret the signs of the times in the light of the Gospel [GS 4]. Ibid., 186

The declaration refers back in a general way to the Holy Scripture by claiming that the roots of the doctrine on religious freedom lie in divine revelation (DiH 9; see above). “A relevant explicit doctrine” can of course not be found in the Scripture. “But how is the right to religious freedom then ‘rooted in it’?” (Siebenrock 2009, 187) A particular hermeneutic perspective is required. The Scripture explains the conditions of the doctrine on religious freedom on the one hand through its theological anthropology, i.e., through the way that it judges interpersonal relationships based on the relationship of man to God. On the other hand, the Scripture remains open in its various lines of argument if it is not interpreted within itself. The hermeneutic key is the Christological and apostolic unity of action with its implications … The two lines of reasoning – the person’s consciousness

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of freedom and divine law or supernatural order – are connected together in the behaviour and actions of Christ. Ibid.

Thus, the question of scripturality that is raised by this reconstruction of the roots of religious freedom, and that was therefore the object of fierce debate at the Council (see Pavan 1967a, 734), cannot be clarified with exegetical evidence of support for religious freedom in the Bible. Therefore, “individual quotations from Scripture are not weighed and interpreted against each other”. Rather, the origin of the Christian faith is hermeneutically reconstructed on the basis of New Testament findings in order to “evaluate the intricate lines of tradition in the history of the church in the transformation of the traditional understanding of faith from its origins in the lived apostolic witness of the Scripture” (Siebenrock 2010, 30). This means that the Council declaration develops a theology of freedom (especially DiH 9 and 10) whose roots it then shows as lying in the Holy Scripture (especially DiH 11). Theologically, it is about the offer of salvation of God to which man must orientate himself; but he cannot be forced to accept the offer of salvation, for doing so is a free act of faith. “God’s call reaches people in the claim of truth and therefore as an obligation to the conscience, but not as (external) coercion. God respects in his own actions the dignity of his creature, which he absolutely wanted as an entity of freedom” (Siebenrock 2009, 189). God calls men and women to serve him in spirit and in truth, so thatthey are bound in conscience but are not coerced. For he has regard for the dignity of the human person whom he himself created, who should be led by his own counsel and enjoy his own freedom … [Christ] did not want to be a political Messiah or to rule by force … he bore witness to the truth, yetrefused to impose it by force on those who contradicted it … Taught by Christ’s word and example, the Apostles followed the same way. DiH 11 in Schindler/Healy 2012, 17-19

Viewed “from the outside” (that is, from a non-church or non-theological perspective), the first – philosophical – argument will probably be the more convincing and important, since the church thereby declares its assent to modern rights of freedom and to their normative foundations. However, the second – theological – argument may be especially important for debates within the church and for theological discussion, as well as for how the Catholic Church

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and Catholic theology understands itself. For, it is only “when the foreign truth can be recognized as the claim of the Gospel that it will determine normatively the action of the community in the long run” (Siebenrock 2010, 30). Since Jesus Christ acted and died in a way that has been handed down to us in the Gospel, the church could, indeed had to, arrive at the declaration on religious freedom. But doing so also excluded for good the opposite action from the possibilities of the church. Ibid., 32

These philosophical and theological arguments of justification are joined by supplementary or supporting arguments. One such argument refers to the continuity of church doctrine, or the conformity of the declaration on religious freedom with the tradition. One might criticize this reference to tradition as misplaced or as too undifferentiated, since here “the Council declaration really does offer something new and different from what may be found, for example, in the pronouncements of Pius IX or even of Pius XII” (Ratzinger 1966, 24). However, this view disregards the fact that the reference to tradition can be interpreted as a line of continuity from the Holy Scripture, through the Church Fathers, medieval theology and Christian philosophy, as well as late scholasticism, right up to the Second Vatican Council – that therefore the epoch of neo-scholasticism (and not the Second Vatican Council) has problems connecting with the tradition; for it is precisely to the relevant doctrine of this part of the tradition (namely, the thesis-hypothesis doctrine of tolerance) that the Council declaration does not refer. In this respect, the Council certainly does bring forth “something new” from the sacred tradition, something that “is in harmony with the old” – with the declared intention “to develop the teaching of the recent popes on the inviolable rights of the human person and the juridical order of society” (DiH 1 in Schindler/Healy 2015, 5). Although the doctrine of tolerance plays no role in the declaration on religious freedom, reference to the common good does form another additional argument. The very fact that the common good is no longer the decisive criterion for addressing the issue of different religious convictions, but is systematically subordinated to religious freedom as a right of freedom, is the hallmark of a normative modernization. But the prerequisite for this is that the concept of the common good also undergoes a “modern” interpretation, one that foregrounds the realization of the freedom of the individual person – that is, an interpretation that is now liberal. “[T]he common good of of society consists in the sum of those conditions of social life by which men can pursue their

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own perfection more fully and with greater ease.” (DiH 6 in Schindler/Healy 2015, 11.). The social realization of the foundations and scope for personal perfection and freedom – to which religious orientation and religious freedom also certainly belong – is now itself the decisive criterion of the common good. A retrospective reading of Dignitatis humanae also shows that the Catholic doctrine of tolerance was hardly a step on the path to the recognition of a general right to religious freedom, but rather an alternative to it. Following from, and in continuity with, the doctrine of tolerance, the Council could have argued for religious freedom as a positive right, and not as a natural right or as a pre-positive right (see Pavan 1967b, 168-169). The bearers of the right to religious freedom are in principle primarily individuals, and secondarily religious communities; the right to religious freedom is enjoyed by both natural and legal persons. In the “modern” interpretation of the Council, rights can “not directly and formally contain spiritual values, such as truth, the moral good, or justice”, but are rights of persons, “whether physical or legal persons”. Herein lies the “shift from the right of truth to the right of the person” (Ibid., 169). The notion of religious freedom in Dignitatis humanae of course also explicitly includes negative religious freedom; that is, freedom from religious compulsion. As explained above, Pacem in terris did not expressly mention this negative aspect of religious freedom. It is closely related to the “autonomy of earthly affairs” (GS 36 in Abbott/Gallagher 1966, 233); that is, to the differentiation above all of politics and religion. In this respect, the emphasis on negative religious freedom represents primarily the church’s abandonment of the idea of a “Catholic state” – that is, a connection between religion and politics – even where and even if the possibility of such a connection should arise historically. 3.4 Summary With Dignitatis humanae, the Catholic Church fully subscribes to a notion of religious freedom that is compatible with the liberal political philosophy of modernity and with the ethos of human rights. At the same time, it develops a figure of justification based on liberation theology, whose “roots” are located in the message of the Holy Scripture or the message of Jesus Christ. The declaration sees this position in the continuity of the tradition. Here, older elements of the tradition (Church Fathers) serve as the main source of

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evidence, while the doctrine of the “newer popes” as a “continuation” of the tradition is presented as wanting, or – in the case of the Catholic doctrine of tolerance undoubtedly relevant to the issue – is simply ignored. The recognition of religious freedom as a negative right of freedom and a positive right to practise religion is in a close systematic relationship with the recognition of the autonomy of earthly affairs in society and with a “modernized” notion of the common good. In this respect, Dignitatis humanae – to some extent flanked and probably also forced by the encyclical Pacem in terris of John XXIII – represents not only a change regarding the issue of religious freedom, but also a further fundamental convergence of the church’s social ethics with the contemporary standards of sociology and liberal political philosophy. The reflections on the concept of religious freedom have shown, however, that even an interpretation of religious freedom that is firmly anchored politically and philosophically in the normative project of modernity can have very different shadings and purviews. Numerous examples of contemporary debates on the “interpretation” of religious freedom in the secular constitutional state illustrate that, in addition to positive law, cultural and historical conditions must also always be taken into account in order to determine within the framework of societal and political processes of agreement which practices fall into the catchment area of the human right to religious freedom, and which do not. In this respect, recourse to the concept of tolerance may not be completely obsolete, as long as it is linked to a fundamental recognition of religious freedom as a human right. However, the particular Catholic doctrine of tolerance, as developed in the decades before the Second Vatican Council and promulgated and defended until well into the 1950s, is certainly incompatible with religious freedom. Rather, it clearly serves a calculation of interests by the church on the one hand, and clearly contradicts a general human right to religious freedom on the other. The fact that the church no longer refers to its doctrine of tolerance in the texts of the Second Vatican Council may be due to this contradiction. Since both arguments – the doctrine of tolerance before and the recognition of religious freedom since the Second Vatican Council – are directed at the same facts (namely, at the issue of the constitutional relationship between religion and politics), the texts of the Council, and in particular Dignitatis humanae, mark a clear normative reorientation in the church’s state doctrine.

chapter 4

Continuity – Change – Break?

Attempts at Explaining the Path Taken by Catholicism to Recognizing Religious Freedom The path taken by the Catholic Church to recognizing religious freedom has been studied from different perspectives in the five decades since the end of the Second Vatican Council. Here, we will provide an overview of different attempts at interpretation. The criterion for selecting the following positions is that each represents a kind of model or “paradigm” for interpreting the path leading to religious freedom. Arthur F. Utz argues that the magisterium can over the centuries simply not err because it is, so to speak, merged with the tradition. There can therefore also be no correction of doctrine, at least not when it comes to fundamental issues. Thus, Utz does not contrast two positions – before and after the recognition of religious freedom – in order then to arrive at an evaluation; rather, he begins with the premise that there is continuity, which is present in the texts. This premise is only implicit (if at all) in the position taken by Walter Kasper, who makes a distinction that is widespread between a theological and a constitutional manner of speaking; for Kasper, the theological significance of religious freedom should be strictly distinguished from its constitutional significance, and he argues that it is precisely this distinction that is key to a proper understanding of religious freedom. In contrast, Rudolf Uertz emphasizes that there is a systematic contradiction between pre-conciliar state doctrine and the doctrine of the Council, and he does so by taking up the distinction between the right of truth and the right of the person, and diagnosing the transition from the one to the other as a personal-ethical change. Thus, for Uertz, the question is not simply about different things being spoken about before and after the Council, and nor is it about different language games. Rather, it is about a fundamental normative reorientation. Finally, Ernst-Wolfgang Böckenförde sees a clear break, and observes a clear contradiction between the statements of the pre-conciliar state doctrine and those of the Council. The transition from the one to the other should therefore, for Böckenförde, be characterized as a “Copernican revolution”.

© Verlag Ferdinand Schöningh, 2019 | doi:10.30965/9783657789009_006

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We are concerned in the following not simply with presenting the range of possible interpretations from continuity to change and finally to break, but rather with discussing different ways of arguing from different perspectives. Doing so shows the extent to which the approach to phenomena such as the Catholic Church’s recognition of religious freedom also depends on the contexts in which the approach takes place, and how strongly the approach is formed or shaped by the respective discourses (such as the theological or church-political, the politological or jurisprudential). 4.1 Strict Continuity of Church Doctrine as a Theological Prerequisite: Arthur Fridolin Utz’s Thesis 4.1.1 Preliminary Remarks Arthur Fridolin Utz presents a position that on the one hand starts from a certain theological presupposition, and on the other politicizes the issue of the doctrinal development of the Catholic Church. Utz’s theological presupposition consists in his claim that the church always teaches the truth, which means that its doctrine cannot change substantially, or at least not in the sense that two contradictory statements can coexist in the course of doctrinal development. Utz’s politicization of the issue occurs through his assignment of statements and claims that contradict this theological presupposition to “leftist writers” (Utz 1965, 13). While Utz’s tendency towards politicization is no proof of academic honesty, and is a background phenomenon related to its time and context that we will not investigate further here, the theological presupposition of doctrinal continuity is a point of view that leads to a question that is central to what happened at the Council and to the recognition of religious freedom. This is true not least because doctrinal continuity was a major challenge for the Council Fathers, since they of course did not want to, and indeed could not, deviate with their decisions from the doctrinal truth. It does not matter for the relevance of the claim of doctrinal continuity in the question of how the Catholic Church came to embrace religious freedom whether this position is understandable from today’s perspective, or from a perspective that is not so shaped by how the Catholic Church understands itself as always teaching the truth. The only decisive factor is the fact that this theological presupposition was (or is) characteristic of the Catholic Church’s self-understanding. The development of the church’s doctrine from rejecting to recognizing religious freedom only becomes such a startling phenomenon because the claim of doctrinal continuity exists. We can put aside here the issue of the different status of the documents, or the fact that

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the encyclicals rejecting religious freedom, other human rights and democracy lack the status of infallibility (see Sebott 2013). Utz does mention that “the identification of church and state” never “belonged to Catholic dogma” (Utz 2000, 147); but he also does not argue that, although Popes Gregory XVI, Pius IX, Leo XIII and Pius XII erred, their statements are not to be understood as infallible and binding statements made by the magisterium (see also Sebott 2013). Rather, he defends the claim of continuity between these statements and those of the Second Vatican Council in Dignitatis humanae. The position taken by Utz therefore opens up – as a thesis of strict doctrinal continuity – the spectrum of interpretations of doctrinal development, which then ends with Böckenförde and his thesis of a radical or substantial break in the doctrine of the church.1 4.1.2 The Theological Claim of Doctrinal Continuity: “Viewed Theologically, a Substantial Change is Precluded from the Outset” Utz makes fundamentally clear that whoever interprets “the declaration on religious freedom in a sense other than that of the tradition” becomes lost in the notion that “it is some secular document or other” (Utz 2013, 150;). For Utz, such a secular document could “be interpreted according to the visible causalities, … according to the statements of the various Council members, or even according to the ideas of the modern world”. But, he argues, the Council’s declaration is not such a secular document, but is instead part of the development of dogma. Therefore, “viewed theologically, a substantial change is precluded from the outset” (Ibid.). Rather, there is a “continuous development from the implicit to the explicit” – that is, “a pure unfolding … of something that was always present in the faith” (Ibid.). Even those passages unequivocally documenting the recognition of rights of freedom or of human rights in the Council declaration on religious freedom or the encyclical Pacem in terris2 are therefore nothing more than an explication of views that had always been present in the church’s doctrine, but had not yet been articulated in such a way. For Utz, the reaction shown by Archbishop Lefebvre is therefore incomprehensible, 1  Ernst-Wolfgang Böckenförde also of course belonged to the left-wing writers, in that he interpreted the doctrinal development quite differently – namely, as a break or “Copernican revolution”, since he identified two contradictory positions in the doctrine of the church (on this, see section 4.4 below). Utz’s sharp criticism of the fact that Böckenförde, of all people, was allowed to write the introduction to the translation of Dignitatis humanae that was commissioned by the German bishops should be understood against this politicized background, This, Utz says, “should be seen as a scandal” (see Utz 2000, 146 fn. 8). This will be discussed again in section 4.4, where we present the reverse, i.e., Böckenförde’s, perspective. 2  See the argumentation in relation to the encyclical Pacem in terris in Utz 1965, esp. 13-18.

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since, in the latter’s perception that the Council deviated from the tradition in certain points, he “confuses the one-sided and erroneous interpretation of some theologians and jurists with the authentic purpose of the Council” (Utz 2013, 150).3 The Council by no means took “ownership of current legal thinking in its entirety”, but instead acknowledged the “attempt of today’s world to recognize in the entire social life the rights of the person and above all the right to the free choice of religion”, in order then to take “these facts” as an opportunity “to question the tradition, and how it judges and, in certain circumstances, affirms modern thought” (Ibid., 149). Thus, the deposit of faith of the church remains substantially unchanged, but is related differently to the challenges of each respective period. Recognizing religious freedom therefore does not relate approvingly to some secular philosophy of human rights. “If a papal proclamation or a Council adopts from the codices of modern legal thought notions such as that of human rights, then we should investigate carefully whether the philosophy from which these notions originate is also adopted” (Ibid., 148). And, for Utz, we can indeed not assume that the Council links the recognition of human rights with the “rationalistic doctrine of natural law from which the UN Declaration of Human Rights originates” (Ibid.). There is in the history of the church “not one single council” that has broken away from the tradition; and precisely those dogmas that give the “appearance of being something completely new” were “explicated with great effort from the dogmatic body of thought of the tradition” – as examples, Utz selects the dogmas of the Immaculate Conception (see Utz 1965, 13) and the Assumption of Mary (see Utz 2013, 148-149). Even though the Council “takes note of” human rights, and in particular of the human right to religious freedom, this does not mean for Utz that “it wants to take ownership of current legal thinking in its entirety” (Ibid., 149. Utz’s position is highly controversial because it leaves room for the claim that the church does not in actual fact recognize rights of freedom unconditionally. It is in obvious tension both with the text that John C. Murray brought into the Council discussion (see e.g., Murray 1963a and 1.4 above), and with the relevant relatio of Bishop De Smedt (see 1.3 and 1.4 above). Not least, Utz’s 3  See also Utz 2000, 146-148; this comment is interesting insofar as it alludes to the fact that the discontinuity thesis exists in two variants: on the one hand, the recognition of religious freedom is criticized as a break with tradition (for example, by Lefebvre and his followers in the Society of St Pius X); and, on the other, it is valued very highly as a break in the sense of its overcoming a previous erroneous path (for example, by E.-W. Böckenförde; see 4.4 below). But the thesis suggested here by Utz that the traditionalists were misled by the “left-wing writers”, as Utz calls them, and that the Pius brotherhood is therefore a kind of product of left-wing disinformation, seems as original as it is daring.

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position also obviously contradicts the declaration on religious freedom itself, which, as our reflections on the notion of religious freedom in Dignitatis humanae have shown, certainly create, besides a theological argument, clear and direct references to the political philosophy of modernity. However, Utz interprets the Council’s declaration differently by developing a two-stage interpretation of natural law for his social ethics in general as well as for his line of reasoning on religious freedom in particular, and then relating this interpretation to the line of reasoning used in Dignitatis humanae. We will outline this interpretation of natural law below.  wo-stage Conception of Natural Law and the Notion of the Common T Good Utz claims that his social ethics allow him to “enter into conversation with every thinking person, without requiring that person to have the same religious conviction” (Utz 1964, IV). He therefore affirms that, “as much as I hope that my thoughts agree with the Christian principles of society, they do not borrow from theological views or from views bound to belief” (Ibid.). In another sense, a sense that exceeds papal proclamation, Utz’s social ethics are a classic work in the Catholic doctrine of natural law. Characteristic of this doctrine in the period of neo-scholastic anti-modernism in the 19th century and in the first two thirds of the 20th century is a manner of arguing that draws strongly on pre-modern authors (particularly Thomas Aquinas) and on pre-modern motifs of natural law. This is also the case with Utz, even though he certainly brings into play with the motif of human reason a motif developed in modern political philosophy. However, in his comprehensive tract on principles in particular (see Utz 1964), there is in the background a nature that is fundamentally unavailable, a nature that is to be identified by human reason and transformed into intentions to act and options to shape the world. Utz differentiates between the “law of nature as a spontaneous option for absolute values” on the one hand, and the “right of nature as the nature of matter” (Utz 1964, 97-98) on the other. By the law of nature, Utz understands, roughly, abstract principles with unconditional validity; by the right of nature, the concrete rules into which are poured the abstract principles with respect to the social reality, and in such a way “that they form [an] effective order of peace without appeal having to be made to human force” (Ibid., 98). Utz understands the law of nature in what he calls a “legal” sense as the sum of those “legal principles … that practical reason expresses spontaneously (= in a ‘natural’, i.e., unlearnt, way) as a demand, or should express spontaneously by virtue of its natural disposition” (Ibid., 97). It is therefore not only the “legal principles” that are addressed that “actually are spontaneously expressed, but in general all those that, according 4.1.3

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to the natural disposition of our practical reason, can be expressed spontaneously” (Ibid.). Thus, justice is “a demand on which all agree. It therefore belongs to the actual spontaneous social value judgments” (Ibid.). That this view of a law of nature must lead to difficulties of justification is obvious: what happens if what is deemed to conform to the law of nature does in actual fact not conform to the law of nature? How do we know if and when what we deem to conform to the law of nature does conform to the law of nature? What protects us against temporally conditioned and culturally indexed appropriations of “nature” for our personal or collective beliefs? Utz’s examples reinforce our doubts as to the plausibility of his conception: “If we delve into the depths of the value of man and woman as individuals, then the only gender partnership that can be demanded between them is that of monogamy” (Ibid., 97-98). Utz sees of course that this example lacks the general spontaneous insight: “But it must be spontaneous” (Ibid.). But he adheres to the argument that in a law of nature – such as in that of monogamy or in that “of coexistence, a valid, i.e., effective, order of peace must prevail” – an experience can be ascertained that “is based on the nature of practical reason”. It is therefore necessary, for Utz, to seek practical reason “with subtle intuition” (Ibid., 98). But when, for instance, Utz delves “into the depths of the value of man and woman as individuals”, then he clearly constructs in his examples a trans-temporal law of nature from a particular horizon of values. The law of nature becomes concrete in the right of nature, becoming an “effective social goal, i.e., right, in the complete sense”; to this end, “the principles of order of the law of nature need to be confronted by social reality” (Ibid.). This confrontation takes place in the debate with the sciences specialized in social, economic, legal, and medical, etc., questions. Thus, the social-ethical demand to reduce unemployment works together with the “economic facts” to form “what should be legally denoted as the ‘nature of the thing’. Only then, providing that the nature of the thing becomes an effective social norm, does the right of nature exist” (Ibid., 99). The right of nature therefore has the character of a method “with regard to the purposes of the law of nature” (Ibid.). The right of nature also raises the question of its recognition, and especially so since views on eliminating unemployment (to remain with this example) are very diverse in the economic sciences. This leads either to an arbitrary imposition of “the correct right of nature”; or to a certainty as to which of the many paths is expedient to achieve a peaceful society, an economy oriented to the common good, and socially equitable relations; or to the admission of a discursive plurality of different options and methods of resolution – and of course

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the latter is precisely what Utz does not have in mind. Here is not the place for a detailed examination of Utz’s conception of the right of nature; important for understanding Utz’s line of reasoning when it comes to the development of doctrine towards religious freedom is his staggered understanding of the law of nature and the right of nature: The right of nature is … the concrete principle of social order that, in accordance with the existing, comprehensively understood (material and moral) sociological conditions, ensures the best possible realization of the absolute requirement of justice (i.e., of the law of nature in the sense of the social values naturally and spontaneously expressible by practical reason). Ibid., 100

It thus becomes clear that practical reason is also understood as being closely connected to the perception of human nature (see Utz 1964, 103-126), or of the law of nature and the rights of nature that can be reconstructed from it. It is not primarily a matter of accomplishing human freedom, but rather of the appropriate response of the conscience to the natural order of being, even though of course the importance of the individual person is emphasized (see Ibid., 315-321). This finds particular expression in the systematic privileging of the common good over the individual good in Utz’s “personalism”.4 Thus, under the heading “The first and highest norm of a Christian personalism: the 4  See, for example, Utz 1964, 322-328. Noteworthy is the tension between this conception of personalism and the personalism outlined below in the section on Rudolph Uertz’s thesis; while this personalism, which Uertz regards as decisive for the step towards the recognition of religious freedom, has its starting-point in human freedom, autonomy and self-determination, Utz embeds human freedom in the order of nature or in the order of creation, which can be recognized through reason. The task of social ethics is therefore not to check the legitimacy of a political common good against the criterion of the voluntary compliance of individuals, but to investigate “whether the common good has been shaped by the creator of nature or by people in free accord” (Ibid., 332). In the one case, Utz speaks of a natural, and in the other case of a free, association or community (Ibid.). “The social ethicist” can, for example, “recognize in marriage only a natural community, not primarily because it corresponds to the inner urge of the human, but because its common good is a task withdrawn from the free intervention of the human and applied to the married partners by the creator of nature. Needless to say, the human, as a rational being, gains the knowledge of this task from the natural definition of objectives. Thus, the natural impulses are also examined in the social-ethical view – namely, to ascertain whether or not there is a common good prescribed by nature” (Ibid.).

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paramount position of the personal common good”, Utz emphasizes that “it is a matter of course for ethical thinking” that every action directed to the common good necessarily means a perfection for the agent of the action himself or herself. If therefore the individual person strives for the common good as a high good, then the person does not doubt for a moment that he or she, precisely as a moral being, will find his or her perfection within it. If now, and this is the logical consequence, the common good means a paramount good compared to the individual good, then one will never be able to say that the personal comes before the collective. But it is not at all about the idea of “individual” and “many”, but rather about the weighing-up of two goods, which should be the object of the moral action of every person. Utz 1964, 322

It is overall about an ethics that can reconstruct the common good as a good based on the law of nature, and that can then relate this understanding to the action of individuals and as a social-ethical orientation for the shaping of societies or political communities. Here, the common good “certainly comes before the individual good”; if the “human as person is part of the whole, then the whole comes before the person, not the person before the whole” (Ibid., 323). For Utz, this is “the highest level of social thinking in accordance with transtemporal Christian personalism”, a “mode of seeing that begins from above, from the universal (not only in the logical sense, but in the sense of the analogy of being; here, in the sense of the analogy of the good), and descends into the individual and isolated” (Ibid.). This social-ethical conception – and, as already said, irrespective initially of the question of whether we consider it plausible or not – is fundamental for understanding Utz’s position in relation to the change in the church’s position on religious freedom. At the outset of all reflections in this “line of reasoning based on the right of nature is the all-encompassing common good as the highest norm of every activity and institution” (Utz 2000, 139). A trans-temporal law of nature is as it were related to given political and social conditions as an act of realizing the common good; the common good is normatively prescribed and precedes the individual good and human freedoms. This typically ethical mode of seeing must always remain the leitmotif in all social-philosophical conclusions. It is in fact not forgotten in

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present-day personalism, insofar as personalism, with all its emphasis on the value of the individual, makes the caveat: within the properly understood common good. Utz 1964, 323

4.1.4 Distinction between Freedom of Conscience and Religious Freedom Besides these reflections on natural law, which are philosophical in a broader sense, Utz also uses a theological line of reasoning in that he distinguishes between religious freedom and freedom of conscience. The two lines of reasoning overlap, though, and they do so in the notion of nature. It is “in human nature” that the person, as creature of God, has the “need to know God” (Utz 2013, 152). The search for God, as well as the acceptance of revelation, are “possible only with the help of the conscience”, with the conscience being “the natural regulator of our actions” (Ibid., 153). Since in actions our practical reason is based on the truth, i.e., appropriateness of being, it always reacts warningly and rebelliously when we make a decision in which we follow more the passions than the truth of being. It is therefore possible to call the conscience the natural mode of reaction of our reason with regard to a decision to be taken or already taken by the will. Therefore, the conscience is in essence not free. But it presupposes the freedom of the will, since otherwise it would resemble the instinct of animals. Ibid.

The conscience can therefore not be equated with freedom, but is a “natural and spontaneous expression of our practical reason, which for its part is by nature aligned with being” or “with the perfection of being of the person” (Ibid.) It does not become entirely clear to what extent this notion of freedom of conscience is also identified by Utz in Dignitatis humanae (see Ibid.; see Utz 1964, 325-327). He assumes in any case that decisions of conscience must always be based on the “ultimate goal” of the perfection of being. Consequently, a law “conforming to the conscience of the person” must “always be oriented to this goal”. “Otherwise, the conscience can and may disobey the legal order. In this sense, the common notion of freedom of conscience, which the Council declaration is also concerned with, is valid” (Utz 2013, 153). This obligation of the conscience to verify a law with regard to the ultimate goal of the perfection of being “also applies with regard to a positive law of God”, but is in this case realized through grace.

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This is the situation that God himself created in the creation of the human being. Once the human has accepted the revelation (that is, is already under the spell of grace), then submission to the new law should no longer cause any problems. He receives the “proof of credibility” in an ultimate way through the grace of faith. Ibid., 154

In this understanding, the correct knowledge of the law of God, and therefore the correct decision of conscience with regard to questions of religious truth, is of course not an act of freedom on the part of an autonomous subject, but rather grace given by God. Apart from the fundamental questions regarding the notion of freedom raised by this conception, it is obvious that this understanding of freedom of conscience differs from that of religious freedom. For, while the person who has received the grace of faith is obliged to obey this grace, this is of course not true for the person who has not received the grace of faith. In this case, and at a completely different level than freedom of conscience, it is religious freedom that applies. Anyone who has not yet come to the Christian faith has the right to configure his or her religious life according to his or her conscience. This “right” has always been recognized by the church … We should again emphasize: this has always been church doctrine. From this point of view, we can therefore not in any way talk in terms of a turn … There is no formal mention here [i.e., in Dignitatis humanae] of the person who has already accepted the Catholic faith, since with this acceptance he or she has convinced himself or herself of the truth to which, according to the Council, he or she is obliged to adhere. However, the church is clearly willing to adopt the language used by pluralistic society and to allow at the level of civil law (!) Catholics to be counted among those searching. Ibid., 1575

With this distinction, Utz is criticizing the identification of freedom of conscience and freedom of belief in modern constitutional law, “since the constitutional notion of freedom of belief makes no distinction between true and 5  The word right is in quotation marks here, not to suggest that it is not in a formal sense about a right; see Utz 2013, 157: “This means that, with regard to those who have never belonged to the church, we must speak not so much of tolerance as of the recognition of a right”. Rather, in Utz’s view, the possibility of remaining in the wrong faith may be a fatal right, since it keeps people from the truth.

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false belief” (Utz 2000, 144). But, with regard to the Catholic Church’s recognition of religious freedom, this distinction between freedom of conscience and religious freedom,6 and its application to the relevant documents before and after the recognition of religious freedom, contradicts the textual findings. For one, Dignitatis humanae clearly grounds religious freedom in the dignity of the person when it states that “the right to religious freedom has its foundation in the very dignity of the human person, as known from both the revealed word of God and by reason itself” (DiH 2 in Schindler/Healy 2015, 5). Between the human dignity, reason and freedom of will of the person on the one hand, and the basic right to religious freedom positivized at the level of civil law on the other, a correlation of justifications is established: since the person is free in the sense of having freedom of will, he or she must also in line with religious freedom be free in an actual political community to practise the religion that he or she has chosen. The “right of the human person to religious freedom” that is grounded in human dignity “must be acknowledged in the juridical order of society, so that it becomes a civil right” (Ibid.). Moreover, the popes of neo-scholasticism clearly rejected the right to religious freedom “at the level of civil rights”, however much we read the relevant documents under the conditions of the time or in their historical contexts. Thus, Pius IX, for example, condemns “that erroneous opinion, most fatal in its effects on the Catholic Church and the salvation of souls”, an opinion already called by Gregory XVI “an ‘insanity’”: namely, the opinion that “liberty of conscience and worship is each man’s personal right, which ought to be legally proclaimed and asserted in every rightly constituted society” (QC 54).7 While in Utz’s view freedom of conscience is the theologically relevant access to the truth, religious freedom is clearly somehow a secondary political issue. There may well have been a “turn” at this subordinate level (see Utz 1964, 325), but such a turn can only be traced back to historical changes, and not to a substantial or indeed dogmatic “turn” on the part of the church. Since the “purely political situation” changed from the Middle Ages to the modern 6  See also Utz 2000, 141, where freedom of conscience and the relationship between freedom of conscience and religious freedom are stressed differently: “Religious freedom has its roots in freedom of conscience. Freedom of conscience means nothing other than that no person may be forced to an action that his conscience forbids him. The judgment of conscience must be distinguished from the action which it promotes. It is merely the expression of responsibility for an action, i.e., the personal control authority for any free action. Faith is the personal decision for the supreme value of a person’s own life and, as such, a highly inward affair of the human. Under this view, religious freedom enjoys the privilege of freedom of conscience. This means that the adoption of a certain faith must be protected against any intervention on the part of any other, be it a fellow human being or the state”. 7  Pius IX, Quanta cura, quoted from Gabriel/Spiess/Winkler (2013), 54.

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era, the church had to connect with this change and perform “not a dogmatic turn, but a political one” (Ibid.). The level of freedom of conscience is concerned with the relationship to God, and ultimately therefore with salvation and redemption. In this sense, Christianity is glad about the laws of Christ and does not want to do without any of them. In the same spirit, the Christian subjects himself or herself to the infallible authority, and welcomes every authoritative direction, since such direction shields him or her from uncertainty. Ibid.

The church therefore supports primarily the believer in the exercise of his or her freedom of conscience. The reason that the church cannot be bound secondarily to a “right to freedom of conscience” in the case of the apostate (that is, in the case of someone who has fallen away from the true faith) is thatthis fall, according to Catholic theology, is only possible on the basis of moral misconduct (sin). The fact that church authority employs the appropriate coercive measure, e.g., excommunication, to make a stand against such a fall (where the fall makes itself known externally) is something that every jurist must recognize (Utz 2000, 144).But church authority lacks the means of coercion “to force the dissenter to the objectively true, i.e., the Catholic, faith” (Utz 2013, 155). Rather, it has “always emphasized that no one can be forced to accept the Catholic profession of faith. Otherwise, it would be denying the fundamental obligation valid for all moral actions to follow the conscience” (Ibid.). In the “final judgment”, the question in any case will always be whether and in what way the person, by virtue of his or her freedom of conscience, has searched for the true faith and has tried to fathom the truth (see Utz 1964, 325). Thus, the human “is laden down with the heavy burden of conscience” (Utz 2013, 154). The conscience is related to freedom in the same way as the judge is to the person being judged. “No one can justify himself or herself to God by referring to freedom of conscience” (Ibid.). And, no one will ask in the “final judgment any longer about the human right to religious freedom that is in force here” (Utz 1964, 325). 4.1.5 The Continuity of Catholic State Doctrine On the basis of the philosophical and theological reflections outlined, Utz succeeds in presenting the development of Catholic state doctrine as constituting a fundamental continuity. He does so of course at the expense of a highly presuppositional interpretation of the notion of religious freedom in Dignitatis

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humanae. While most reflections on the repositioning of the church regarding the question of religious freedom relativize the position of the neo-scholastic church, interpret it as shaped by its time, or consider it obsolete and outdated, Utz, who also points to the concrete circumstances in which, for example, the Syllabus emerged (see Utz 2013, 151-152), tends in essence towards a relativization of the recognition of religious freedom. To this end, he relates his philosophical and theological reflections to the Council’s understanding of religious freedom, interprets this understanding in the light of his reflections, and in a way brings it closer to the pre-conciliar understanding of religious tolerance. In doing so, Utz denies in particular that, with the human right to religious freedom, the Council also comes closer in its normative justification to modern (political) philosophy. This is a surprising position, given that the justification of religious freedom in Dignitatis humanae is based explicitly on freedom of will, reason and human dignity, and that the particularly significant line of reasoning used by John Murray and the US bishops in the text’s development is clearly supported by motifs of liberal political philosophy. Utz develops a position that contradicts the thesis that the Council performed a “personal-ethical turn” in the church’s state doctrine “from the right of truth to the right of the person” (see, in detail, section 4.3 below). As pointed out above, the church, according to Utz, does not identify freedom of conscience with religious freedom. “The decision of conscience could objectively, i.e., considered according to the matter in hand and assessed theoretically, be untrue, and yet practically, i.e., as an act of practical reason, be true” (Utz 2000, 146). This is why, in recognizing religious freedom, the church did not implement any dogmatic change (Utz is alluding to Böckenförde here; see section 4.4 below); rather, it detaches religious freedom as it were from the theological context of freedom of conscience, in order then to place it on a “democratic constitutional basis” (Ibid.). The church tolerates, as it has always done, people of different faiths, and grants them “the same rights in civil interpersonal intercourse” as “its own believers” (Ibid., 147). The Second Vatican Council therefore by no means goes against Pius XII and bids farewell to the idea of tolerance, which, from the theological point of view, can tolerate other faiths, but which, according to the criterion of truth, cannot regard them as equal. Two mutually exclusive theoretical statements cannot be called “equally true”. But they can be declared constitutionally equal, if the state for its part does not make the ideological or denominational criterion of truth its criterion of state affiliation. Ibid.

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This, for Utz, had still been the case in the Middle Ages, but, after this political situation changed in the modern period, the Second Vatican Council joined this change at the political level of religious freedom, but without changing its position at the theological level of freedom of conscience. Besides the fact that the popes of the 19th century were also already witnesses to this political change, but strongly resisted it, Utz is also suggesting here that the statements made by the neo-scholastic popes up to and including Pius XII did not relate to the question of a politically realized right to religious freedom. Therefore, the Catholic doctrine of tolerance is not obsolete, but is indeed compatible with the legal recognition of equal rights of religious practice, and in this respect still valid. Without betraying its own knowledge of the truth, one … ideological group can meet other groups with tolerance, and grant them the same rights at the constitutional level. Here, too, it is tolerance that is most important, since no person convinced of his or her worldview can regard the worldview of another as equally true. There is therefore no contradiction between moral tolerance and the affirmation of constitutional equality. Ibid. 147-148

Utz thus interprets the doctrine developed in Dignitatis humanae as being in line with the doctrine of tolerance. Corresponding to this are also his comments on the “imbalance in the constitutional equality of all religions”, which may also belong to Utz’s tendency to politicize mentioned at the beginning of this chapter, but are also informative in a systematic way. Since the modern state “no longer judges the various faiths that seek to settle in its territory from the perspective of the truth”, it is also not able to “tackle the cultural defects of certain faiths”. “This is becoming clear today in the mass migration of Muslims into the European cultural arena that emerged from Christian roots” (Ibid., 148). Thus, according to Utz, it is fundamentally necessary to create a reference to the truth or an ideological commitment of the state in order to combat such “cultural defects” and corresponding modes of behaviour.8 What leads at the level of Utz’s politicization to a xenophobic and Islamophobic polemic9 8  Utz mentions, for example, the sanctions provided for in Muslim marriage law in the case of divorce, as well as the “threat of exclusion from the family unit and even death to a family member who exchanges the Muslim for the Christian faith” (Utz 2000, 149). 9  See Ibid., 150: “The political advance of Muslims cannot be stopped because freedom of faith has been defined in the sense of formal, uncontrollable freedom of conscience. The fact that

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points systematically to the assumed need on the part of the modern state, too, for an ideological orientation to the truth, or at least for a commitment to certain cultural standards (one could well say: for a predetermined idea of the good life). For Utz, this idea may in some respects also exist in the liberal democratic state, in that on the one hand liberalism is also a worldview, and on the other “an ideological state does exist due to the majority principle, at least as long as this majority is at the helm” (Ibid., 150). Here, however, ideological commitment is subordinated not to the orientation to a truth that is considered objectively correct, but to the free play of political forces; a fatal drifting of the state in all possible directions is therefore a constant danger. This is even more frightening given the expected demographic developments in Europe. Europeans are declining more and more in comparison to the numerous Muslims who have already come, and to the even more Muslims still coming, especially as the birth rate among Muslims far exceeds that among Europeans. In this situation, the Europeans must reckon that they will find themselves in a Muslim theocracy in the foreseeable future. Ibid.

According to Utz, the church, in contrast, professes its relation to the truth, and it does so in Dignitatis humanae, too. Ultimately, Utz is outlining here a premodern idea of the state, and is therefore also assigning to Dignitatis humanae not a complete recognition of modern liberal constitutionalism, but a continuation of the doctrine of tolerance along with the accompanying reservations against the modern state. 4.1.6 Summary (1) Utz represents a strong thesis of continuity that is based on the claim that the doctrine of the church represents the truth, and can therefore not be contradictory in itself, even when two statements made one after the other at a certain interval contradict each other. (2) Utz assumes in his line of reasoning based on natural law that there is a discernible law of nature (law of nature as a spontaneous option for absolute values). Knowledge of the order of nature can or should be related to actual social circumstances (right of nature). By virtue of the knowledge of the the Christian faiths decisively shaped European political culture was completely ignored in the definition of religious freedom”.

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law of nature and its application to political communities, a superordinate notion of the common good to which politics must orientate itself can be reconstructed. (3) According to Utz, freedom of conscience and religious freedom must be distinguished from one another. While freedom of conscience relates to questions of truth, religious freedom involves merely regulation at the level of civil law. For Utz, this notion of freedom of conscience is not exhausted even in Dignitatis humanae; in modern thought about the state, the notion dissolves completely into religious freedom. Because of this identification of freedom of conscience and religious freedom in modern thought about the state, the impression was able to arise that the popes of neo-scholasticism had referred to religious freedom, whereas in fact they had referred to freedom of conscience. (4) A substantial or dogmatic turn in church doctrine did not occur, but instead only a “political turn”, since the recognition of religious freedom in Dignitatis humanae refers only to the political level or to the right to religious freedom, i.e., to social coexistence, but not to the level of freedom of conscience, i.e., not to the truth. (5) At the same time, Utz interprets the recognition of religious freedom in Dignitatis humanae as a continuation of the doctrine of tolerance, because a fundamental reference to the truth persists. This reference to the truth is made possible by the recourse to the law of nature, and is carried out by the faithful in the context of freedom of conscience. This is precisely where the position of the church continues to differ from modern thought on the state. (6) Utz’s line of reasoning therefore comprises various components. On the one hand, the doctrine of the neo-scholastic popes is interpreted as though they had with their statements on religious freedom and democracy taken a stance with regard not to political issues, to a fundamental right guaranteed constitutionally, but rather exclusively to a theological question of truth. On the other, the recognition of religious freedom in Dignitatis humanae is interpreted not as though it constituted a fundamental political-philosophical change in relation to the ethos of human rights, but as though it continued the doctrine of tolerance with slightly changed political semantics. Between these relativizations of rejection on the one hand, and the recognition of religious freedom on the other, Utz can then draw a line of continuity. Utz represents a strong thesis of continuity that is based on the claim that the doctrine of the church represents the truth, and can therefore not be contradictory in itself, even when two statements made one after the other at a certain interval contradict each other.

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4.2 Autonomy and Theonomy: Walter Kasper’s Thesis of a Constitutional and a Theological Level 4.2.1 Preliminary Remarks The position taken by Walter Kasper is similar to those theses that stress continuity, but he also implies that there was a significant change in the church’s attitude to religious freedom. Kasper succeeds in constructing what appears at first sight to be a paradoxical line of reasoning by proposing a series of differentiations at various levels. His differentiations concern primarily the notion of freedom and the understanding of autonomy and theonomy, but also in part how he understands modernity, human rights, liberalism, and the levels to which magisterial statements can pertain (for example, to theological but not to constitutional issues). Overall, we can distinguish a number of basic tendencies in Kasper’s conception, although it appears difficult at times to bring together these basic tendencies into a consistent thesis. Also significant is how Kasper understands the notion of tolerance in the context of his distinction between religious freedom and tolerance. In the necessarily abbreviated form of an encyclopaedia article (see Kasper 1992b), Kasper follows the standard thesis that there are two different liberalisms: the liberalism of the Anglo-Saxon or American type on the one hand, and the liberalism of the continental type on the other. He argues that the Catholic Church only encountered liberalism at the end of the 18th and in the 19th century, and only in its variant of European secularism – namely, that of religious freedom in a “rationalistic, indifferentist, liberalistic form with a clearly anti-church tendency” (Ibid., 825). Because of this clear anti-church tendency, Kasper argues, the church felt impelled to reject religious freedom outright. For Kasper, only the idea of tolerance in its “medieval” version held a more moderate solution, which the magisterium increasingly pursued with and after Leo XIII. This “medieval” idea of tolerance also still shaped the doctrine of Pius XII. The church tended of course to reject the idea of tolerance where it was in the majority, but supported and argued for tolerance where Catholicism was a minority phenomenon. “The real breakthrough”, according to Kasper, “first occurred with John XXIII in the encyclical Pacem in terris (1963)” (Ibid., 826), where human rights were formulated by the magisterium for the first time. Kasper also talks with regard to the passages in Pacem in terris that deal with human rights in terms of a “Copernican revolution from the right of truth to the right of the person” (Ibid.). In doing so, he refers to Böckenförde, although Kasper then understands the details of this “Copernican revolution” quite differently to Böckenförde. Kasper leaves no doubt that this “fundamental reorientation”

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(Ibid.) is a “significant break in church and theological history, perhaps even the most significant step taken at the Second Vatican Council” (Ibid., 827). The basic theological problem, for Kasper, is the relationship between truth and freedom. In no way did the church relinquish or even question its truth claim. “In this respect, the Council does not reject what the popes of the 19th century defended” (Ibid.; see also Kasper 1992a). What is new, argues Kasper, is merely that the Council now distinguishes “more clearly” between “the moral and juridical level”, and “to this effect engages in a self-critical reflection on its own history” (Ibid.). The state is no longer responsible for the question of truth and the search for truth; this, for Kasper, is the decisive innovation. Kasper develops this motif of the separation of the theological and juridical level in detail. This, together with other motifs, is central to Kasper’s thesis that the development of Catholicism towards religious freedom represents a line of continuity. To interpret change within this continuity, Kasper takes the view that the experience of religious freedom and liberalism in the US, and the influence of North American theologians and bishops, were crucial for developments at the Council. But he supports this motif with the thesis that the church had already “come down resolutely on the side of freedom” and defended “the dignity of the human person” in the course of the 20th century (i.e., before the Second Vatican Council), when the problem was “no longer rationalism and liberalism, but totalitarianism” as “a threat to human freedom” (Kasper 1989, 106). Kasper always places this “fundamental reorientation” in theological and church history within the large theological context of Biblical sources, of developments in the theological tradition, and of doctrinal teaching over the centuries, and also reclaims a “hermeneutical” way of reading. By doing so, Kasper can adopt the view that the declaration on religious freedom can be “understood as the Catholic Church’s rejection of the so-called Constantine epoch with its unity of church and secular power, and its acceptance of one of the most important outcomes of the political enlightenment of the modern period – namely, the liberal organization of society” (Kasper 1988c, 5-6). Kasper sees the group of those supporting10 the declaration as comprising two subgroups. On the one hand, the “majority of Catholic theologians”, who claim that there is a “linear development in doctrine”, and that the declaration on 10  Outside of this circle of supporters, the movement of “traditionalists around the archbishop Lefèbvre” understood the declaration as a “break with the previous tradition”, since with it “the principles of the French Revolution and the spirit of liberalism have broken into the church, in order now to initiate a process of secularization and self-destruction within the church” (Kasper 1988c, 6).

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religious freedom “contradicts the previous tradition in terms of formulation, but not in terms of substance” (Ibid., 6). And, on the other, “legal experts” (Ibid., fn. 5), who claim that the declaration constitutes a fundamental and substantial break. Kasper is undoubtedly on the side of the former. But, in developing his position, he does seek to take account of the objections made by the “legal experts”, and tends to adopt a somewhat apologetic attitude. For example, he does postulate complete continuity in his comments on the development of the relationship between truth and freedom, arguing that the idea that “faith is a free act to which no one can be forced” belongs “to the oldest tradition expressed in canon law over all the centuries and up to the present day” (Ibid., 8). We will discuss in detail here the central motifs of Kasper’s line of reasoning. 4.2.2 The Notion of Tolerance As already indicated, the path taken by the Catholic Church to recognizing religious freedom leads as it were through the idea of tolerance, albeit of tolerance in a specific form. Kasper’s texts contain a certain tension between a suggested continuity of this path “through” tolerance towards religious freedom on the one hand, and a qualitative “break” from precisely that church doctrine of tolerance towards religious freedom on the other. As already explained above (3.2), the idea that prevailed up until Pius XII was that only the truth and never error can claim a right. However, error can be tolerated by state authority if, in the context of a particular historical situation, this tolerance contributes to the realization of a higher good. A formula for tolerance can therefore be: “The duty of repressing moral and religious error”, which of course Pius XII fundamentally assumes in his well-known address on tolerance (Pius XII 1954, V, 134), “must be subordinate to higher and more general norms, which in some circumstances permit, and even perhaps seem to indicate as the better policy, toleration of error in order to promote a greater good” (Ibid.). This formula for tolerance corresponds to two “principles”: “First: that which does not correspond to truth or to the norm of morality objectively has no right to exist, to be spread or to be activated. Secondly: failure to impede this with civil laws and coercive measures can nevertheless be justified in the interests of a higher and more general good” (Ibid., 134-135).11 Kasper points out 11  See Pius XII 1954, V, 135: “Before all else the Catholic statesman must judge if this condition is verified in the concrete – this is the ‘question of fact’. In his decision he will permit himself to be guided by weighing the dangerous consequences that stem from toleration against those from which the community of nations will be spared, if the formula of toleration be accepted. Moreover, he will be guided by the good which, according to a wise prognosis, can be derived from toleration for the international community as such, and indirectly for the member state. In that which concerns religion and morality he will also

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that this understanding of tolerance could in practice appear “slightly opportunistic, and even Macchiavellian”. “The Catholic Church rejected tolerance where it itself was in the majority, but demanded tolerance where it was in a minority position” (Kasper 1988, 13). In this particular reading, the formula for tolerance postulated hardly announces the later breakthrough to the recognition of religious freedom, especially as, for example, the address by Pius XII on tolerance places particular emphasis on the strict position of the church in its rejection of a “right of error” (see Pius XII 1954, V, 133-135; esp. VI, 136).12 But Kasper clearly tends towards an interpretation that sees this understanding of tolerance – and in general the doctrine above all of the popes Leo XIII and Pius XII – as being embedded in the development of the church towards recognizing religious freedom, while on the other claiming that the doctrine of the church in the relevant question has “since the Second Vatican Council taken a crucial step beyond the doctrine still represented by Pius XII” (Kasper 1988a, 606). In the course of proving continuity, Kasper emphasizes more strongly a certain ethics of the person (see Kasper 1988c, 14-17), which already led with Pius IX to statements for the inalienable rights of the human person,13 and which to some extent ran parallel to the idea of tolerance, but certainly cannot be brought into a direct systematic connection with this idea. On the other hand, Kasper also sees the doctrine of tolerance itself in the continuity of the development of the recognition of religious freedom, since it allows the church “to adhere to its own claim to truth and yet tolerate the existence of other religious communities not only privately but also publicly as the lesser evil” (Kasper 1993, 219). According to Kasper, the idea goes back to Thomas ask for the judgment of the Church. For her, only He to whom Christ has entrusted the guidance of His whole Church is competent to speak in the last instance on such vital questions, touching international life; that is, the Roman Pontiff.” 12  See, for example, Pius XII 1954, VI, 136: “With regard to this point” – namely, the absolute rejection of everything that is religiously false and morally bad – “there never has been, and there ist not now, in the Church any vacillation or any compromise, either in theory or in practice. Her deportment has not changed in the course of history, nor can it change whenever or wherever, under the most diversified forms, she is confronted with the choice: either incense for idols or blood for Christ.” 13  See, for example, Kasper 1988b, 23; mention is made here of the encyclicals of Pius XII, Non abbiamo bisogno (1931, against Italian fascism), Firmissimam constantiam (1937, against the Mexican revolution), Mit brennender Sorge (1937, against National Socialism), and Divini redemptoris (1937, against Soviet Communism), and of his systematically developed doctrine on the value of the human person and his or her inalienable rights at the height of the Second World War (in the Christmas address of 1942) – from here, John XXIII was able to develop his encyclical Pacem in terris (1963) and thus, according to Kasper, lay the foundations for the Second Vatican Council.

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Aquinas and even to Augustine that God in his rule of the world allows evil that he could prevent, i.e., “he tolerates it if through its elimination good of a higher value would be prevented or, even, worse evils would occur as a result” (Ibid.). Similarly, “human authority” must also act, with the attitude to prostitution being cited as a classic example of such “state (not moral!) tolerance” (Ibid.). While the distinction between “state” and “moral” tolerance is important in maintaining an unconditional, moral-theological rejection of prostitution, Kasper argues, it may not be systematically sound, implying as it does that morally relevant questions of state governance can clearly be judged according not to moral criteria but to genuinely state criteria, whichever they may be. However, the weighing of benefits that underlies tolerance, according to which good is to be encouraged and evil prevented, has undoubtedly a moral character, so that it is not clear why the tolerance resulting from this should not have a moral character. But perhaps this distinction points to a problem that also persists in relation to Kasper’s interpretation of the Catholic Church’s attitude to religious freedom after its recognition at the Second Vatican Council: namely, the dualism of theological or moral freedom on the one hand, and legal or state freedom on the other. It is to this dualism that we will now turn in our next section. 4.2.3 Theological and Moral Freedom vs. Legal Freedom Kasper’s interpretation of religious freedom, as this was recognized in Dignitatis humanae, is marked by a sharp dualism “between the legal sense of religious freedom, and freedom in the moral and religious sense” (Kasper 1988c, 20). According to Kasper, the Council declaration refers exclusively to the legal aspect, and can therefore not be understood either morally or religiously. Kasper makes a striking statement with regard to the final version of the text, which was the result of a very tough process: “Religious freedom was now no longer a moral right derived from the dignity of the human person to profess this or that religion and not be prevented from doing so; rather, it was now understood in the modern, technical-juridical sense as a constitutional problem” (Ibid., 21). In contrast to this, there is the Council declaration: This Vatican Council declares that the human person has a right to religious freedom. Such freedom consists in this, that all men and women should be immune from coercian on the part of individuals, social groups and of any human power, so that no one is forced to act against his conscience in religious matters, or prevented from acting according to his conscience, in private or in public, whether alone or in association with

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others, within due limits. In addition, this Council declares that the right to religious freedom has its foundation in the very dignity of the human person, known from boththe revealed word of God and by reason itself. DiH 2 in Schindler/Healy 2015, 5

It is therefore clear and unequivocal that the Council proceeds from a moral right founded “in the very dignity of the human person” (Ibid.), and not from a purely juridical right “no longer derived from the dignity of the human person” (according to Kasper 1988c, 21). The moral right founded in the dignity of the human person must become a civil right in the state order (see DiH 2 in Schindler/Healy 2015, 5), and is not limited “to the juridical point of view” (Kasper 1988c, 21). Murray’s statement that “religious freedom is not only [sic!] an ethical or moral problem”, but also a constitutional one (see Ibid., 20), corresponds to the wording of the Council: the right to religious freedom founded in the very dignity of the human person “must be acknowledged in the juridical order of society, so that it becomes a civil right” (DiH 2 in Schindler/Healy 2015, 5). The reason for this interpretation lies in the fact that Kasper argues from a strongly theological perspective on the one hand, and with a certain tendency to cultural pessimism on the other. Kasper is convinced that the roots of the modern Western ethos of human rights and freedom lie in the Judeo-Christian or Biblical tradition (see Kasper 1988a, 604-606; see Kasper 1977, 86-89; see also Kasper 1981 and 1989). The “liberal institutions … derive ultimately from religious, and more precisely Biblical, roots. The basic idea of human rights, the idea of the unconditional dignity of every single person, is an idea of the Judeo-Christian tradition; it is rooted in the idea of the image of God in human beings” (Kasper 1990, 87). He is ambivalent towards the process of modernization, however: the process of liberation and emancipation (see Kasper 1977, 74) involves a “loss of meaning”, and the Enlightenment culminates in a “cultural crisis” (Kasper 1990, 87). From a systematic point of view, the following problem arises for Kasper: on the one hand, the idea of human dignity, as well as the ethos of human rights and freedom, are rooted in the Biblical tradition; on the other, they emancipate themselves from their own roots in the course of modernization, and even in some respects turn against these roots (see Kasper 1977, 73-82; and 1990, 8588). Kasper is concerned here neither with “baptizing modern developments and simply denoting them as the secular realization of Christianity” (Kasper 1990, 87 and 1977, 79); and nor with rejecting the processes of modernization and secularization. Instead, he is much more concerned with making a sharp

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distinction between a “good” or “correct” modernization and a “bad” or “false” modernization: “a distinction must be made … between a legitimate Christian secularization and an illegitimate secularism that ignores its Christian origins” (see Kasper 1977, 79). But there is no doubt that “modern secularization has [in fact] largely taken place as a movement away from Christianity”. In this respect, Kasper talks about the process of modernity in a way that is almost reminiscent of the neo-scholastic popes. As soon as “the religious justification of the dignity of the person ceases to exist along with the idea of God, the liberal institutions … lose their deepest legitimation” (Kasper 1990, 87). “Just as fruits fall from the tree, become rotten and poisonous, so too do the modern secularizations of Christianity emancipated from their Christian roots” (Ibid., 88). It is only when the modern ethos of freedom is combined with its religious foundations that we can talk in a positive way of modernity. And, according to Kasper, this is precisely the challenge that the Second Vatican Council took up (see Kasper 1989, 106-108; see Kasper 1981, 286-288 and also 1993). The Council “takes up the impulse for freedom of modern humanism positively, but keeps it from destroying itself by integrating it into a broader Christological perspective” (Kasper 1990, 93). The premise for such a view is twofold. First, the adoption of the standard thesis that the “North American” experience of a type of liberalism that granted great freedom to religion enabled the church to adopt a different attitude towards liberal principles and rights of freedom. “It is obvious that the religious freedom that the Council … is seeking to legitimize means something different from the religious freedom that the popes of the 19th century fought. In this respect, we are dealing when it comes to conciliar doctrine with an unfolding of doctrine, but not with a break in church doctrine” (Kasper 1993, 215). Kasper’s view raises questions in two respects: 1) To what extent does the “moral” view of freedom coincide with its “theological” view? As shown above, Kasper identifies more or less consistently the theological with the moral notion of freedom, while at the same time sharply distinguishing both from the legal or political notion of freedom. This clear classification of the moral view of the notion of freedom as a theological view on the one hand, and its sharp separation from the legal view on the other, seems questionable, and not only against the background of an idea of morality based on the modern philosophy of the subject: would we not have to address the moral question of freedom independently of the theological question of freedom? This is directly related to the second question. 2) What criteria are there for the legitimacy of law, if not moral criteria? If we do not want to argue from the outset from the perspective of legal positivism, then the question arises as to the (justificatory)

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connection between moral freedom and legal freedom. It is a perfectly conventional notion that legal freedom is grounded in moral freedom, and that therefore the moral autonomy of the individual to a certain extent justifies his or her legal freedoms. But how can legal freedom be grounded if the idea of moral freedom either disappears or the links between both aspects of freedom are severed? How could the Council then proclaim religious freedom at the level of the legal-political view, if it does not assume at the same time a corresponding freedom at the level of the moral view – that is, at the level of moral autonomy? In fact, Kasper does say that it is “not about freedom in the strict philosophical or theological sense”, but about “social and civil freedom, about freedom as a constitutional problem” (Kasper 1993, 221). If Kasper assumes in this way that there are civil rights of freedom without a corresponding philosophical (or theological) postulate of freedom, he can come to the conclusion that the “problem being dealt with here is … on a completely different level than in the dispute with the ideological liberalism of the 19th century”. “It is therefore not questioned what was then claimed and defended: namely, the theonomous orientation of the human being” (Ibid.). This is obviously a particular conception of autonomy or a definition of relations between autonomy and theonomy that can only be understood against the background of Kasper’s theological view. It is this view that we will now explain briefly. 4.2.4 Autonomy and Theonomy “The keyword and programme in which the modern history of emancipation and thus modern reason articulate themselves is: autonomy” (Kasper 1980, 17). The Second Vatican Council also recognized the importance of autonomy and took up the ideas of autonomy – with regard on the one hand to the relative autonomy of cultural areas, and on the other to the autonomy of the individual. But the Council speaks not only of the autonomy of different cultural areas (science, art, economics, politics, etc.), but also of the inalienable dignity of the human person and his or her freedom, which the church expressly knows it is to protect. Theonomy and autonomy are therefore no contradiction for the Council. Ibid., 18

Perhaps surprising for the reader at first is the context in which these two sentences are placed,14 a context that suggests that a decidedly theological 14  The sudden appearance of “theonomy” is as surprising as the connection made by the word “therefore” between the first and second sentences. There is also no explanation

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perspective is also taken in relation to the notion of autonomy. The Christian understanding of freedom, which includes a theonomous attachment of the person, must somehow be associated with the modern understanding of autonomy. “To what extent can the thoroughly theonomous Christian message live up to the autonomous claim of a culture, of certain political interests, and not least of the autonomous claim of the conscience?” (Ibid., 19). There was “confusion” in this question primarily because “the term ‘autonomy’ is used in quite a different sense” (Ibid.). We could say that Kasper develops his understanding of autonomy or the Second Vatican Council’s understanding of autonomy-theonomy in a certain dialectic, one that, starting from the Christian roots of thinking about autonomy, includes the secular counter-concept of the modern understanding of autonomy and finally a fruitful combination of autonomy and theonomy in Council theology. However, the Council’s theological understanding of autonomy must again prove itself in the theological controversy over the understanding of freedom, but Kasper sees it therefore as the central theological and ethical advance of the Second Vatican Council: This Council has broken with the restorative mentality of church doctrinal statements sealed polemically and apologetically against the modern history of freedom, and recognized two things: first, that the demand for autonomy made by the modern person can be grounded in the Christian message itself; and, second, that there has been in the modern period an advance in the awareness of freedom, an advance long misjudged by the church. Ibid., 18

And with that was initiated an “extremely differentiated, open, and at the same time critical definition of the relationship between church and modern culture” (Ibid.). The “roots” of the “modern issue of autonomy” are “unambiguously” Christian, argues Kasper (Ibid., 19). Since “within the ancient way of thinking about the cosmos”, which saw “divine and earthly” as ultimately forming a unity, it was not yet possible to ask about the relationship between theonomy and autonomy, there exists for the Bible, with all its intertwining with the from the text preceding the citation (see Kasper 1980, 17-19); this is about the fact that the Council has recognized two aspects (Ibid., 18): “for one, that the demand of the modern human for autonomy can be justified in the Christian message itself, and that there is in the modern age an advance in the consciousness of freedom that the church has long misjudged”.

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mythological cosmogonies of its environment, an “infinitely qualitative difference between God the Creator and the world as creation” (Ibid., 20-21). It was only this “taking seriously of the godliness of God” on the one hand that could lead to the “taking seriously of the worldliness of the world” on the other. Thus, the “peculiarity of the Biblical definition of the God-world relationship” consists precisely in the fact that “the radical dependence on God establishes a genuine self-reliance of the world before God”: “The overcoming of the ancient way of thinking about the cosmos by the Christian faith in creation signifies above all the release of the person from the grip of a sacrally understood cosmos and its immediacy to God” (Ibid., 21). This aspect of the “self-reliance of the world before God” was then systematically differentiated in various ways in Christian theology and philosophy, with a particular high point in reflection being attained by Thomas Aquinas, says Kasper. While “the relatively independent values of the world and of the person could not come into play” in Augustine’s “view of the person that was centred completely on God”, Thomas Aquinas makes a decisive change: he reflects on the result of all things from God and the return of all things to God, but corrects and modifies the traditional mythological schema of circulation by “integrating from the idea of creation the freedom of the person as a constitutive factor into this whole process” (Ibid., 22). Insofar as the human can, for Thomas, “recognize God as the origin and destination, and bring reality back to God”, only as a free being, he or she even becomes the “linchpin” of the whole movement emanating from and returning to God (Ibid.). From a normative perspective, norms can therefore not be derived directly from an eternal law (from the lex aeterna) and nor can the person relate to the natural order in a purely receptive manner. Rather, the person participates “in his or her reason in the divine reason” (Ibid., 23). But the person is aware of himself or herself as the “image of God … above everything merely natural, also above himself and herself, and provided with a dynamism that can find its fulfilment in no comparably high and finite value”. Thus, the “inner dynamic of love given in the Holy Spirit” assigns “the rationally recognized law to the goal of surpassing the natural reason, the visio beata of God”: Thomas thereby succeeds in combining “creational and gospel theonomy with the autonomy grounded within it into an ingenious synthesis that defies all natural-law objectivism and all magisterial positivism” (Ibid.). But Kasper regrets the fact that this “ingenious synthesis” has not always prevailed in theology, and considers the development of Council theology in general and the discussion about religious freedom in particular as a kind of return to a theology of entanglement of theonomy and autonomy in – more or less modifying – connection with

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the reflections of Thomas Aquinas. Kasper’s interpretation contains important hints for the conflict between a theological position that connects more with Thomas Aquinas on the one hand, and a theological tendency that connects more with Augustine on the other, a conflict that also shaped the debates around Dignitatis humanae: the position of those Council theologians who supported John C. Murray and the US episcopate, and who insisted that the church recognize the human right to religious freedom, follow Thomas’ philosophy or theology. Kasper summarizes the turn from antiquity and the Middle Ages to the modern period by quoting Schelling’s claim that freedom is the beginning and the end of all philosophy. No longer does the order of being give rise to freedom; rather, “every order [is] constituted in the first place through freedom” (Kasper 1977, 77). Since “the intersubjective order of freedom” replaces the “order of being”, autonomy becomes the key concept in the modern understanding of world and self. Kasper often explains the notion of autonomy by drawing on the conceptions of autonomy developed by Descartes and Kant (but also sometimes on the conception of autonomy developed by Nietzsche and others) (see, for example, Kasper 1980, 26-31). Kasper finds in the work of Descartes, who “in many respects became the father of the church in the modern period” (Kasper 1977), a movement of thought that runs opposite to Thomas: for Descartes, the person can assert himself or herself against the powerful deceiver, the god of arbitrariness, through the cogito sum, which secures for the person “a minimum of autonomy” (Kasper 1980, 26) in the face of God’s power. Descartes does, according to Kasper, re-establish the concept of God in a second step by stating that “the I can be certain neither of itself nor of the world without the idea and the reality of God”, so that, in the act in which the person understands himself or herself, the person also understands the reality of God (Ibid.). But Descartes’ movement of thought begins with the person and returns, “through the intermediation of the idea of God”, to the person, while Thomas’ movement of thought begins with God and returns, through the intermediation of the person, to God. In Thomas, God presupposes the person; in Descartes, the person presupposes God as the condition of his or her own possibility. In Descartes, there is therefore a Copernican shift to a new anthropocentrism. The person becomes the starting-point and point of reference for reality; he or she becomes the subject who faces all other reality and who makes an object of that reality. Ibid., 27

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This shift to the subject can be understood as the ultimate modern-day paradigm shift. Even though we can by no means describe the manifold developments from the Middle Ages to the modern period as a uniform process, the “shift to the person” does also mark for his or her “relationship to tradition and to religion” “a common denominator of modern culture” – “the freedom of the person understood as being autonomous is both core and flashpoint of the modern consciousness” (Kasper 1988a, 595). We can then find motifs of this emancipatory (see Kasper 1980, 26) understanding of autonomy above all in Kant, who is concerned not least with the “ethical consequences of this anthropological shift”. Kant performs the Copernican shift not only epistemologically, but also practically in the principle of autonomy, whereby the “evidence of the ethical [emancipated] itself above all from theology” (Ibid., 27). In freedom understood not as a notion of experience, but as an “unfathomable idea of reason” (Ibid.), the will of the person is itself law. “The dignity of the person is grounded in this autonomy. It states that the person is not a means to an end but an end in itself” (Ibid.). Kasper emphasizes that Kant’s notion of autonomy has “nothing to do with subjectivism”; rather, it is precisely through the principle of universalization – “through attachment to the generality of reason” – that the person must “give account before himself or herself and before others” (Kasper 1977, 76-77). Thus, Kasper returns to the “common denominator of modern culture” mentioned above, which claims that “every order [is] first constituted through freedom” (Ibid.). Kasper regards the fact that this concept of autonomy “has often been misunderstood, and especially by theologians, as subjectivism” (Kasper 1980, 27) as being just as absurd as he regards another problem of the Kantian concept of autonomy as being all the more serious – namely, that it “excludes a theonomous explanation” (Ibid., 28). While, as we know, Kant also takes up the idea of God as the postulate of practical reason, but this then only has an (ethically) functional meaning. “This reverses the traditional relationship between ethics and religion. Morality is no longer based on religion, but religion on morality” (Ibid., 29). This enabled the idea of God to be completely rejected or considered harmful, and indeed led to a liberal political philosophy and ideology that expressly linked the idea of freedom with the rejection of the traditional idea of God. Kasper believes that the modern idea of freedom does not necessarily contradict the Christian tradition, but that it may, in some circumstances, contradict it. As when, for example, both the understanding of freedom and the related conception of human dignity are to some extent present in the Christian tradition (see Kasper 1977, 77), but there has developed a secularism in the liberal consciousness, one that has also been reflected in a politics that provides no, or hardly any, room for manoeuvre for church and religion.

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The critical point was autonomy and the anti-church laicist character with which autonomy was presented in practice. The popes of the 18th and 19th century saw in this a contradiction to theonomy and to a value system given by God. It was not possible at that time to distinguish the historical causes for the emergence and formulation of human rights from their fundamental objective concerns. The resulting restraint, even sometimes enmity, towards modern human rights placed the church in a difficult defensive position and made it dangerously isolated. Kasper 1989, 104

Kasper views modern secularization “largely as a movement away from Christianity”, and in no way tends towards interpreting modern secularization “as a secular consequence of Christianity” (Kasper 1977, 78;). But he also opposes “clamour critical of culture and pessimistic prophecies of doom”, and sees the “modern understanding of autonomy” as an “opportunity for Christianity” (Ibid.). The fact that he can do this, and that he can then identify a line of continuity in the Christian tradition that leads to the recognition of religious freedom at the Second Vatican Council, presupposes a certain theological attitude. Kasper therefore argues in essence not at a political level; rather, he does so, as it were, from a certain position based on a theology of freedom – even if he of course points to the political character of religious freedom in Dignitatis humanae. The crucial question from a theological perspective is: “How do modern autonomy and Christian theonomy relate to each other?” (Ibid., 79). “Are autonomy understood in the modern sense and theonomy mutually exclusive, or can they be brought together into a positive relationship?” (Ibid., 80). And these questions can also be answered in opposing ways. 4.2.5 Three Theological Models of the Relationship between Autonomy and Theonomy Kasper describes in a clear scheme the possible and past attitudes taken by Catholic theology and the Catholic Church, albeit he does so in ways that differ in the individual essays. We will now outline the scheme by looking at the texts as a whole. As we will see, the scheme comprises the restorative and progressive model, and the model of correlation and autonomy. (a) The restorative model – autonomy as a falling away from theonomy. The modern age is regarded here as a major movement of decay from the natural order of creation and its normative implications. Rather than investigating the order and the norms prescribed in creation, people themselves become legislators and constructors of order (see Kasper 1981, 285-286). Kasper traces this movement back to classic conservative positions such as that of Edmund

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Burke, and associates it in Catholic theology above all with Romano Guardini and Karl Adam (see Kasper 1980, 31-33). In formal terms, what is initially striking is that Kasper is creating relationships to academic theology here, i.e., to the intellectual struggle with the challenge of autonomy, and not only to the anti-modernism of the neo-scholastic popes. In terms of content, he refers to the enormously influential work of the Tübingen dogmatics professor Karl Adam, whose The Spirit of Catholicism (1924) describes the uprooting of the modern consciousness from its detachment from the church in the 16th century, through its detachment from Christ in the 18th century, and finally to its detachment from God in the 19th century. He also refers to Guardini’s criticism of “autonomism”, “subjectivism” and “individualism” in, for example, On the Sense of the Church (1922) and The End of the Modern World (1950), with the latter being striking not only on account of its title, but also because of its strange outmodedness: it was written at a time when, for example, political Catholicism in Germany (where Guardini lived and taught) had already long supported the liberal constitution. In any case, according to this restorative model, it was apparently not only Rome, but also “the revival movement within the church in the first half [of the 20th century], that did not appreciate the modern idea of autonomy” (Kasper 1980, 32). This model failed to establish a positive relationship between autonomy and theonomy; rather, it declaimed a contradiction between the two that was in essence similarly constructed to the contradiction asserted by critics of religion and by secularism. (b) The progressive model – autonomy as a realization of theonomy. Besides strict rejection, there also developed an intensive adoption of the modern idea of autonomy. Kasper first follows the traces of this idea from the Belgian Jesuit Joseph Maréchal (1878-1944) to Karl Rahner. For Kasper, the latter succeeded in his “anthropological theology” and his “modern rereading of the Thomist synthesis” in showing “that theonomy and autonomy are not opposites, but influence one another” (Ibid., 33). Johann B. Metz was able to continue this and later formulate his “option for all human beings of ‘being able to be a subject’ and ‘having to be a subject’” (Ibid., 34; see Metz 1977, 65). Again, what is initially striking in formal terms is that, with Rahner and Metz (and a large number of Protestant theologians), Kasper (see 1980, 34-35) refers to theologians whom research does not normally highlight when it comes to the people who influenced the recognition of religious freedom at the Second Vatican Council, and does not mention the protagonists in the development of the Council. He thus traces a theological development that he does not connect with different political and social situations, such as those in Europe and the US, and does not discuss the importance of the progressive model for the opening up of the church to religious freedom. The following quotation therefore remains .

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somewhat puzzling with regard both to the restorative model and its representatives, as well as to the progressive model and its representatives: The Second Vatican Council signals the fulfilment of the reform movement within the church, as well as its transformation into a new opening up of the church to the modern world, which was manifested in the positive adoption of the modern idea of autonomy. Ibid., 33

Kasper also subjects this second, “progressive” model to critical examination (see Ibid., 33-36 and Kasper 1981, 286-288). First, he argues that the model underestimates the emancipatory dynamics of the modern process of autonomization and liberation that run counter to the traditional Christian idea of theonomy: harmonizing modern autonomy with Christian theonomy simply makes the debate between the two too easy. Second, the model is too quick to make the assumption that the secularization process is irreversible. In contrast, Kasper suggests that the secularization thesis in its classic variant is not tenable, an argument that is of course more familiar to us today than it could have been to Kasper in the 1970s when he wrote the relevant texts. Third and finally, Kasper argues that we should not deny what remains from a theological perspective: namely, the “infinite qualitative difference” (Kasper 1980, 35) between the divine being of God and the world. In other words, Kasper considers inappropriate the affirmation given by the theological idea of theonomy to the modern-secular idea of autonomy, since such affirmation does justice neither to the idea of theonomy in its theological sense, and nor to the idea of autonomy in its secular sense. Moreover, it may also be based on a false (because historically determined) diagnosis: namely, the diagnosis provided by the secularization thesis in its classic form, which begins with the decline and disappearance of religion in the modern period. As an alternative to the previous two models, Kasper points to a third, one that is designed to do justice both to the theological content of the idea of theonomy and to the secular content of the idea of autonomy. (c) The model of correlation and of analogy – autonomy as a parable of theonomy. Kasper considers it necessary to build a model that establishes an inner relationship between autonomy and theonomy, while at the same time preserving their difference. He draws on the notion of analogy, which conveys the “identity and difference between different realms of reality by seeing them in a relationship of mutual correspondence” (Kasper 1981, 288). The theological core of this analogy can be outlined as follows:

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Theonomy presupposes human autonomy, since God’s divine being is to be recognized by people in responsible freedom, since God wishes to be glorified and honoured by a free creature. Conversely, though, human freedom comes to completion and fulfilment only through theonomy, through the recognition of God, and through communion with God. For, the freedom of the person includes openness to an infinite mystery. Only in the horizon of the infinite can the person experience the finite as finite and as contingent; only in the horizon of the infinite is freedom possible … It can only come to perfection if it encounters a freedom that is infinite not only in its formal claim but also in its fulfilment, in the encounter with God. Thus, theonomy brings autonomy to fulfilment as autonomy. The greater the unity with God it means, the greater the freedom of the person. Kasper 1980, 38

We of course do not want to discuss this here from a theological perspective. We are only concerned with the following: Kasper asks himself the question of what connections between the traditional Christian view on the one hand and the modern understanding of freedom on the other can be reconstructed as a theologian in the context of theological discourse. He does not want to explain the development that led to Dignitatis humanae, but instead shows the theological foundations for a positive connection between Christian theology and the modern understanding of freedom. As a theologian, he neither wants nor is able to regard the positive attitude of the church to the rights of freedom as a historical coincidence, but must search for the theological reasons behind this attitude. By reconstructing a model that establishes a positive “inner relationship” between theonomy and autonomy, while also insisting on the difference between them, he manages to show that there are theological reasons for recognizing the human right to religious freedom. Historically coincidental are therefore at most the misinterpretations of theonomy and autonomy on both sides – misinterpretations that either accentuate the difference so that both exclude each other, or weaken the difference so that one or the other loses its own importance. 4.2.6 Theological Reasons for Recognizing the Modern Human Right to Religious Freedom In essence, Kasper explains the path of Catholicism to religious freedom not through (religious-) sociological or historical reflection, but rather by outlining a theology of freedom. “Nothing was abandoned of the substantive concern of the popes of the 19th century”. Rather, the “Council gave an independent,

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specifically theological justification … in continuity with the tradition” (Kasper 1989, 108). It was able to recognize “the positive matter of human rights” in a kind of “connection in conflict” (Ibid.; see Kasper 1988a, 600), and of course, unlike the popes beforehand, to “separate this matter from historically determined polemical attacks on the church” (Kasper 1989, 108). This theological justification is designed to say: human rights are … innate rights bestowed with the existence of the person, rights that precede the state and society, and that must be recognized by them and translated into positive law. Since they are founded in the God-given being of the person himself or herself, they are removed from all discretion. The recognition of the transcendence of God thus justifies the transcendence of the human person. Ibid.

This quotation makes immediately clear that Kasper combines natural law and theology to justify human rights (see Ibid., 108-113), although he does consider the theological justification to be more important and superior. He does so for two (apparently strategic) reasons: first, the theological justification is easier to communicate in the ecumenical dialogue than the justification based on natural law; second, it is better to face the “threat to the human being in the world today” with the “whole concrete abundance and with the concentrated power of our Christian faith” than with a “minimum consensus based on natural law” (Ibid., 111). Although Kasper largely interprets the substantive connection between autonomy and theonomy, between the modern idea of freedom and the traditional Christian idea of freedom, in theological terms, he can explain the conciliar process itself and the doctrine of the Council by pointing to historical circumstances. For one, he adopts the standard argument that there were different experiences with liberalism in Europe on the one hand, and in North America on the other (see Kasper 1988a, 601), and also refers in this context to Murray. Then, he argues that the Council’s recognition of religious freedom is not a matter of freedom “in the strict philosophical and theological sense, but of social and civil freedom, of freedom as a constitutional problem” that is “at a completely different level” than “in the conflict with the ideological liberalism of the 19th century”. (However, the popes of the 19th century also undoubtedly turned against political rights of freedom, and not only against the philosophy underlying these rights). This is the reason why the Council does not question “what was then claimed and defended: namely, the theonomous orientation of the person”. Rather, “made wiser by the confrontation with the

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totalitarian state”, the Council “relinquished the theocratic understanding of the state, and emphasized the borders drawn for the state” (Kasper 1993, 221). The justification of religious freedom by the Council itself does not proceed through Kasper’s theological reflections on the connection between autonomy and theonomy; rather, according to Kasper, the “transcendence of the religious act” and the “inwardness of the religious act” are the two aspects that justify that “relative autonomy” of religion as a realm of reality. This relative autonomy means on the one hand that the state is not responsible for the regulation of religious matters, and on the other that the church or “religion” is not responsible “for the regulation of concrete questions regarding the secular order” (Ibid., 222-223). 4.2.7 Summary (1) Kasper assesses the attitude of Catholic theology and the Catholic Church to the modern understanding of autonomy and freedom from a theological perspective. In doing so, he shows both that there is a positive internal connection between the theological and the modern understanding of freedom, as well as between theonomy and autonomy, and that the basic political right to religious freedom is largely compatible with the Christian tradition – assuming in each case a corresponding reflection based on a “theology of freedom”. The Christian understanding of freedom is in any case the main prerequisite for recognizing religious freedom. (2) Regarding actual historical developments, Kasper points to the difference between the types of liberalism in Europe and North America, and argues, less plausibly, that in the 19th century there was not so much a concern with political rights as an ideological conflict with liberalism. (3) Kasper sees the Council’s real justification for recognizing religious freedom in the transcendence and inwardness of religion – these marked religion as an independent, “relatively autonomous” domain to be delineated in both directions from the likewise relatively autonomous domain of politics. (4) Kasper’s interpretation is an important contribution to the question of how Catholicism found religious freedom. It is so because, besides providing an historical explanation for the change (which roughly corresponds to the standard explanation), Kasper also provides a systematically theological justification for a positive attitude to modern rights of freedom and to religious freedom, while at the same time not abandoning what he views as the theologically important aspect of theonomy alongside autonomy. (5) In this respect, we can with Kasper answer the question of how Catholicism found religious freedom by referring to the Christian-theological understanding of freedom, which is deeply rooted in Biblical witness and in

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the tradition: it is from within its own tradition that the human right to religious freedom can and must be advocated. “It was not the relativization of the question of truth that led the Council to the declaration on religious freedom, but the fact that it took this question extremely seriously” (Kasper 1988c, 26). (6) According to Kasper, the intervention of the US Council Fathers did bring “the decisive advance” (Ibid.). All in all, however, his perspective leads to the insight that, “until now, the Council declaration has been unjustly read through the spectacles of the North American intervention, and understood more or less as a pure constitutional solution” (Ibid.). 4.3 Qualitative Change in the Course of a Learning Process: Rudolf Uertz’s Thesis of a Personal-Ethical Turn 4.3.1 Preliminary Remarks It is especially in his comprehensive study Vom Gottesrecht zum Menschenrecht (2005a), i.e., From Divine Law to Human Law, that Rudolf Uertz attempts to reconstruct the path taken by Catholicism15 to recognizing religious freedom and human rights. He understands this path as a “history of learning” (Uertz 2005a, 18) with regard to liberal legal and constitutional ideas, a path leading to the recognition of principles to ensure freedom constitutionally. In order to describe this learning process, his study focuses on three levels that relate to specific fields of conflict: a) the legal-philosophical level, which is concerned with the relationship between religion and law, and above all with the moral grounds of law; b) the political-institutionalized level, where he studies how the relationship between church and state has been shaped; and c) the religioussociological level, which focuses on the relationship that the Christian has to society. Within these three levels, Uertz considers several actors who are decisive for the development of Catholic doctrine: those constructing academic theory, the organized base of the church in its various forms (Uertz considers above all political Catholicism), and the magisterium. The legal-philosophical level (a) is of particular importance to Uertz, since it is here that the paradigm shift can be described in terms of content. To consider the relationship between law and religion from the point of view of the 15  In his definition of Catholicism, Uertz joins Hürten for long stretches, the latter defining the term as “the national and regional totality of Catholics who, by virtue of their civic rights and inner attachment to the church, exercise their interests or render services that the church is able and bound to perform for society” (Hürten 1987, Col. 374).

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Catholic tradition, it is crucial to begin with to make a clear demarcation from legal positivism, and thereby adhere to a pre-positive line of reasoning. Thus, a moral foundation or a moral benchmark regarding positive law is adopted and formulated from the Catholic side and from the Catholic perspective. For Uertz, it is therefore necessary to take into account the distinction between classical and modern natural law (rational law) when it comes to discussing the developments within Catholicism with regard to religious freedom and the recognition of human rights. In terms of content, argues Uertz, it is about the specifically Catholic formations of classical natural law, i.e., the scholastic phase of theory development and the particularly pronounced neoscholastic manner of justification. According to Uertz, a timeless claim to truth was used in the neo-scholastic period to evaluate social realities, a claim to truth that can barely find acceptance in an ideologically pluralistic society, and not least because to a certain extent it opposes individual rights of freedom. According to Uertz, the state-church relationship (b), which has different historical and regional forms, impinges on church doctrine, which is of course situated in a certain historical context and, despite the universal character of the church, is mostly dominated or shaped regionally. Political-pragmatic interests corresponding to the respective form of the church-state relationship (for example, minority status of the church, state church or laicist structures) constantly flow into the forms of church state doctrine, and these should not be ignored when analyzing the learning process of the Catholic Church. Uertz limits his analysis to the European context and looks above all at the situation in Germany, where various forms of secularism were formative in the 18th and 19th centuries, these linking the demand for the strict separation of church and state, depending on the context, with a more or less pronounced devaluation of church influence in the public sphere. While the focus of his study is on the doctrinal turn regarding the recognition of religious freedom, this cannot be explained, in Uertz’s view, without considering other actors, and above all representatives of political Catholicism (c). As citizens, Catholics have certain political or social experiences, and in the period under review above all experiences of democracy. According to Uertz, these experiences should be examined with regard to their effect on processes internal to the church; in his study, Uertz tries to confirm the hypothesis that the experiences of democracy of those at the base of the Catholic Church are reflected at the level internal to the church and lead to the official recognition of religious freedom in the church as a whole. At the heart of Uertz’s analysis is the question of the “anthropological and socio-ethical significance” of conciliar doctrine at the Second Vatican Council and its relation to conciliar doctrine beforehand: did the church, by accepting

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human rights, or more specifically by giving constitutional recognition to religious freedom and the ideologically neutral constitutional state, only widen and deepen its previous doctrine, or did it proclaim something fundamentally new at the Second Vatican Council (Uertz 2005a, 22) Uertz is therefore concerned primarily with the shift in doctrinal position, and especially with “Catholic thinking on the state” (Ibid. see also Uertz 2008, 174). Behind this is the question for Uertz of how far a Christian and Catholic ethics manages to “deal constructively with the political, legal and social conditions of secularpluralistic systems and political decision-making” (Uertz 2005a, 497-498). In order to find the reasons for the turn, be it understood as a break or as a continuous development, Uertz examines not only statements made by the magisterium, but also different levels of practice and different actors. He pays special attention to political Catholicism, and especially to political Catholicism influenced by the laity. The approach that he uses here is political science, and he sees the church primarily as a political actor, and denominational influences as politically highly relevant (see Ibid., 497). He studies Catholicism primarily as a culturally Christian phenomenon,, (Uertz is drawing here on Lübbe 1986 here), in its interaction with and permeation by politics and society, and within a relatively broad period of time: from the French Revolution to the Second Vatican Council. In order to reconstruct the path of Catholicism from divine law to human law, Uertz goes back, unusually, to before neo-scholasticism and takes into account, for example, French traditionalism and Romanticism in Germany before the neo-scholastic epoch; he also uses as a frequent contrast (Spanish) late scholasticism. Also important for Uertz are the alternatives to neo-scholasticism that existed during the period dominated by neo-scholastic doctrine. However, these were not very influential prior to the Second Vatican Council and had, theoretically and practically, apparently no, or at least no obvious, effect on church doctrine. Here, Uertz mainly discusses personalistic positions of the 20th century, which were in a constructive engagement with the liberal tradition. Particularly noteworthy is Jacques Maritain’s conception, which would later become influential, but also the lesser-known conception of the moral theologist theologian Robert Linhardt, which had a significant influence on the political Catholicism of the post-war period. Uertz’s main thesis is that, in the course of the conflict between Catholicism and secular liberal and pluralistic social forms and theories, a “turn in personal ethics” took place up until the Second Vatican Council. In so doing, he has recourse to Belardinielli, and uses the term personalism very widely – namely, as “the sum of practical, moral and political attitudes, all oriented to the primacy of the person in relation to nature, to the state and to any ideological construction” (Belardinelli 1990, 243ff.). In this respect, this broad concept

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includes all the above-mentioned levels and actors that the “personalistic” or “personal-ethical” turn affected in different ways and to varying degrees, and that influenced each other differently. Uertz tries to understand these complex connections and dynamics, focusing, as mentioned, on the doctrinal shift and the influence of political Catholicism.  either Break nor Continuity: The “Qualitative Turn” of the Catholic N Church Uertz does not argue the thesis of a sharp break, but rather the thesis of a qualitative turn in the position of the magisterium within the context of a process of learning in Catholicism. For Uertz, the debate between Arthur Fridolin Utz (for example, 1987 and 1991) and Ernst-Wolfgang Böckenförde (for example, 2006), in which the clearly distinguishable thesis of continuity and that of upheaval are opposed to each other, is typical of the state of discussion. Uertz agrees, though not fully, with Böckenförde’s thesis that the pronouncements of the church’s magisterium have come over 140 years to mutually exclusive statements of natural law, but also identifies continuities in the historical development of Catholicism. Nevertheless, in relation to Dignitatis humanae, he writes: “The paradigm shift in the church’s social ethics in the question of the political-legal order could not have happened more clearly” (Uertz 2005a, 82). And he comes to the conclusion that Dignitatis humanae begins a new chapter in Catholic political and legal thinking, insofar as it recognizes constitutionally guaranteed rights of freedom while acknowledging and (so to say) bringing about the autonomy of cultural areas. Accordingly, the Christian ethos no longer merely means the establishment of “correct” and “truthful” principles, but is an expression of personal-ethical religious existence and political responsibility. 4.3.2

[This] personal ethical reorientation [can] not only be interpreted as a punctual event and not only as an application of traditional principles to new circumstances, but as a qualitative turn to the role of the person as a subject and to the recognition of the autonomy of cultural areas. Ibid., 496

Until the Second Vatican Council, the church officially represented the unity of law and morality – divine law, as Uertz calls it. He nonetheless also finds within individual theoretical and political currents of Catholicism tendencies that argue in various forms in terms of rights of freedom, and thus support the claim of continuity. However, the turn from divine law to human law does not take place officially until the Second Vatican Council. In order to be able to

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describe this turn more precisely, Uertz differentiates between three periods of development: the period immediately after the French Revolution, in which his concern is with the direct reactions of the Catholic Church, i.e., with its “responses to the idea of 1789”; the period of neo-scholasticism, which sees the differentiation between spiritual and worldly power being opposed; and the period after the Second World War, in which, for Uertz, the Catholic state doctrine turned into a political ethics. On the one hand, he compares relatively sharply the Catholic base and the magisterium, and on the other makes a clear distinction between fundamental patterns of justification and context-bound practical guidelines. 4.3.2.1 Phase I: Responses to the Idea of 1789 Uertz first deals with the contemporary and immediate responses of the Catholic Church to the French Revolution, which he understands ultimately as responses to changed institutional circumstances affecting the church-state relationship. According to Uertz, circumstances and the weighing-up of benefits play a major role in the process of secularization in this phase for the church and its positioning in “modern” societies. Catholicism was forced to engage with liberalism and, as we know, adopted a negative attitude towards it, as becomes clear especially in the contrapositive position taken by Pius VI regarding the new thinking on state and law. But Uertz stresses that there were other responses to the French Revolution, and cites two influential approaches in Catholic social thought that relativize this negative attitude of the official doctrine, and that in some ways can be classified as liberal – namely, the fideism of French character on the one hand, and social Romanticism on the other. He points as an example of fideism to the position of Lamennais, which decisively shaped the church’s state doctrine, and which emerged from the conflict with traditionalism. Lamennais argued influentially, especially at the church base, for cultural and political rights of freedom, but, in terms of justifying a democratic form of government, he remained, as Uertz says, stuck in the discourse justifying fideism: the populace is accepted as a subject of action, but ultimately not on the basis of the freedom of will of individuals; rather, the sovereignty of the people is founded on historical theology. According to Uertz, Lamennais wanted to commit Catholicism to the democratic form, but continued to argue for freedom, justice and equality by recourse to faith as an intuitive participation in the knowledge of God, or by recourse to authority and tradition. In Belgian political Catholicism, the liberal democratic ideas initiated by Lamennais continued to operate, and were practised, for example, in the Christian Democracy Movement; they were rejected by the magisterium, however.

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Uertz refers to the influential position of Görres in the so-called socialRomantic line, and also cites the position on natural law taken by Ketteler; both Görres and Ketteler, in his opinion, argued for pragmatic reasons in terms of rights of freedom. However, they did not refer to individual freedom, but within a “common-law argumentation” to “corporative rights of freedom”. In the “organological model of society” represented here, Uertz certainly sees tendencies to interpret religious freedom, freedom of conscience, and especially church freedom as pre-positive rights, which are nonetheless justified not in the context of a modern individualistic-voluntaristic constitutionalism, but in the recourse to ideas of “old customary law” (Uertz 2005a, 485). Although this “old” constitutionalism restricts the power of the monarch through the constitution and therefore opposes absolutism in this respect, it does not contain a “modern thesis of popular sovereignty” (Ibid.). Thus, Görres in his social-Romantic view, for example, presents as a defence against individualistic rationalism the idea of a “sense of law” of the individual as well as of the entire people. This is consistent with a theological justification of the monarchical order and of positive law: according to Görres, law and order emerge in the final analysis from the order of God, which in turn is reflected in the sense of law of individuals. Thus, for Uertz, there is in a certain way already an attempt at a pre-positive justification of just law, a rejection of church-state absolutism, and demands for religious-political freedom. However, this always happens with reference to rights of freedom in customary law or to a constitutional understanding based on old-fashioned ideas from customary law. According to Uertz, the demand for rights of freedom can therefore ultimately be regarded as a mere substitution for older established rights of freedom. Uertz describes Ketteler’s position as liberal Catholicism in the constitutional system. In order to be able to argue for the recognition of religious freedom as a right of freedom of the individual or as protection of freedom of conscience, Ketteler already separates the theological from the ethical and constitutional level, or distinguishes in the recourse to Thomas Aquinas between the theological-confessional problem of unbelief and the anthropological-moral problem of the compulsion to believe. Religious freedom and freedom of conscience as state-constitutional principles serve, for Ketteler, above all to protect the freedom of the church and the political participation of Catholics in their role as citizens. With regard to the church-state relationship, Ketteler was already concerned, in contrast to neo-scholasticism, with the socio-ethical justification of the actual (early) constitutional state with its ideologically plural circumstances … Acknowledging the real social

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and political conditions, Ketteler endeavoured to fill the early-constitutional state with a Christian-ethical spirit. Ibid., 190

For Uertz, it is of particular importance for the learning process of Catholicism that, although not justified with liberal arguments, this support for individual liberties, and in particular political rights of participation, did not remain without political consequences: as we know, Catholic lay movements emerged at that time in a variety of forms (workers’ associations, trade union movement, parties, groups, etc.), which, in contrast to the official church, adopted a progressive, pro-democracy stance. Uertz is concerned in this context with the theoretical views on the state held by the Catholic delegates of the Frankfurt National Assembly, whose ideas were on the one hand connected with the “ideas of the organic state”, but on the other were, in accordance with the pragmatic attitude of Catholicism at that time, open to liberal demands for rights (see Ibid., 151). Thus, members of the so-called Catholic Club supported the constitutional demand for religious freedom and freedom of conscience, but understood it, as Uertz points out, not in the sense of a fundamental individual right (Ibid.), but rather as a re-establishment of older corporate religious-church freedoms, without coming out firmly against a liberal-constitutional interpretation (Ibid., 152). The reservations that Catholic thinkers had in this phase regarding the liberal understanding of constitution and law concern above all, argues Uertz, its “individualistic-autonomous spirit” and its “constructivist-voluntaristic ideas”, which seem to contradict what has grown historically, what has been tried and tested (see Ibid., 154). 4.3.2.2 Phase II: Neo-scholasticism It is above all in his treatment of neo-scholasticism that Uertz tries to support his thesis that Catholicism undergoes a history of learning that leads ultimately to a shift in the church’s position, i.e., to the advocacy of religious freedom, which it does through taking a critical approach to its own tradition. Neo-scholasticism, which prevailed against social Romanticism, shared with the latter an anti-modernist attitude and the recourse to pre-modern ideas. Up until the Second Vatican Council, it was the neo-scholastic idea of natural law that shaped the legal grounds within the Catholic Church, insofar as it determined the official doctrine. The regulatory directives issued by Leo XIII and Pius XI, which stated that “Catholic social doctrine is incompatible with individualistic ideas, with the pluralistic formation of decisions” (Ibid.,

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297), shaped Catholic social ethics and political theory for years. The principle of individualistic interests was opposed on the neo-scholastic side by a spiritual-moral state purpose (bonum commune). Uertz speaks of a “concentration of the common good” of the classical natural-law argument and a corresponding preference for the organic doctrine of society as opposed to individualisticatomistic doctrines (see Ibid., 488). But he also sees lines of compromise and breaks or discontinuities within the neo-scholastic way of reasoning. In part, argues Uertz, the foundations for personal rights – for example, of economic subjects (i.e., economic rights of the individual), as reflected in Leo XIII’s farreaching justification of ownership – have been laid. However, according to Uertz, limiting state power and justifying political rights of freedom remained extremely difficult over the years (see Ibid., 300); rather, as we know, the church concentrated at this time on pursuing a social and charitable strategy. Uertz emphasizes that in some cases systematic-ethical statements made by the magisterium conflicted with the actual political practice of the base; for example, the religious-church orientation of the Centre Party called for a consideration of the restrictive course taken by the pope, since it was not necessarily in line with the Party’s programme, which had a cultural-Christian orientation and a pro-democracy course (see Ibid., 299). Uertz underlines this point by drawing on the work of theoreticians such as Mausbach and Tischleder, who, with the “thesis of moderate popular sovereignty”, try to mediate between church doctrine and liberal-democratic popular sovereignty theory. Uertz argues that justifying democracy was in this case not based, as was usual within the liberal paradigm, on the personal rights of freedoms accorded to individuals on the basis of their personal dignity, and legislation was not justified by recourse to the rationality of individual citizens. Rather, moderate popular sovereignty meant trying “to justify a modern liberal order with the scholastic doctrine of natural law (a doctrine that was of the pre-modern order), while observing papal stipulations” (Ibid., 247). According to Uertz, three points are central: namely, that 1. God remains respected as the Creator, 2. The norms of the moral law, in particular of the common good, are taken into account, so that 3. The idea that the body of the state and of the people is an organism remains preserved. Ibid., 248

There are pragmatic arguments on the side of the magisterium – pointing in the other direction, so to speak, and attempting to converge with the political and economic discourse of the time. Thus, according to Uertz, there were

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often attempts made in neo-scholastic theory formation simply to exclude, as far as possible, constitutional and political questions in order to avoid conflict with the liberal discourse. By combining a thesis of state neutrality and a moderate thesis of popular sovereignty, neo-scholasticism managed for a long time to adapt to the political-liberal circumstances without having to give up its own doctrinal position. Thus, Uertz emphasizes that, for Leo XIII, the distinction between translation and designation persists with regard to the “legal Christian understanding of the state”, and that he finally advocates designation with regard to the question of the legitimacy of claims to sovereignty. Uertz is referring to Diuturnum illud here: Popular sovereignty and democratic decision-making could be demanded with the thesis of state neutrality and the process of justification under natural law, but not justified as indispensable elements of the constitution. The common good as a fundamental norm was not sufficient for this; it is a necessary but not a sufficient condition. Neo-scholastic natural law could therefore express moral condemnations of the state’s omnipotence, but could not justify any norms relevant to rights, i.e., basic personal rights against dictatorial (monarchical) powers preceding the state and positive law. Uertz 2004, 43

For Uertz, the advocacy of democratic forms of government in the neo-scholastic period took place in the context of a “Christianization” or “moralization of democracy” in the sense of the Catholic ideal of the state, i.e., in the sense of the realization of the creative idea of God (Uertz 2005a, 301). Thus, even the social ethicists, especially in the inter-war period in Germany, attempted to distil from scholastic popular sovereignty a kind of primary democratic idea that seems to allow them the necessary political-theoretical space to justify their democratic ideas. Ibid., 245

According to Uertz, there are liberal arguments in the neo-scholastic phase only on the condition that their range is limited or that they relate exclusively to a particular social sub-sector; they grew ultimately, argues Uertz, out of pragmatism as a reaction to a specific problem. On the one hand, there are the relatively weak attempts at justification and, finally, the recognition (however justified) of liberal ideas, which took place only with strong reservations on the part of the magisterium; and, on the other,

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the democratic practice of political Catholicism, especially of the Centre in the Weimar period, and its impact on the Catholic base. These are contrary but interrelated developments. According to Uertz, political Catholicism was concerned in the Weimar period with the recognition of democracy as a form of government that no longer appeared avoidable in the contextual conditions. For Uertz, there can always be seen a relatively strong orientation of Centre theory to the church’s interpretative guidelines, to holistic-organic constitutional principles, and in particular to policy demands regarding education and culture (Uertz is referring to Böckenförde 1961 [2004], 347). We should note, however, that, with the assent of the Centre Party to the republican form of government, the “political Catholicism of the Weimar period could prove that practical and moral capacity to act that had always been appropriate to natural law” (Uertz 2005a, 489). 4.3.2.3 Phase III: The Influence of Personalism According to Uertz, it was Jacques Maritain who first formulated in the Catholic context a consistently personalistic conception that justifies the idea of individual freedom on the basis of his interpretation of Thomas. Only here does an argument emerge that systematically pursues in principle liberal patterns of justification, and that thereby supports liberal political demands. Such patterns of justification, argues Uertz, can then be found more and more frequently in various positions in the Catholic spectrum, especially after 1945 among representatives of the so-called autonomous morality,16 and before that at the end of the Weimar republic in the work of Robert Linhardt and Erich Rommen (see Uertz 2005a, 347-361). Uertz speaks in this context of an “internal church opposition” (Ibid., 406) to the official neo-scholastic doctrine, thereby joining Kallscheuer, who claims that, if democracy is understood “personalistically”, it “goes beyond classical liberalism’s image of mankind” (Kallscheuer 1994, 68) and develops communitarian traits. Uertz writes on the relationship between communitarianism and Catholicism: “With its community-related ideas and the demands for strengthening voluntary and civic activities, communitarianism corresponds to the social principles of Christian-democratic and Christiansocial thinking” (Uertz 2002, 49-50). A position similar to Maritain’s can be found, according to Uertz, in the work of Linhardt, who, under the threat of National Socialism, already insisted on “respecting the morally legal principles of secular thought”, but who was 16  Uertz names here (2005a, 452-463 and 493-494), for example, Theodor Steinbüchel, Werner Schöllgen, and Alfons Auer.

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sceptical towards liberalism as a basic philosophical stance that “identifies the human as an isolated, even self-legitimating, individual entity” (Uertz 2005a, 351-352). Linhardt advocates a personalistic view because he “declares rights of freedom and democratic rights of participation to be fundamental assets justified by natural law” – that is, he aligns the idea of the common good with the rights of the person, and identifies democracy as the only legitimate form of government. Uertz argues that, similarly to Maritain, the Catholic position differs from formally liberal positions in Linhardt’s work, since 1. Liberal rights of freedom cannot be understood as autonomistic, but interpreted according to moral law. 2. The individual is seen not atomistically, but, from the point of view of his natural state, in relation to society, so that 3. a democratic state absolutism is rejected, on the basis of the social situation and moral norms inherent in the person. Ibid., 352

According to Uertz, Christian personalism (1930s/1940s) is a model of political theory that devotes itself to the democratic legal and constitutional state, as it spread in Western Europe and other states after 1945, a model providing important anthropological-moral perspectives for the task of reconstruction (Ibid., 483). Personalistic-liberal principles were already applied in lay Catholicism at a very early stage, and therefore the Council documents are for the most part a “confirmation of what lay people, as citizens and politicians, academics and journalists, have already been developing and advocating [against the official church position] for quite some time in dealing with secular currents and the needs of the time” (Ibid.; see also Ibid., 21-24). Uertz points to the example of post-war Germany, where the significance within Catholicism of the Christian Democracy Movement played a major role, and describes in this context the democratization of Catholics by the CDU in the Adenauer era. According to Uertz, Adenauer formulated the early programmes and programme speeches using a personalistic ethics. Christianity is removed from denominational-church relations and presented as a spiritual-moral-cultural force … This means unmistakably that religion or the “Christian worldview” is not confined, for example, to church and theological dogmatics, but is seen instead as a EuropeanOccidental, i.e., cultural Christian, phenomenon. Uertz 2002, 42

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In this respect, an “emancipatory movement of the Christian kind” can be found in the CDU programme. According to Uertz, Adenauer took the view that the idea of natural law is to be identified with the “legal and moral foundations of Christian-Occidental culture and Christian ethics” (Ibid., 43). Thus, in a certain sense, “the basic moral norms of Christianity are deprived of theologicaldogmatic interpretive sovereignty, which leads to a liberalization of Christian political and social understanding” (Ibid.). Uertz argues, then, that the constitutional, state and legal theories of leading Christian politicians and jurists invoke a Christian image of humankind that is based largely on “personal dignity”, “self-reliance of the person”, and “autonomous morality”. However, this emphasis on autonomous morality and “pre-state ideas of subjective rights” does not correspond to the official position of the church even after 1945, and there is therefore still a “tension between Christian democracy and Christian social doctrine” (Uertz 2005a, 493). How persistently the neo-scholastic social ethicists had, in spite of their subjectively benevolent attitude towards democracy and the system of fundamental rights, concerns in principle about political, legal and economic liberalism was shown by Nell-Breuning, when in 1946 he blocked a positive reference of Christian interdenominational parties to the Christian image of the human by pointing out that only the Catholic natural law in connection with the church deserves the name Christian. Ibid.

The Christmas address of Pius XII, which is often seen as the great turn in respect to recognizing human rights and advocating democracy, is, for Uertz, in no way a personal-ethical means of argumentation. Its influence was also not particularly great, argues Uertz, since the political Catholicism of the time hardly invoked this address, but mainly drew on Quadragesimo anno. According to Uertz, the magisterium only indirectly contributed to the further progress of the change towards recognizing religious freedom. In contrast, political Catholicism prepared unmistakably for the social ethics of the Second Vatican Council … With the personalistic ethics and its emphasis on autonomous morality, an anthropological and politicaltheoretical concept of the democratic constitutional state emerged from the Christian spectrum of ideas close to political Catholicism in Germany. Uertz 2002, 44

According to Uertz, a renaissance for natural law took place after 1945 under the generic term of liberal-Catholic thinking, a renaissance that allows for

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various interpretations, from conservative (emphasizing the idea of the common good and state responsibility for law and order) to personalistic-liberal (focusing on norms such as the dignity of the person and the responsibility of the individual, for example in the work of Maritain and his reference to Thomas). Even though Catholics active in politics, especially those “involved” together with Protestants in the CDU/CSU, have brought natural-law positions into the field, these positions cannot be attributed to neoscholasticism; on the contrary, they are unmistakably personalistic ideas formulated by representatives in the parliamentary council who are to be apostrophized as Christians. Uertz 2005a, 440

Personalism, which decisively shaped Adenauer’s CDU programme, for example, can be understood, for Uertz, as an independent theory developed by lay Catholicism, and a look at the – large number – of “Catholic” contributions to the deliberations on the Basic Law (and of course, as already mentioned, to the Weimar Constitution) seems to confirm this: Church-magisterial specifications can only be ascribed at most remotely; they [these Catholic political positions] come from a much broader, i.e., personalistic, understanding of natural law, which is obviously also purified by modern constitutional thinking. Ibid., 441

Uertz emphasizes in particular “Catholic practice” and its social impact, and above all the importance of political lay Catholicism and party Catholicism. For example, he points out that large sections of the Catholic population in post-war Germany were “democratized” by the Adenauer CDU. Uertz understands the development of a Christian democracy as a very particular tendency in the spectrum of political ideas, “alongside right and left”, alongside socialism and liberalism (see Uertz 2002). And he emphasizes its influence within the church, which lies in its democratization of the Catholic base. 4.3.3 Reasons for the Paradigm Shift The question remains as to why the turn to religious freedom could take place at the time of the Second Vatican Council. Besides the external trigger provided by the experience of totalitarianism, whose significance for developments within the Catholic Church cannot be overestimated for Uertz (see 2010, 110), the answers can be found in his opinion in the social processes of development

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of Catholicism. On the basis of his analysis of the developmental phases of Catholicism, he identifies at two different levels certain key phenomena that, in his opinion, necessarily belong to the learning history of Catholicism with regard to the recognition of religious freedom, and without which such a development would ultimately have been unthinkable – namely, a) the personalistic reorientation of moral theology and social ethics, and b) the democratic practice of political Catholicism, and above all of the Christian parties. a) Uertz always refers to the theoretical concepts developed alongside and under the seal of neo-scholastic Catholic social doctrine, which already tended to argue in terms of rights of freedom and to legitimize political rule independent of the state. The neo-scholastic epoch (1845-1965) is but an isolated excerpt from a much broader and more productive Catholic (philosophical and theological) range of ideas … Most investigations of Christian state doctrine have been largely based on the self-understanding of neo-scholastic theory, with the result that they have not, or not sufficiently, appreciated the theoretical approaches preceding this theory and situated below the official church version. Uertz 2005a, 24

The dominance and uniformity of neo-scholastic doctrine must also be questioned, argues Uertz. In addition, Uertz emphasizes that neo-scholastic theorists harbour fundamental concerns about political liberalism and the individualistic-liberalistic zeitgeist, concerns that are reflected in their theoretical conceptions and that are often motivated by matters of church politics. Uertz’s overview of Catholic ideas of the state shows that the range of Catholic ideas includes not only neo-scholastic ideas but a wide variety of conceptions. He tries to illustrate this with the example of Germany. Given the considerable differences between the neo-scholastic and ontological, and the practice-oriented personalistic, interpretation of state, law and society, we can hardly denote the neo-scholastic understanding of natural law as the general line of German Catholicism. Uertz 2006c, 115

With personalism emerges also a current that consistently represents liberal ideas and patterns of reasoning at different levels of theory and practice – namely, one that follows the principle of freedom and responsibility of the

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person at an individual-ethical level, proclaims the clear separation of law and morality at the socio-ethical level, and argues the case for (representative) democracy as the only possible form of government at the political level. b) A key feature of Uertz’s stance is the central position of political Catholicism in the learning process of the church. The change that took place over a period of more than 150 years before the Council from conservative-traditionalist ideas to liberal-democratic ideas was, Uertz argues, accompanied by an increasing importance of liberal political Catholicism, which distinguished itself in particular from official church positions through its “proximity to practice” (see Nipperdey 1988, 9-66). What distinguishes Catholic politicians, jurists, and journalists clearly from neo-scholasticism is, then, for Uertz, the ease with which they reconciled, or at least tried to reconcile, the ultimately unavoidable “regulatory conditions of modern societies” (such as ideological plurality, individualistic understanding of fundamental rights, democraticconstitutional procedures and institutions) in which they acted with their own Christian beliefs and church ties. Here and there [in the CDU as well as in the CVP of the 1950s], Christian principles are understood not as the implementation of churchdenominational instructions, but as the programme of a political party that is autonomous in its decisions, while also representing in particular church interests such as the denominational school. Uertz 2006b, 418

Uertz finds reasons for the opening of the possibility that the position of the church changes to religious freedom at the Second Vatican Council above all in the social positioning of lay Catholicism, and especially that of political Catholicism, in which personalistic-liberal principles had been theoretically and programmatically developed and put into practice before the Council (see Uertz 2005a, 21). These two factors play, according to Uertz, the decisive role in preparing the “paradigm shift” that ultimately took place at the Second Vatican Council. We can talk of a paradigm shift, argues Uertz, above all because a clear distinction between moral and legal order has been implemented since the Second Vatican Council. The theological-metaphysical claim to truth, which goes hand in hand with certain moral-religious obligations, is strictly distinguished from the freedom of religion and conscience, which seeks state and constitutional safeguarding (see Ibid.) In this respect, the claim to truth can be maintained at the theological level, without affecting the legal level at which the claim of

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human rights to the protection of the freedom of conscience of individuals can be formulated, a claim that is accompanied by certain rights of freedom or protection. The church substantially recognizes personal rights of freedom to be guaranteed by the state, and to that extent changes its relationship to liberal constitutional ideas. This is what marks the personal-ethical turn, which of course has consequences not only for the self-understanding of the church, but also for society. For Uertz, it is obvious that there is a break in tradition at the level of the magisterium here, since the object of reference – namely, the individual rights of freedom – had been clearly rejected by the magisterium up until the Second Vatican Council. The previous rejection and the new recognition therefore have the same object of reference (rights of freedom, mainly as civil rights and rights of protection). Uertz’s understanding of liberalism is based on the recognition of the freedom to decide of the individual as an unconditional point of reference of political action, on the acknowledgment of the constitutional safeguarding of citizens’ freedom, and above all on their political participation in democratic processes of legitimizing rule (see Böckenförde 2005). In describing the learning process of the Catholic Church, Uertz points out a certain non-simultaneity of developments within Catholicism, which we can describe in more detail by means of the distinction between different actors and levels of analysis mentioned at the beginning of this section; but he always remains with the one point of reference of his analyses – namely, the recognition of the constitutional safeguarding of freedom, which saw a change in the official position of the magisterium and church. Taking into account the three stages of development, we can therefore present the three levels cited by Uertz as follows: a) With regard to developments in the philosophy of law within Catholicism, we can see a traditionalistic character after 1789, one that goes hand in hand with ordo thinking; traditionalism is replaced in the 19th century by the theory of natural law, albeit in a neo-scholastic form, and thus provided with a strong theological-church grounding. With personalism at the beginning of the 20th century, rational law, the formal justification of individual rights of freedom, is given greater space in Catholic theory formation; theological models of justification are replaced by ethical reflection on the separation of law and morality, or justice and the good life. b) At the political-institutionalized level, organological corporative state theory17 prevails for a long time on the Catholic side, and against absolutist 17  Catholic thinking is concerned with a “society that is built on relatively independent social structures in which all can find the possibility of social integration. This goal was to be

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and democratic ideas of order. The idea of the Catholic state remains the ideal in the neo-scholastic phase. The separation of church and state is nonetheless largely accepted, but the claim to sovereignty of the absolutist form of rule is justified religiously. The moderate thesis of popular sovereignty, combined with the thesis of state neutrality, made it possible, according to Uertz, to “cross from the prevailing doctrine to the modern doctrine of popular sovereignty” (Uertz 2005a, 490). The Second Vatican Council was accompanied by the renunciation by the church of the claim to state authority. Church doctrinal authority now relates directly only to Christian believers, so that democracy and popular sovereignty can be accepted. The church, so to speak, recognizes itself as an actor in civil society, and commits itself to the democratic legal and constitutional state. c) At the religious-sociological level, ideological secularistic liberalism is consistently rejected. An anti-liberal attitude of the church or within Catholicism can be seen in various forms to this day. However, a democratic political practice already began at the base of the Catholic Church in the course of church reactions to 1789. There are different strategies of adaptation to the conditions of ideologically plural society. Democratic practice within Catholicism, political participation by Catholics, and the interpretation of Catholicism as a culturally Christian phenomenon, developments that tend to be shaped by different social contexts, lead to a democratization of Catholics that, according to Uertz, ultimately finds its official church expression in the turn to freedom of religion and conscience. That the implementation of doctrine in church and state is the personal responsibility of the faithful is finally also accepted by the magisterium. Taking into account Uertz’s different levels of actor and analysis, we can see that the learning process undergone by Catholicism takes place above all between the Catholic base and the political level or level of social practice associated with it, and the magisterium, combined with the level of the philosophy of law. Scholarship, as a third actor, is plural in itself, and is therefore able in principle to provide substantive support to the positions of both actors. According to Uertz, however, theology and social ethics tend to follow the premises of neo-scholasticism and support the conservative pole stabilized by the magisterium. Lay movements tend to drive on the church’s adaptation to the “modern”. In this respect, Uertz identifies two poles, an innovativeprogressive pole and a conservative-static pole; for him, the learning process takes place in the tension between the two. achieved in a renewal of the estate society and the redesign of the guild idea in the form of professional corporations” (Anzenbacher 1998, 13).

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4.3.4 Critical Analysis Although Uertz writes that “the issue of the recognition of religious freedom as a basic right of the state constitution is actually about the understanding of the person” (Uertz 2005a, 106), he sometimes reduces the “personal-ethical turn” to a structural definition of change, a definition that aims at the autonomy of cultural areas. In principle, though, he emphasizes again and again the interaction between the normative and the structural aspects that constitute the turn (see Ibid., 107-108). However, with regard to the different levels of analysis, he does not manage to avoid relativizing in some ways when it comes to the extent of the change in position. Thus, in his opinion, the change18 is not fully accomplished by or after the Second Vatican Council (see Uertz 2005a, 496498); the church’s own universal claim to truth remains in principle, which means that, epistemologically, we cannot really speak in terms of a turn to the subject. Uertz speaks of “problems of dispute within theology and church” (Ibid., 497). For Uertz, these problems are based on an interaction that is still prevalent today between the renunciation of political force by Catholicism on the one hand, and the incomplete turn to the person from an epistemological perspective and the still hierarchically layered organizational structure within the church on the other.19 According to Uertz, these problems are already reflected in the text of Dignitatis humanae. The decision of the Council in favour of religious freedom was only possible, Uertz argues, by restricting the issue, with there hardly being any theological-anthropological re-accentuation in Dignitatis humanae. Matters are different at a moral or ethical level. There are of course on the one hand instances of the personal-ethical turn (see Uertz 2010a, 104-109), but on the other there are also, for example, traditional, historicaltheological lines of argument (see chapter 1 in this volume). Thus, Uertz argues, a differentiated justification of the magisterium’s development is avoided through a “trans-historical interpretation” of the democratic form of government and ultimately also of human rights. This “trans-historical (theological) interpretation” of human rights, which exists in part in Dignitatis humanae, recognizes the difference between human rights as a “moral trans-temporal factor” and the interpretation of human rights as “subjective rights of freedom” that are positively endorsed in constitutionally guaranteed basic rights as a 18  To define Uertz’s position in short, we could say that he pursues a “hermeneutics of change” that differs, for example, from Böckenförde’s “hermeneutics of break” and from Benedict XVI’s “hermeneutics of reform” (see Benedikt XVI 2005). 19  See Uertz 2005a, 497: “The foundations of the Council are again becoming a point of controversy”; as a current example of this, Uertz (2010b) points to the Society of Saint Pius X.

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“product of historically contingent developments”. But, for Uertz, the interpretation of human rights as rights of freedom positivized in different ways and grounded in the autonomy of the person is nevertheless the central and decisive point in the history of learning of Catholicism; and, for this reason alone, we can speak of a “turn”, or a “paradigm shift”, or a “break”.20 In other words, one has to make a strict distinction between human dignity as a morally spiritual fundamental norm (which through time is the most important concern of theology and theological ethics) on the one hand, and human rights or fundamental rights as a specific, historically contingent form of the legal status of the person as subject and bearer of individual rights that precede the state order. Uertz 2008a, 179

With the recourse to human dignity, the church tries to establish a certain continuity in human rights theory, a continuity that, according to Uertz, does not exist in this way. He therefore argues against tendencies to appropriate human rights theory as part of the Catholic tradition. Another compromise in the document is identified by Uertz as being the attempt to synthesize the old thesis of popular sovereignty (related to a metaphysical doctrine of order) with the new (related to a consensual, voluntaristic shaping of law and organization). With reference to late scholasticism, the ideas of democracy and popular sovereignty are identified as trans-temporal principles of Catholic thought regarding the state. However, according to Uertz, there can by no means simply be a bridge between consensual-voluntaristic elements in the argumentation of Spanish late scholasticism to the liberal idea of order (Uertz 2005a, 488). According to Uertz, the personal-ethical reorientation on which the recognition of the safeguarding of freedom through the legal state is based cannot be interpreted only as a punctual event and nor merely as the application of traditional principles to new circumstances; rather, it is a “qualitative turn to the role of the person as subject and to the recognition of the autonomy of cultural areas” (Ibid., 496). Böckenförde writes: Uertz rightly sees [in Dignitatis humanae] no longer a continuation and differentiation of previous doctrines, but their withdrawal, a clear 20  It should be noted, though, that even political Catholicism refers sometimes strongly to the ever constant Christian ethos, which in a sense is supposed originally to contain human rights, and thus suggests a trans-temporal interpretation and thus a continuity.

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paradigm shift in the transition from the right of truth to the right of the person – or, as the title of the book puts it more pointedly, from divine law to human law. This transition has implications beyond the recognition of religious freedom, and implies a transformation of the whole basic framework, and in particular the recognition of the differences between law and morality, and of the basis of freedom of law and state. Boeckenförde 2005, 42

Essentially, Uertz is concerned with the recognition of “religious freedom as a fundamental right to be guaranteed by the state”, or more generally with the recognition of the guarantee of freedom through the legal state, and this is connected to the autonomy of morality (normative) and the autonomy of cultural areas (structural) (Uertz 2005a, 483); the personalistic turn has no effect at the theological level alone. As Böckenförde writes, “Uertz always sees the development towards Christian personalism and the right of the person in the recognition of religious freedom also as a development towards ‘autonomous morality’ and towards the recognition of the autonomous rights of the individual”; however, this is a problematical “over-interpretation” (Böckenförde 2005, 42). Thus, Uertz sets himself apart from Böckenförde and finds evidence for his interpretation in the establishment of the moral-theological current of autonomous morality after 1945 and in the personalistic ethics and practice orientation that began earlier. In this respect, he also opposes the thesis advocated by Böckenförde that actually no notions of autonomy and positions supporting rights of freedom have been represented within political Catholicism. For example, his view of the role and intention of Catholic delegates in the parliamentary council differs to Böckenförde’s. Thus, those named [Maritain, Linhardt, Rommen], who were in essence followed by the Catholic delegates and jurists in the parliamentary council and in the legislative assembly of the states between 1946 and 1950, had already some time before the Second Vatican Council performed the personal-ethical turn. Uertz 2010a, 111; see also Uertz 2008

Finally, when Uertz himself raises the question of thhe extent to which the personal-ethical turn within Catholicism in the 1960s actually took place in the context of the Second Vatican Council and in the period thereafter, that does not mean that he questions this in and of itself. Rather, he draws, as it were, ethical and structural conclusions from the political and legal recognition of

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the freedom of religion and conscience, which must have had consequences within the church. However, he can only identify these consequences in a limited way – that is, in certain areas (especially in science and politics). Ultimately, Uertz also questions the extent to which Catholicism abandoned its anti-liberal stance, and how liberal, or, so to speak, how modern, it actually became in the wake of the Second Vatican Council. To clarify this question, it might be helpful to distinguish between different ideas of liberalism, which Uertz does only occasionally. He begins in many respects simply from European liberalism with a “secularistic tendency”, and designates in relation to such liberalism delineations and modifications on the Catholic side. In doing so, he considers it difficult to reconcile conceptions of the Catholic tradition that are oriented to the common good with the liberal paradigm in general, and ultimately presents the former as being diametrically opposed to liberal approaches. He only implies here and there that the “compatibility of liberalism” with political-ethical positions also depends on the specifics of the relevant conception of the common good, and that a strict opposition might actually be too rigid to do justice to the different phenomena and conceptions of the liberal spectrum. The fact that he criticizes the “concentration on the common good” of Catholic social doctrine per se is problematic; thus, he writes with regard to National Socialism and with reference to Linhardt, the common good, the highest norm in Catholic social thinking, is indeed a necessary, but not a sufficient, principle to delegitimize the impending dictatorship through natural law, since, according to the conventional Catholic view, personal rights of freedom are merely integral parts of the legal system or of the arrangement for the common good, and this is to be administered exclusively by legal political authority. Uertz 2005a, 491

In ethical terms, when Uertz contrasts the orientation towards freedom and the orientation towards the common good (“[The neo-scholastic approach] nullifies individual rights in the whole common good” [(Uertz 2010a, 107))]), he pays too little attention to the renewal of the concept of the common good in the neo-scholastic period and its link back to the principle of the person; the common good is understood “as an idea of the personal well-being of socialized people, which is normatively prescribed for all activity in society and for all politics” (Anzenbacher 1998, 135). The orientation towards the common good of actors in civil society plays just as minor a role in his reflections. Uertz’s criticism therefore prevents to a certain extent a debate on the question of

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how far and how, despite the personal-ethical turn, the orientation towards the common good is and can be maintained. The orientation towards the common good can certainly not be seen in principle as the reason for the restorative tendency of Catholicism. In the course of his analysis of the reasons for the negative attitude of the Catholic Church towards liberalism, he finally articulates a somewhat blanket criticism of “social ethics under neo-scholastic premises”. These efforts [to deal constructively with liberalism] had to be halted for as long as the social ethicists, following the premises of neo-scholasticism, refused to engage constructively with the “classic figures of political thought” (Hobbes, Locke, Montesquieu, Rousseau, Kant, etc.) on the grounds that their theoretical approaches to knowledge and action were fundamentally incompatible with Catholic moral and state doctrine. Uertz 2005a, 490

The claim that no constructive engagement with liberal theories took place is certainly not tenable, and actually Uertz himself refutes this thesis in his own text by, for example, referring to the reception by Leo XIII of Locke, and to early personalistic approaches, such as that of Lamennais and Maritain. In any case, for Uertz, a turn did not begin until John XXIII, who connected for the first time the “principle of the person” with the legal purposes of the state-constitutional order (individual, personal precautionary rights, differentiation between morality and law, etc.) … The neo-scholastic theory of the state, on the other hand, knew personal rights only in the context of the ordo interpreted according to natural law, or the state as a whole, as was suggested by the idea of the “moral organism”. Uertz 2008d, fn. 10

Uertz’s concern is to point out that natural law can by no means be seen as a link between papal social doctrine and liberal constitutional concepts advocated by Christian-democratic politicians and constitutionalists. In contrast to the magisterium, Uertz sees lay Catholicism, and especially European political Catholicism, as a driving force for change. In view of this, we could, with Weichlein, level a methodological criticism: why does Uertz not concentrate on the entire discourse history, instead of only carrying out an analysis of the “intrinsic development of what he calls ‘Catholic thinking on the state’, by which he actually means the ‘transformation of the theological-church

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position to the modern state’” (Weichlein 2005, 725)? And why does he deal predominantly with church positions, rather than with academic-theological reflection?21 We can also certainly criticize the fact that Uertz described mainly the inner changes and less the changing historical constellations (such as the Kulturkampf or the Cold War). Also questionable is his concentration on Catholic thinking on the state in Germany, and his focus on Europe, and especially so given his hypothesis of the decisive influence of lay Catholicism (for example, he only discusses the standing of American Catholicism). The fact that Uertz grants political Catholicism a decisive role is criticized by Böckenförde in other respects, too. Böckenförde argues that, by seeing Catholicism in cultural-Christian terms, Uertz grants the Christian, and especially for political Catholicism, only a certain motivational function, which is an undervaluation (see Böckenförde 2005). This reduction is certainly sometimes present in Uertz’s work (see Ibid.), but his argument ultimately has a different thrust, and does not mean reduction, but extension; it aims to explain how the Christian parties were able to exercise a democratizing influence on Catholicism and not, conversely, how Catholicism affected the agenda of Christian parties and their politicians. On the one hand, the post-war Christian parties certainly regard themselves as strongly denominational (see Uetz 2005a, 497). On the other, the influence of magisterial Catholicism on political Catholicism actually seems to be very limited. In this sense, we could understand Uertz’s “Christian-civilization” interpretation22 of the religious factor regarding political Catholicism, at least in its post-1945 form:

21  For example, those in confrontation with state power in the Kulturkampf or those working as members of the Centre Party in politics of the Reich. 22  Uertz uses the term cultural Christianity in a relatively broad sense, and certainly does not relate it specifically to its Protestant tradition. In the context of his analysis of the Weimar Republic, he cites the cultural-Christian position as a direction “that allows the flexible integration of moral ideas of value with demands and objectives deemed politically necessary, and thus also the addressing of non-Catholics” (Uertz 2005a, 346). Referring to the CDU programme of the post-war period, he denotes the “synthesis of Christianity, humane and secular principles” (Ibid., 435) as being cultural Christianity. He systematically delimits the doctrine of cultural Christianity as “secular-Christian doctrine” from “theological-dogmatic doctrine” (Ibid., 448). “Human rights, which are the product of theological-church and secular-political ideas, are thus to be understood as a body of thought of cultural Christianity” (Ibid., 470). Finally, he sees at the level of actors “the actions of the [Catholic or Christian] laity – as well as the influence of Christian ethics and theology on the secular order – in their secular areas of responsibility” (Ibid., 473) as part of cultural Christianity.

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For Catholic thinking on the state in Germany, it could be shown that the organological and natural-law approach is represented after 1945 almost exclusively by the Catholic social ethicists, but no longer by the majority of Christian-democratic political theorists and politicians. Their personalism combines an ethical-normative orientation (personal ethics or ethics of responsibility, [“autonomous morality”], over-positive precepts, etc.) with practical empirical positions (democratic-constitutional system, parliamentarianism, division of powers, etc.). Ibid., 498, fn.7

4.3.5 Summary (1) Uertz pursues with his thesis a “hermeneutics of change” that incorporates structural (differentiation) and normative (autonomous morality) components. He identifies the change as being to do with developments in magisterial proclamations, but he also emphasizes the effect that the practice of lay Catholicism had on these developments, and stresses in particular the role of political Catholicism (in as early as the Weimar period) and of Christian democracy after the Second World War (for example, he points to a democratization of Catholics as a result of Adenauer). However, the question arises as to whether this does not overestimate the role of political Catholicism, and whether this role did not instead remain ambivalent with regard to its effect within the church and on the church as a whole, and especially when it comes developments at the Council. (2) According to Uertz, the establishment of a so-called cultural Christianity (sustained by lay people and academics) seems central to facilitating the change and its subsequent acceptance, since it was based on the liberal paradigm and identified itself with democracy and individual rights of freedom. However, the extent to which we can really talk of such a phenomenon of cultural Christianity remains questionable given the particularly strong denominational character of the political actors before, but also especially after, the Second World War. (3) Uertz does not differentiate between different types of liberalism, but instead contrasts liberal ethics with ethics oriented to the common good. Personalism and autonomous morality are for him the points of reference that represent change at an ethical level. (4) According to Uertz, his three approaches suggest that the strongest lines of continuity up until the Second Vatican Council were in the theological realm, and in the form of the constancy of beliefs and truth claims. Uertz emphasizes change in the ethical and legal realm thus: “Christian ethos no longer

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means only correct and truthful principles, but is an expression of personalethical and religious existence and responsibility” (Ibid., 496). (5) The turn to autonomous morality is as central for Uertz as the related separation of law and morality. There is no balanced relationship between the three aspects of the legal grounds cited by Uertz; on the contrary, he sees a break between the theological and the moral level. On the other hand, the moral and the legal level are in a relationship of justification. Thus, Uertz adheres to moral legal grounds (on the basis of an autonomous morality), with the theological level remaining very largely untouched. (6) Uertz understands by modernization of Catholicism the affirmation of the differentiation of cultural areas and the recognition of the right of the person (the recognition of the individual-ethical principle of the freedom and responsibility of the person). Both aspects or processes of modernization require each other; however, Uertz does not make clear how the relationship looks exactly – whether, for example, structural development precedes normative development. (7) Concrete relationships sometimes remain unclear in Uertz’s analyses and interpretations. For example, to what extent were there actually interactions between the political Catholicism of the Adenauer era, the Council as an event of the world church, and the personal-ethical turn in the academic field? By giving great emphasis to the influence of political Catholicism, Uertz ultimately tends towards a mono-causal explanation. How the turn in the organization of the church was implemented remains largely open. (8) Finally, Uertz also includes the current situation and attempts to provide an outlook: the personal-ethical turn is not complete and there are currently signs within the church that point more to a reversal of this turn than its consistent implementation. 4.4 Transfer of Religious Freedom from Secular-rational Law into Catholic State Doctrine: Ernst-Wolfgang Böckenförde’s Thesis of a Break in Tradition 4.4.1 Preliminary Remarks Ernst-Wolfgang Böckenförde has been commenting for decades on the question of the Catholic Church’s attitude to religious freedom, also at significant moments and in prominent places – for example, during the ongoing Council negotiations with the “thoughts of a legal expert on the discussions at the Second Vatican Council” (Böckenförde 1965), as well as in the introduction to

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the translation of the Council declaration23 that was issued on behalf of the German bishops, and was therefore to a certain extent the “official church” version (see Böckenförde 1977). Böckenförde interprets the recognition of religious freedom at the Second Vatican Council – and not only at the time of the Council, but also in a publication from 2007 that is based on the speech that he gave on receiving an honorary doctorate from the Catholic Theological Faculty at the University of Tübingen – as a “Copernican revolution” (see Böckenförde 2007), and therefore clearly contrasts the Catholic-theological or church position from the period before the Second Vatican Council with “secular rational law”: As painful as this realization may be: religious freedom, which today is largely taken for granted by Christians, owes its origins not to the churches, not to the theologians, and not to Christian natural law, but to the modern state, to the legal experts, and to secular rational law. Böckenförde 1965, 200

Böckenförde therefore in fact relates this interpretation of the recognition of religious freedom as a “Copernican revolution” not only to the church’s doctrinal teaching in the 19th and 20th century, but also to the broad Christian tradition (see Böckenförde 1977, 402-403; Böckenförde 1990b). Thus, for Böckenförde, the declaration represents “a thorn in the flesh for all those who argue that the doctrinal development of the church followed an unbroken and continuous path that constantly evolved while staying the same, and who see this development as being connected with the Catholic claim to truth” (Böckenförde 2007, 195). We may assume that Böckenförde is thinking not least here of Arthur Fridolin Utz,24 who has become in various respects an 23  Which still to this day provokes what is sometimes biting criticism; Utz, for example, deems it a “scandal” (Utz 2000, fn. 1) that Böckenförde’s essay was prefixed as an introduction to the translation of the Council declaration on religious freedom that had been commissioned by the bishops. On Utz’s position on Böckenförde and in the debate on the recognition of religious freedom, see section 4.1 above. 24  See, for example, Böckenförde 2006, 473, where Böckenförde cites from a personal letter sent to him by Utz the “justification” of the assumption of continuity, which is indeed spectacular for an academic: “He [Utz] defends the explanations of the popes of the 19th century and explains categorically that a collapse, or even a contradiction, did not exist. He formulates the background to his argument in a personal letter from 1990 as follows: ‘A Catholic is (and must be) convinced on the basis of his faith that no substantial divergences are possible in Council decisions. He is therefore forced by faith to seek an interpretation that meets this requirement’. This is very much like a petitio principi[i] and cannot suffice as a theological-academic argument”.

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antipode of Böckenförde on the issue of Catholicism and religious freedom (see section 4.1 above); but he is also thinking expressly of “some modern theologians” who, “in recognizing sociological and historical contingencies and developments, nevertheless try to maintain a continuity in church doctrine” (Böckenförde 1977, 417, fn. 19), such as Aubert, Pavan and also Murray (see section 5.5 below). In this respect, Böckenförde must also ultimately criticize the declaration itself, when it claims that the Council continually brings forth new things out of the tradition and doctrine of the church that are in harmony with the old (see Böckenförde 1977, 417). There is therefore reason enough to select Böckenförde as the representative of a position that identifies in the recognition of religious freedom by the magisterium of the Catholic Church at the Second Vatican Council a complete break with the theological and church tradition, and not least because he locates the impulses for this “Copernican revolution” clearly and exclusively outside the theological and church tradition. Thus, open-minded Council Fathers had to adopt these external impulses and enforce them in the Council deliberations against the significant internal objections. From here, the learning process must continue as a “demand on the church and its faithful”, until “Christians no longer see the [secularized] state in its reality as something foreign, hostile to their faith, but as the chance for freedom, which it is also their duty to attain and realize” (Böckenförde 2004d, 230). But in what exactly does the “Copernican revolution” consist? 4.4.2 Before the “Copernican Revolution” According to Böckenförde, the “Copernican revolution” consists, in brief, in the fact that the subordination of personal freedom to the theological truth represented by the whole theological and church tradition (see Böckenförde 1965, 201-207) was overturned by the Council in favour of recognizing religious freedom as a legal principle that was made possible by separating the religious claim to truth from the legal level. “This was the fundamental step from the ‘right of truth’ to the ‘right of the person’” (Böckenförde 1977, 405). This “Copernican revolution” can be grasped by describing the situation before and after the turn. Böckenförde sees no continuity between the one and the other, but postulates instead “a relationship between A and not-A” (Böckenförde 2006, 472), i.e., not a minor difference, but a substantial contradiction in terms of content. Böckenförde does emphasize on the one hand that the development towards recognizing religious freedom took place “step by step and with many breaks”: from the first compromises in the face of denominational civil wars with the principle of cuius regio, eius religio, the “first step to a new peace order, which bore the seed of freedom”, through a fundamental opening-up

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to political solutions to religious or denominational plurality, up to notions of tolerance, and finally to religious freedom (see Böckenförde 1965, 199). The neo-scholastic popes, represented primarily by Gregory XVI, Pius IX, Leo XIII and Pius XII, also seem to belong to this sequence (see Ibid., 201-204). The address on tolerance that Pius XII gave in 1953 represented for Böckenförde “a step towards the ethical integration and relativization of traditional doctrine, thus preparing the way a little for the statements of the Council” (Böckenförde 1990a, 62). Nevertheless, Böckenförde construes the “Copernican revolution” above all in the opposition between papal doctrinal teaching and scholastic theology in the neo-scholastic period on the one hand, and the Second Vatican Council on the other. Böckenförde essentially characterizes the neo-scholastic period as having two features: first, the popes and theologians are located in a logic of unity of morality and law; second, they develop their own notion of tolerance that sees tolerance not “as a principle”, but as an acceptance that is largely not even morally motivated, but forced by circumstances. We have already talked a number of times about the particular Catholic doctrine of tolerance; Böckenförde shares the widespread criticism of this both outmoded and logically flimsy thesis-hypothesis construction, and so we need not discuss it again in detail here.25 More interesting, and especially so with regard to the question of the renunciation of coercion by religious traditions, is the first feature: namely, the merging of morality and law, and ultimately also therefore of religious truth and politics. Böckenförde shows in the pertinent quotations from Mirari vos (1832) and Quanta cura together with Syllabus (1864) the vehemence and unambiguity with which Gregory XVI and Pius IX condemned freedom of conscience, freedom of opinion, and religious freedom, the “pestilential error” paving the way for that full and limitless freedom that runs riot in the church and civil spheres (see Böckenförde 2006, 476-477). This is also therefore of course a condemnation of civil rights of freedom at the political level, and not just freedom at a theological level. It is precisely this linkage of levels that increasingly characterizes Catholic state doctrine up until Leo XIII. 25  We should of course emphasize that he expressed this criticism at a time when, and in places where, it was by no means as self-evident as it is today; see Böckenförde 1965, 204207, where he writes, as he himself says, a decisive reckoning with the Catholic doctrine of tolerance “into the Council”: “A legal principle that wants to exclude reciprocity is no longer a legal principle, but a power principle. Is there any need for further words to recognize the untenability of the current Catholic theory of tolerance? If the Council does not want to lose all credibility in the issue of divided brothers, it must resolve to leave this theory behind. It must cultivate a new soil – no longer the soil of conditional tolerance, but the soil of principled tolerance, which means, though, the soil of religious freedom” (Ibid., 207).

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Böckenförde illustrates the “mature” neo-scholastic state doctrine by referring to the latter’s encyclical Libertas praestantissimum, which claims that society has to recognize God as creator and to serve him in reverence, since he created people “for society and placed them into union with beings of the same kind” (Ibid., 477). Therefore, “justice and reason” forbid the state to be without religion or to treat religions the same. “Rather, since the confession of a religion is necessary in the state, it has to confess to the one true religion” (Ibid.). Religious freedom can therefore be just as little a natural right as freedom of thought, speech and doctrine – such a natural right would indeed have to be “a right to challenge God’s supremacy” (Ibid.). Böckenförde sees the “core of this pre-Council doctrine” as being the claim that the “bearer of law” was not the “human being as a person”, but that “only the truth [was] ultimately right” (Böckenförde 1990a, 62). There could be no law of error, but only a law of truth. This doctrine is to be explained against the historical background of a church under pressure: challenged on the one hand by an “agnostic liberalism and indifferentism as a worldview, which was associated with an increasing anti-clericalism, especially in the Romanic countries”, and on the other by the “political ideas of order provided by the Enlightenment and the French Revolution”, the popes defended the Catholic faith as the true religion, and the divine order that they themselves prescribed as an order corresponding to the truth (Böckenförde 2006, 477-478). But this temporal contingency does not change the fact that the person was “made the object of a notion of truth”, insofar as he or she was entitled to rights not on account of his or her humanity, “as a result of his or her personal being and to secure his or her personal freedom”, but only “if and insofar as he or she is located within religious and moral truth” (Böckenförde 1977, 406). This theory thus reverses the idea of every natural law, otherwise insisted on by the church, into its opposite: it is no longer the person that has rights by virtue of his or her nature and by virtue of his or her dignity, but the truth … “The truth has rights” means … concretely and when applied to the organization of human coexistence: only the church as the authority that actually decides on the truth, and those who belong to it, have rights. But this is not a legal theory; it is a theory of power, and it is in principle socially intolerable. This fundamental social intolerability does not arise only with its practical consequences, but with church doctrine itself. For, church moral doctrine has long acknowledged, at least theoretically, that the final highest (subjective) norm for the individual human being and his or her actions is the judgment of conscience, even when this judgment of conscience is objectively false and erroneous.

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Even erroneous conscience is, according to Catholic doctrine, a mandatory authority. Böckenförde 1965, 20526

The real problem that stood in the way of the Catholic Church’s recognition of religious freedom as a right of every human being is therefore the combination of morality or ethics with law, of truth with political power – that is to say, in negative terms, the fundamental rejection of the separation of morality or ethics and law, religion and politics, church and state. 4.4.3 After the “Copernican Revolution” The answer to the question of what happened after the “Copernican revolution”, so that it can be called as such, can be directly linked to the rejection of the separation of ethics and law: the recognition of religious freedom makes “the differentiation between ethics and law inevitable in church doctrine, and indeed the differentiation for its part makes itself the precondition” (Böckenförde 1990d, 400). The Council therefore advocates the right to religious freedom “as an unconditional external right of the human person to the private and public exercise of religion according to the demands of his or her own conscience … The right of truth is replaced by the right of the person” (Böckenförde 1990e, 460). Free exercise of religion is no longer viewed by the church as an evil that can be admitted on the basis of a balancing of benefits or as an unavoidable evil, as was the case in the now superseded doctrine of tolerance. Nor is this right of freedom “justified from a particular subjective version of the person, such as in his or her location within the true faith” (Böckenförde 1990a, 63). Instead, the declaration on religious freedom stresses that the right to religious freedom exists “independently of the objective truth of religious belief” (Böckenförde 1990e, 460), and also of the efforts made by the individual to attain religious truth. The Council justifies the right to religious freedom from the “nature [of the person] himself or herself” (Böckenförde 1977, 407), and “in principle from the free nature of the person” (Böckenförde 1990e, 461); 26  On the last aspect, see Böckenförde 1977, 406, fn. 11. The phrase the “perversion of every natural law” (Ibid., 405) appears in the context of an intensive examination of “church” natural law (the discourse is on “Christian, more precisely: Catholic or church natural law”; see also, for example, Böckle/Böckenförde/Andreae 1973, where Böckenförde characterizes natural law as an “essential law”, something based not on an existence developed historically, but on a metaphysical essence (“essential nature”) of the human; this law also “gains its ultimate certainty and inner security … in not always revealed theological reconnections” (Böckenförde 1990b, 268); on this, see section 4.4.4 below.

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this is also natural law, but now in a modern form bound to the reason of the individual. The fact that the church adheres in Dignitatis humanae to its claim to religious truth does not contradict its position on the question of the right to religious freedom, since the church clearly distinguishes here, “and probably for the first time in a church doctrinal document, between legal order on the one hand and moral duties on the other” (Böckenförde 1977, 410). While the duty to seek the correct faith is preserved as a moral duty, it does not affect the external right to religious freedom. It is precisely this separation of the two realms – the moral order governing the relationship with God, eternal salvation, and the moral perfection of human beings on the one hand, and the legal order governing the relationship of people to each other and to state power, the external order of cohabitation on the other – that is the decisive aspect of the recognition of religious freedom and that indeed marks a “Copernican revolution”. This recognition of the contrast between the legal sphere and the moral sphere not only paves the way for a new understanding of modern law in Catholic thought, but at the same time allows the content and scope of religious freedom (which is always in question, but also only as a principle of law) to be recognized for really the first time. Ibid.

Böckenförde’s position on the Catholic Church’s turn towards religious freedom is embedded in his theory of the secularization of the state order (see Böckenförde 2004d). The breakthrough to a liberal (and democratic) state could only occur against the theological and church tradition, without prejudice to the well-known problems that result from the question of what the state “lives” from, of where it finds “the power that sustains it and promotes homogeneity, and the inner regulatory powers of freedom that it needs after the binding force of religion is and can no longer be essential for it” (Ibid., 228). Böckenförde describes secularization as a process of differentiation between religion and politics, the decisive stages of which are the investiture dispute (and its consequences) and the schism in belief (and its consequences) (see Ibid., 214-227). What announces itself in continental Europe “as a principled solution in the relation of spiritual and secular power, of religion and politics, found its clearest theoretical expression in the political theory of Thomas Hobbes” (Ibid., 224). Hobbes selects as

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sole starting-point … the nature of human need – that is, the preservation and safeguarding of elementary life goods related to external existence; the religious identity of the human being, religion as a human life good, does not enter into it … The purely secular objective of the state, an objective oriented to this world and independent of religion, is … clearly stated: safeguarding the conditions for the preservation of civil life and enabling citizens to satisfy their individual life needs. The state is founded for the sake of this objective, and endowed with the highest supreme authority to make ultimate decisions. Ibid.

Even though Hobbes envisages a ruler of Christian faith, his “state construction” contains “in principle secularization”, since his state rationale does not emerge from the Christian faith, is independent of it, and is based “on the grounds of pure natural needs and purposive, individualistic reason in itself” (Ibid., 225). It was this conception of the state, or the variants of the realization of this conception, that the popes of the 19th and the first half of the 20th century fought against. They opposed the idea of the emancipation of the state from religion with the idea of the “Christian state”, a state in which the old idea of the unity of religion and politics, of morality and law, would continue to exist, which was an idea incompatible with the principle of religious freedom. The attempts to realize such an idea “all failed”, however; also in West Germany after 1945, “when the intention was to establish a Christian rather than a secularized state, religious freedom still had the last word” (Ibid., 226). But how far can citizens in modern states live together “solely from the guarantee of the freedom of the individual, without the existence of a unifying bond that precedes this freedom?” (Ibid., 229; see Ibid., 228-230). After this question could be answered for a time with the idea of the nation or of the nation state, individualism has increasingly emancipated itself not only from religion, but also “from the (popular) nation as a homogenizing power”. Recourse to a common basis of values as a successor model fails as an “extremely poor” and “dangerous substitute” (Ibid., 229). Society thus remains with the well-known statement that the freedom of the citizen is regulated only from within, “from the moral substance of the individual and the homogeneity of society”, with the state being unable to guarantee these regulatory powers without giving up its freedom. Even the Catholic Church of the Second Vatican Council, which recognized the differentiation of religion and politics in accordance with the modern state, and the unconditional right to religious freedom, can only ask with Böckenförde,

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whether the secularized state must not also ultimately live from the internal impulses and binding forces that religious faith conveys to its citizens? To be sure, not in such a way that it is turned back into a “Christian” state, but in such a way that Christians no longer see this state in its reality as something alien and inimical to their faith, but as the chance of freedom, which it is also their task to obtain and to realize. Ibid., 230

4.4.4 “Copernican Revolution” as a Complete Break with Tradition? Having determined the status quo ante and the status quo from Böckenförde’s viewpoint with regard to the thesis of the “Copernican revolution” of the Catholic Church on the question of religious freedom, we will now consider two issues: first, the causes and the course of the turn; second, and this arises from the first issue, the extent to which it was a “Copernican revolution”. 4.4.4.1 From Where Did the Impulse for the Turn Come? Concerning the question of the course taken by the church’s learning process, Böckenförde takes it for granted that this was a turn on the part of the magisterium. The relevant Council texts represent a demand on the faithful (Böckenförde 1977, 401). It should be noted that this demand on the faithful took place in the middle of the 1960s. For Böckenförde, the impulses for the turn came quite clearly neither from the base of the church and nor from theology or Christian philosophy. Rather, since the Christian tradition itself offered no points of reference (see, again, Böckenförde 1965, 200), these impulses had to be brought to the church from the outside – that is, from the representatives and institutions of secular reason (from “the modern state, the legal experts, and secular rational law”). How this happened in detail, before the declaration on religious freedom took its final form as “the mature fruit of conciliar work and conciliar spirit” (Ibid.), is not discussed by Böckenförde. Thus, despite his comprehensive investigation of the positions of the Catholic Church on religious freedom, he actually does not provide a thesis on how Catholicism found its way to religious freedom. Böckenförde has not relativized his view since the mid-1960s, but has instead intensified the view (lately with a little sarcasm) in response to very diverse objections (see Böckenförde 2006, 472-482, esp. 479-482). That two different positions, which in his opinion contradict each other, are both “presented with a claim to validity and a justification based on natural law” (Ibid., 472) seems grotesque to him. He still cannot see an interpretation of this problem that would satisfy him. The theologians

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would have to clarify whether the relevant papal declarations of the 19th century had for their part pronounced prohibitions adverse to natural law, or whether Christian natural law contains such a breadth of variation that, within a century, two opposite and mutually exclusive statements on the same question are possible. Ibid.

Thus, Böckenförde’s position on the question of the path taken by Catholicism to religious freedom gains a particular profile, at least among those participants in the debate who do not think from the outset that the church is incompatible with a liberal and democratic political system. In a way, Böckenförde represents the opposite position to Arthur Fridolin Utz (see section 4.1 above). Where Utz constructs a line of continuity almost without friction and tension when it comes to the recognition of religious freedom as a fundamental right, Böckenförde constructs an almost unbridled break with tradition. It “is not an old, proven doctrine, but a new doctrine” (Ibid.). Böckenförde sees the tradition represented above all in “Christian natural law”, and not least in the neo-Thomistic conception of natural law of his opponent Utz – and hardly anywhere else. This raises the question of whether we can still speak of a “Copernican revolution” if we interpret the status quo ante in a way that focuses less strongly on the neo-scholastic doctrine of the church. 4.4.4.2

Is There No Continuity of Church Doctrine at All in the Question of Religious Freedom? Böckenförde’s thesis that there was a “Copernican revolution” has one requirement, and that lies in his interpretation of natural law – that is, what he considers to be “Christian” or “church” or “Catholic” natural law. We have already suggested above that this is an essentialist or ontological natural law, one that ignores to a certain extent the historicity of human existence (see section 4.4.2 above; see Böckenförde 1990b). Böckenförde refers to the neo-scholastic variant of the doctrine of natural law as a kind of special Catholic philosophy: Notwithstanding [its] general and universally valid claim, this doctrine of natural law is based in its intellectual concept on specific epistemological and social-philosophical presuppositions that were accepted neither at the time of the magisterial implementation of this doctrine, and nor later by a general consensus extending beyond the sphere of the Catholic Church. Ibid., 267

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This doctrine of natural law differs of course from modern natural law as rational law, and has also been criticized within Catholic theology. It is surprising that Böckenförde does not take into account the discussion by neo-scholastic popes and theologians on the neo-Thomistic interpretation of natural law. He limits himself essentially to interpreting the papal doctrinal teaching of Gregory XVI, Pius IX, Leo XIII, and Pius XII, and to the classic representatives of this interpretation of natural law in theology. Thus, Utz, for example, is to a certain extent portrayed as the main representative of Catholic-theological state doctrine. Johannes Messner is portrayed almost throughout as a representative of an essentialist doctrine of natural law (see Ibid., 277-281), although he in particular emphasizes that human existence is subject to historical change and can therefore not really be seen as a neo-scholastic representative of natural law. References to the tradition outside the neo-Thomistic doctrine of natural law play no role in Böckenförde’s presentation of the status quo ante – neither (although he is a Thomas expert) an interpretation of Thomas that deviates from the neo-Thomistic reading,27 and nor even the authors of Spanish late scholasticism, who are generally accorded a certain importance for the development of modern state doctrine. Finally, it is particularly surprising that, even when the church’s social teaching switches to a certain extent to modern natural law, and uses arguments of liberal political philosophy (when justifying the right of ownership, for example), Böckenförde should still present almost exactly the same arguments against this version of natural law as against “Christian natural law” as “essential law” (see Ibid., 285-290; see also Böckenförde 1990d, 396-401). As much as one would like to agree with Böckenförde in his criticism of the neo-scholastic doctrine of natural law, one would nonetheless like to ask whether this variant of natural law really represents fully or sufficiently the Christian and Catholic tradition. Concentrating on the magisterium and scholastic theology also means that the Catholic milieu and political Catholicism28 hardly play any role in 27  See, though, Böckenförde’s own reflections on an interpretation of Thomas in the lecture that he gave when he was awarded an honorary doctorate by the Catholic Theological Faculty of the Ruhr University Bochum; Böckenförde 1990d, 414. 28  See Böckenförde 1989, 369: “The Catholics believed at that time – when the Basic Law came into existence – that they could create a state on Christian foundations … But at the same time, and this was out of conviction, they also helped bring about a state with full religious freedom”. To the question, “Are you saying that in the phase of founding and building the Republic, people were not sufficiently aware of what developments they had let themselves in for?”, he replied: “Yes, just that. After the collapse of 1945, Catholics endeavoured to place the state on the unshakeable foundations of Christian natural law, and they felt that had been achieved more or less. It was then rather disappointing to see

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Böckenförde’s reflections. He therefore barely considers them as places where thinking about (and living) freedom and democracy can develop, in order then to spread out in Catholicism and finally to exert influence on the magisterium. There is not least the question of the connection between ethics and law, and that in two respects. One, with regard to Böckenförde’s own idea; his work on the notion of human dignity, for example, reveals a very close connection between ethics and law. This is always about the binding of positive law to a prepositive foundation, not in the sense of a metaphysical-ontological doctrine of natural law, but in the sense of a modern conception of natural law based on rational law, as developed in liberal political philosophy; about the “transfer of a pre-positive moral value … into positive law”; or about the “meta-positive anchoring of the constitutional order” according to natural law (Böckenförde 2003, 33-35; see also Böckenförde 2004c, esp. 1222-1225). Böckenförde also received an honorary doctorate from the Catholic Theological Faculty of the University of Tübingen for his intervention “especially in the dispute over the correct conception of human dignity”, a conception that “so strongly ties together theology, ethics and law” (Mieth 2005). Referring to the new commentary of Article 1 Paragraph 1 in the Maunz/Dürig commentary by Matthias Herdegen, he therefore deplores especially the separation of law and ethics – that is, the removal of the guarantee of human dignity in the Basic Law from its pre-positive foundation – and argues that it indicates an epochal break in the German legal tradition, since it marks the change in the understanding of the guarantee of human dignity from the fundamental foundation of the newly established state order that characterizes its identity, to a constitutional norm at the same level as others, a norm to be interpreted purely constitutionally, i.e., from it itself on the basis of positive law. Dürig’s commentary [on the other hand], and this is what marked it out, understood the guarantee of human dignity as the transfer of a fundamental “moral value” in European intellectual history into positive constitutional law, which thereby bases itself on a pre-positive foundation, a kind of anchor in natural law, as it were. Böckenförde 2003, 33

But if that is the case, then the question arises as to what extent ethics and law are connected or separate in Böckenförde’s own conception – or in which different ways ethics and law can be connected with each other, so that it is that a religiously neutral state and a secular, pluralistic society emerged from the tension produced in the newly created order” (Ibid., 370).

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legitimate in the one case, but not legitimate in the other. This inevitably leads to the problem that it is more a matter of connecting the “right” ethics with the law than combining ethics and law in principle. And this, in turn, suggests that it is not really about the separation of ethics and law, but about separating a religious claim to truth that is possibly based on a certain ethics from law and politics. There follows from this on the other hand the question of how, in Böckenförde’s opinion, the recognition of religious freedom relates to Christian ethics: does the recognition of individual rights of freedom not have to be based on a moral notion of autonomy (at least, if one considers a pre-positive ethical anchoring of the law to be necessary)? On the one hand, Böckenförde considers the close connection between law and the personal human image and ethos as fundamental and ultimately indispensable for a legal order as represented by the Basic Law of the Federal Republic of Germany. But, on the other, he considers to be an “over-interpretation” (Böckenförde 2005, 42) and ultimately false the thesis that Christian ethics turned in the wake of the Second Vatican Council, and especially with the recognition of religious freedom, to a personal ethics of autonomy based on what was already part of the tradition. This creates a considerable amount of tension. For Böckenförde, there never existed a personal-ethical turn (according to Uertz 2010a) “to ‘autonomous morality’ and autonomous recognition of the rights of individuals” with the development of “the right of the person in the recognition of religious freedom” (Böckenförde 2005); rather, the interpretation of the recognition of religious freedom as a “personal-ethical turn” is even perhaps “suited to jeopardizing the epoch-making advance that the Declaratio de libertate religiosa represents within the church” (Böckenförde 2005).29 On the assumption that the “principles of traditional doctrine based on the theology of natural law were not lacking as such” (Böckenförde 2005, 42), and that, on the contrary, only the combination of these principles with external law was wrong,, (see Ibid.), Christians, the magisterium of the Catholic Church, and theological ethics as a whole would to a certain extent while preserving false ethics have to recognize the correct law, which in turn rests upon different foundations of 29  See, in contrast, the laudation on the occasion of the honorary doctorate awarded to Böckenförde by the Catholic Theological Faculty of the University of Tübingen, in which the laudator, Dietmar Mieth, created connections between the Tübingen Faculty and Böckenförde through, of all things, the interpretation of human dignity and especially through Kant and the conception of “autonomous morality” of the Tübingen moral theologian Alfons Auer. But Auer is also of course referred to as an important example of a personal-ethical justification by Uertz in his “over-interpretation” of the “personal-ethical turn”; see Uertz 2005a, 440, fn. 165; very differentiated, also with regard to Auer’s theological assumptions: 454-463; 475, fn. 247; 479; 496-497. See also section 4.4 above.

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natural law. That is barely imaginable. Apart from the systematic or even logical problem of linking the wrong ethics with the correct law, while at the same time rejecting the ethics that underlie this law, empirical findings also contradict Böckenförde’s view: if points of view can also be found in documents such as the encyclical Veritatis splendour that can be interpreted to support this view, a stable mainstream has long been established in Catholic moral theology and social ethics that has of course performed the “personal-ethical turn” – based partly on the Christian tradition, and above all on Thomas and late scholasticism, and partly on the liberal tradition, and above all on Kant as well as contract theory and discourse ethics. It remains unclear in any case why church and theology should recognize external rights of freedom that are based on the assumption of moral autonomy, if they do not share the assumption of moral autonomy. The recognition of religious freedom would then have to be performed, as it were, without any ethical basis. Overall, the impression arises that the thesis of the “Copernican revolution” is only partially convincing, with two aspects to be distinguished: (1) Insofar as the differentiation between religion and politics is in the foreground, this is undoubtedly a considerable change in church doctrine, because this differentiation – in the sense of a renunciation of coercion, which is complementary with the recognition of the right to religious freedom – was not advocated until the Second Vatican Council (and to some extent of course by John XXIII in Pacem in terris, as Böckenförde frequently emphasizes). This is a decisive step in modernization for the church. In this respect, the thesis of the “Copernican revolution” therefore seems valid. (2) But, insofar as the entire theological tradition is ignored, with the exception of neo-scholastic church doctrine and theology, and the neo-Thomistic interpretation of natural law, and therefore both contemporary critics and the preceding tradition, a presupposition is introduced that is open to attack. Without this restriction to the papal doctrine and scholastic theology of the 19th and early 20th century, tendencies and motifs of the tradition could also be discovered that proponents of the recognition of an unconditional right to religious freedom could join up with – and that is precisely what they did, for otherwise religious freedom would not have been recognized. In the case of Murray, for example, these are differentiated theological and philosophical reflections that cannot simply be rejected as strategies of concealment (see Böckenförde 1965, 200, with fn. 6) and harmonization (see Böckenförde 1990c, 55, fn. 44). Although the argumentation in the Council’s negotiations were undoubtedly also strategically motivated, which of course included emphasizing the continuity of church doctrine, Council Fathers like Murray argued that they were certainly Catholic and committed to the tradition (see section

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5.5 below). We could speak of a “Copernican revolution” with regard to the contrast between neo-scholasticism and the position of the Second Vatican Council, but not so much with regard to the tradition as a whole. In this respect, the thesis of the “Copernican revolution” therefore does not seem valid. 4.4.5 Summary (1) Böckenförde names in great clarity the recognition of religious freedom at the Second Vatican Council as a “Copernican revolution” in the doctrine of the church, arguing that the church taught prior to the Council the unity of ethics and law as well as of religious truth and politics, but after the Council, the separation of ethics and law, as well as of religious truth and politics. (2) The crucial obstacle up until the Council was “Christian natural law”, which proceeded from an unconditional connection of religious truth, the corresponding morality, and the law. It constituted a “right of truth”, which is basically a “reversal of all natural law”. (3) The Council, on the other hand, enshrined the right to religious freedom in the dignity of the human person and recognized it as an unconditional right. From the right of truth now emerged the right of the person. With the principle of the inaccessibility of personal freedom in relation to religion, an indispensable part of the modern idea of freedom was taken over into church doctrine. (4) This of course happened without questioning the truth claim of the Catholic faith. Rather, religious truth and the claim of individual freedom were reconciled with each other on the basis of the right to freedom of the person (a right justified by natural law and theology). (5) Böckenförde says little about how this “Copernican revolution” came about, or was able to come about. All that is certain is that religious freedom was not generated from theology or “Christian natural law”, but developed in the processes of secularization. It owes its origins to the modern state, to legal experts, and to secular rational law. Other theses that claim a certain continuity in doctrinal development disguise the historical development and serve in the strategic harmonization of church doctrine. (6) Böckenförde describes the status quo before the turn almost exclusively within the neo-scholastic paradigm of the popes Gregory XVI, Pius IX, Leo XIII, and Pius XII, as well as of the neo-Thomistic interpretation of natural law. Positions deviating from this neo-scholastic mainstream play just as little a role as the extensive debate over the neo-Thomistic interpretation of natural law within Catholic theology. Thus, the popes named and Utz become the chief witnesses of a “Christian natural law”, from which there leads no path to the recognition of religious freedom.

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(7) The same applies to Catholicism that is not connected to the magisterium or scholastic theology: parts of the Catholic milieu or political Catholicism are hardly included in the consideration of the path leading to the recognition of religious freedom, at least not as factors that could have influenced this development. This is also true for political Catholicism in Germany after 1945. (8) The path of Catholicism to religious freedom thus proceeds via external impulses that are generated from secular rational law and that have their effect in the Council debates, that are integrated after fierce struggles into the doctrine of the church, and that then have their effect via the magisterium in the various areas of Catholicism, and thus to a certain extent become the task of (Catholic) Christians. (9) However, according to Böckenförde’s view, it was also quite possible to legitimize the right to religious freedom in a kind of justification based on freedom theology also from the perspective of Catholic or Christian theology – namely, from the freedom of the act of faith. Böckenförde himself also presents “Reflections on a Theology of Modern Secular Law”. (10) However, the “Copernican revolution” in the recognition of religious freedom as a legal principle does not correlate expressly with a “personal-ethical turn” in Christian or Catholic ethics to an autonomous morality. In this respect, the Second Vatican Council marks not a turn in ethics, but only a turn in the church’s attitude to the law.

chapter 5

Factors of Change We will discuss in this chapter the various phenomena – historical, political and social, as well as theological, ecclesial and church-political – that together form the framework conditions for the Second Vatican Council in general and the recognition of religious freedom in particular. We will relate these conditions to the church and its situation in the period before and during the Council. Our aim is to assess how the different framework conditions and developments affected the church’s recognition of religious freedom. 5.1

National Socialism and the Second World War

5.1.1 Programmatic and Organizational Changes Given its special position in world politics and world history, the experience of National Socialism and the Second World War has as a rule occupied a central place in previous analyses and interpretations of the Catholic Church’s process of change regarding its attitude to religious freedom (see chapter 4). The fabric of the world changed after this catastrophe, and it was hardly possible any longer for the church to oppose the primacy of individual rights of freedom and to oppose democracy: The experience of the Second World War and the systematic mass murder of the Jews and other minorities in the heart of Europe transformed Catholicism … both organizationally and programmatically. Liedhegener 2010, 122

This is true programmatically insofar as the Catholic Church increasingly took up the concerns of society as a whole. And it is true organizationally for two reasons: first, because there were in Europe immediately after the war, and despite strong milieu ties in the form of Christian parties, activities and cooperation across denominations; and, second, because there was a relatively abrupt dissolution of the milieu in the 1960s, the primary consequence of which was a weakening of church ties (see Gabriel 1998). We will consider the strength of the influence that National Socialism had on the recognition of religious freedom at the Second Vatican Council in three phases (interwar period, Second World War, and postwar period until the

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Second Vatican Council). Catholic state doctrine will play an important role here, and will always be interpreted with regard to National Socialism. Antidemocratic and anti-communist attitudes and the treatment conflict withof different types of European fascism play a particularly important role herein this context. 5.1.2 European States in the Interwar Period The interwar period under Pius XI saw a reconciliation with the fascist conception of the state, or an actual Catholic shaping of concrete fascist states that were dominant in Europe at this time. The church still believed at the beginning of National Socialism that Germany belonged to the group of such states.1 This pro-fascist stance can be explained by the church’s preference when it comes to a political model for corporate statism over democracy. With its anti-liberal stance on the one hand, and its anti-socialist attitude on the other, the church adopted a middle position, strongly rejecting as a model of social order both liberalism and socialism. The idea of the Catholic state was still clearly dominant in the interwar period. A bloc of Catholic authoritarian states (Austria, Italy, Hungary, Croatia) emerged, and magisterium and Catholic intellectuals concentrated on creating a so-called “Latin bloc” (Misner 2004, 666), whose main point of reference was Quadragesimo anno. Although Gundlach and Nell-Breuning always emphasized in their comments that the “corporative order”, whose establishment was demanded by the encyclical, was compatible with the principles of parliamentary democracy, it was often understood as an alternative that would replace democracy. Klöckner 1998, 569; see Rauscher 1981

The principle of subsidiarity in the encyclical, with its anti-statist and antitotalitarian thrust, was designed to protect the corporative order from misunderstanding and abuse. When Pius XI sent in the middle of the final editing of the encyclical a two-page text in Italian on the fascist corporative state, this was incorporated seamlessly into the encyclical (see Nell-Breuning 1972a, 119120f.; see Schasching 1994). Pius XI emphasized the advantages of the corporative order in terms of peaceful cooperation between the classes, while also 1  This may have been a catastrophic miscalculation; however, Böckenförde writes that this attitude had strategic motives. This assessment is viewed critically in the current discourse on the evaluation of “Catholic resistance”, though (see Böckenförde 1961/2004). See, for a critical view, Hummel 1998.

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carefully and diplomatically distancing himself from it: “the Statestate, instead of confining itself as it ought to the furnishing of necessary and adequate assistance, is substituting itself for free activity” (QA 95, No. 95).2 The church therefore did not fundamentally oppose in any way the so-called “unfinished totalitarian regimes”, such as fascist Italy. The 1929 concordat negotiated by Cardinal Gasparri stated in Article 1 that Roman Catholicism was the only state religion in Italy. It was agreed in Article 43 that Catholic Action should be apolitical in the sense that its organizations would operate outside of any political party. Under the hierarchical direction of the church, the sole task of Catholic Action was to disseminate Catholic principles. Up until the Second World War, the relationship that authoritarian-nationalistic Italy had with the church was founded on compromises. Pius XI was just as uncritical of the “Quadragesimo-anno state” allegedly established in Austria in 1934 through the May Constitution as he was of the Mussolini dictatorship; rather, he paid “high recognition” to the latter in 1934. Dollfuß had already publicly declared in Vienna in September 1933: We will take as the basis of the constitution corporative forms and corporative foundations, as proclaimed to us so beautifully by the encyclical Quadragesimo anno. We have the ambition to be the first country that truly lives up in the life of the state to the reputation of this magnificent encyclical.3 The idea of a corporative order was deeply rooted in Austrian social Catholicism. For Dollfuß himself and his advisors, this idea had been associated 2  “If we read today Articles 91-96 of the encyclical, which were formulated by Pius XI himself, and which were overwritten in the German translation with ‘criticism of the fascist corporative state’, there remains a great deal of discomfort and ambivalence. After a brief description of the corporative system, no. 95 states: ‘Anyone who gives even slight attention to the matter will easily see what are the obvious advantages in the system. We have thus summarily described: The various classes work together peacefully, socialist organizations and their activities are repressed, and a special magistracy exercises a governing authority’. The following criticism is then formulated with the utmost caution and a certain detachment: ‘We are compelled to say that to Our certain knowledge there are not wanting some who fear that the State, instead of confining itself as it ought to the furnishing of necessary and adequate assistance, is substituting itself for free activity’. There then follows criticism that ‘the new syndical and corporative order savors too much of an involved and political system of administration’, and Pius XI points to the danger of making the system serve ‘particular political ends’. The Pope then proceeds quite differently a few lines later with the liberal ‘economic system now’ and ‘its most bitter accuser, Socialism’. Here, the pope clearly declares the necessity of ‘calling’ both ‘to judgment’ and ‘passing explicit and just sentence upon them’. A stance on the fascist state of Mussolini that is as even vaguely clear as this is not to be found anywhere in the encyclical” (Gabriel 2013, 280-281). 3  Dollfuß speech at the Catholic Day in Vienna on 9 September 1933, in, for example, Siegfried 1974, 129.

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in 1934 with Austria’s “sense of mission” for the whole world, and this in separation from German National Socialism.4 Perhaps this sense of mission is one key to explaining the special role of Quadragesimo anno for Austria in 1934 (see Gabriel 2013). In Germany, by contrast, the church forbade Catholics in all dioceses from joining the NSDAP until 1933, and the number of votes for the NSDAP were below average in Catholic areas (see card section 176ff. in Hummel 1998). The attitude of the official church is therefore less important for the interwar period than the role and the constitution of the Centre Party. The Centre Party contributed with the help of presidential cabinets to the attempt by Heinrich Brüning to return to governing “over the parties”, and then pleaded for the creation of an unspecified “authoritarian democracy”. It in fact found itself at the latest after the National Socialist success in the Reichstag elections of September 1930 in competition with the National Socialists and various other forces of the political right over an authoritarian solution to the state crisis under the banner of “national unity” … Disoriented and split, itself pervaded by longings for leadership and “organic” community, and still fixated on loyalty to the ruling authority, it became after 30 January 1933 an easy victim of National Socialist threats of violence. Loth 2010, 91

Particularly contentious is the question of whether there was a link between the Centre’s assent to the Enabling Act and the Reichskonkordat.5 However, recent analysis of Vatican files shows that it is very unlikely and in fact not the case that there was for issues of German Catholicism at that time one decisionmaking centre where strategies of political Catholicism and official church actions converged. Pacelli seems to have had no direct influence in this question on Centre Party politicians or on German bishops (see Wolf 2009, 176ff.). In a recent study, Schulze argues that this is ultimately “secondary”; for Schulze, the crucial point was the Pope’s anticommunism, which led the Pope and the church to support Hitler for a brief but decisive period (February to April) in 4  See Tálos 2013 and Meysels 1992. Whether the Dollfuß or Schuschnigg regime is to be called Austrofascism or Catholic Restoration is still being debated today. 5  The church historian Klaus Scholder and his school have tried again and again to prove the so-called Junktim thesis (see Scholder 1977). The Catholic historian Konrad Repgen and the Commission for Contemporary History have vehemently opposed the thesis (see, for example, Repgen 1977). See also in the 1950s Bracher 1956; see Wolf 2012a; see Becker 2008; see also the contributions in Brechenmacher 2007.

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the crucial year of 1933, and precisely because National Socialism had for its part offered support in the fight against communism. The anti-democratic and anti-communist attitudes were certainly two decisive overlaps between National Socialism and the church at that time (see section 5.4). What is undisputed is that the church’s relationship to National Socialism changed in 1933, although racial ideology and National Socialist cultural policy remained grounds for the church to reject it.6 The democratic potential for resistance was clearly weakened. The situation in which Catholicism in Germany, with its background of state theory, found itself in these political and historical constellations can be described as follows: Under the impact of efforts at parliamentary coalition building and the economic plight of the middle classes, there spread a diffuse longing for community that fed on the uneasiness with the increasing de-Christianization and individualization of the modern world, and identified the republic with this modernity. It found its outlet in all sorts of visions of an “organic democracy” and a new “Reich”, which coincided in their contempt for “Western formal democracy” and amounted to a deparliamentarization of the political order. see Loth 2010, 90

This tendency was certainly made by the development of “solidarism” into a comprehensive model of society that could be interpreted as pointing in the direction of a corporative reorganization of the state, and that therefore acted as a “catalyst” in replacing parliamentary democratic regimes with new authoritarian systems (see Wolff/Hoensch 1987). However, the fact that the “corporative order” is linked, as mentioned, not only to the emerging authoritarian regimes, such as the corporative state in Austria, but also to National Socialism, actually does not fit in with German National Socialism, which in actual fact tended to a certain extent to be egalitarian and modern. The “social-cultural tendencies of levelling that characterized all industrialized societies [were] accelerated by social-egalitarian and propagandistic promises, as well as by 6  Böckenförde gives three reasons for this: maintaining neutrality vis-à-vis all forms of government (for only as long as the eternal principles of natural law are respected); Catholic antiliberalism; and the trauma of the Kulturkampf and the accompanying fixation of political thinking on the idea from natural law of bona particularia. He also specifically mentions as reasons why Catholic actors, and in particular the church hierarchy, did not resolutely oppose the Enabling Act the above-mentioned affinity with the corporative-authoritarian social order, as well as the approval of the social policy of the NS regime (Böckenförde 2007, 134-143).

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improvements in the social status and in the material situation of workers” (Thamer 2002, 248). Not least, the populist Volk ideology represented the attractive egalitarian ideal; an important factor for Hitler’s support was provided by the populist promise of equality … Time and time again, Hitler propagated what he claimed for himself – the social ascent of the able individual, regardless of whether that individual had been born into poor and uneducated conditions … Differing in methods, but often at the expense of third parties, the social mobilization of the masses is one of the core political ideas of the 20th century. The national socialism of the NSDAP belongs to this continuum. Aly 2005, 358-3607

On the other hand, social Catholicism, which was anti-modernist and nonegalitarian, does not belong to this continuum, and it therefore seems rather implausible to identify an affinity to National Socialism in the structurally premodern and ideologically traditional corporative order.8 With regard to the encyclical Quadragesimo anno, though, we can nonetheless state at the least that it failed to stop the catastrophe (Nell-Breuning 1972, 134-135).9

7  Götz Aly, Hitlers Volksstaat. Raub, Rassenkrieg und nationaler Sozialismus, Berlin 2005, 358-360. 8  With regard to Catholic anti-modernism, it would be more appropriate to investigate the connection between anti-modernism and anti-Semitism, and in particular the extent to which “social-cultural anti-Semitism” (see Altermatt 1999), which considers “Jews as scapegoats to ward off the perceived threats of modernity”, played a role within Catholicism. And to what extent this tendency could interact with National Socialist anti-Semitism and thus become an aspect of the support given to National Socialism. (See for the 19th century Blaschke 1991, who attempts to prove the thesis that the anti-Semitism of Catholicism is to a certain extent an “indicator” of its anti-modernism). 9  In 1932, Nell-Breuning still had great hopes for the model of order provided by the corporative system. In his statements on the encyclical, Nell-Breuning saw humanity, torn between classes in the labour market, “really dancing on a volcano” (Nell-Breuning 1950, 157). He saw the only possible solution as lying in corporative order, subsidiarity and social justice as defined by the encyclical (see Ibid., 257-261). Given this, it is interesting to note that the reception of Quadragesimo anno and the reputation of its most important author, Oswald von Nell-Breuning, have in essence remained almost entirely positive. Reception of the encyclical has focused on its social doctrine, which is characterized by social justice and the principle of subsidiarity, while it barely discusses the state doctrine, which, based on a more or less authoritarian “corporative order”, is possibly problematical in view of the emerging fascist movements in Europe.

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5.1.3 The Ambivalent Attitude of the Catholic Church While in the period of the National Socialist regime the official church clearly rejected “racial politics” from the outset, it did not, as mentioned above, protest loudly enough against the destruction of the democratic-parliamentary constitutional state, which included political Catholicism. One reason for this attitude is often sought in a supposed mood for change among Catholics after the Weimar crisis years.10 Their goal, however, was a renewal from the Christian spirit, with “the bishops arguing that a racial-ideological heresy should never take the place of the Christian foundations of the German state and of the Volk community” (Kösters 2001, 100). Although the Catholic worldview opposed the worldview of National Socialism, this opposition certainly did not lead it to reconsider theologically the traditional Catholic doctrine of the state in the face of NS power relations. Perhaps this was partly because this state doctrine was firmly anchored in the life reality of Catholics. Hockerts speaks of mental dispositions “in which politics and religion were not categorically separated, but fused in the notion that transcendental powers directly influence the political fate of the German people”.11 Doubts did emerge in the further course of history in the face of the hostility of the NS regime to the church, its fight against political Catholicism, its prohibition on associations, and its general tendency to drive Catholics back into the ecclesial sphere, but this did not result in a conceptual repositioning of the church. Rather, it reinforced on the one hand the attitude that the state should under no circumstances be deprived of its Christian foundations. And it began on the other a discussion about the real task of the church: is its mission political or does it not lie instead primarily in the pastoral field? Do Catholics and the church have a general responsibility to the world, or are they primarily concerned with caring for members of their own religious community? The signing of the Reichskonkordat as a promise of neutrality promoted in any case the depoliticization of the clergy and the enforced conformity of the 10  Thamer writes in the context of the dispute over how to evaluate the conflictual Weimar Republic and the consequent rejection of a pluralistic-democratic society: “But in Catholic and socialist languages, too, there were images of community and social harmony that were used as a contrast to class struggle and social division” (Thamer 2002, 247). 11  Quoted from Damberg 2011, 115. Somewhat exaggerated is Damberg, who quotes a Catholic soldier: “If we should fall here outside, then maybe soon … then we have fallen for Christian-European culture (for no other), in the fight against the godless Bolshevism (not in the fight against the Russian people or the Eastern race)… Not a war for a full breakfast, lunch and dinner table, but in the fight for any authority, for ‘throne’ and ‘altar’! I would also like to have that recorded for possible obituaries!” (Ibid., 119).

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Catholic associations.12 The papal programme of reforming Catholic Action is also generally seen as part of this process of depoliticization, a process supporting the German-national system. However, the role of Catholic Action in answering the question of the relationship between National Socialism and the church is not uncontested, especially as it “has very different effects in different national and cultural contexts” (Damberg 2010, 84). In Germany, the magisterium and lay organizations largely had difficulties with Catholic Action (see Hürten 1992; Unterburger 2010a). Purely religious activities in the parishes were strengthened within this structural model of organization during the Third Reich, and, in its wake, “mature laypeople” were counted upon, since the external structures of the milieu had been largely destroyed by the dictatorship. Catholic Action aimed at a process of churchification, and therefore also argued not for the religious freedom that was being attacked by National Socialism, but for the establishment of the kingship of Christ, tied to an “existential centring on the church” and “participatio in sacris” (Damberg 2010, 83; see also Hellemans 1990, 113-114f.). Withdrawal and consolidation of its own milieu, to which Catholic Action contributed, can be interpreted as part of a strategy of resistance. And that although a positive interpretation – that is to say, one friendly to National Socialism – was evident with regard to the significance of the war. The motivation behind the Eastern war was for both the church and National Socialism the defensive struggle against anti-Christian Bolshevism.13 And this resulted in an overlap between the propaganda of the NS regime and a “Crusade rhetoric” on the part of the Catholic bishops. A religious interpretation of the war was thus possible, and indeed one that in a sense expressed a desire for re-Christianization. However, a “total war between worldviews” in the form of a war of conquest and annihilation contradicted another “Catholic war”. Ultimately, both could not be reconciled (see Damberg 2011), and thus did not hamper Catholic resistance. This resistance was to a large extent passive, resulting from the “defensive” (Kösters 2011, 107) constitution of the Catholic milieu. Among other things, adherence to the thesis of state neutrality led to the church’s tendency to fit in with the respective state context, in the form of a separate (special) community 12  The concordat is judged quite differently, with Morsey, for example, proposing a positive evaluation. Like Repgen, he speaks of a “contractual form of non-adaptation of the Catholic Church to the Third Reich”, of securing a “lasting intellectual distance of large numbers of the clergy and church people from the violent regime”; and, like Hockerts, he believes that from this could emerge “behaviours of refusal, of protest and of the active resistance by individual Catholics to the NS regime” (Morsey 2011, 47). 13  Persecution of the church in the 1920s under Stalin provides the conditions for this from the point of view of the church.

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that sometimes led a niche existence. Because of this understanding on the part of the church, there was on the one hand barely any conceptual means to oppose the perversion of just rule (that is, to oppose an unjust state), and on the other the possibility of resistance opened up to a certain extent for the first time.14 By insisting on its autonomy, the church not only contradicted the totalitarian state’s will to control and absorb everything – it also created the conditions for possible contradiction and resistance. Maier 1995, 53

We can certainly not speak in terms of the resistance of the Catholic Church as a whole. We need once again to consider the internal plurality of Catholicism. There were magisterial statements criticizing National Socialism, but these were very cautious.15 There were even positions in the academic-theological field, such as that of Karl Adam, that wanted to use the modernity of National Socialism as a potential for innovation for a theology of reform.16 And hardly any counter-movement was organized at the party-political level. The situation was different in the Catholic milieu.17 This lifeworld showed in parts an enormous persistence and resistance to NS rule,18 which later made the transition to the postwar period possible. Participation in the Volksgemeinschaft was decided for Catholics on the question of whether this community ideology realized or at least took into account the “principles of Christianity in state, society, economy and culture”. 14  Whether “resistance” is the pertinent expression for the attitudes of Catholics who opposed the NS regime is disputed; for example, Hürten recommends the concept of “witness”, since it counteracts the narrowing-down to the political level. 15  See, for example, the Pope’s Christmas messages during the war. 16  See Scherzberg 2001; see, for example, 322: “It was precisely reform-oriented Catholic theologians, who today are counted as forerunners of the Second Vatican Council, that were susceptible to National Socialism, insofar as they saw in it a possibility to realize their theological and church reform plans … This does not mean, however, that neo-scholastic theologians were per se immune to National Socialism, or that neo-scholastic theology would from itself have made a rapprochement with National Socialism impossible, even if the distance of experience sometimes afforded some protection against adopting what National Socialism offered in terms of experience”. 17  By Catholic milieu is meant here a “demarcating and exclusionary Catholic-denominational group context with a certain we-feeling, which has its own ‘world view’, its own institutions, and its own everyday rituals” (Gabriel 1998, 96). 18  On this, see the impressive (but admittedly only anecdotal) literary account from the Märkischer Sand in Berlin’s district of Karlshorst that is in Fest 2006, esp. 38-139.

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A “neo-pagan” and brutally “de-confessionalized” Volksgemeinschaft met on the other hand with open rejection and the endeavour to save the Catholic milieu from being forced out of society. see Kösters 2011, 107

5.1.4 After 1945 After National Socialism, Catholicism began its heyday in Europe in the 1950s under the auspices of democracy. The influence that the church had after 1945 can be explained by a vacuum in values that allowed a special Catholic “mentality” based on a “conservative utopia” of “re-Christianization” to gain in influence (Greschat 1990, 14). For Damberg, this mentality is in turn linked to a certain understanding of the church that grew in the Nazi era and that follows the guiding principle: The clergy must confine itself to a purely religious leadership function and therefore be apolitical, but, by means of the “Catholic mentality” developed from religious foundations, it should also enable the laity to create for its part a Christian Germany. Damberg 1998, 151

Carried by this “mentality”, which corresponded to the triumphalist image of the church of the 1950s, both churchliness and the Catholic milieu (the latter proving to be relatively stable after the “destruction” of 1933, especially with regard to Catholic resistance) experienced an upswing after 1945. The end of National Socialism was interpreted as the end of a disastrous development that proved the failure of all secular worldviews, including those of individualistic liberalism and collectivist socialism. Gabriel 1998, 110

The Catholic milieu was characterized in the 1950s, as it had been prior to 1933, by party-political ties, by its organization into clubs and associations, and by the ritualization of everyday life; the church’s monopoly on socialization was undisputed at this time, although in some ways there was also a movement away from the milieu inasmuch as a large number of Catholic actors now focused on issues that affected the whole of society. Also, the component distinguishing the denominations now fell away due to their common experiences of persecution under National Socialism. In addition, the hitherto defensive self-organization of the milieu was replaced by an aggressive attempt to bring its own world of ideas into society and into the narrower political sphere. The

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postwar years of German Catholicism can be characterized up until about 1960 as demonstrating “continuity with the tendency to fundamentalist intensification” (Ibid.), although there was also a clear tendency to “churchification”, i.e., hierarchical structures of the official church were dominant (Hürten 1986, 243). With regard to the doctrine of natural law that constituted the neo-scholastic church, the postwar years also saw a brief eruption of “euphoric hopes that natural law would help regenerate legal thinking”. According to Kaufmann, though, “despite the great prestige and social influence of the church in the postwar period, a critique of this idea across the whole of society did not take place” (Kaufmann 1973, 132). In rejecting National Socialism, Catholic actors were in unity; however, on closer inspection, the split between magisterium and political Catholicism remained. For example, the German episcopate did not commit itself to a clear affirmation of democracy, in stark contrast to the Christian-democratic parties, which were still strongly tied to the church. Although the German bishops no longer took offence at the article in the constitution on religious freedom (Böckenförde 2007, 125), the role of the German Council Fathers in the question of religious freedom at the Council was obviously not – or at least not obviously or indeed dominantly – influenced by the experience of National Socialism, insofar as they provided no decisive impetus for the recognition of democracy and religious freedom (see chapter 1 above, and 5.9 below). However, certain anti-democratic arguments were no longer available, at least in the confrontational form previously used by the official church. After the end of the war and the concomitant delegitimation of certain arguments, the Catholic Church found itself in the context of an international order that was attempting to reconstitute itself on the basis of an intensely driven human rights policy. The effects of the period of National Socialism and the Second World War were the United Nations Universal Declaration of Human Rights with its appeal to general human dignity, and the constitution of global institutions as well as international law. In this changed political context, the Catholic Church also had to redefine itself as a global institution; the external pressure thus increased in the course of the postwar period. 5.1.5 Summary (1) “Before the Second World War, church and Catholicism did not manage to block the paths to dictatorships of various kinds” (Gabriel 2013, 271). Rather, in the prewar period, the Catholic Church showed an affinity to fascist ideas and a tendency to a corporative model of the state. Both seemed realized (rudimentarily) in a number of European countries, and it was the declared goal of the church to develop these approaches into a Catholic state model

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(authoritarian and corporative). But, within the “Latin bloc”, the relationship between specific manifestations of Catholicism and concrete state constitutions is very diverse. (2) Despite its opposition to the NS regime, the Catholic resistance by no means focused (and not even in the NS period) on a reorientation of state doctrine. Nevertheless, the experience of National Socialism and the Second World War seems to have had a certain effect on the state doctrine of the church: after 1945, certain lines of argumentation were in effect blocked, which meant that pope and church were no longer able to pursue those theoretical reflections on the state that tended towards an authoritarian corporative state. However, this was not yet accompanied by the recognition of rights of freedom and democracy. (3) In its resistance to National Socialism, Catholicism was viewed extremely positively immediately after the war, and was regarded, almost as a matter of course, as a stabilizing force. However, the critical appraisal of National Socialism since the 1960s, and the establishment of the protection of human rights by international organizations, required the Catholic Church in the further course of the postwar period to position itself and thereby to reflect on how it understands itself. (4) We therefore require a balanced assessment of the factor “National Socialism and Second World War” when it comes to the learning process of the Catholic Church towards religious freedom. On the one hand, the church did not unanimously agree to human rights in as early as 1948; the experience of National Socialism therefore by no means triggered a 180-degree turn. On the other, the previous Catholic state doctrine could no longer be used after the Second World War, and alternatives therefore had to be sought. An aggressive and confrontational stance on democracy and human rights was in any case no longer possible. Utz represents a strong thesis of continuity that is based on the claim that the doctrine of the church represents the truth, and can therefore not be contradictory in itself, even when two statements made one after the other at a certain interval contradict each other. 5.2

Declaration of Human Rights and Global Organizations

5.2.1 General Lines of Development The period immediately after the Second World War saw a break in the history of human rights, in terms both of their scope and recognition. Due in particular to the formulation of the Declaration of Human Rights in 1948, the

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ethos of human rights gained a certain validity at the international level and was represented by global organizations. The early lists of human rights of the late 18th and 19th century were still strongly tied to their context and were not formulated particularly comprehensively; they were mainly reactions to quite different specific conflicts. For example, concern in England and America was with reducing state regulation, which penetrated far into the private sphere; in France, with abolishing the privileges of birth; and, in Spanish Baroque scholasticism, with breaking through the idea of identity of Europeans and the human being as a legal subject (see Hilpert 2001, 87; Jellinek 1964, 20-38; Nussbaum 2008, 34-114). Codification or positivization proceeds by drawing on the concept of human dignity, this concept being used in just as contextdependent forms. In the light of historical challenges, other aspects of importance of human dignity are updated; these traits of human dignity, as specified on different occasions, can then also lead to a greater exploitation of the normative content of guaranteed fundamental rights as well as to the discovery and construction of new fundamental rights. Habermas 2010, 346

Human dignity has been used as a legal concept only since the Second World War, with the term previously being used solely in the context of experiences of marginalization and injustice. That is, there are experiences – each one different – of violations of dignity, on the basis of which claims to human rights are formulated, such as the restrictions on freedom of the feudally disintegrated propertied and educated citizenry. We can therefore talk in a sense of a spillover effect with regard to human rights, with the range of human rights issues becoming wider over time. Thus, in France, for example, the demands made in the context of the discourse on human rights widened from demands for political equality during the revolutionary period to private efforts at emancipation (see Laclau/Mouffe 1990, 97-132). What can be considered the “original human right” is a matter of contention, and Jellinek’s thesis that it is religious freedom has been widely criticized (see Putz 1991, 74). There is agreement, however, that, with regard to the historical development of human rights, political rights of freedom were first demanded, with social rights of entitlement initially playing a secondary role. Also still contentious is who is the addressee of human rights; depending on context, the categories of gender, social position, species, and even stage of neuronal development, are decisive. But, again, what is undisputed is that human rights have individual

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significance, i.e., are rights of the individual bearer – defined on the basis of a certain quality – and are not primarily corporative rights. This turn was clearly marked politically in the French Revolution and in the history of ideas through the philosophy of the Enlightenment. “The emergence of human rights in the late 18th century is”, according to Joas, “an expression of a profound cultural shift that makes the human person a sacred object” (Joas 2006b, 24; see Joas 1999, 325-333). To explain the tradition and implementation of human rights, we can refer to religious factors (see Jellinek 1904), certain constellations of interests (see Casanova 2010, 29-44), and finally also processes of juridification (see König 2005, 41-51). Human rights discourses were ultimately primarily national in character until they were unified under international law in the 1960s; thus, in the period immediately after the Second World War, the positivization of human rights was tied to each constitution, and the claim to protection under human rights was tied to status of citizenship.19 Moreover, the entire discourse of human rights was long shaped according to the “Western” model; it was only after the Second World War that we can notice a certain spillover effect on different cultural spaces. Finally, this period saw the claim of the ethos of human rights become ever clearer as a global ethos that to a certain extent went beyond the borders of cultural spaces. This may have been because conflict had now in fact become global, and violations of human rights under National Socialism had reached extremes in both number and extent. This specific political situation in the world led to a forcing of the international affirmation or codification and institutionalization of human rights. In this process, it was initially fundamental rights and constitutions internal to states that gained in importance immediately after the end of the war; at the end of the 1950s, it then became apparent that the development amounted to the constitutionalization of international law. The goal was “to oblige states under international law to protect human rights and to establish procedures for the international control of compliance with these obligations” (Gareis/ Varwick 2006, 170). This entails a fundamental limitation of state law, and to that extent the implementation of human rights under international law indirectly strengthens to a certain degree the legal claims of the individual. The protection of the individual against state power increases significantly in comparison to the sole implementation of human rights in the fundamental rights of citizenship, although states count as a rule as subjects under international law (the church is also a subject under international law). What is now negotiated under the 19  This becomes clear from the application of the principle of sovereignty, and above all of the prohibition on intervention, Article 2, 7 (see Gareis/Varwick 2006, 170).

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heading of cosmopolitanism points to a third sphere besides national and international law. Cosmopolitan norms are characterized by the fact that they no longer recognize only states as legal subjects, but also concern “relations among civil persons to each other as well as to organized political entities in a global civil society” (Benhabib 2006, 27). If human rights had hitherto been enforceable only in the role of the citizen, they were now enforceable, at least in principle, by every person within the framework of transnational legal systems. This seems to be largely in line with the original intention of the idea of human rights – namely, the desire to maximize the rights of the individual person, especially vis-à-vis the state. We should refer also in this context to the so-called third-party effect of human rights. In other words, human rights are currently also being increasingly demanded between citizens, with a tendency therefore emerging of a shift from the vertical to the horizontal plane. We should also bear in mind, however, that the passing of the Declaration of Human Rights in 1948 was initially a largely routine exercise (see Strohal 1999, 148; Weiß 2007, 164). Because of its legally non-binding nature and its appeal to human dignity in general, it was adopted by a large majority in the General Assembly of the United Nations and then confirmed in the form of a more or less non-binding approval in a number of individual states. While the public significance of human rights therefore increased in the 1950s, the real difficulty lay in establishing a certain binding force, i.e., in creating a binding agreement – and not least because of the emerging East-West conflict. The mandate to the CHR to prepare an “International Bill of Human Rights” therefore initially envisaged a tripartite instrument that, in addition to a general declaration, would already include a binding contract and proposals for its practical implementation. However, initial enthusiasm soon disappeared in the face of differences of opinion regarding the desired degree of legal obligation. Strohal, 148

Civil and social pacts were only adopted in 1966 and finally came into force under international law in 1976, although the options for implementation still differ today.20 All in all, however, the “relativization of state sovereignty from below” accompanying the internationalization of human rights gave states, international institutions 20  For example, optional individual complaints are only possible up to now in the “civil pact”.

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and organizations of global civil society manifold possibilities to address the human rights situation in countries without their being able to invoke a ban on interference in their internal affairs. Gareis/Varwick, 181

In this respect, we can see not only spillover effects of human rights into different cultural spaces, but also interactions with various organizations in the domain of civil society, such as the Catholic Church. The recourse to human rights is currently occupying a large space, although there is certainly a tendency to regard the ethos of human rights itself more as a particular worldview among many, or even to conceive it as an ideology or as a (necessary) utopia (see Taylor 2010). This is due on the one hand to the problems of the universalizability and the implementability of human rights, and on the other to its almost inflationary use as an incalculable and therefore undefeatable argument in processes of discussion. At the same time, however, criticism of human rights hardly ebbs away, with accusations being levelled at both their Eurocentrism and their hegemony. However, advocates of human rights are now countering this criticism by no longer denying the particularity of human rights; they argue instead that there is a lack of alternatives in the face of experiences of injustice and with regard to the promotion of humanity and the concrete protection of a dignified human life (see Habermas 2010). Demonstrating the possibility of establishing the human rights ethos as an intercultural ethos at a global level is not least the turn performed by the Catholic Church, which until well into the 20th century was one of the most vehement opponents of the liberal idea of human rights. 5.2.2 Catholicism and Human Rights It was basically no longer possible after the Second World War for Catholicism as a world religion to take up a position against human rights as individual rights of freedom. The human rights discourse became a dominant political discourse and developed a certain momentum of its own. Thus, on the one hand, different actors – including Catholic – pushed the public debate on human rights; and, on the other, this debate had an effect on them in return. As commission members, influential Catholics such as Jacques Maritain and Pierre Teilhard de Chardin played their part in the genesis and codification of the Declaration of Human Rights in 1948; in addition, the American bishops published in 1947 a charter of human rights during the process of codification (see Putz, 322-330). It seems to have become easier for individual Catholic actors in the wake of global political developments after the Second World War to

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express explicitly their support (which they had previously withheld), to participate openly in external processes, and to have a say in them. These Catholic influences had consequences not only for the development of human rights in general, but also for developments within the church. The Catholic Church finally recognized human rights in Pacem in terris in 1963, with this recognition being clear and comprehensive not least because of the charisma of John XXIII. The constitution of global institutions in particular played a crucial role in the spread of human rights at this stage, and had a particularly strong influence on the Catholic Church. The formation of the UN was clearly supported by the church from the very beginning, the clearest sign of which was the UN visit by Pope Paul VI in 1965 and his appeal for peace, which was the very first speech by a pope before the UN. Our message is meant to be first of all a solemn moral ratification of this lofty Institution, and it comes from our experience of history. It is as an “expert on humanity” that we bring this Organization the support and approval of our recent predecessors, that of the Catholic hierarchy, and our own, convinced as we are that this Organization represents the obligatory path of modern civilization and world peace. Paul VI, 1965, 2

The Pope is speaking here in favour of religious freedom and human rights at a time when the Council debates around Dignitatis humanae were not yet finished. What you are proclaiming here are the basic rights and duties of man, his dignity, his liberty and above all his religious liberty. We feel that you are spokesmen for what is loftiest in human wisdom – we might almost say its sacred character – for it is above all a question of human life, and human life is sacred; no one can dare attack it. Ibid., 6

The development of the church’s relationship to human rights has been interpreted as a “tale of woe”, but also as a “history of learning”; beyond question is that the Catholic Church long experienced the acceptance of human rights as “a challenge to its understanding of itself” (Heimbach-Steins 2001, 12; see Maier 1997 and Hilpert 2001). Human rights as the embodiment of liberal and modern thinking, as a “secular ethos”, were – with certain concessions – rejected and even fought against as part of the official anti-modernist stance of the church

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from the end of the 18th century and ultimately up until Pacem in terris. And this was especially the case in the course of the reconstitution of the church in the 19th century, and here again especially on the part of the magisterium. This is very clear in the writings Mirari vos (Gregory XVI), Quanta cura, including Syllabus (Pius IX), and Libertas praestantissimum (Leo XIII), with the following lines of argumentation (see Hilpert 1991, 148-156) being used repeatedly to reject human rights: the doctrine of the divine origin of civil power,21 the primacy of truth over freedom (that is, “no right of existence for error”),22 and, though less strongly pronounced, the conception of sociality as a constitutive feature of being human in contrast to the atomistic self, and therefore a view of freedom that is primarily tied to the common good and is not predominantly “individualistic”.23 For example, Isensee has attempted to periodize the church’s relationship to human rights more precisely, and he distinguishes three periods: first, the strict rejection under Gregory XVI and Pius IX; second, the “convergence and reconciliation of the church with rights of freedom” (Isensee 1987, 140;) under Leo XIII; and, third, the fundamental recognition with and after the Second Vatican Council. We should, though, relativize to a certain extent the division into a phase of strict rejection in the 19th century and a phase of agreement after the Second World War; the objects of criticism are actually not human rights per se, but the [l]iberal idea of freedom in its ideological dimension and in those rights of spiritual freedom that seem threatening to the traditional order of religion, morality and the state … The object of rejection in the 19th century and that of acceptance in the 20th century only correspond partially. Isensee 1987, 14324

Moreover, despite the relatively high degree of homogeneity of the Catholic Church in the 19th century, we should also take into account its internal 21  Also above all in Diuturum illud. 22  Also in Quod aliquantum. 23  See also Immortale dei (Leo XIII 1885) and Rerum novarum. 24  There is in this context the distinction between the historical conditions for the emergence of declarations of human rights in France and America, and their orientation to formal, or to concrete, freedom, a distinction that was a central argument at the Second Vatican Council (see, for example, the contributions in Gabriel/Spiess/Winkler 2010b), and that has been taken up repeatedly since then; see, for example, Furger/StrobelNeppler 1985 and Päpstliche Kommission Justitia et Pax 1976 and 1991.

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plurality. The periodic classification refers mainly to the magisterial point of view; if different Catholic actors are considered, such as Catholic intellectuals or politicians, parishioners of local churches, etc., then a less clear picture emerges.25 The church is involved in the processes of progressively establishing human rights in a variety of ways (mostly in the role of rejecting them). The church has an interest in recognizing human rights, and especially religious freedom, above all when it comes to protecting itself when it has a minority status. The adoption of human rights by the Catholic Church is often described as a reverse process compared to the general development of human rights, which means that the church recognized the so-called social human rights or the rights of social entitlement relatively early, and the negative rights of freedom or rights of defence only relatively late. In the 19th century, for example, the church advocated the social rights of the workers by pointing to their personal dignity. By contrast, the demand for negative rights of freedom, i.e., civic freedoms, which was the initial impulse in human rights thinking in Europe in the late 18th century,26 was almost completely rejected by the church. But, despite this general tendency of reversal, we should also take into account here an ambiguity and above all an asynchronicity. For example, Leo XIII drew on liberal arguments of a Lockean hue in his justification of ownership, and represented in this context a conception of negative freedom. At the same time, however, he strongly rejected the right to religious freedom – that is to say, the negative right of freedom par excellence (see Spiess 2004, 144-155). There is also a certain ambiguity with regard to the church’s concentration on charitable activities arising from the social question of the 19th century, since this concentration was certainly accompanied by a process of reflecting on freedom. However, concern here was mainly with the prerequisites of freedom, and not with rights of freedom as rights of defence or rights to political participation. Against the background of National Socialism, social teachings then referred with reservations to human dignity and human rights (as, for example, in Mit brennender Sorge and the Christmas addresses of Pius XII), but they were not the central point of reference (see Hilpert 1991). They would only become so in Pacem in terris, which had a significant influence on the Council process. This 25  See Uertz 2008d, 188, which points out that “the liberal constitutional movement beginning in 1830 in Belgium, Ireland and Poland … was sometimes also supported by Catholics”. 26  This impulse came from the bourgeoisie and related primarily to rights of ownership and participation; see, for example, Jellinek 1904.

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so-called human rights encyclical is to be interpreted with regard to Dignitatis humanae as part of the Council process. There seems to be a certain turningpoint here in terms of recognizing religious freedom, which, in view of the tough struggles surrounding Dignitatis humanae, was initially questioned once again by the Council. Given that the magisterium in the person of Pope John XXIII even sometimes adopted the very wording of the Universal Declaration of Human Rights in Pacem in terris, we can speak of a retroactive adoption of human rights. Explicit reference is made to human dignity, and this concept is used to justify the universability or universal validity of human rights.27 The church thus seamlessly joined the group of those advocating human rights in the 1960s. Thus, calling on the concept of human dignity in the founding of the United Nations, and generally in negotiating human rights pacts and conventions of international law, has undoubtedly facilitated the creation of an overlapping consensus between parties of various cultural backgrounds. Habermas 2010, 345

Attempts to prove that human rights were rooted in the Catholic or Christian tradition increased during the Council period. There was a certain tendency to appropriate, something that was in turn criticized by Catholic opponents of human rights. It became clear especially in the Council process, and here above all in the tense discussions surrounding Dignitatis humanae,28 that there was still within the church an influential camp against human rights and liberal ideas. For one, the recognition of human rights, and above all the recognition of religious freedom, were fundamentally questioned until the very end of the Council. Moreover, the way that they were justified was also always questioned: what was and remains a central issue in the discourse on human rights in Catholicism is whether the recognition of human rights covers equally the

27  This reference is by no means obvious, however, as a glance at the Anglo-Saxon tradition of ethical positions shows. The justification of human dignity remains highly controversial at present; the claim that every human being has dignity is understood in a number of approaches of political philosophy only as a generally valid “intuition” based on the experience of the violation of dignity and of the possibility of naming this experience as such. On this, see also, for example, Habermas 2010 and Nussbaum 2000. 28  See chapter 1 in this volume.

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theological, ethical and political level of justification, or whether it can in fact not cover all three levels of argumentation.29 Reference was made here – in a different form, depending on manner of justification – to the concept of human dignity, and often on the premise that this concept be consistent with its own tradition. Human dignity, to which the justification of human rights still refers today in many ways, was grounded [in the Catholic tradition] in the Imago-Dei condition of the human … In this traditional Christian context emerged the modern idea of human rights. Anzenbacher 1995, 127

The line of reasoning of the image of God in human beings pursued in the theology of creation points to the special position of the human in the cosmos, and therefore supports to some degree the genesis of the concept of human dignity in the history of ideas. This interpretation is disputed, however, with Brieskorn, for example, arguing against the possibility of justifying human dignity in Christian terms with the image of God in human beings. Rather, Brieskorn juxtaposes Judaeo-Christian sources with the human rights movement of the 18th century, and writes: “those naively assuming that the justification lies in the similarity of the human to God has changed either the Christian understanding of God or the image of the human in the human rights movement” (Brieskorn 1997, 147).30 Although the recognition of human rights has constantly met obstacles within the Catholic Church, the church has actually become the “advocate of human rights” after the Second Vatican Council. 29  In addition, the fundamental question arises as to whether a Christian ethics precludes a universal, general-human ethical basis of argumentation from the outset, in that “the positive reference to revelation is absolutely constitutive of a Christian ethics as ethics” (Anzenbacher 1995, 111). 30  Brieskorn justifies his criticism by pointing to the fact that human life is considered to be derived from God, “the earth is not the last home”, the human is considered to be a “social entity and custodian”, and “only the commandment of neighbourly love can guide action”; this differs greatly, according to Breiskorn, from the individualistic image of humanity of the 18th-century human rights movement (Ibid.). The political scientist Stein, on the other hand, represents, as she writes, the “Genesis hypothesis”, which means that she assumes that, “without the ingredients of Jewish and Christian thought, and its social and institutional structures of communitization, the specific form of a political order with limited jurisdiction, whose purpose is the protection of human dignity, could not have developed” (Stein 2007).

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5.2.3 Summary (1) The human rights factor had a different and much greater significance after the Second World War than it did before. This development did not leave the church and its attitude to human rights unaffected. In summary, we can identify three barriers that are and were central to the debate on the recognition of human rights, and not only in relation to the Catholic Church, barriers that continue to lead to conflicts:31 (2) First, the barrier of power points to a political-pragmatic appeal. Establishing a political system, such as a functioning democratic system, prevents the monopolization of power and the restriction of human rights possibly tied to it. On the Catholic side, this point ultimately concerns the recognition of the separation of church and state, which has been implemented in a fundamental form since the 19th century. The church became after the Second World War the advocate of democracy and human rights, above all in its role as an actor in civil society, which corresponded to a new self-understanding on the church’s part. The issue of power also seems to be explosive with regard to structures within the Catholic Church, and we are dealing here with questions of hierarchy and the internal democratization of the church. The human rights discourse did not affect internal church structures as much as it did the church’s attitude ad extra. (3) Second, the barrier of inequality refers to an anthropological appeal, in which common humanity is addressed, but where differential thinking also has its place. Following this, one can argue theologically by pointing to the “sanctity of the person”, or ethically by pointing to human dignity, which in each case equally includes the factor of universalization. With regard to inequality, reference should be made above all to the change that can be observed through turning away from the church’s doctrine of tolerance and turning to the concept of religious freedom. In the question of religious freedom, which is equally valid for every human being, emerges “the normative content of the demand for freedom of the moral subject denoted with the terms ‘human dignity’ and ‘human rights’, and that is with regard to the inaccessibility from outside of his or her disposition of conscience” (Hoppe 2002, 29). (4) Third, the barrier of truth refers ultimately to epistemological considerations. Religious communities and other ideological communities are characterized in particular by a certain claim to truth, and it is part of their self-understanding to represent this claim in ideological discourses. But this 31  On the determination and formulation of these barriers, see Anzenbacher 1995.

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does not in essence have to be an objectively absolute claim to validity, something that contains an unbridgeable potential for conflict, since evidence based on belief can be distinguished from evidence based on knowledge (see Forst 2008). The barrier of truth consists in adhering to an unbroken objective claim to truth, which ultimately opposes the recognition of human rights, and above all of freedom of conscience. (5) The reasons for the church’s strong rejection of human rights in the 19th century are contested. With regard to the barriers identified, the motives may range from power interests to discrepancies in terms of content; but the historical context in which human rights emerged undoubtedly played a decisive role: The Enlightenment was an attack on the monopoly claim of the Catholic interpretation of the world, and the revolution threatened the material foundations of the church’s power, especially since its leaders decided to access church property and the spiritual principalities. It was very unlikely that the church would manage to break away in time from the traditional conditions and recognize the factors in the transition to modernity that could be formed in a Christian direction, and that were even sometimes based on Christianity. Loth 2012, 82

(6) The human rights discourse certainly played a key role in the period after the Second World War in initiating a learning process within the church. The importance of the UN should not be underestimated here. With the emergence of global institutions in the mid-20th century, the external pressure of expectation on the “World Council of Churches” to position itself politically grew in the years preceding the Council. The external influence was so strong that there occurred not a mere accommodation of the church to modernity, which, as in the 19th century (ultimately until the Second World War), took the form of dissociation, but also to its direct recognition in the form of consent to human rights. (7) The importance of the discourse on human rights for the church, a discourse carried by global institutions, is shown not least by the speech that Paul VI gave before the UN General Assembly, when he already had, as it were, religious freedom in the bag. He makes human rights the cause of the church, even more so than John XXIII in Pacem in terris, “emphasizing again and again that the church itself feels violated when human rights are disregarded”(Putz 1991, 183).

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Economic Development: The Golden Age, 1950 to 1973

5.3.1 The World Economic Miracle of the Postwar Period The Second Vatican Council took place in the middle of a period of unprecedented economic growth. The “economic miracle” referred to by recent economic and social historians was not limited to Germany, but affected the whole of Western Europe and had a global dimension. In contrast to developments after the First World War, there was after 1945 an unexpectedly strong and long-lasting economic boom in the Western capitalist countries. Talk is of a Wirtschaftswunder (economic miracle) in Germany and Austria; of a Golden Age in the English-speaking world; of a Trente Glorieuses in France; of a Milagro economico espanol in Spain; and of a Miracolo economico italiano in Italy. The Japanese economy also recorded exceptionally high growth (see Bittner 2001, 7; Wehler 2008, 48). Between 1950 and 1973, gross domestic product per capita grew on average by 4% per year in Western Europe, by 5% in West Germany, by 4.9% in Austria and Italy, by 5.8% in Spain, and by 5.6% in Portugal. 5.3.2 Attempts to Explain the Economic Boom There is still no unanimity among academics when it comes to explaining the explosive and extraordinarily long-lasting growth in the years between 1950 and 1973. The introduction by Erhard and Müller-Armack of the social market economy (inspired by the neoliberal Freiburg School) cannot be the decisive factor alone, since France achieved similar success with a different economic policy, one based more strongly on state planning (see Lindlar 1997). Research on economic history has also shown that the Marshall Plan had only a very limited effect on the exceptionally high levels of economic growth in the postwar period. Werner Abelshauser (2004) has pointed to the long underestimated endogenous economic forces in Germany and Europe. Two world wars and the interwar period did not exhaust the growth potential of the economy. According to Abelshauser, there was against this background an extraordinary period of reconstruction in terms of economic growth. In Germany, too, industrial plants were not as severely damaged as had been initially assumed. The existing capital stock was joined by highly qualified workers, who were supplemented in Germany by displaced persons and refugees who did not cost the state anything in terms of their qualifications. In addition, it was possible to draw on proven forms of organization based on the balance between capital and labour. Above all, the particularly high growth rates witnessed by Germany in the 1950s (8.5% on average) can be better explained with the “reconstruction thesis” than with the myth of the “social market economy”.

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The “theory of structural break” places the European and global economic dimension at the centre of its explanation of the economic boom of the 1950s and 1960s (Wehler 2008, 52-53). Beginning with the US, it was possible for the first time since 1914 to secure once again a global world market institutionally. The postwar institutions that facilitated a liberalization of the world market not seen since 1914 included the Bretten Woods Monetary System, the GATT Customs Agreement, the International Monetary Fund, the OECD, and the European Economic Community (EEC). The material, but also the symbolic, integration of Europe into the world market was also facilitated by the help given to the Western European states by the US as part of the “European Recovery Program” (Marshall Plan). Supported by the boom in the context of the Korean War, West Germany in particular succeeded in gaining a foothold in the world market and developing export-oriented growth. The Western European states were able in this context, and this is suggested by a third explanatory variant (namely, the catch-up thesis), to draw level relatively quickly with the US in terms of technology and organization. Overall, the picture emerges that it was clearly the endogenous growth potential in West Germany and Europe, and the institutionalization of a liberalized world market, that were together the decisive forces that facilitated the “Golden Age”. Without the change to international institutions and domestic German economic policy, which in fact amounted to a structural break, the effort of reconstruction would not, in turn, have been able to cause a truly revolutionary upheaval in such a fantastically short time. Ibid.

5.3.3 Characteristics and Consequences of the Economic Boom As the example of West Germany shows particularly clearly, the “Golden Age of Western capitalism” (Ibid.) opened the door to the consumer society. Thus, between 1950 and 1960, the real income per capita doubled; by the end of the boom in 1973, it had tripled. The incomes of industrial workers increased one and a half times between 1950 and 1965, and private consumption by 300%. “Never before had Germans ‘become prosperous so quickly’ than in the 25 years after 1950” (Ibid., 55). In the few years between 1950 and 1973, gross domestic product in Germany grew faster than in the long period between 1800 and 1950. At the peak of the boom, between 1958 and 1963, German industrial production grew by 37% (in comparison, in America it was by 28%). In 1950, 40% of those displaced were still unemployed, but, within a few years, unemployment

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had been eliminated more or less completely. From 1961 onwards, the unemployment rate was less than one percent, and the phase of full employment continued until 1973. The “short dream of perpetual prosperity” was also aided by the rapid transformation of the agricultural economy (see Lutz 1984). Two-thirds of those working in agriculture in 1950 emigrated to industry. As Burkhart Lutz already pointed out long ago, this was the end of the socio-economic dualism between the traditional farming-handicraft sector on the one hand, and the industrial sector on the other (Ibid., 110-128). In addition to mobilizing a large proportion of those who had previously worked in agriculture to move into dependent employment in large industrial enterprises, there was also a change to consumer habits. Workers now no longer met their daily needs primarily from traditional agriculture and small handicraft. In their place were industrial products and services provided according to market-economy principles. Industry conquered almost completely the consumption needs of the population, and steered these needs according to the model of the American middle class. The rapid spread of the car symbolizes these developments most clearly. The US was a powerful role model, demonstrating to Western Europeans not only through its own example, “but also through a broad and varied campaign of persuasion”, that “domestic economic growth perspectives exist for democratic nations concerned with internal peace and social equality” (Ibid., 192). The traditional, small-scale grocery was replaced by self-service shops and chain stores, and craftspeople such as shoemakers and tailors disappeared almost completely. Of the 21 million people employed in the West German industrial sector in the early 1970s, seven million originally came from the farming and craft sectors (Gabriel 1998, 123). The tripling of real incomes and increased purchasing power also resulted in a certain levelling of consumption in terms of class and social position. According to Hans-Ulrich Wehler, the expansion of the consumer world in the 1950s and 1960s can be seen in four innovative institutions: “in the self-service store and in the department store, in the supermarket and in the discount store” (Wehler 2008, 77). The dissolution of the traditional farming and craft sector of the economy formed the economic basis of the erosion beginning in the late 1950s and 1960s of traditional milieus, including especially the Catholic milieu (see Gabriel 1998; Ibid. 2000). 5.3.4 Summary (1) The “world economic miracle” of the 1950s and 1960s was a historically unique phenomenon. There had not been a similarly explosive and strong

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economic growth until then, and, with the slump in the oil price in 1973, the extraordinary phase of prosperity also ended. (2) The US proved to be the undisputed role model and magnet in the postwar boom. Contributing to this was the economic potential of the US, but also the fact that the assumption of state responsibility for social emergencies enshrined in Roosevelt’s New Deal lasted into the postwar period. (3) The economic boom that was particularly strong and directly tangible in Western Europe during the postwar phase was able to demonstrate vividly the superiority of a liberal economy and society. Thus, the socialist and communist economic and social experiment in the Soviet Union and its satellites in Eastern Europe lost its attraction. (4) The same was true for the economic and social model of an authoritarian state and a corporatively organized economy, a model long considered ideal in Rome under Pius XI and in the authoritarian Catholic states of Europe (Misner 2004, 666). (5) The obvious conclusion is that the economic developments of the 1950s and early 1960s also encouraged the Council Fathers of the Second Vatican Council to follow the example of the US, even in the matter of a liberal understanding of religion. 5.4

East-West Confrontation and Cold War

5.4.1 The Division of the World The time of the Cold War was marked by two alternative visions of the world order: While for the American president world peace was created through economic and political liberalism, through the spread of democracy, capitalism and the freedom of the individual under the leadership of the United States, the same goal could for the leader of the Bolsheviks only be achieved through the construction of a socialist society under the leadership of the Communist Party. Greschat 2010, 15-16

These positions emerged at the beginning of the 20th century, and allowed no neutrality vis-à-vis the other social system. However, during the period of National Socialism, they found a common enemy (anti-Hitler coalition), which in some way prevented a direct confrontation. Europe was one of the Cold

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War’s interfaces in the postwar period. The so-called Eastern Bloc was present here in the form of the communist-governed states of the Warsaw Pact. The “West”, on the other hand, was mirrored in the liberal tradition of Europe, which, though, as we discuss below (5.5), differs from the American tradition. The symbol of the division of the world in the middle of Europe was the division of Germany. 5.4.2 Interpretations of the “New” Global Political Situation The three standard interpretations of the so-called Cold War are the traditionalist or orthodox, the revisionist, and the post-revisionist. According to the former, the trigger for the Cold War was the hostile position of the Soviet Union, which destroyed any possibility of cooperation and forced the US onto the defence (see Loth 2000, 14-16). The Soviet Union pursued an expansionist policy based on the idea of the world communist revolution as a result of a global class struggle. But, according to the revisionist interpretation of the Cold War, it was the aggressive behaviour of the US, especially in the area of the economy, that triggered the Cold War, an opinion that brings into the argument the hegemonic interests of the US (see Ibid., 17-22). The post-revisionist interpretation, on the other hand, strives for a more balanced view. It tries to analyze more closely the dynamics of the situation and how these dynamics interact at different levels. It focuses in particular on the geopolitical significance and the power-political aspect of the conflict, especially in terms of the balance of power that played such a crucial role in the Cold War. So-called neo-orthodox interpretations have gained in importance more recently, however, with these strongly emphasizing the ideological side of the conflict with its quasi-religious structures. Thus, on the one hand, they interpret Stalinism and the person of Stalin in the so-called Stalin cult “religiously”; and, on the other, they demand that America and its civil-religious social structure be included more strongly in the analysis and interpretation. According to this approach, it is in any case “always about quasi-religious certainties both here and there” (Greschat 2010, 16). Religious lines of reasoning played a major role in very different orientations during the Cold War; as Kirby writes: “Marxist atheism provided a window of vulnerability, the Achilles’ heel of communism from the West’s religio-political perspective” (Kirby 2003, 2). In return, the “religiosity of the West” was a point of attack and demarcation from the perspective of the states of the Eastern Bloc. The formation of blocs was therefore accompanied by different religious-political conceptions and practices. There was an anti-church attitude, which was certainly not motivated solely by ideology, but also by power politics, on the side of the Eastern Bloc and the communist states. Again, both

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motives – ideology and power politics – also played a role in the pro-religious attitude of the West and the US. Thus, there is a symbiosis of religiosity and American nationalism, a variant of civil religion that goes hand in hand with the consciousness of divine election. It is from this particular form of religiosity that the claim of being a special moral force in the world is derived (Greschat 2010). One tactic in the wake of American anti-Communist propaganda was to underpin it religiously and to interpret communism primarily as an antireligious tendency against Christianity and therefore at the same time against the American nation and its liberal principles and its idea of democracy. Thus, the story of the Cold War is also read as “a global conflict between the god-fearing and the godless” (Kirby 2003, 1). 5.4.3 Positioning of the Catholic Church The “anti-church attitude of the godless” often led in the countries of the Eastern bloc to severe disadvantages or reppression for members of the church. More than 51 million Catholics lived in communist states, and thus within the sphere of influence of the Soviet Union, after the end of the Second World War. They sometimes had to fight against severe repression. The nationalization of church schools in Hungary in 1948, and the assimilation of Catholic churches into Russian-Orthodox, such as in Romania and the Ukraine, are just two examples. The interactions between church or Catholicism and the so-called totalitarian regimes of leftist hue32 were characterized by mutual rejection and relatively open hostility. Communist states largely followed the programme of the “active secularization” of society. The politically desired subordination of the churches to Communist rule was manifested in extreme cases by acts hostile to the church, such as open and organized persecution of the church, which in the worst case took the form of atrocities, and in anti-church politics, such as systematic surveillance and bureaucratic obstruction of Catholics. Hans Maier speaks of an “aggressive will to destroy” (Maier 1995, 54), and Leonid Luks of a “general process of demolition” (Luks 2002, 258).33 Miklós Tomka, on the other hand, writes: “In general, attempts were made to downplay the

32  The term totalitarianism was turned in the Cold War into a term of struggle against the communist states; this interpretation was also adopted by the church magisterium. It was different with other Catholic actors such as, for example, the Catholic parties. In the Italian context, the term totalitarianism was used by these parties as a means of demarcation from positions that rejected parliamentary democracy – that is, in distinction from both fascism and communism. 33  As further proof of the repressive attitude of Eastern Bloc countries, reference is made to the situation of Christians in Czechoslovakia after the Second World War.

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importance of religion and to conceal measures of persecution. Conversely, religious groups endeavoured to remain inconspicuous” (Tomka 2010, 78). The experiences of the church in the communist countries actually seem to have varied quite significantly.34 Thus, in the Soviet occupation zone and later in the GDR, the church had to struggle not only with repression, although defeating the church was the state’s official line. The church was at least able to be involved in the GDR in the form of its social institutions. “In the 1960s, the SED began to come to terms with the social work of the churches and to use them for its own ends” (Gabriel 2011, 1225). Although churches were forbidden to organize their social activities as publicly recognized charitable associations, as was the case in the West, they did nonetheless continue to run social facilities such as hospitals, old people’s homes, orphanages, and kindergartens. This was possible despite the SED’s all-encompassing claim to power and organization in the GDR, and gave the church a certain amount of freedom. Thus, the GDR took a special path among the Eastern Bloc countries. Another example is the Catholic Church of Poland, which had a completely different significance for the communist state than the church in the GDR. The Catholic Church, which as we know has a great importance for the nation in Poland, was at least occasionally able to evade state repression (until about 1953). It initially behaved after the Second World War in a decidedly apolitical manner, and was very rarely critical of the regime (see Luks 2002). But it was precisely this apolitical attitude that developed an “unparalleled explosiveness”, since Stalinism “demands from the ruled … the total identification with the objectives of the rulers … He equated a non-committed stance with high treason” (Ibid., 259 translation). Despite severe repression, Polish Catholicism could not be disempowered in the Stalin era and gained relatively great autonomy through the 1956 compromise between state and church. There was therefore on the one hand a certain tolerance and pragmatic cooperation between the communist regime and the church, but on the other no relaxation of the relationship, which is clear from the example of the great novena: This nine-year programme of religious renewal was experienced by the Party as an unprecedented challenge, as an attempt by the church to appropriate Polish history and to exclude the communists from this history. Ibid., 263

34  On the recent history of the relationship between church and communism (that is, after 1989), see the contributions in Bystricky/Gabriel 2010.

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The close connection between Catholicism and nation was a major reason for this situation of constant conflict: “The Party already had to acknowledge in the 1970s that it had more or less lost the battle for the ‘soul’ of the people” (Ibid., 264). The church therefore contributed significantly after the Second Vatican Council, and especially in the person of Pope John Paul II, to the “push towards detotalitarianization” that emanated from Poland in the 1980s and that led to systemic transformations (“third wave of democratization”). Its ties to the West became ever more important for the church as a world church in the postwar period and in the period of bloc formation. Integration into the “free world”, which was opposed to the antidemocratic world, was now pursued despite the negative experiences of a European liberalism that was anti-church. Pius XII pursued an anti-communist course from the very beginning of his term of office (see Coppa 2003), reaching its peak in 1949 in the decree of the Holy See, which threatened to excommunicate Catholics who “engaged” with communist organizations. However, this rigorous anti-communist stance could not be interpreted initially as being pro-Western, due of course to the church’s traditional anti-liberalism. However, the church did become increasingly tied to the West during the postwar period, one sign of which was the election campaign in Italy in 1947/48, when, with US support, Catholic Italy took a stand against the Communist Party. Pius XII is after all considered the “first pro-America pope”. With John XXIII, but also towards the end of the term of office of Pius XII, however, the church was also concerned with mediating with the states of the Warsaw Pact.35 The changed position of the church in the world, the theology of an opening to the world, and a tangible movement in dealing with the states of the Eastern bloc finally culminated in the pontificate of John XXIII. The phase of mere self-defence was replaced by the attempt to gain more room for manoeuvre – especially with regard to the states under communist rule. Cerny-Werner/Gries 2009, 42

35  We can note at this point that, from the very beginning of the Cold War, the ecumenical movement has to a certain extent attempted, not unaccompanied by sharp hostility and suspicion, to find a “third way” – even though the Ecumenical Council was “Western” in its first years: the churches should “seek to liberate people from the false idea that the two [communism and capitalism] represent the only alternative … It is the responsibility of Christians to seek new creative solutions that do not allow justice and freedom to destroy each other” (Raiser 2007, 24-25).

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That John XXIII behaved in a significantly more neutral manner than Pius XII is shown not only in his attempts at mediation in the Cuban missile crisis. There also began a period of diplomacy,36 which nonetheless did not change the fact that the Catholic Church offered the greatest resistance to communism worldwide. The so-called Eastern policy of the church resembled a tightrope walk: “The demonization of Stalinism would have made the church the Cold War Party, and the uncritical acceptance of the crimes of Stalinism would have made it guilty in the opposite sense” (Oestreicher 2007, 171). Communism was perceived at the Council as one of the most pressing issues, which led to the demand – not only in speeches, but also in petitions – for the “condemnation of Marxist ideology and of communism” (Tanner 2006, 336). As we have already mentioned several times, the US bishops played a special role at the Council. Inspired by the US context, they brought liberal impetus to the Council process. Catholics were taking a leading role in the fight against communism in the US at that time, presumably not without the intention of using anti-communism to escape the ghetto in which they still found themselves in the postwar US. 5.4.4 Summary (1) A repositioning of the church in the geopolitical fabric became fundamentally necessary after the Second World War. The model followed by the church with the so-called Quadragesimo-Anno states had disappeared at the latest after the Second World War, and, in the period of confrontation between the blocs, there was no longer an alternative (see Unterburger 2010b, 183-185). (2) On the one hand, the anti-church attitudes of the Eastern Bloc were decisive for the “ties to the West” of the church, and that despite its previously sharp and ultimately sweeping criticism of liberalism. On the other, the proreligious attitude in the US was one reason that the Catholic Church’s position was oriented towards America. The quasi-religious charge of the two poles, i.e., the connection of Western civilization with “the Christian”, and in parallel the emergence of the view that communism is the consequence of atheism, certainly played a decisive role in ensuring that Catholicism took the “Western direction”.37 (3) The US assumed in the postwar period the position of the undisputed power among the Western democracies, and became at that time the “pioneer 36  On the distancing of John XXIII from the conservatives, see chapter 1 in this volume. 37  However, in the longer term, the church does not explicitly reject communism, as shown by the politics of John XXIII; rather, taking a clear Western position, it strikes a mediating tone.

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and leading society in cultural and economic terms” (Liedhegener 2006a, 84). Europe’s central position in global politics became weaker, and the AngloAmerican model “spread in the free Western hemisphere, while it appeared [to] the church in the Eastern bloc states and in the states with an Islamic majority to be the only worthwhile and realistic alternative to the communist regimes, which in many cases repressed religious freedom” (Unterburger 2010b, 185). The confrontation between the blocs, and in particular the absence of alternatives that accompanied it, led – not least at the Council – to a certain openness of the church to liberal ideas. (4) The Western model, which represented the political counterpart to the Eastern bloc, was shaped by liberalism, but by American, rather than European, liberalism. This liberalism was significantly “less anti-church and laicistic”, and did not have the “goal of regulating and directing church life” (Ibid., 186).38 The Catholic Church was clearly able to come to terms with this kind of liberalism in precisely this particular global political situation, and especially so in the role that it increasingly took after the Second World War as a global player and “expanding” organization: “From the end of the war until the mid-1960s alone, 50 new states were created. They not only provided the territory for the political rivalries of the two Cold War powers. The new local churches in the so-called ‘Third World’ also provided the breeding ground for the self-reflective and self-confident ‘Council Church’”(Cerny-Werner/Gries 2009, 42). (5) Anti-communism certainly played a role in the liberalization of the church. However, how much weight should be given to the factor of the Cold War is, as with all other factors, contentious. Some attach great importance to it: “[The declaration on religious freedom at the Second Vatican Council] had as its most important prerequisite between 1945 and 1965, though, the triumphal march of the Western democratic model of society in its confrontation with the communist Eastern bloc” (Unterburger 2010b, 191). The historical global political change in the form of the Cold War is interpreted here in a sense as a condition ad extra that leads the Catholic Church to giving up its strict anti-liberal stance ad intra. This assumes that religious communities seek some kind of political participation, and that contextual changes can set off a process of redefinition. 38  In terms of religious policy, the US model is characterized on the one hand by the close link between religion and politics, and on the other by the strict separation of church and state, which is designed to ensure the free exercise of religion ( free exercise clause) and to prevent the domination of one religion (establishment clause) and thereby give priority to the religious market or ideological plurality; on this, see the factor of US Catholicism, section 5.5.

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Factors of Change

US Catholicism and John C. Murray’s Contribution

5.5.1 Special Role of a Council Advisor The US theologian John Courtney Murray (1904-1967) is considered to have been an extremely influential Council advisor, someone who was able to provide significant momentum for developing the doctrine of religious freedom. It is not entirely absurd to claim that a text written by Murray and then embraced by the US Council Fathers was ultimately able to exert such a great impact on the dynamics of the Council that religious freedom, as a fundamental human right of freedom, actually did in fact find recognition in a Council document. Since the importance of US Catholicism as a factor in the recognition of religious freedom is largely linked to Murray’s contribution, this section will deal with this contribution. He represents that manner of argumentation that, fed by the experiences of US Catholicism, was instrumental in the approval given by the majority of Council Fathers to the recognition of religious freedom at the Council. How this US perspective fed into the Council discussion and influenced the development of the text has already been discussed in detail (see chapter 1 on the development of Dignitatis humanae). 5.5.2 The US Intervention between Strategy and Substantive Development of the Church’s State Doctrine In terms both of the course of events and also of the systematic content of Murray’s intervention, the question arises as to whether we are dealing here above all with a strategically astute positioning or with a theoretically and conceptually thought-through reformulation of the church’s state doctrine. In the first case, the impact of Murray’s contribution would above all be that he pointed out a way that allowed the recognition of religious freedom without breaking the tradition; in the second case, the impact would be that there are actually two different political-historical matters and theoretical conceptions on which the church takes a stance. Unlike Walter Kasper, for example (see section 4.2 above), Murray’s thesis does not amount to a distinction between a theological and a constitutional level, but to the distinction between two tendencies or variants of liberalism: while the European variant of liberalism, which was originally located in the tradition of the French Revolution and had a laicist hue, intends to force back and marginalize religion, the variant of liberalism experienced by the Catholic Church in the US offers great freedoms to religious communities. It therefore became clear that religious freedom is by no means necessarily tied to an anti-religious attitude, but can be interpreted as being pro-religious. This interpretation would have the advantage that one

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would not have to do violence to the texts of the 19th and early 20th century (where the rejection of religious freedom was quite clearly also related to the political and constitutional level) by “theologizing” them and thereby robbing them of their political and ethical point. Rather, one would allow that both – rejection and recognition of religious freedom – related to the same constitutional level, but actually to different experiences that the church had with an anti-church, anti-religious and anti-Catholic liberalism on the one hand, and with a liberalism that was pro-church and pro-religion, or at least open to religion, on the other. Conversely, this meant that the recognition of religious freedom, as against the rejection of religious freedom, was perhaps in its substance not so much a break as a change or modification of the tradition. 5.5.3 On Religious Liberty – Murray’s Intervention at the Council The text On Religious Liberty (Murray 1963a) was published by Murray during the Council. Religious freedom is for Murray “the American issue at the Council”; he describes the front lines in the Council discussion, and in a sense on behalf of the US Council Fathers: “The American episcopate is greatly pleased that the issue has finally appeared on the agenda of the Council, notwithstanding many efforts to block discussion of it” (Ibid., 704). Noticeable is the impact that the text had, first of all because of the author, who was by no means regarded by the Roman central leadership of the Catholic Church as an outstanding expert on the issue of religious freedom. Indeed, the Vatican had actually forbidden Murray before the Council to publish on the issue of religious freedom, and demanded that he prevent the further dissemination of essays already published (Ibid.). Murray, who had therefore been banned before the Council from publishing on religious freedom, was then called to the second session of the Council as a Council advisor, and then brought about with his statement on religious freedom the change in the position of the church regarding religious freedom – this is at root a spectacular process, one that can also be interpreted as an expression of the degree to which the “periphery” (that is, local churches or the peculiarities of local churches) was given a higher value and gained in importance at this Council in comparison to the views dominant at the church’s centre. And this fact alone shows of course that the presentation of the recognition of religious freedom as a completely seamless connection to the tradition must be wrong, if the key figure was still prohibited before the Council from publishing his views. The content of his reflections may have been shocking here, but not his line of reasoning: the Jesuit Murray, who taught theology at the Woodstock

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Theological Center at Georgetown University, and was editor of the journal Theological Studies, both of which were supported and funded by the Society of Jesus, chose in questions of human rights in general and of religious freedom in particular a line of reasoning based on natural law, while criticizing the church’s position on the relationship between religion and politics from this perspective of natural law. He linked the classic scholastic theory of natural law, such as that of St Thomas, with modern liberal thinking on natural law, and thus anchored himself in both the Christian and Catholic, as well as in the Anglo-American liberal, tradition. For Murray, he was quite clearly developing his position not against the doctrine of the church, but actually from the church’s theological doctrine, which he sought to relate positively to the modern philosophy of freedom. He therefore also refers in his text to the existing conciliar texts or draft texts (see chapter 1 above), which stipulate on the one hand that every man by right of nature ( jure naturae) has the right to the free exercise of religion in society according to the dictates of his personal conscience. This right belongs essentially to the dignity of the human person as such. Secondly, the juridical consequences of this right are asserted, namely, that an obligation falls on other men in society, and upon the state in particular, to acknowledge this personal right, to respect it in practice, and to promote its free exercise. Ibid.

The real systematic motif or argument could be outlined as follows: Murray assumed as a matter of course that liberal human rights are grounded in the dignity of the person, and that this in turn is based on the image of God in human beings. However, outside of the church, and especially in the AngloAmerican tradition, which was less shaped by bitter religious wars than the European-continental tradition, an understanding of human dignity and the idea of the freedom of all people associated with it was reached that, while not contradicting the church tradition, was not developed within it. That is the reason, according to Murray, that the church now has to take over “from the outside” (as it were) what it has actually always subscribed to. As an American, he argues explicitly “from the Anglo-American tradition of politics, law, and jurisprudence”, which he also regards as leading the way for the church’s stance on religious freedom. The American constitutional system is based squarely on two fundamental principles: first, man is endowed by his Creator with certain

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inalienable rights; second, government and the order of law exist primarily for the protection and promotion of these rights. Ibid., 706

While, for Murray at least, these two principles had already been clearly confirmed by Pius XII and John XXIII, the Council should adopt a third principle from the American system: namely, the “incompetence of government as judge or arbiter in the field of religious truth”: Government is a secular authority whose competence is limited to the temporal and terrestrial affairs of men who must live together in justice, peace and freedom. Government therefore would act ultra vires (beyond its scope) if it were to undertake to judge this religion to be true and that religion to be false. Government would be acting even more evidently ultra vires if it were to enforce upon citizens, by the medium of law, any kind of theological judgment; if, that is, it were to assert by law that a particular religion (say, the Catholic religion) ought to be the religion of the national community. Ibid.

Even this principle, for Murray, is not a purely secular invention, but one that is actually “deeply embedded in the true political tradition of the Christian West”; it has also been “affirmed within the theological tradition of the Church”, for example, in the encyclicals of Pope Leo XIII (Ibid.). While this principle has been obscured in the continental-European tradition, it has been preserved in the US constitutional system, where – “to the joy both of the Church and the American people” – the absolutism or the unity of throne and altar has never been able to take root” (Ibid.). Religious freedom is therefore “the American issue of the Second Vatican Council”: Through Cardinal Spellman the American bishops made a strong intervention, demanding that the issue be presented to the conciliar Fathers. And all of them are prepared strongly to support, and indeed to strengthen, the text that has been written by the Secretariat for Promoting Christian Unity. Ibid., 704

Murray’s statement interprets the path of religious freedom taken by church doctrine as an expansion forced by the US episcopate. This expansion only became part of church doctrine with the Second Vatican Council because

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of the special political significance of religion in Europe on the one hand. But, on the other, it does not contradict this doctrine, but rather is fundamentally part of the Christian tradition, and can therefore actually be integrated easily into church doctrine. The criticism of rights of freedom were therefore related not to the liberal idea of human rights of freedom as such, but to the secularistic and antireligious ideology of a European type of liberalism, one that was developed mainly in the context of the French Revolution as a result of the negative perceptions of the political role that the churches had in the early modern period. It was this kind of liberalism that the church had to combat, leading to anti-modernist – and actually anti-secularist – escalations. But now, in the second half of the 20th century, it is still only partly the secularistic ideology (laicism, relativism, indifferentism) that, Murray argues, the church has to combat. But it is now also and above all a liberalism that guarantees religious communities and religious people scope for their faith and their religious practice, as the Catholic Church in the US has discovered. Murray’s reasoning is characterized by the fact that it is on the one hand strategically expedient and on the other substantively sound. It was only the combination of the two that led to the success of this reasoning in the Council debates. Substantively sound was Murray’s tracing of the theological justification of human dignity in the image of God in human beings, through the scholastic doctrine of natural law, and then to that type of the political philosophy of liberalism that underpins the US conception of state and society. It is ultimately the recognition of religious freedom rooted in the dignity of the human that the church has always taught. Murray does not “invent” this line of reasoning, but can place it alongside statements made by the magisterium. For example, without prejudice to his adherence to the Catholic doctrine of tolerance, Pius XII emphasized in his Christmas radio message of 1944 the coherence of human dignity founded on creation theology, of freedom and equality, of justice and the common good. Democracy corresponds to human dignity and is in harmony with the law of nature and with the creational will of God.39 Murray emphasizes in this context the apparently obvious 39  Christmas broadcast message (Pius XII 1944): “We were anxious, Beloved Sons and Daughters, to take the occasion of Christmastide to point out along what lines a democracy befitting human dignity can, in harmony with the law of nature and the designs of God as manifested in Revelation, secure happy results. Indeed, We are deeply convinced of the supreme importance of this problem for the peaceful progress of mankind. But We also realize the exalted claims that this form of government makes on the moral maturity of the individual citizen; a moral maturity to which he could never hope to attain fully and securely if the light from the Cave of Bethlehem did not illumine the dark path along

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approval of Christian doctrine for democracy, and refers to Leo XIII.40 We can conclude from the text – and especially from the juxtaposition between states comprising a leader and manipulated or subjected masses on the one hand,41 and democratic states on the other42 – that, although Pius XII considers the church to be indispensable with regard to the moral order of states and the world,43 he also considers the political path of liberal democracy prescribed

40 

41 

42 

43 

which the peoples are going forward through the stormy present towards a future which they hope will be more serene”. Ibid., 139: “It is scarcely necessary to recall that, according to the teaching of the Church, ‘it is not forbidden to prefer temperate, popular forms of government, without prejudice, however, to Catholic teaching on the origin and use of authority’, and that ‘the Church does not disapprove of any of the various forms of government, provided they be per se capable of securing the good of the citizens’”. As source for the citation is given: “Leo Thirteenth: Encyclical ‘Libertas’, June 20, 1888”. Ibid., 140-141: “the state does not contain in itself and does not mechanically bring together in a given territory a shapeless mass of individuals. It is, and should in practice be, the organic and organizing unity of a real people. The people, and a shapeless multitude (or, as it is called, ‘the masses’) are two distinct concepts. The people lives and moves by its own life energy; the masses are inert of themselves and can only be moved from outside. The people lives by the fullness of life in the men that compose it, each of whom – at his proper place and in his own way – is a person conscious of his own responsibility and of his own views. The masses, on the contrary, wait for the impulse from outside, an easy plaything in the hands of anyone who exploits their instincts and impressions; ready to follow in turn, today this flag, tomorrow another. From the exuberant life of a true people, an abundant rich life is diffused in the state and all its organs, instilling into them, with a vigor that is always renewing itself, the consciousness of their own responsibility, the true instinct for the common good. The elementary power of the masses, deftly managed and employed, the state also can utilize: in the ambitious hands of one or of several who have been artificially brought together for selfish aims, the state itself, with the support of the masses, reduced to the minimum status of a mere machine, can impose its whims on the better part of the real people: the common interest remains seriously, and for a long time, injured by this process, and the injury is very often hard to heal. Hence follows clearly another conclusion: the masses – as we have just defined them – are the capital enemy of true democracy and of its ideal of liberty and equality”. Ibid., 141: “In a people worthy of the name, the citizen feels within him the consciousness of his personality, of his duties and rights, of his own freedom joined to respect for the freedom and dignity of others. In a people worthy of the name all inequalities based not on whim but on the nature of things, inequalities of culture, possessions, social standing – without, of course, prejudice to justice and mutual charity – do not constitute any obstacle to the existence and the prevalence of a true spirit of union and brotherhood. On the contrary, so far from impairing civil equality in any way, they give it its true meaning; namely, that, before the state everyone has the right to live honorably his own personal life in the place and under the conditions in which the designs and dispositions of Providence have placed him”. Ibid., 149-150: “If the future is to belong to democracy, an essential part in its achievement will have to belong to the religion of Christ and to the Church, the messenger of

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by the Western allies as preferable from the point of view of the church. This does not mean that the Pope proclaims liberal democracy as the only legitimate form of government.44 But, in 1944, he sees himself and church doctrine as facing an alternative between authoritarian forms of government on the one hand, and liberal (that is, with pronounced rights of freedom, including religious freedom) democracies on the other, and then endorses strongly and unequivocally the liberal-democratic tendency. This line of reasoning can be taken up by Murray and further developed with regard to religious freedom, but now on the basis of the confrontation between the US-led liberaldemocratic West on the one hand, and the Soviet-led communist states of the Warsaw Pact on the other. Murray takes up the further intensification resulting from this to the US governmental and social model “of democracy, legitimate pluralism and religious freedom as the only realistic alternative to communism” (Unterburger 2010b, 187), and points to the excellent conditions in the US for the Catholic Church to practise religion.

our Redeemer’s word which is to continue His mission of saving men. For she teaches and defends supernatural truths and communicates the supernatural helps of grace in order to actuate the divinely-established order of beings and ends which is the ultimate foundation and directive norm of every democracy. By her very existence, the Church rises before the world as a shining beacon to remind it constantly of that Divine order. Her history reflects clearly her providential mission. The struggles, which coerced by the abuse of power, she has had to sustain in defense of the liberty given her by God, were at the same time struggles for man’s true liberty. The Church has the mission to announce to the world, which is looking for better and more perfect forms of democracy, the highest and most needed message that there can be: the dignity of man, the call to be sons of God”. 44  Rather, democracy can be legitimate in different forms; see, for example, Ibid., 139-140: “Given that democracy, taken in the broad sense, admits of various forms, and can be realized in monarchies as well as in republics, two questions come up for our consideration: first, what characteristics should distinguish the men who live under democracy and a democratic regime? Second, what characterization should distinguish the men who hold the reins of government in a democracy? To express his own views of the duties and sacrifices that are imposed on him; not compelled to obey without being heard – these are two rights of the citizen which find in democracy, as its name implies, their expression. From the solidity, harmony and good results produced by this between the citizens and the Government, one may decide which democracy is really healthy and well balanced, and what is its life energy and power of expansion. If, then, we consider the extent and nature of the sacrifices demanded of all the citizens, especially in our day when the activity of the state is so vast and decisive, the democratic form of government appears to many as a postulate of nature imposed by reason itself. When, however, people call for “democracy and better democracy,” such a demand cannot have any other meaning than to place the citizen ever more in the position to hold his own personal opinion, to express it and to make it prevail in a fashion conducive to common good”.

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Murray’s reasoning was strategically expedient from the point of view of those in favour of recognizing religious freedom due on the one hand to the geo-political situation, and on the other to his connection to the tradition. Murray demands in his argumentation no revolutionary act or the like, but instead calls for the further development of the traditional doctrine under the existing – and altered – historical circumstances. Since the American model “had already become in the previous 20 years the most important anti-communist alternative worldwide, this model found its majority at the Council … The counter-model to communism … was not the state-mandated compulsory privatization of religion, but the state’s self-withdrawal and simultaneous free development of religious communities” (Ibid., 185; 187). And because this model was compatible with the tradition, Murray’s line of reasoning was also able to convince even most sceptics in the Council chamber. An openly “revolutionary act” would certainly not have convinced the majority of Council Fathers. 5.5.4 Summary (1) Murray’s line of reasoning, and thus the position of the vast majority of the US Council Fathers, is shaped by both strategic far-sightedness and systematic persuasiveness. This double plausibility is likely to have significantly facilitated the correction of church doctrine, which actually is an extension: while, according to Murray, the neo-scholastic popes responded in what was at root a completely appropriate manner to a laicist liberalism that defined religious freedom as freedom from religion, the Council now responds in a no less appropriate way to a different manifestation of liberalism, one that sees religious freedom as freedom of religion with the simultaneous separation of church and state, of religion and politics. (2) Murray chooses a form of argumentation that is markedly politicalphilosophical. It adopts motifs both from classical natural law as well as from modern liberal natural law. It is noteworthy on the one hand that, in one of the most significant steps of modernization taken by the Catholic Church, the reference to natural law, which is widely regarded today as premodern, is preserved and integrated into a modern political philosophy. And, on the other, that no comprehensive theological argumentation is developed, since the focus of argumentation clearly remains with the field of political philosophy. (3) The discussion of the textual development of Dignitatis humanae (see chapter 1 above) has already shown that the influence of the US Council Fathers can barely be overestimated, especially since they ensured that the issue of religious freedom remained on the Council agenda and was not postponed. In terms of content, too, Murray’s line of reasoning offers the opportunity to

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remain firmly within the tradition of the church while at the same time developing a new position. This was of course for the broad majority of the Council Fathers an indispensable precondition for their agreeing to a repositioning of the church regarding religious freedom. 5.6

Plurality Internal to Catholicism

5.6.1 Complementarity and Pluriformity Taylor distinguishes in A Catholic Modernity? between two concepts of integration, “unity-across-difference” and “unity-through-identity”. He claims that, with regard to Catholicism, it is at root only the former that is possible, since universality and wholeness are at the same time indispensable for the understanding of catholicity and for the self-understanding of Catholicism.45 Surmising internal plurality and thus differences within the religious community, Taylor understands each as complementarities with regard to the claim of Catholicism to “wholeness”: Our great historical temptation has been to forget the complementarity, to go straight for the sameness, making as many people as possible into “good Catholics” – and in the process failing of catholicity: failing of catholicity, because failing wholeness; unity bought at the price of suppressing something of the diversity in the humanity that God created; unity of the part masquerading as the whole. It is universality without wholeness, and so not true Catholicism. Taylor 1999, 14

Difference, or complementarity and pluriformity, are certainly particularly evident in the area of the Catholic lifeworld, understood here as the area that was shaped, especially in the 19th century and early 20th century, largely by lay organizations, and above all by Catholic associations and parties, but also by Catholic Action.46 This well-organized lifeworld also ensured, though, that 45  “I want to take the original word katholou in two related senses, measuring both universality and wholeness; one might say universality through wholeness” (Taylor 1999, 14). See also Hubert Wolf 2012b, 10: “The church is part of history and will pass away like history itself. Transformation processes in the course of tradition are always on the agenda. And the flow of tradition, if it really wants to be Catholic and correspond to the whole, never runs in a single line, but is always pluriform”. 46  There were certainly laid here decisive impulses for the transformation process of Catholicism in the 19th and 20th century (see section 5.7 that follows). We can identify

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Catholics were dependent for all their needs on institutions run exclusively by Catholics. And this world was thus part of a unity-through-identity concept, and that means part of a decided strategy of homogenization, or in this case strategy of demarcation, with regard to “modern society”. Casanova (2008a, 108) writes: Catholicism always constructed itself discursively in dialectical relation with the anti-Catholic discourse of the time. But the varieties of practices and mentalities within the lifeworld of Catholicism always surpassed the homogeneous discursive construct (our emphasis). This ambivalent movement also includes the conceptual level of theory formation.47 The plurality of theologies, which of course certainly existed at different stages in church history in different constellations and gradations,48 is manifested in particular with regard to how the “official or clerical church” (Kaufmann 1996, 91) dealt with certain theological positions in the 19th and 20th century. For the action of the official church was aimed precisely not at facilitating plurality, but at alignment with a specifically defined Catholic identity, with certain theologies then being as it were “marginalized” as a result. The point of reference for Catholic identity and its point of comparison, and therefore the grounds for marginalization, lay in neo-scholasticism. It is well known that attempts were made in the neo-scholastic phase to use a strategy of segregation to solve the problem of integration brought about on the one hand by internal plurality, but on the other by the increased complexity of the “outside world”. According to Kaufmann, this strategy is based on the following elements: “Anti-modernism, the postulation of an ecclesially interpretable natural law, the ban on social contacts across denominations, and the development of a system of Catholic clubs and associations, as well as services provided to society by the church” (Ibid., 93-94). Through ties to hierarchical structures and homogeneity in doctrine, the attempt was made by the church tendencies of an implicit democratization within the Catholic milieu; that is, there already prevailed in lay Catholic organizations, in contrast to the line taken by the magisterium, a democratic practice and a de facto involvement and participation of Catholics, which was certainly not insignificant for the change in attitude of the church towards democracy. In this respect, the distinction between lay organizations and the official church is relevant for the analysis of the process of change regarding the attitude towards religious freedom. 47  We can certainly not separate this area so completely from the lifeworld; but the area of study in this chapter are theological conceptions, which are in constant interaction with lifeworld processes. 48  On the period of early Christianity, see Ebner 2012.

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to create a unity – a unity in inner self-sufficiency and demarcation from the modern world with a constant reference to its own tradition. Whether this occurred in an authoritarian or charismatic manner does not seem to be the decisive question at this point, but rather how the aspects of “traditionalism, normative principledness, and organizational adaptability” that tried to curb or keep within limits the plurality internal to Catholicism were taken up and addressed by theological positions (see Kaufmann 1973, 156). “To the extent that Christianity became a social power, indeed a state religion, it had to confront those cultural meanings that already determined social life” (Ibid., 140). Catholic natural law is considered an answer to this confrontation. “The idea of natural law tied to the church [was] until the pontificate of Pius IX almost exclusively a theological doctrine and not a church doctrine” (Ibid., 155); thus, until then, it was ultimately only one position, albeit an influential one, among several. From the mid-19th century, however, it gained great influence, and the shaping of various theologies was ultimately and inevitably bound up with a confrontation with the Catholic idea of natural law. Kaufmann mentions five postulates of such an idea: 1. postulate of the ontological quality of natural law, 2. postulate of the congruence of divine and human reason, 3. postulate of the immutability and universal validity of natural law, 4. postulate of the direct legal quality of natural law, and 5. postulate of the authentic church interpretation of natural law (see Ibid., 135-136). He emphasizes that the theological character of this Catholic natural law, as opposed to its philosophical character, tends to take a back seat, since it is intended to “address a group of people not tied to the Catholic Church” (Ibid., 136). Kaufmann emphasizes in his analysis the externally restorative tendencies of neo-scholastic natural law. Apart from in German-speaking areas, “the persuasiveness of this idea outside of Catholicism remained low” (Ibid., 152). Within Catholicism, however, it served the purpose of “forming a special community” (Emunds 1993, 33), and was productive in the context of concept formation in Catholic social doctrine; hence, the concepts of “solidarity” and “subsidiarity” are still important today in Christian social-ethical theory formation. 5.6.2 Duality Instead of Plurality: The Conflict over Modernism In this neo-scholastic phase, the keyword of anti-modernism then became dominant at the beginning of the 20th century in the conflicts within Catholicism over the unity of the church and especially of doctrine. There were ongoing confrontations with this, or its, antagonist, modernism, ultimately until the Second Vatican Council. “The conflicts over ‘modernism’ are the decisive factor in explaining the history of theology that forms the background to the Second Vatican Council, and thus an important historical date

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for elaborating an appropriate hermeneutics for the texts of the Council themselves” (Wolf 1998, 16). Anti-modernism cannot be equated simply with neoscholasticism here. Bauer writes, for example: “although most anti-modernists were also neo-scholastics, not every neo-scholastic was an anti-modernist – not only did neo-scholasticism exist much earlier than anti-modernism; it also had much more internal diversity” (Bauer 2003, 16). And he points in this context to the “Thomisme ouvert” of the Institut Supérieur de Philosophie in Leuven, which was founded in 1889 (Ibid.). There is a line of condemnation of modernism and neo-modernism in Syllabus and Quanta cura (1864), Pascendi (1907), and Humani generis (1950), one that culminated in the crisis of modernism (1907-1914). Modernism, which the Council Fathers at the Second Vatican Council still condemned, is characterized by “progressism, in the new symbolic and spiritual exegesis, … subjectivism, in the psychological dissolution of sin, … relativism in questions of faith, the development of dogmas, … religious syncretism, on the pretext of developing pastoral ministry, etc.” (Wolf 1998, 26). This duality of modernism and anti-modernism is ultimately directed against the “phenomenon of plurality” within Catholicism, and attempts to annul this “phenomenon” through the clear interpretation, classification and evaluation of individual positions as belonging to one or the other side. In so doing, concepts that were labelled and condemned as modernist were by no means modern in the sense that they were uncritical of modernity. These “are held together merely by the fact that they came into conflict with or opposed Roman magisterial positions” (Hünermann 1998, 367). The antimodern vs. modern polarization thus appears to be not complex enough for the purposes of analysis; rather, we should begin with pluriformity, and particularly when it comes to so-called theological reform initiatives, where there were and are “very different intentions, methodological differences and differences of perspective, … [so] that, in their diversity, they have no internal academic connection” (Ibid., 267). The only clear commonality remains ultimately the “marginalization” already mentioned above. The spectrum of “antimodernists” is also diverse and there are elements of support for aspects commonly referred to as “modern”.49 But the term “modernism” had undoubtedly a negative connotation, and was used to delegitimize 49  See also the controversy between Otto Weiß and Friedrich Wilhelm Graf. Graf criticizes Weiss for “constructing a relatively closed tradition of German modernist theology that culminates in the Second Vatican Council”, and that is due to a certain political intention. Graf points out that, in the general terminological confusion in “modernism” and “antimodernism”, a problem of using the terms lies in the ambiguity of the concept of modernity (see Graf 1998, esp. 69 and 80).

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certain positions. Only the Second Vatican Council ushered in the end of “antimodernism”.50 As the continuity of antimodernism shows, Catholicism before the Council was by no means the firmly closed phalanx that the traditionalist circles repeatedly celebrated it as being. The image of the “boiling cauldron” that magisterium and curia sought to keep the lid on through interdiction, excommunication, suspension, exclusion and other persecutory measures seems to characterize the situation of the Catholic Church more aptly. The story of antimodernism and of those modernists concerned was at the same time a story of suffering; the ruthless enforcement of the neo-scholastic monopoly with its eternal truths left countless victims in its wake. Wolf 1998, 34

On the other hand, though, the Second Vatican Council was not “modernist”, as representatives of both sides, such as the traditionalist Lefebvre and the modernist Weiß, declared in “surprising agreement” (Ibid., 23). The degree to which the Council took elements from so-called modernist conceptions remains difficult to judge. More important than discussing these detailed questions of content seems in our context to be the dissolution caused by the Second Vatican Council of the clear modern vs. antimodern duality, and in particular the development that saw neo-scholasticism as no longer being equated with the church doctrine, but as actually now being reflected upon critically in broad circles of Catholicism and even sometimes being considered obsolete. 5.6.3 Conceptual Plurality – Religious Freedom in “Marginalized” Theologies Some theological positions can be seen as paving the way for the recognition of religious freedom. We will briefly outline some of these positions below. Since our focus is on illustrating the diversity of positions, we will not provide an 50  Taking account of the discussion on conservatism and traditionalism, a discussion that he delimits from anti-modernism, Hünermann proposes the following definition: “Antimodernism is a mode of thinking and behaviour of the Roman Curia that is to be characterized by a theological and political-pragmatic factor: the respective theological factor consists in the non-distinction of faith and form of worldview belief; the politicalpragmatic factor consists in the attempt to enforce in the church an unconditional recognition of the form of worldview belief by canonical means. Due to the given structure of governance, this attempt and danger has accompanied the church since its entry into the modern age” (Hünermann 1998, 371).

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overview here.51 Modern moments of so-called anti-modern, and especially neo-scholastic, positions tend to be neglected in this context, which is the reason that we refer here to the broad formal correspondence between liberal thought and neo-scholastic doctrine – namely, to the form of argumentation of natural law that underlies both theory groups and is characterized by a moral justification of rights or justification of the validity of a form of government (see Hünermann 1998, 369). In contrast to the modern liberal paradigm, Catholic natural law is characterized above all by the lack of a systematic separation of descriptive and normative claims, and a hermeneutic blindness to the historical and social contextuality of the latter. Hünermann speaks of an “idea of natural law rooted in God” (Ibid., 370). To counter these “deficiencies” of neo-scholastic natural law, which prevented a connection to “modern thought”, scholars made numerous attempts to rewrite the theory of natural law. One example is provided by the Austrian theologian, legal scholar and economist Johannes Messner (1891-1984), who was also for a short time a politician. He developed at a time when Catholic social ethics was shaped by a neo-scholastic understanding of natural law “a conception of natural law that did not follow the neo-scholastic paradigm”, and he did so “by combining anthropological reflections with a modern rational-law motif of personality and a strong emphasis on experience” (Spiess 2010, 163). The various rereadings of Thomas Aquinas that appeared in the 1970s and 1980s are to a certain extent in line with Messner’s position (see Anzenbacher 1983; Korff 1987; Merks 1977). It was Messner’s intention to draft a version of natural law “that seems more in keeping with modern thinking than the usual versions that are attracting criticism today” (Messner 1980, 58). He therefore defines natural law in such a way that its “concrete claims can change, and that it becomes applicable in view of the concrete situation first and foremost through the responsibility of conscience of the human in the life of the individual person and of society” (Ibid.). Having so far talked mainly about neo-scholasticism and anti-modernism, we should now emphasize that the conflict over modern rights of freedom was already in full swing even before the phase of neo-scholasticism in its narrower sense. The church’s reactions to the French Revolution effectively gave rise, beginning with Pius VI, to an “anti-modern line”, which was nonetheless counteracted by some theologians at the time. For example, the position taken by Félicité de Lamennais (1782-1854) is probably the most prominent in terms of 51  For further individual positions that have been omitted, see the other sections in this volume: especially Murray (see section 5.5) and, for example, Ketteler, who has been mentioned in the following section (5.7) and in the section dealing with Uertz (4.3).

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the issue of religious freedom, and is therefore particularly interesting for us. In his debate with traditionalism,52 Lamennais created what amounted to a clear liberal position that stood explicitly for religious freedom and democracy. Lamennais absorbed the philosophy of the Enlightenment, and in particular that of Rousseau, but placed himself nonetheless in the justificatory discourse of fideism.53 He argued influentially (and particularly so at the church base) for cultural and political rights of freedom. But, when it came to justifying the democratic form of government, he nonetheless remained within the justificatory discourse of fideism: he sees the populace as being subjects of action, but ultimately does not draw on the free will of individuals, but justifies the sovereignty of the people through a theology of history. Despite this moderate support for democracy, Lamennais was eventually put in his place by the magisterium (see Gregory XVI, Mirari vos). In contrast to Gregory XVI, Lamennais had already distinguished two forms of liberalism at the beginning of the 19th century (see Sebott 1977, 27). The connection to the common good was central to his understanding of freedom; this “Catholic liberalism” (Aubert 1977, 436) was directed against the liberalism of the Enlightenment, against “doctrinaire liberalism”. When it came to the notion of reason, Lamennais therefore distinguished between “raison individuell” and “raison general” (see Maier 2006). In the conflict over L’Avenir, Lamenais clearly argued for religious freedom, whose realization he saw in the clear separation of church and state. He argues that the religious unity of peoples is broken, and that therefore the assumption must be made that there is no longer the possibility of linking the state to religion, with religious freedom then being the sole protection against (political) ideologization. This was ultimately about the freedom of the church, too, and the Lamennaisian idea of freedom was particularly fruitful wherever “the state behaved as an authority above the church” (Pottmeyer 1975, 326).54 In particular, Belgian political Catholicism and the movements of Christian democracy continued to draw on Lamennais’ liberal conception and tried to put it into practice. 52  Prominent representatives were de Maistre and de Bonald, who dealt with statetheoretical and church-religious objects. In doing so, they criticized the French Revolution by emphasizing “historical development” as opposed to the creative power of individual freedom (see Maier 2006, 141-168). 53  The hallmark of Fideism is the “thought directed against the Enlightenment that it is faith, and not reason, that facilitates knowledge and therefore the possibility of certainty”; that is, “the recourse to faith as intuitive participation in the knowledge of God and the recourse to authority and tradition in traditionalism” (see Grube 2000, 112). 54  Lamennais’ influence on German Catholicism has been investigated by, for example, Valerius 1983.

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At the beginning of the 20th century, and therefore still during the neoscholastic epoch, Jacques Maritain then devised a conception of political liberalism on the basis of a neo-Aristotelian Thomism. Maritain justifies the idea of individual freedom and elaborates a “personalistic” conception that can be used to formulate liberal political demands (see Maritain 1936; Ibid. 1949/1950; Ibid., 1949). The Christian personalism proposed by Maritain is no longer about “creating a Holy Empire, but trusting the ‘sacred freedom of the creature’, which is united by grace with God” (Belardinelli 1990, 246). It is important to note, however, that, according to Belardinelli, this idea of “sacred freedom” is “far removed from the liberalism of the Enlightenment” (Ibid., 247). Proof of this is that Maritain “[i]n Antimoderne [Paris 1922] [rejected] the post-Enlightenment concept of modernity, and expressed his hope for a revival of the intellectual-religious, which, though ‘anti-modern’, was also ‘ultra-modern’” (Nichols 1992, 162-164). He emphasizes in his texts how the justification of democracy in terms of natural law has a Christian point of reference, and elaborates a concept of “new democracy” that is oriented both to “persona” and “bonum commune” (Ibid. Belardinelli 1990, 249). According to Kallscheuer, this personalistic idea of democracy “takes into account the embeddedness of the human person in a moral world order. It could also be called in today’s terminology a ‘communitarian’ democracy, an expression already used indeed by Maritain himself” (Kallscheuer 1994, 68-69; see also section 4.4.2). Besides the theories mentioned so far, we should also take note of the nouvelle théologie.55 Yves Congar and Henri de Lubac, Marie-Dominique Chenu, who taught Congar, and Jean Daniélou – these are just some of the important representatives of the nouvelle théologie who argued their position at the Second Vatican Council (some as Council theologians), and who played a decisive role in shaping the pastoral constitution Gaudium et spes (see Quinskiy 2007). These individuals are also those who had since the 1930s urged for neoscholasticsm to be seen in terms of its remoteness from and contrast to the Catholic tradition prior to the 19th century. That such a position provoked conflict is obvious, especially since, as Kaufmann writes, it is part of “the intellectual habitus of modern, but especially of Catholic, natural law to assert its own continuity and universality” (Kaufmann 1973, 129). The role of history and the historicity of dogmas, “rehistoricization”, was a central issue for the most diverse reform theologians, and set them apart from ultramontane Catholicism. 55  The term goes back to an article by Pietro Parente in the Osservatore Romano, in which, while indexing Chenu’s book “Une école de théologie: Le Saulchoir”, he criticizes a certain direction of French theology and sees “Nouvelle theologie” from the Roman side as a “polemical battle term” (Parente 1942, I).

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It [ultramontane Catholicism] was culturally traditional in its decided rejection of everything “modern”, in its cultivation of religious traditions and its claim for a paternalistic leadership role of the clergy over the laity, but especially in its emphasis on tradition as legitimizing all church action. According to its own self-understanding, the Catholic Church in the 19th century was by its very nature immutable; it participated in its holiness in the eternity of God. Kaufmann 1996, 91

In particular, the nouvelle théologie, in its conflict with church doctrine, was very early to place at the very centre of its reflections the question of continuity and change. “On account of God’s ‘incarnatio continua’ in the world, all history has dogmatic meaning and every dogma has historical significance” (Bauer 2003, 50). Representatives of the nouvelle théologie were therefore, as far as they were concerned, very much indebted to the tradition. The slogan “back to the sources!” also meant, though, a fundamental consideration of context, and there thus emerged the indissoluble link: “Return to the sources and open up to the world” (Ibid.). The questions of historicity, of “truth”, and the relationship between nature and grace were central for the representatives of the nouvelle théologie; they also sought to pursue a constructive debate with Marxism and with non-Christian religions. In doing so, they attempted to avoid a strict separation of faith and reason. Characteristic of this theological school as a whole was a re-evaluation of the theology of Thomas Aquinas. This again shows the difficulty of analyzing theological concepts with the binary opposition of modernist and anti-modernist, since the basic Thomist orientation can certainly be read as anti-modernist.56 Subjectivism, relativism, and communism were the chief reproaches that led to condemnation of the nouvelle théologie within the church. Marginalization of this theological strand became particularly clear in 1942 when the Vatican placed Chenu’s Une école de théologie: Le Saulchoir on its “Index of Forbidden Books”, and again in 1954 when he was demoted in the wake of the ban on worker priests. Conflict with neo-scholasticism took place in Germany especially within the Tübingen School (see Kessler/Fuchs 2005). This theological-academic school of Protestant and Catholic theologians, which was established at the University of Tübingen in the 19th century, was characterized by a “clear attempt to combine strict academic work and practical relevance to the present moment with an unswerving, albeit independent and responsible, churchliness while 56  In contrast, the use of historical-critical exegetical research tools would be seen as modernistic in tendency.

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respecting the limits of orthodoxy” (Seckler 2001, 289). The fact that the methods of historical studies were now incorporated into exegetical research was a decisive innovation, but the issues and materials were nonetheless diverse: Christianity is considered in the pioneering writings of Drey as a divinehuman event of development and truth. As time and history constitute the form of the rise of truth, faith and knowledge are to be determined in essence and as a whole historically. Theology and philosophy, historical-critical and speculative methods, though remaining different, belong in principle together, as do the spirit of Christianity and the church with its institutions and forms of life. Such a historical understanding of Christianity, an understanding that is at the same time related to the present, can only be developed theologically in a bundle of different methods and theological disciplines. This modern theological discipline took its initial shape in the work of the Tübingen theological school. Hünermann 2005, 176

Hünermann points in particular to those theologians of the 19th century who wanted to link up with high scholasticism without using the interpretation of neo-scholasticism, and traces the erosion of the neo-scholastic monopoly in the postwar period to the reception of the Tübingen school during this period. This is the manner by which Hünermann draws on these reform theologians – that is, by referring to high scholasticism and the absorption before or during the Second Vatican Council by, for example, Karl Rahner, Johannes Baptista Lotz, and Bernhard Welte of contemporary philosophy, such as that of Heidegger and Jaspers (see Hünermann 1994, 154-156). Representatives of reform Catholicism in the 19th century were concerned with breaking open the magisterially prescribed uniform neo-scholasticism in favour of a dialogue of theology with modern scientific thinking, with overcoming the absolutist perspective of the Middle Ages as the culmination of all church development …, with up-to-date reforms in the liturgy and pastoral of church discipline … and training of priests …, with political-social commitment, with respecting the autonomy of the laity, especially in social and cultural matters. Weitlauff 1999, 958

And this seems to have been a favourable point of connection for Council theologians. But it is important to mention that the reform theologians were expressly not concerned with questioning the Catholic doctrine of faith or the

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basic structures of the church; rather, they distinguished themselves from the “modernism” condemned by the magisterium (see Ibid.). Also worth mentioning in this context is another current within the diverse spectrum of Catholic positions found within reform theology in Germany since the beginning of the 20th century. For example, the liturgy movement and certain “progressive” theologies had a certain orientation to or predilection for National Socialism. Theologians such as Karl Adam, Michael Schmaus, Joseph Lortz and the members of the Rheinischer Reformkreis were not neo-scholastics, but were considered innovative theologians. Their approaches have influenced Catholic theology well beyond 1945 – many of their theological concerns prevailed in the Second Vatican Council. What characterized these theologians is that they did not value the reactionary or traditionalist elements of National Socialism, but that they saw in it a huge potential for innovation. They wanted to use it for their reform plans in church and theology. Scherzberg 2008, 41

The positions mentioned here are intended to illustrate the plurality of Catholic theologies (see the contributions in Gabriel/Spiess/Winkler 2012 and Wolf 2015). The conceptions sometimes provide answers to the question of religious freedom within Catholicism; but we cannot claim that they had a direct influence on the genesis of Dignitatis humanae in a narrower sense. Yet, they do contain different reflections on key aspects of religious freedom – such as on different understandings of freedom (freedom of conscience or as space in which to act or as concrete freedom), on personality, and also on the historicity (see Ruggieri 1986) of the practice of faith and of dogmas – that are of indisputable relevance to the learning process of Catholicism. However, whether and what causal connection exists exactly between certain theological approaches to reform and the reforms of the Second Vatican Council seems difficult to determine.57 And all the more so since these theoretical approaches themselves sometimes relativize to a certain extent their own contingency, above all by emphasizing historicity and therefore of course also their own historicity and contextuality; and point to what “ties life together”, i.e., to practice and its 57  It remains to be discussed whether and to what extent, for example, German reform Catholics at the turn of the century can be regarded as forerunners of the aggiornamento and as pioneers of the Council, and in particular with the argument that similar conflict situations existed in around 1900 and 1960 (see Wolf 1998, 24-25).

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change, as what generates contingencies and therefore cohesion. They therefore themselves recognize the pluriformity of Catholicism, and indeed take it as a given. Slogans such as “the sense of the faith of the people of God” and “Sensus Fidelium – Church as learning and teaching community” are already echoed in these theologies. This is accompanied by an attitude that is opposed to a perspective on how a common religious consciousness emerges or can emerge that is legalistic on the one hand, and spiritualistic on the other. “In contrast, the idea of the church as a community of teaching and learning poses the problem of mediating between permanent institutions and mortal persons at the centre of the transmission of faith, and regards this transmission as a historical and social process, without questioning the weight of the tradition transmitted or the workings of the divine spirit” (Kaufmann 1994, 133). The idea that authority of faith pertains to the hierarchy, and finally to the papal magisterium, was an idea that was no longer held by the majority, and especially so prior to the Second Vatican Council (see Wiederkehr 1994). 5.6.4 Summary (1) It again seems important to distinguish between levels and approaches. Considered historically (a), the plurality internal to Catholicism is undeniable and must be regarded as a “historical phenomenon”. From a sociological point of view (b), looking at Catholicism in its various stages of development opens up a spectrum ranging from a high degree of plurality to a lesser degree of plurality, with this spectrum tending towards homogeneity. This degree of plurality is shaped not only by influences ad intra, but also by influences ad extra, or is dependent on different social interactions in which Catholicism is involved as a social actor at different times. Theologically (c), the “phenomenon of plurality” is certainly the most difficult to deal with given the truth claim. In any case, the question of the evaluation of plurality internal to Catholicism is directly related to the question of continuity and change, or even break, within doctrine, which, as we know, is a question that is highly contentious. However, if a plurality internal to Catholicism is assumed theologically, then reference is generally made to the unity of the church in the course of time, to the development of tradition in a binding practice and reflection – and no extreme position, be it progressive or conservative, is represented (see Gabriel/Spiess/ Winkler 2013). (2) Ultimately, the question of homogeneity and plurality relates above all to the self-understanding of Catholicism. Neo-scholasticism counted on identity in the treatment of tradition and the greatest possible homogeneity as guarantor of continuity in doctrine and thus of the cohesion of the Catholic church. In the course of this, the attempt was initially made to classify new

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problems according to old patterns of interpretation, and thereby to find clear solutions as far as this was possible. On the other hand, a pluriform Catholicism develops “ideas of identity that allow open conflict and intellectual competition between the ‘sectors’ and wings of Catholicism for the right path into the future … Identity tends to take on procedural forms and is based on the willingness of people not to give up dialogue even in dissent in the hope of a future, more comprehensive, truth” (Gabriel 2000a, 200). (3) On the one hand, we should not underestimate this plurality at any time and therefore also during the neo-scholastic phase. Reform theologies are not simply contrary to the neo-scholastic way of thinking, but seize upon them critically and constructively, and are in turn in themselves diverse. On the other, we should not ignore that the particular Catholic self-understanding is largely shaped ad extra. (4) In view of the situation after the Second Vatican Council, the question arises as to whether the appointment to the Council does not also carry “homogenizing tendencies” within it.58 Problematic at the very least is the orientation to a particular form of modernity, or already alone the distinction between traditional and progressive, conservative and modern, which involves the same difficulties that we have presented above in the example of the debate on modernism. 5.7 Political Catholicism, Catholic Parties, and Christian Democracy 5.7.1 Christian Parties between Religion and Politics The Catholic or Christian parties take an even more strongly intermediate position between church and state, religion and politics, than the associations. Typical of their agenda is that, while developing their identity in distinction from liberalism and socialism, they cannot simply be classified as conservative parties. Besides their ideological ties, and even initially their very strong church ties, they are very clearly actors in the political system and operate within the respective constitutional conditions – be it in the form of pragmatic accommodation that serves their own interests, or in a progressive form as, so to speak, the “engine of democratization”. Christian democracy … is located on the one hand in the debate with modern state thinking (constitutional question and fundamental rights, 58  We could name as an example here the handling of the Tridentine form of the mass.

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social pluralism and ideological neutrality of the state, state-church relationship, etc.), and on the other at the intersection of internal theological and church controversies (e.g., different evaluation of the responsibility of Christians as politicians and citizens in state and society, differences in the question of what follows from the Christian in a concrete political situation). Uertz 2004, 34

It should be noted here that the Christian democracy movement in the narrower sense, i.e., in party-political form, such as Mouvement Republican Populair (MRP), Democrazia Cristiana (DC), Christlich-demokratische and Christlich-soziale Union (CDU/CSU), became more important in Europe only after the Second World War, although the Christian democracy of the postwar period built on numerous older organizations, such as Catholic clubs and associations, as well as forerunner parties. As Liedhegener writes, “Many Centre democrats of the Weimar period were among the co-founders of the inter-denominational CDU and CSU” (Liedhegener 2010, 124). The roots lie in the period between 1830 and 1848, when Catholics tried for the first time “to build a bridge between the church and the political reality” (Uertz/ Buchstab 2004, 35). In so doing, they found themselves in the typical relationship of tension that ran from the system of Catholic clubs into the Catholic and Christian parties, a tension caused by the fact that they had to reconcile their ideological with their political character. Kalyvas speaks of the confessional dilemma of Christian parties: “How to escape from the constraints of their confessional origins while maintaining a distinctive identity” (Kalyvas 1996, 223). However, it seems that political Catholicism made a contribution to the modernization of Catholicism as a whole precisely because it addressed the relationship of tension in which it was located, where concern was with distinguishing appropriately between the legal-political (or the legally-based moral) level and the theological-ideological level, and with relinquishing the state’s enforcement of its own claim to truth without having to give this up completely. The formation of the party-political sphere can be seen as “a counter revolutionary reaction against liberalism and its anti-clerical assault on the Catholic Church. Political and even social Catholicism was in many respects fundamentalist, intransigent and theocratic.” (Casanova 2008b, 69). At the start is an anti-liberal, anti-democratic reflex, which gives rise to an anti-democratic, anti-liberal political current, which then leads (paradoxically, as it were) to the formation of a political party and which plays a decisive role in the

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democratization of postwar European states.59 There is even the thesis that, due to this defensive attitude, which implies certain demarcations and also image building, the modernization of Catholicism as a whole (structurally as well as normatively) ultimately came from within its own ranks, i.e., from the religious community itself, and in particular from the process whereby Catholic or Christian parties were formed. In this respect, internal factors are thought to have a greater, or at least not a lesser, influence than external factors on the transformation processes of Catholicism and its adaptation to democratic and pluralistic societies. Thus secularization, integration, and acceptance of democracy were not the result of an exogenously induced adaptation to a secularizing environment. They were rather a by-product of the choice made by the new parties in response to endogenous constraints, that were built in the process of their formation … On the contrary, a secularization from within such as that carried out by confessional parties can have more devastating effects for religion. Of course, this is still only a hypothesis and needs to be tested empirically. Kalyvas 1996, 261

This is true for the period before the Second Vatican Council; when we look at the European situation today, we can see that the model of denominational political parties has fallen into crisis. As the examples of Holland, Switzerland, Belgium, and also the Federal Republic of Germany, show, the recent thrust of modernization has since the end of the 1960s dissolved the denominational milieus as the basis of the party-political model. The denominational Christian parties became and are becoming conservative popular parties, which are only to a very limited extent suitable places for Christian commitment. Gabriel 2008b, 9

59  See the “Paradox of the Christian Democrats” that Casanova (2008b, 69) talks about. Altermatt (2010, 58-59) speaks of “anti-modernism with modern means”, and points out that “the paradoxical combination of anti-modernist objectives with hypermodern instruments is one of the outstanding characteristics of social and political Catholicism, which is in response to the challenges of modernity”.

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5.7.2 Developments from the 19th Century to the Interwar Period Liberalism and secularism provoked religious defensive forces that led to denominalization – that is, to a special form of accommodation to the social or political system on the part of Catholicism in its dealing with the modern constitutional state. Ultramontane Catholicism had already, in the revolutionary year of 1848, become irreversibly “infected” with the procedures and rules of the modern constitutional state – not only in the sense of its strategic involvement in enforcing “the Catholic cause”, but certainly also in the sense of its normative recognition and affirmation of these principles as such. For, one could not confidently claim these rights for oneself, without the normativity built into them sooner or later “rubbing off” onto one’s own positions. A strategy that invariably invokes the rights of freedom that it constantly seeks to defame was doomed to fail not only in the long run but already in the middle run. Grosse Kracht 2008, 13

With regard to political Catholicism, the questions to be asked are: To what extent did political Catholicism, even in the ultramontane phase, normatively invoke rights of freedom and advocate them? To what extent were concepts of popular sovereignty and democratic procedures used or supported? And whether and how did the respective tendencies of political Catholicism affect Catholicism as a whole? The thesis that a learning process within Catholicism already began at this stage and took place thereafter as a matter of course is contentious. For example, Böckenförde contradicts this view by strictly separating strategic from normative reasons. In view of the failure resulting from the ultramontane phase of resisting National Socialism, he foregrounds motives of political Catholicism that aimed at securing or widening its own freedoms. As an example, he cites special interests internal to the church, such as school policy, as a reason why the Centre Party approved the Weimar constitution. However, in his opinion, such strategic motives proved to be inadequate for a sustainable democratization, as shown by the political role that Catholicism played in the emergence of National Socialism. Until the Second World War, and from 1945 until the Council, he argues, creating the “Catholic state” was, at least as far as the official church was concerned, still the clear objective, and this, especially magisterial, point of view had a strong influence on Catholic political actors (see Böckenförde 2007). Mono-denominationalism, milieu Catholicism, and unity between church and party (or parties) shaped the early phase of Catholic party formation and

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party activities in Europe, which, as we know, followed different paths in individual countries, according to political and religious tradition and constellation (see Altermatt 2007). In the US, on the other hand, “a political mobilization of the Catholic minority into a separate party” never materialized (Liedhegener 2010, 119;). This was in stark contrast to Germany, where the Catholic milieu, starting from the Catholic system of associations, organized itself into a political party, the Centre Party,60 to represent its interests. Liedhegener (2010, 120) writes: Emerging from the system of Catholic associations was therefore a Catholic party that functioned as the political bulwark of the Catholic milieu, and that was able to use universal suffrage and the parliamentary rights of the Reichstag to defend itself. With regard to Europe, there is again a relatively sharp boundary between the French and the rest of European Catholicism. While the Catholic movement in the non-French countries began to align itself with the national constitutional state in the 19th century and began to influence legislation within its framework, such an alignment did not take place in France, at least not in the 19th century. Maier 1972, 112

The historical context thus seems to be of decisive importance for the formation and influence of Catholic and Christian parties and movements. For example, the constitutional issue of the “deux frances”, the struggle over republic and democracy, penetrated French Catholicism and divided it into two camps, the monarchists (conservative Catholics who stood for the “holy monarchy”) and the democratie chrétienne (liberal, democratically minded Catholics who stood for “holy democracy”). In contrast to the other European countries, the focus of political conflict in France was above all the question of the form of government. The laicist context seems crucial for this focus; citing a survey of French Catholics, Mayeur (1992, 45), for example, writes:

60  According to Liedhegener, the Centre was ultimately never a “religious party”, but a party of Catholics bound to the church who had always transcended church-theological prescriptions and had a claim to validity across the whole of society (see Liedhegener 2006a and 2006b).

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It was precisely those who expressed the strongest reservations towards democracy, as it had materialized in French history, who asserted that things would be quite different if French Catholics had a democracy to deal with like that in the United States of America. It was therefore less of an issue in the French context than, for example, in countries such as Germany and Holland to become integrated into an already prescribed political framework, into the nation state, and to participate politically as Catholics. In contrast to France, political Catholicism in Germany and Holland assumed solid parliamentary forms relatively quickly and developed a more pragmatic relationship with the modern constitutional state. According to Hans Maier, this political Catholicism cannot simply be seen as belonging to the movement of Christian democracy, since it sees the issue of the form of government as not being a significant problem. If, in the second half of the 19th century, German Catholicism increasingly embarked on the path of pragmatic action that excluded the issue of constitutionalism, French Catholicism moved in the opposite direction. Maier 2010, 152

The movement of Christian democracy was in its infancy even slightly differently oriented – namely, against both the political monarchy and the church hierarchy, and thus its central goal was to democratize the church constitution. Christian democracy originally aimed … not only at reforming the state, but also at reshaping the church from within, in the sense of democratic freedom of parish and election, and a loosening of the hierarchical organization; it has in the great revolution this significance above all in the church, and especially so since the internal constitution of the church was closely intertwined with the old political order of society. Ibid., 141

In contrast to other European countries, the creation of a “constitutional Catholic party” did not take place in France. The formation of such a party like the Centre Party can be seen as an expression of a first step into a pluralistic political system, based, as it were, on the experience of cultural inequality. Minority Catholicism (for example in Germany) and diaspora situation (for example in Switzerland) led to the formation of a milieu and ultimately to the political need to act on the part of the isolated Catholic community (which, for example, is also shown in the process of pillarization in the Dutch context).

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From the organizational point of view, unity and cohesion were the watchwords … That Catholics voted for candidates of the Catholic party, and supported the Catholic party, was what was generally expected. Altermatt 1989, 160

In countries such as Switzerland, the Netherlands and Germany, Catholics therefore participated politically in Catholic parties, which to a certain extent became necessary as a means of asserting the interests internal to the milieu. For example, as a major social group, political Catholicism in Germany already stood in the Weimar period for democracy (for whatever motives) (see Böckenförde 2004a). Statements from the magisterium also contributed in a limited way to the political mobilization of Catholics, with Leo XIII certainly assuming a key position here. His church policy (his policy of ralliement) was initially not opposed to democratization; however, this policy was undeniably linked to the promotion of a Catholicism that focused on social and charitable concerns, with Christian democracy being understood solely as “a Christian movement of social concern for the people” (Maier 1972, 122ff.). Thus, support was in principle not given to democracy and political participation, and it is therefore not possible in the final analysis to speak of a substantive endorsement of democracy.61 Accordingly, there were examples of Catholic politicians, such as members of the Catholic Club in the Frankfurt National Assembly in 1848/49, who opposed this depoliticizing line taken by the magisterium. Despite such partial differences, we can hardly deny the fact that the connection between magisterium and political Catholicism was close at this time. Altermatt writes of Switzerland that a kind of “action group based on partnership” (Altermatt 1989, 164) existed that benefitted both sides, while Uertz speaks of the “clericalism of the Weimar period” (Uertz 2005a, 439). But the potential for conflict underlying the “exaggerated Biblical-theological claims on the world made by the [neo-scholastic] church” (Ibid.) did not diminish over time. The neo-scholastic state doctrine was always regarded as a point of reference for the political party. For example, as the first Catholic party, the Centre drew quite naturally on the Catholic natural law of neoscholastic hue. The corporative idea shaped by the magisterium found its way into the programmes of Christian democratic parties (but also into the ideas of economic democracy, of German trade unions, and of social democracy) into the 20th century. There was therefore an anti-democratic current supported by 61  See also the thesis of state neutrality, and finally the party-political ban in Italy (Graves de communi).

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political Catholicism, one that opposed the individualistic parliamentary system based on secular principles, and that advocated instead the organization of society along corporative lines. Different attempts were made to put this concept, understood as a path between democracy and authoritarian regime, into practice, with these attempts depending on context.62 The advocacy of the Catholic state propagated by the magisterium ran parallel to internal democratic practice and integration into the parliamentary system, and ultimately in parallel to the development towards a cross-denominational Christian democracy. 5.7.3 Developments in the Postwar Period This first phase of political Catholicism ended with National Socialism. For Böckenförde, one of the reasons for the “vulnerability” on the part of German Catholicism to National Socialism – that is, for the ultimate absence of (political) resistance to the seizure of power by Hitler and the NSDAP – lies in the area of political Catholicism: namely, in the clericalization of the leadership of the Centre Party in 1933 (see Böckenförde 2004a, 137). The depoliticization of Catholicism on the part of the magisterium and the concomitant concentration on social Catholicism in the narrower sense, as well as the strong milieu ties and the associated concentration on its own interests, weakened Catholic resistance. “Cohesive resistance to National Socialism only developed when the National Socialist state attacked the church” (Ibid.; see also Maier 1972, 109). This ultimately cohesive resistance can in turn be interpreted as feeding on an attitude of fundamental distance towards National Socialism on the part of Catholics, a distance that could be found in particular in political Catholicism.63 The political dispute over the “correct” form of government seems in any case to have become largely obsolete in the postwar period, and there was a clear tendency in the “Western” context towards democracy. At the same time, the tense relationship between the ideological and the political character of Christian parties in Europe became ever more precarious, giving rise to a certain pragmatism among political parties. The justification of democratic practice nonetheless continued to be based on Christian or Catholic theoretical conceptions.64 62  As we know, this idea was developed to a great extent in the Austrian sovereign state under Dollfuß, in the so-called Quadragesimo-anno state (on this, see section 5.1). 63  An example here is the “Cologne Circle” (see, for example, Fest 1994). 64  Personalism is being increasingly evoked, and especially so in Germany, and that is as a deliberate departure from neo-scholastic natural law, whose claim to truth is criticized (see Uertz 2010a and section 4.3 in this volume).

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We can speak of a progressive adaptation to political conditions, of a substantive recognition of democracy on a party-political basis. A special or privileged relationship between the Catholic Church and Christian-democratic parties remained; the parties, as Altermatt writes about the Swiss CVP, no longer wanted “to rely solely on the ideational foundations and material interests of Catholicism” (Altermatt 1989, 174). The political influence of European Christian-democratic parties was greater in the postwar period than ever before.65 The unclear but strongly felt sense of the bankruptcy of liberal and socialist ideologies and the need for a strong religious foundation to public life further strengthened such sentiments [the support for Christian democracy], and helped to make the idea of a “Third Power” popular. Maier 1972, 130

The transformation of the European party system after the Second World War, characterized by the emergence of so-called people’s parties, had effects on European Catholicism as a whole that should not be underestimated. What Altermatt makes clear with the example of Switzerland applies to the majority of European countries. After the Second World War, there was a “levelling of the values and ways of behaviour of the broadest sections of the population. The ideological positions of the political blocs … converged with one another” (Altermatt 1989, 165). In postwar Germany, for example, the CDU became a people’s party that abandoned rigid denominational affiliation, but continued to understand how to tie the majority of Catholics to it.66 In terms of agenda, its focus was on appealing to a large circle of voters by drawing as conceptual background on personalism, which proved compatible with non-Christians while also revealing its ideological ties. Uertz speaks of a “cultural-Christian underpinning” to the agenda pursued within the Christian-democratic spectrum, an underpinning again considered deficient and sometimes strongly criticized as a loss of substance by the magisterium.67 By contrast, reference in the party-political 65  According to Damberg (2010, 89), one reason for the strengthening of Christian democracy is Catholic Action, which made Christian democracy possible by releasing the laity from the Catholic enclosure. 66  On Catholicism in the immediate postwar period, see Gabriel 2000a, 47-52 and 104-119. 67  See Uertz 2005a, 435-436; and Kalyvas: “By reinterpreting Catholicism as an increasingly general, vague, and secular concept mediated by them, by envolving ‘Catholic parties’ to ‘parties of Christian inspiration’ [Vecchio 1987], confessional parties reduced the importance of religion for politics and society” (Kalyvas 1996, 260-261).

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context to neo-scholastic natural law hardly seemed possible any longer (see Uertz 2005a, 498, fn. 7). What is central is that Christian democracy accepted without reservation the ideologically plural state and party-political pluralism.68 Against this background, talk was then of the Christian orientation of the relevant parties. With its orientation to personalism, understood in the sense of an orientation to a pragmatically applied principle of ethics, “the Roman decision-making centre” was in some ways relativized for Catholic political actors “with regard to political and social-ethical questions” (Uertz 2005a, 435). At the same time, the magisterium had difficulties in recognizing the ideologically plural state and accepting personal responsibility as a starting-point for political action. With pronouncements still shaped by neo-scholastic natural law, it steered against the tendencies of progressive development in political Catholicism. In response, the ties of political Catholicism to the magisterium became weaker, and the question arose within the Christian parties as to how far the doctrine of the church was still relevant to the task of Christians in politics. Ties to so-called “Christian values” and to fundamental social principles (personality, solidarity, subsidiarity) were not abandoned by the Christiandemocratic parties; however, they did begin to debate the interpretation and meaning of these principles. Thus, in postwar Germany, several Christian parties (the CDU, the CSU, and the Centre Party) debated at the political level the correct interpretation of natural law. There were in the consultations on the Basic Law of the Federal Republic of Germany contributions based on Catholic natural law, and indeed they differed from neo-scholastic state doctrine and natural law doctrine. “Natural law” meant above all here an opposing position to a “positivistic-mechanistic” understanding of the state, and to a pre-positive justification of human dignity and fundamental rights. This manner of arguing was widely accepted in the parliamentary council. There were also religious arguments in the contributions of Catholic politicians, when they referred, for example, to “God-given rights” or the “image of God in human beings”. In the final analysis, agreement was ultimately reached in terms of content, with the use of religious language largely limited when it came to approval in voting. In the immediate decision-making phase, then, arguments and discussions were largely conducted in a “secular” manner – that is, in a language oriented towards ideological neutrality (see Uertz 2005a, 441). The erosion of the Catholic milieu and the associated internal pluralization had an effect in the early 1960s on the form of political Catholicism. Thus, the 68  Again, a parallel to the personalistic conception is that Maritain recognizes social and party-political pluralism.

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party ties of Catholics slowly loosened; however, the majority were still oriented towards the now “interdenominational” Christian-democratic parties.69 Christian democracy remained influential both socially and politically (see Liedhegener 2006b). [S]ecularization might be a threat to the churches or the organized religion in general, but it is neither imperatively a danger for Christian values nor necessarily an obstacle to the enduring attractiveness of Christian Democratic alternative. Van Kersbergen 1994, 45

5.7.4 Summary (1) Catholic or denominational parties were influential in Europe from the 19th century until into the postwar period – within Catholicism as well as in society as a whole.70 Democratic practice internal to Catholicism was rehearsed and applied in these parties, and it was through them that Catholicism adapted itself to the democratic system, although democracy would still long be rejected formally both by the official church and by politically organized Catholicism itself. (2) The parties underwent a process of development: after their formation, the Catholic or denominational parties tended to switch from (closed) ideological parties with a comprehensive ideology to (open) ideological parties with a partial ideology. After representing the interests of a special community, they became people’s parties. Christian democracy became as “interdenominational” parties a “third force” in the postwar period, and 69  Uertz (2010, 393-410), for example, draws our attention to the fact that there have been signs of disintegration of the Catholic milieu since the end of the 1950s, and thereby also changes to party ties, by referring to the conference “Christianity and Democratic Socialism”, which established a rapprochement between Catholics and Social Democrats. This tendency is also demonstrated by the example of Austria, with the church tying itself less and less to the ÖVP in the postwar period. It should also be borne in mind that charismatic individuals such as (to remain with the example of Austria) Cardinal König contributed to this renewal of a church positioned above the parties (see Bruckmüller 2007, esp. 92-93). 70  “The politicization of religion and – conversely – the religious shaping of political decisions were evident not only in the Kulturkämpfe, but also, for example in the election of the Social Democratic Party. In as late as 1907, the SDP was able to attract only 10% of Catholics, and barely had 11% of Catholics among its voters. Later, even voting for the NSDAP followed less class lines than denominational preferences. Only after the Adenauer era did other religious factors play a central role in voter decisions” (Blaschke 2002, 67).

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a common Christian-democratic line developed across Europe – that is, European Christian people’s parties had great similarities in terms of their agendas. In the political discourse, Catholic patterns of argumentation that broke away from neo-scholasticism (such as that of Christian personalism) were increasingly taken up in the context of political Catholicism against the church’s official opinion.71 (3) Within Catholicism, the tension between magisterium and Catholic political actors grew over time, and the church ties of the Catholic or Christian parties and their members became weaker. However, the close ties of the Catholic or Christian-democratic parties to the Catholic milieu remained until its dissolution. Thus, even before the Council, there was approval for democracy in areas of the Catholic milieu – and above all in the Christian-democratic parties, such as the CDU. (4) The steady ties to the milieu, alongside the party-political changes to constitution and programme and adaptations to context, seem to be decisive for the effects internal to Catholicism – that is, for the influence of political Catholicism on the learning process of Catholicism as a whole, i.e., on its “modernization”. The external effects should also not be forgotten here: in the 19th century, political Catholicism, especially in its confrontation with liberalism, helped to stabilize the social order in the sense of overcoming the social question. It contributed significantly to democratization in the respective European states in the postwar period in particular. (5) Originally, however, political Catholicism was directed against democracy and liberalism. It virtually constituted itself in this countermovement and generally criticized democracy sharply. The process of party formation and affiliation therefore did not proceed intentionally with the stated goal of integrating itself into secular party democracy and ultimately advocating the recognition of democracy and political rights of participation. The original reflex was the opposite. 5.8

The Catholic System of Clubs and Associations

5.8.1 Between Anti-modernism and Modernization With the recognition of religious freedom at the Second Vatican Council, the Catholic Church also took a decisive step towards opening itself up to the central cultural and structural characteristics of modern societies. The thesis 71  See the different characteristics of the “Catholic argumentation” regarding the Basic Law and the Weimar constitution.

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presented here is that this step was prepared for in the ultramontane and antimodern Catholicism of the 19th century. The system of Catholic clubs and associations is an excellent example of this. The dialectical effect of lay activities, an effect going against the intentions of the actors, can also be demonstrated, as we will show, for the alternative model to the associations, “Catholic Action”. Thomas Nipperdey was the first to emphasize the modernizing and emancipatory effect of the Catholic clubs and associations (see Nipperdey 1988, 9-66). His reflections have been taken up and developed by more recent research in contemporary history and sociology (see Gabriel 1998; Mooser 1996; AKKZG 1993 and 2000; Damberg 2002; Altermatt 2010; Kaufmann 2012; Breuer 2014). We should bear in mind first of all that the association is per se a modern form of socialization (see Mooser 1996, 64). Associations are in terms of their principles of construction based on principles of voluntariness and the fundamental equality of their members. As self-financed amalgamations, they are characterized by economic autonomy. Members associate membership with the common representation and implementation of objectives and interests important to them. Associations contribute both internally and externally to the differentiation and specification of different roles, and promote with their structures a culture of individuality and self-determination. Catholics participated with their clubs and associations in an important element of “civil society”, and were also involved in its modernization processes, where the associations pursued anti-modern objectives. The Catholic system of clubs and associations was part of the formation of the Catholic milieu in the 19th century (see Kühr 1985; Kaufmann 2012; Gabriel 2014), which can be regarded as a phenomenon pertaining to the church as a whole, even if it found its strongest expression in the Europe of the Kulturkampf period and in turn in mixed denominational countries with a large Catholic minority such as the Netherlands, Switzerland and Germany (see Gabriel/Kaufmann 1980). Besides the development of a complex network of associations, what also shaped milieu formation was a common Catholic worldview. This worldview contained as its central element a sacral idea of papacy and church, and found its theological legitimation in neo-scholastic theology and philosophy. It provided in its implementation in catechisms and in theological tracts related to the everyday the basis for a “milieu standard” subjected to strict church control (AKKZG 1993, 606). The comprehensive ritualization of everyday life can be seen as the third pillar of the Catholic milieu. It filled daily routine with an appropriate practice of prayer, and the weekly and annual rhythm with pilgrimages and festive events. It was the expression of a popular piety shaped by the church and purified by “uncontrolled growth”.

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The following look at the system of Catholic clubs and associations focuses on the German example. Beyond the core countries of Catholic milieu formation, the Catholic associations had an influence on Catholicism as a whole on its way into modern society. We can distinguish four types of associations with different objectives, dates of formation, and developments (see Mooser 1996, 66-70). What the associations had in common was a connection to the Catholic religion, which in a sense made all of them religious associations. Besides this multifunctionality, they were also characterized by a common structural feature: a synodal constitution. Clerics were in each case the born leaders of associations, so that, in contrast to associations in general, there was built into the Catholic system of associations a strong element of inequality, which was designed to ensure that the lay associations remained under church and clerical control. 5.8.2 Religious Associations The first wave of Catholic associations emerged in as early as the 1840s (see Mooser 1996, 67; see AKKZG 1993, 633-634). Explicitly religious goals dominated as the expression of a movement of religious revitalization. Older associations experienced an unexpected boom, and new religious associations emerged: brotherhoods, congregations, sodalities, prayer groups, and Third Orders of various religious traditions. The new associations formed the social basis of a revived popular piety that focused on the veneration of Mary and the Sacred Heart. They constituted the organized core of the new popular piety as shaped by the church. Mission associations were also spread widely as part of the Catholic missionary movement. The formation of religious associations drew its motivation from the religious and social insecurity associated with the transition to modern society. In this respect, it was directed against the secularizing tendencies of the revolutionary epoch, but also against the anti-church formation of nation states, as well as against liberalism and socialism. The religious associations were most widespread in the decades between the end of the Kulturkampf and the beginning of the First World War, and they remain the most popular Catholic associations (see Mooser 1996, 76). 5.8.3 Caritative Associations The second wave pursued primarily caritative aims,72 and had its beginnings in the “caritative groups” established in many towns and cities of the German Empire, such as Koblenz, Aachen and Paderborn. While the groups were still 72  This is dealt with in more detail in Gabriel 2003.

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very loosely organized, the Society of Saint Vincent de Paul and Elisabethen Association assumed in a second phase of new formations a more solid degree of organization. From the middle of the century onwards, benevolent societies with different concrete goals were formed in rapid succession, usually at parish level. The type of caritative associations within the system of Catholic associations took many forms in the second half of the century, with local associations for nursing, child care, hospitals, hospices and retirement homes emerging, often in connection with female religious orders and congregations. In the cities, the network of caritative associations, with their leading figures of the chaplain as “begging genius” (Mooser 1996, 68) and of the nun, were able to achieve a high density and to have some effect in the fight against proletarian poverty. At the height of the system of Catholic associations in 1912, the number of members of caritative Catholic associations was given as 588,000 (see Ibid., 74). Besides caritative groups and associations, the sister congregations formed central nodes in the caritative network of the 19th century (see Gatz 1971). The search for autonomy in caritative Catholicism found particularly strong expression in the establishment of institutions under the trusteeship of individual parishes. This happened typically in northwestern Germany, where caritative engagement had become since the “Cologne Turmoil” of 1837 a favoured expression of Catholic self-affirmation and self-confidence vis-à-vis the Protestant Prussian state. Since the reorganization or establishment of institutions by no means wished to do without nuns, the only way left was often through their own houses. Local caritative groups, associations and committees, as well as pastors and religious communities, emerged as initiators in the establishment of church institutions for the elderly, the sick and children. While there were 43 Catholic hospitals in the German Empire in 1850, a further 250 were founded up until 1870. After moderate growth in the decade of the Kulturkampf, the number of new foundations between 1881 and 1910 increased to 392. The caritative associations represented a private charitable movement tied to the church, in contrast to public aid for the poor. Particularly in the Rhineland and Westphalia, the movement thrived on the fact that church involvement was independent and freedom of church commitment from state influence. 5.8.4 Corporative, Occupational and Workers’ Associations The workers’ associations played a prominent role in social Catholicism. The first generation of Catholic workers’ associations disappeared “in the double movement of the state against Catholicism and social democracy” (Nipperdey

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1988, 57). After the Kulturkampf, the protagonists of social Catholicism, such as Franz Hitze, re-established the workers’ associations. These had a close bond with the parishes and also pursued religious-educational aims. There were already a total of 168 Catholic workers’ and 51 miners’ associations in the German Empire in 1889 (see Ibid., 58). The organization of Catholic workers into associations also had the effect of stopping the advance of social democracy among Catholic workers. At the end of the 1890s, one third of Catholic workers were organized in the associations, which now also had diocesan and regional clubs. Educational work among the workers was performed by a variety of publications, with the Westdeutsche Arbeiterzeitung, which at its peak had a circulation of 200,000 copies, leading the way. The associations gradually shifted from being religious associations that aimed at educating people and protecting them against the “bacillus of social democracy” to being interest groups and “organizations struggling for the economic, social and political equality and emancipation of working people” (Ibid.). More and more association members therefore moved in the decade before the First World War into the local party committees of the Centre Party. The Christian trade unions – the first trade association of Christian miners was founded in the Ruhr area in 1894 – represented a new type of association (see Ibid., 59-60). It was no longer led by a cleric as head, also had Protestant members, and was officially neutral in terms of party politics. It saw itself primarily as an organization representing the interests of Christian workers in contrast to the free trade unions dominated by social democracy. By 1914, such associations had grown to around 350,000 members, accounting for 14% of free trade unions. Broad currents within the Catholic Church and its hierarchy resolutely rejected the Christian trade unions. The fiercely fought dispute over unions eventually ended with papal tolerance, but did long-term damage to the Christian trade unions as well as social Catholicism in general. 5.8.5 People’s Association, Educational and Cultural Associations Beginning in the 1890s, there were also tendencies in the system of Catholic associations and in the system of associations in general of centralization, professionalization, and the establishment of association headquarters. Associations became institutions with more or less developed hierarchies. The Mönchengladbach association Arbeiterwohl, which was never strong in terms of members, proved to be the lever for the modernization of Catholic associations (see Gabriel 2003, 192-193). Led by Franz Hitze and the social reformer and businessman Franz Brandts, Arbeiterwohl provided strong momentum for founding an umbrella organization for caritative associations across Germany.

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They found in Lorenz Werthmann, the first president of the German Caritas Association, someone who succeeded in establishing such an organization against opposition even within the hierarchy. The type of Catholic mass association with social-reformist and popular-educational aims took the stage in 1890 with the People’s Association for Catholic Germany (see Klein 1996; Nipperdey 1988; Mooser 1996). Ludwig Windthorst and Franz Hitze ensured that the association had a social and socio-political set of objectives that opposed social democracy and that was not primarily anti-Protestant. According to its statute, it understood itself as an association “for opposing heresy and revolutionary tendencies in the social sphere, and for defending the Christian order in society” (Mooser 1996, 69). The association, based in Mönchengladbach, pursued hands-on social work in education at various levels. The “hands-on social courses” that it ran with great success were characteristic of the efforts to train a Catholic elite of clerics and laity familiar with the “social question”. The first course took place in Mönchengladbach in September 1892, and attracted 582 clerics and laypeople from all over Germany that were interested in the social question (see Löhr 2014). Besides Franz Hitze, the speakers included the Jesuits Heinrich Pesch, Viktor Cathrein and Augustinus Lehmkuhl, which led to protests and denunciations in the liberal press. The course not only addressed a colourful array of topics related to the social question, but also discussed the Catholic system of associations and how best to support it (see Ibid., 272-274). When one of the speakers, Johann Peter Oberdörffer, editor of the Kölner Correspondenz für die gesitlichen Präsides katholischer Vereinigungen der arbeitenden Stände, attacked parliamentarism as a follower of Charles Vogelsang, he caused horror, and received a sharp rebuke from the Catholic parliamentarians present, including Franz Hitze and Karl Bachem (see Ibid., 257-261). By 1900, the People’s Association had run a total of eight such hands-on social courses. The head office of the People’s Association developed into a training ground for the Catholic social movement with its effects lasting into the Weimar Republic, which saw one of its directors, Heinrich Brauns, heading the Ministry of Labour for many years. Sociopolitical education was served by the correspondence between presidents that was addressed to the association heads of the workers’ associations. A broad body of writers addressed the members (who amounted to up to 800,000 during the heyday of the Association), and the Catholic people as a whole. It was mainly due to the influence of the People’s Association that social Catholicism gained a prominent position within the whole of Catholicism and among its associations and organizations (see Nipperdey 1988, 62-63). Nipperdey has highlighted four spheres of action and consequences following from the activities of the People’s Association: “As a mass and lay organization, it democratized the political culture of German Catholicism. It was a

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factor in emancipation, and modernized the spirit and climate of Catholicism” (Ibid., 61). Nipperdey goes on to say that it “awakened the awareness of a responsibility of society as a whole to the social problem, and thus prepared for the integration of Catholics into the nation” (Ibid.). Nipperdey also sees, however, that in a dialectical contradiction to this, the People’s Association did not overcome the segmentation of Catholicism, but actually intensified it. He emphasizes as the fourth aspect that the People’s Association also tamed social Catholicism and reconciled it with bourgeois and rural interests. “Thus, the People’s Association combined modernity and an orientation to the status quo in a tense coexistence” (Ibid.). With regard to the Catholic system of associations as a whole, Josef Mooser points out that it had at its peak at the turn of the century a “plebeian form” (Mooser 1996, 81-88). The degree of integration of Catholics in the clubs and associations was considerably higher among workers, farmers, and craftspeople than among the bourgeois professions and social strata. Nevertheless, he lists 16 different Catholic associations that were anchored in the bourgeoisie (see Ibid., 82-85), among which educational and cultural associations played a prominent role. Thus, there were several academic Pius associations, the student associations possessed lively circles for older people, the Görres Society was founded in 1876 as an association to protect Catholic professors, and teachers as well as other academic occupations had their own denominational amalgamations of associations. After the First World War at the latest, the Catholic system of clubs and associations came under multiple pressures. Some of the hierarchy continued to view the associations and their aspirations for autonomy critically and with suspicion. From within grew criticism of and distance to the Catholic “association dairies”, which faced the charge of superficiality. The traditional system of associations did not fit in in terms of mentality and structure with the religious revival of the 1920s, as expressed in the liturgical movement, for example (see Damberg 2010, 81-82). Promoted from Rome and supported by many forces not only in the hierarchy, a counter model to the system of autonomy-oriented associations also appeared on the stage of church history: namely, Catholic Action. 5.8.6 Catholic Action and the Churchification of the System of Associations In 1922, Pius XI announced in his first encyclical Ubi arcano Dei consilio a comprehensive reform programme in which Catholic Action played an important role. Under the image of the “restoration of the Kingdom of Christ”, the Pope pursued an integralist goal within which he accorded the lay apostolate a central position. The encyclical stated:

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Tell your faithful children of the laity that when, united with their pastors and their bishops, they participate in the works of the apostolate, both individual and social, the end purpose of which is to make Jesus Christ better known and better loved, then they are more than ever “a chosen generation, a kingly priesthood, a holy nation, a purchased people” of whom St. Peter spoke in such laudatory terms (I Peter ii, 9) … Only in this Kingdom of Christ can we find that true human equality by which all men are ennobled and made great by the selfsame nobility and greatness, for each is ennobled by the precious blood of Christ. Ubi arcano Dei consilio, 58

The momentum given by Pius XI triggered very different attempts at implementation in the world church in the following years under the label of “Catholic Action” (see Damberg 2010 and also Hürten 1986, 201-208). We can identify as common characteristics here the objective of an active Christianization and returning the world to the sphere of influence of the church, the close connection of lay commitment to the church and its hierarchy, and a hitherto unknown church-theological appreciation of the laity as to some extent the “last call” of the church in its quest to reconquer the world. Through the Belgian influence of the later cardinal Cardijn and his young workers, Catholic Action in France developed the model of the pastoral milieu through small active cells in the middle of the world. It became in France, where there had been no formation of association Catholicism, the first significant organization of active laypeople. After the Second World War, it moved to the left in terms of pastoral work, became involved in struggles with the hierarchy, and was dissolved in 1975 by a decision of the French Episcopal Conference. Catholic Action also developed a specific proximity to the civil rights movement in the US, too. In Germany, Eugenio Pacelli had called at the Catholic Day in Magdeburg in 1928 for participation in Catholic Action. During the period of National Socialism, many bishops preferred the Italian model of Catholic Action, which was closely related to the hierarchy, to the club and association Catholicism largely destroyed by the National Socialists. However, given the massive, government-driven marginalization of Catholics to the sacristy, there were no possibilities for implementation. After the Second World War, attempts by some bishops to replace the resurgent system of Catholic associations entirely with Catholic Action failed. Nonetheless, the reception of the ideas of “Catholic Action” in Germany caused a strong trend toward the “churchification” of the system of Catholic clubs and associations, as well as of Catholicism as a whole (Hürten 1986, 243).

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Recent research has highlighted the ambivalent character of Catholic Action as the “enigmatic chimera of 20th-century church history” (Damberg 2010, 83). On the one hand, Pius XI pursued an integralist concept that was directed against modern functional differentiation, and that sought to undo or at least to stop it. Until into the 1930s, he favoured Catholic-authoritarian governments as state-political frameworks for his reform efforts (Misner 2004, 666). On the other, Wilhelm Damberg observes in the first encyclical of Pius XI in contrast to his predecessor a remarkable semantic shift towards including the laity. He concludes: In fact, the definition given by Pius XI in accordance with I Peter ii, 9 of the laity in the context of Catholic Action as “a holy nation, a purchased people” did have an effect: the semantics in question shifted significantly towards inclusion, autonomy of the individual, and participation … This semantic shift of the 1920s then led the church straight into the constitutions and declarations of the Second Vatican Council with their demands for human dignity and fundamental rights. Damberg 2010, 95

Klaus Große Kracht also emphasizes in his postdoctoral thesis on Catholic Action the dialectical relation of the concept to modern functional differentiation (see Große Kracht 2012). On the one hand, the latter was aimed at overcoming the detachment of functional areas in society from church sovereignty. The desired “Christianization of society”, however, had effects that worked against the intentions of the actors. The aspiration to send an elite of well-educated Catholics into the secular world in order to win it again for Christ led often enough to a “reimporting” of worldly ideas into the internal communicative space of the church … The “Christianization of society” often led to the “socialization of Christians”. Ibid., 442

5.8.7 Summary (1) The establishment of the system of Catholic clubs and associations in the second half of the 19th century reflected the situation of conflict that the Catholic Church had with the actors of social modernization and their liberal and socialist ideas.

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(2) The religious associations mobilized the Catholic population against the loss of the Catholic world of faith, and sought to make Catholics immune to alternative worldview systems by intensifying religious life. (3) The caritative associations aimed at a practical attestation of the Catholic faith and were directed against the tendencies of ousting the Catholic Church from its traditional field of caring for the poor and vulnerable. (4) The political and social associations fought against the anti-Catholic actors of liberalism and socialism, and for the freedom and autonomy of the church after the end of the absolutist unity of throne and altar. (5) The social and educational associations mobilized the Catholic masses and elites against the (socialist) revolution and for the utopia of a society based on reconciling and balancing class antagonism and class struggle. (6) The Catholic clubs and associations were on the one hand directed against the central cultural and structural expressions of the modern age. As self-organizations of Catholics based on the self-assertion of the Catholic Church, they were at the same time important actors and forces in modernizing both Catholicism and society. They contributed to the emancipation and to an independent self-confidence of the Catholic laity. They created the conditions for a reconciliation of Catholicism with the central parameters of cultural and structural modernity. Their successful struggle for a free and autonomous church unintentionally gave at the same time a boost to the functional differentiation of an independent religious sphere. (7) Without the preparatory work of the Catholic system of clubs and associations, the reconciliation of the Catholic Church with the central cultural and structural expressions of modern society that the legitimization of religious freedom represented seems inconceivable. (8) The dialectical relationship of rejection of and reconciliation with the modern world that we can see in the system of Catholic clubs and associations can also be demonstrated for the model of Catholic Action propagated as an alternative to the system of associations. Catholic Action contributed to the fact that, with the Second Vatican Council, the “hour of the laity” could come, and that, with the reception of the idea of freedom, Catholics were able as citizens of modern society to socialize themselves in a new way. 5.9

Council Dynamics and Papal Charisma

5.9.1 The Council as a World Event “The recognition of religious freedom becomes through the act of the Council and the promulgation a task engaging church identity” (Siebenrock 2010, 20). Thus, the conciliar process at the Second Vatican Council was an important

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factor for the path taken by Catholicism to religious freedom, since it provided the immediate context – the culmination point – of the public declaration of religious freedom. The formulation of Dignitatis humanae as it is now available was only possible due to the specific internal dynamics of the Council.73 The Council was certainly an important event of the 20th century, one that had a global impact.74 The ongoing interaction in the respective political, social, and especially ecumenical contexts worldwide shaped the course of events at the Council; that is, impulses ad extra significantly influenced the course of the Council. The Council was in the midst of modernity, and its actors, expressly affirming modernity, placed it precisely there. This fundamentally positive attitude, unfamiliar above all to the official church, was already evident in the fact alone that the Second Vatican Council consciously did without “acts of hereticization and contestations over orthodoxy” (Höhn 1998, 129). This was, so to say, a breach in continuity, at least if we consider the previous processes of forming church identity, e.g., in the course of previous Councils. The modern context can be seen as the decisive reason for and central focus of the Second Vatican Council, with the church concerning itself with the “world of today”.75 This was made clear as far as the agenda was concerned by the leitmotif notion of aggiornamento already introduced by John XXIII during the preparatory and convocation phase. John XXIII spoke of the Council as the “new Pentecost”; Paul VI characterized it as a “dialogue of the church with the modern world”. The Council emphasized, like the First Vatican Council, the separation of religion and politics, church and state. However, in contrast to the previous Council, the concentration on religious matters was accompanied by a fundamental openness and transparency, and by a positive attitude towards the public domain, which was especially evident in the way that the Council dealt with the media. Within the framework of this fundamental orientation, the Council process itself was extremely complex, multilayered, and by no means predictable.76 This is already clear from the fact that the preparatory work and preliminary drafts were in most cases rejected or almost completely rewritten in the course of the Council. Particularly worth mentioning here is the interplay between

73  See our breakdown of the development of the text in chapter 1. 74  One possible interpretation of the Council is to see it as a “world event”, an interpretation that follows Stichweh 2000, and the theory of global society that he shaped. In this context, the church is no longer seen as a “counter society”, but as a “church of the global society”. On this, see Pottmeyer 2008, and Nacke 2010; see also Tyrell 2012. 75  On the orientation of the Second Vatican Council to the modern period, see Kreutzer 2006. 76  As shown by the debate preceding Dignitatis humanae (see chapter 1).

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tight organizational structures77 on the one hand, and the integration of processes into liturgical contexts on the other. The Council, which relied on formal decision-making procedures,78 was at the same time always liturgy, a combination that is perhaps unique: Anyone who hears only the debates of the Council will think that it is a parliament like any other. But those who saw the bishops praying in unison for the Confessio Petri, who saw long rows crowding daily to the confessional, who witnessed before each session the mass “the mystery of God”, knew and sensed that this was a mysterious “parliament” that could be compared with no other. Galli/Moosbrugger 1964, 28

Central was the presence of, and the specific interaction between, the Council participants. This presence of participants in their plurality made the Council “perhaps the most comprehensive exchange of experiences in the history of the 20th century” (Siebenrock 2010, 25). Different church groups or camps collided (such as “Conservatives”, “Church of the Poor”, the so-called “Central European Bloc”, etc.), and were additionally “mixed up” by a relatively high number of observatores (external observers). A majority of Council participants were fundamentally for reforms, although a numerical minority was able to organize itself effectively against the efforts at reform and was therefore able to exert its influence (see Nacke 2010, 188 and 202). The presence of so many culturally heterogeneous people for a longer period in one place seemed like a biotope and represented a favourable opportunity for various dynamics of communitization. The interest in learning from each other, in meeting and becoming acquainted with one other, the “world church experience” – these were expressly in the foreground to begin with. Ibid., 185

77  For example, the Council had its own rules of procedure, which were already drafted by the Preparatory Commission. 78  The normal procedure was characterized by a three-step process: “Firstly, the opinions and proposals for amendment (modi) from the assembly hall regarding the text dealt with were collected and classified, and then examined by the theological advisers (Periti), so that there could then follow a passage through the various working groups (sub-commissions). The final text was discussed and approved in the general assembly of the commissions, and then presented to the assembly hall as a new version” (Nacke 2010, 135).

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In this context, there were personal learning processes on the part of individual participants of the Council, and social learning, each of which seems to have been the result of the specific social form of the Council: the context in which communication took place can be described as a “state of emergency” (Ibid., 90). In terms of content, it was about the Catholic Church producing an up-todate and binding description of world and self, and creating legitimacy for the decisions associated with it. Thus, the Second Vatican Council, unlike the first, which was dominated by the issue of infallibility (see Schatz 1993), had from the beginning a pastoral concern, which, initiated by John XXIII, was carried forth by the majority of Council participants. We will now identify some aspects that, given their particular impact on the issue of religious freedom in general and on Dignitatis humanae in particular, can be considered to characterize the Council. 5.9.2 The Role of the Secretariat “for Promoting Christian Unity” The work in the commissions, whose results and sometimes conflicts were brought into the general debates, was certainly central, and especially so in the third and fourth sessions.79 With regard to the development of the text of the declaration on religious freedom, it was the Holy Office under Cardinal Ottaviani and the Unity Commission under Cardinal Bea that represented the decisive, and opposing, positions.80 This opposition became clear again and again during the Council, and was partially defused by the formation of the Coordinating Commission, to which neither Bea nor Ottaviani belonged. The Unity Secretariat saw itself from the beginning of the Council onwards as a counterpart to the Holy Office. Its task was, at least according to its leading figures, to oppose the authoritarian position taken by the Holy Office in the preparatory phase.

79  Decision-making processes were forced in this phase. The demand for increased efficiency lasted to the end – at the expense of extensive debate and of unofficial and informal talks. Congar sees that this development took place under Paul VI and was at the overall expense of a process in which decisions could mature (see Komonchak 2003, 31-32). 80  Again, see chapter 1, where we nonetheless also make clear that, despite this juxtaposition, no definite fronts or, as it were, poles can be defined. The field in which the opinions and arguments for or against the recognition of religious freedom were exchanged was extremely plural and multifaceted. Thus, there were, for example, also moderate, balanced opponents and advocates. The struggle for continuity was a central feature of the debates and content of the different positions.

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During the first period of the Council, Bea and de Smedt,, speaking in the name of the Secretariat for Christian Unity, were the first to become the interpreters of an assembly that was still in search of itself but already clearly wished to resist any external tutelage, especially one that was conservative. Grootaers 1997b, 487

The special position of the Secretariat for Promoting Christian Unity was that its responsibilities were similar to those of a commission, while its scope exceeded that of a commission. The Secretariat was mainly responsible for ecumenical issues. This was welcomed by other Christian communities not least because this constellation seemed to lower the level of dependency on the curia. Bea, from the beginning the head of the Secretariat, was therefore not a member of the Holy Office. While the Holy Office was losing its central role, as we have seen, the Secretariat for Christian Unity, despite its being a new organization, saw its role increased … The importance of this action was evident, since the problem of relations with the non-Catholic Churches was to be a meain concern in the work of Vatican II. Riccardi 1997, 46

One task of the Unity Secretariat, among many others, was to invite external, non-Catholic observers (see Raguer 1997, 178-182). 5.9.3 The Influence of External Observers The Second Vatican Council opened itself ad extra to the world, like no other, and had – especially as a media event – a particular external effect; it was public by its very nature. This was particularly evident in the participation of external observers, in the admission of journalistic observers, and in some respects also in the participation of the laity. At the same time, there was still Council secrecy for internal conciliar texts and events, but this secrecy was loosened greatly by Paul VI. It was also he who introduced lay participation in the first place. The so-called auditores were allowed to attend the public sessions and the general congregations, and influence events at the Council not only through consultations with the Commission for the Apostolate of the Laity, but also by influencing the mass media.81 81  The Council was accused from the preparatory phase onwards of being too shaped by the curia. Paul VI steered against that accusation by allowing lay participation.

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One key characteristic of the Council is that it was constituted from the beginning as an ecumenical body: The very novelty of the Second Vatican Council is that the various Christian denominations were invited to send representatives as observers. The presence of non-Catholics, who during the sessions sat at the front opposite the cardinals in the auditorium in full view of everyone, shaped the style of interaction maintained there; although the observers were not granted the right to speak, their presence was more momentous than expected. Nacke 2010, 93

The influence of external non-Catholic observers and guests on what happened at the Council may therefore have been considerable.82 Documented are speeches by Paul VI in which, especially towards the end of the Council, he exuberantly emphasized and praised the importance of the observers. Even if we regard the inclusion of non-Catholic Christians only as an act of symbolic politics, we can assume that the Council Fathers for their part made at least strategic use of the observers’ presence. The “tone” of the Council debates would certainly also have been different without the “externals”. Most of the external observers were members of the World Council of Churches (WCC), which consists essentially of churches from the Protestant and Orthodox tradition. They participated not only in the public sessions, which journalists, for example, also attended, but actually in all sessions. There were also regular consultations with the Unity Secretariat, which, as already said, had been tasked with looking after them. The observers were of course not entitled to vote, but they certainly had opportunities to exercise an influence. The connection with the Unity Secretariat also made it possible for them to engage in discussions and to exercise their influence, so to speak, directly on the affairs of the Council.83 The WCC issued in 1963 its first official statements and evaluations regarding the first Council period. Of particular importance here was the fourth World Conference in Montreal, where a Catholic 82  “During the first session (1962), the number of non-Catholics reached 54 (among them 8 guests); at the second (1963), the number rose to 68 (including nine guests); at the third (1964) to 82 (with 13 guests), and at the fourth (1965), to 106 (of whom 16 wre guests). Altogether there were present at Vatican II, for one or more sessions, 192 non-Catholic obervers or guests.” (Raguer 1997, 182). 83  “With the so-called ‘Tuesday meeting’, which regularly took place during the periods of session, a forum of its own was established to discuss the topics to be addressed at the Council and to provide concrete comments, concerns and suggestions” (Nacke 2010, 97).

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delegation officially sent by the Unity Secretariat participated. Grootaers evaluates the echo at this conference, which helped “to recognize the ecumenical advances initiated by the Council”, as being a rapprochement at the level of both content and structure. There were also repercussions for the conciliar process.84 There is talk of a so-called “boomerang effect” that began after the first Council period as a whole (Grootaers 1997a, 546-558), and that the external observers played a large part in. 5.9.4

The Special Influence of Individual Episcopates The life experiences of the bishops who participated in the Council went back to the late 19th century. All had taken the anti-modernist oath and had been shaped by totalitarianism and the world wars. If we add the historical experience of the respective countries and peoples, then we can systematically identify different types of experience. These experiences not only reflect the heterogeneous history in the modern period worldwide, but also the experiences with the common doctrine of the church. Siebenrock 2010, 24-25

The Council’s rules of procedure did not initially allow for individual episcopates. Some were constituted only in the Council process, and many only reached a functioning organizational unity with the right to vote in the course of the Council (see Raguer 1997, 187). They then acted as “intermediate ecclesial bodies between the diocese and the universal Church” (Ibid., 187), and sometimes merged informally into so-called “blocs”.85 We can only refer briefly here to the influence of individual episcopates that obviously affected the course taken by the declaration on religious freedom; apart from the special role of the US episcopate discussed above, we shall highlight here two peculiarities. A look at the progress of the Council as a whole shows to begin with that it was the strong episcopates from Germany and France that frequently acted in a manner that supported reform. However, they did not play this role in matters of religious freedom, or barely came forward to speak. A second peculiarity is that power-political interests – namely, the attempt by bishops to strengthen their own episcopacy, and especially in their own country – played a role. The Polish episcopate took the role of driving matters forward, for example, with 84  For example, on the schema De revelatione, or No. 9 and No. 10 of the constitution Dei Verbum, which deals with the relationship between holy scripture and tradition. 85  For example, the “Central European bloc” representing the German-speaking, Scandinavian, French, Belgian, and Dutch episcopates (see Raguer 1997, 204).

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their commitment being due in large part, it seems, to their experience of totalitarianism in their own country and to the repression to which the Polish church was exposed. Against this backdrop, pragmatic considerations and interest-driven policies based on their own specific context were certainly decisive for their approval of liberal ideas. The crucial role in the formulation and implementation of Dignitatis humanae fell at the Council to the US episcopacy. As the numerically strongest episcopate, it worked cohesively towards the endorsement of the declaration on religious freedom. Particularly influential were Cardinal Spellman, who took the organizational initiative, and John C Murray, who reflected theologically on the content of the declaration (see chapter 1). Since the church was not put under pressure by US society ad extra, and the motif of aggiornamento was very much in line with the positive experience of liberalism in the US, the conditions were favourable for the US episcopate to exert its influence.86 All in all, we can speak of an “episcopal effect” at the Council, one signifying a new collegiality among the bishops (Nacke 2010, 91). This collegiality came increasingly to the fore in contrast to issues of content – for example, in how the media observed events, too. 5.9.5 The Role of the Media The Second Vatican Council was accompanied by unprecedented levels of public participation and public interest in internal church discussions. Some of the external observers were, as already mentioned, journalists. There were reports on the Council from the beginning (in fact, from the preparatory phase). As in the First Vatican Council, the church still tended to control the media in the preparatory phase, but, when the Council began, it soon took a cooperative path. Thus, the first press conference in the history of the Holy See took place, and Comitato della Stampa (press committee)87 and Ufficio Stampa (press office)88 were founded and permanently installed. The presence of religious and church topics, reports and news increased steadily in the media, and 86  The “American bishops could not understand, from the biographical viewpoint alone, the standard argument against religious freedom, according to which it would lead to atheism, indifference or secularism” (Siebenrock 2010 26). See section 5.5. 87  Whose members were all Council Fathers. 88  Whose co-workers were not Council Fathers. This was problematic insofar as they were initially not necessarily able to participate in the general congregations that they were supposed to report about – but the rules for participation soon changed. This made it easier for the Press Office to carry out its task, which nonetheless was often difficult enough: “The Press Office was pinned between the ‘hammer’ of the world press and the ‘anvil’ of conciliar secrecy imposed by the conservative forces in the Curia” (Faustino Vallainc, secretary of the press committee, quoted from Raguer 1997, 224).

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it is worth noting that there was in essence no press opposed to the Council (see Wittstadt 1995, 463). Interestingly, “the large non-Catholic (and often liberal) newspapers” developed a particular interest in the Council and were represented by “permanent correspondents”.89 Considerable was not only the external impact of the Council transmitted by the media on society; the media also had a crucial impact within the Council itself. The influence ad intra is particularly noteworthy, especially since non-denominational media concentrated on the conciliar events, and their reporting and interpretations were often and carefully considered within the Council itself: In turn, it was the commentaries in the press and the lively response of the public that finally convinced the bishops of the importance of the Council. In addition, the bishops read the reports in the journals, which helped more than one of them unterstand what was going on in the hall. Raguer 1997, 232

In line with the “need of the mass media to individualize”, the person of John XXIII and his immense popularity may have increased or even initiated the cross-regional public interest in Council themes (Nacke 2010, 168). Until his death (his death throes were described in detail in radio reports), John XXIII was literally at the centre of media attention. 5.9.6 The Influence of the Popes With John XXIII and Paul VI, two very different papal personalities shaped the Council. They both contributed in their own way to its success: John XXIII first set the Council in motion, and Paul VI steadily pushed it on in his productivity and finally also led it to a successful conclusion. The popularity of John XXIII was undoubtedly great. He was therefore able to make particular use of the mass media; for example, by reading on 11 September 1962 his radio message before the Council. With his opening speech, Gaudet mater ecclesia, he then called on the participants of the Council above all to engage in dialogue and assume personal responsibility, and he made clear the “modern” orientation of the Council. Kreutzer (2006, 28 and fn. 48) writes: Unlike previous councils, the Second Vatican Council is therefore concerned, in the words of its initiator, not with rejecting a heresy … The 89  Such as the Frankfurter Allgemeine Zeitung, the Neue Zürcher Zeitung, Le Monde, Die Zeit. Formally, they became, in contrast to the Catholic press, the avant garde of reporting (see Grootaers 1997a, 546-548, and Nacke 2010, 169).

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style of the Council is also established by the Pope: the remedy of mercy is preferred to austerity, and condemnation renounced. John XXIII impressed with his “calm assurance”, which “almost irritated people”, as Cardinal Garrone reports as a Council witness (Garrone quoted from Riccardi 1997, 19).90 According to Congar, there emerged within the Council “a kind of extraordinary unanimity” during the term of office of John XXIII, and he is convinced that “the most important thing” here was not so much the Pope’s “ideas” as his “heart” (quoted from Grootaers 1997b, 501, fn. 365). In contrast, there was the following criticism of the Pope’s leadership style: Many thought, and some said, that the somewhat chaotic way in which the proceedings of the first period of the Council were conducted was due in large measure to the passivity of John XXIII who was inclined to “do nothing and let things ride,” but also, in some degree, to the lack of perceptiveness on the part of the Council of Presidents. Ibid., 495

According to this criticism, a sense of inefficiency arose. Nevertheless, the charisma of John XXIII gave the Council an optimistic and dialogue-oriented character (“Spirit of the Council”), and made it an event that reflected above all an openness to the world. Not least, the immense echo across the world of the death of John XXIII was a sign of his impressive charisma and his influential presence. Paul VI then took on the difficult legacy in 1963, and set a different tone: within the Council was at the very beginning his decision to put in charge of the work of the assembly and its commissions a collegial group of directors (the moderators), with the intention of putting an end to continuing uncertainties about the direction of the Council. Alberigo 1997, 579

The change of pope in the recess phase gave the whole project a certain new impetus, with Paul VI himself too often sensing his limits and the limits of 90  For example, Riccardi brings into play in this context the following quotation from the well-known “moonlight speech” with which the Roncalli pope greeted the people in St Peter’s Square: “When you return home you will find your children: Caress them and tell them: ‘This is a caress from the Pope.’ You will find some tears to dry. Speak words of comfort to be afflicted. Let the afflicted know that the Pope is with his sons an daughters, especially in hours of sadness and bitterness” (quoted from Riccardi 1997, 20).

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being able to influence individual people in the Council process at all (Nacke 2010, 141). There was a conflict between the need for organization and the need for interaction until the end (Ibid.). Paul VI continued the media work and the influence of his predecessor91 on the global political stage, and even expanded them. These were shown not least by his travels: after the second session, he announced his trip to the Holy Land. A high point of his term in office was certainly his visit to the United Nations in New York on 4 October 1965, when he delivered his much-acclaimed call for peace (see section 5.2). 5.9.7 Summary (1) The influence of actors ad extra was desired by the Second Vatican Council, and was greater than ever before. Even though external people did not have the right to vote, the church made itself at least accountable to them, simply by inviting non-Christians and secular observers. The church thereby positioned itself clearly in the world of today and entered into dialogue with that world. This became clear not least in the attitude of the church to a key feature of “modern societies” – namely, media coverage. (2) An attitude favourable to modernity was prevalent. The formal constellation and organization created a framework of discussion that decisively influenced the Council dynamics, and the charismatic Pope John XXIII was the driving force behind the church’s opening-up to the world. “From the time of its announcement on January 25, 1959, it involved all of Catholicism and, gradually, the other Christian communities as well” (Alberigo 1997, 580). (3) We can speak in the context of the Council of the church as a “learning organization” (Nacke 2010, 139;). The condition for this seems to have been the presence or co-presence of the participants and the related interactions. Unexpected experiences during the Council, be they in the form of disappointed expectations or positive surprises, seem to have been particularly important in setting learning processes in motion. The Council context with its specific dynamics is a crucial factor in the church’s move towards recognizing religious freedom, although this factor now appears to be barely comprehensible in all its facets and nuances, and in particular in its non-verbal aspects. The assembly of Council participants into a comprehensive system of interaction also enabled a change in perceptions, which resulted in greater attention to the horizontal dimension. It also influenced under the slogan of “collegiality” the work of the Council in terms of content. 91  At the beginning of the Council, for example, the papal peace initiative in the Cuban Missile Crisis.

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This intra-Catholic horizontal dimension had long been pushed out of consciousness by vertical-hierarchical structures of organization, which resulted in the tendency for local bishops at the periphery (base) to be isolated in contrast to the hierarchized centre. Against this tendency was now the demand for new processes of communitization among bishops, who were “on an equal footing”. Ibid., 91

(4) Conciliar awareness grew with time, but the context of interaction always remained precarious (see Alberigo 1997, 566; see Nacke 2010, 92). Besides collegiality, there were also of course disputes (as shown, for example, by the “Black Week” mentioned above, and of course by other significant disagreements and conflicts in the context of negotiations on religious freedom). These disputes were caused not only by differences over content, but also by a certain animosity to collegiality on the part of a minority. However, the aim was always to achieve the most unanimous approval possible, which ultimately came about in the end, since in essence the “efforts at reform were sustained by a very broad mass committed to collegiality” (Nacke 2010, 141). (5) Despite the different contexts of experience, there was a consensus in terms of content regarding “the significance of constitutional freedom, which can itself not only be claimed, but also made possible” (Siebenrock 2010, 34). The different experiences from all parts of the world church seem to merge in the conciliar experience and its – at least temporary – overwhelming effect.92 (6) The influence of the Council events on the development of the church is also great because it “generated the conviction that a historical turning point was at hand” (Alberigo 1997, 580). The interpretation of the event, and namely as a turn, might have been decisive: the Council is perceived as a change. On the one hand, by “the world”, and on the other, and this is perhaps even more decisive, within Catholicism. “It seemed the end of the era of a threatened and self-absorbed Catholicism” (Ibid., 580). The so-called “conciliar effect” led to the fact that “(h)opes and expectations long hidden burst forth into the light of the sun; repressed longings found room that had not eben been dreamed of” (Ibid., 580-581). (7) However, the problem of continuity persisted: maintaining continuity remained an unconditional requirement, despite the mood of upheaval. For 92  “Since these different experiences always involving a world church are reflected to a high degree in the discussions and tense processes of the Council, models that either represent only one aspect of the experience or had no relationship to experience were not able to prevail” (Siebenrock 2010, 26).

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example, interpreting Dignitatis humanae as a substantial change of church doctrine, and not as an aggiornamento, would have led to the declaration’s rejection. An indication of what a possible solution might look like was offered by the charismatic John XXIII shortly before his death: Present-day circumstances, the demands of the last fifty years, and a deeper understanding of doctrine habe brought us before new realities. It ist not the gospel of doctrine; it is we who are beginning to understand it better. The moment has come to recognize the signs of the times, to seize the opportunities offered, and to look far ahead. Alberigo 1997, 582

chapter 6

The Path to Recognizing Religious Freedom as a Two-stage Learning Process The path that we have chosen in this volume begins by presenting the textual genesis of the declaration Dignitatis humanae, continues by discussing concepts and presenting different interpretations of the recognition of religious freedom, and ends by debating a tableau of factors that enabled and encouraged the church’s learning process; this path does not lead to an unambiguous explanation of how the Catholic Church came to embrace religious freedom. Rather, it is clear that what made possible the church’s reorientation was a network of historical, political and social conditions. That this opportunity was seized upon in the dynamics of events at the Council, and an epochal step of normative modernization in the history of the church was taken, is also due to the actors who knew how to interpret the prevailing conditions and to push the process on. Their interpretation of the framework conditions and their urging of the church to recognize religious freedom clearly took place in an atmosphere that was anything but a euphoric atmosphere of renewal. Rather, they had to fight hard for their position against the vehement resistance of a minority who opposed the recognition of religious freedom and who wanted to hold on to the traditional doctrine of tolerance, but also against a majority that was sceptical about the possible break with doctrinal tradition. The issue of doctrinal continuity was therefore not only an obstacle to a reorientation of the church’s state doctrine for the opposing faction; it was also a serious problem for Council Fathers who recognized the inappropriateness of the Catholic doctrine of tolerance 20 years after the end of the Second World War, but could not, or did not want to, switch unceremoniously from rejecting to recognizing religious freedom. The question of how the Council managed to break through to recognizing religious freedom is also therefore not least a question of how it could develop arguments that made it seem plausible that the reorientation did not constitute a break in doctrinal tradition. Given the facts, there can be no doubt that both the statements contained in the encyclicals of the neo-scholastic popes and the Council document Dignitatis humanae relate to the level of politics, i.e., they treat religious freedom and the separation or connection of religion and politics as a constitutional problem. This also clearly corresponds historically to the desire of the church to achieve and maintain such a connection, and later its preference in

© Verlag Ferdinand Schöningh, 2019 | doi:10.30965/9783657789009_008

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the neo-scholastic doctrine of tolerance for such a connection over an ideologically neutral and plural, secular state (thesis-hypothesis). The reflections of Pius XII from 1955 trace this path and the church’s self-perception in the preceding centuries – and even suggest a possible path to solving the problem, without Pius XII himself wanting to take this path. Rather, he held fast to his doctrine of tolerance; but he defended and relativized it with the following words: The historian should not forget that, if church and state also knew hours and years of struggle, there have been times of peace since Constantine the Great and even in the recent past, times that were often long and in which both worked in full agreement on the teaching of the same people. The church does not conceal that it fundamentally considers this cooperation to be normal and that it considers the unity of the people in the true religion and the unanimous action of church and state as an ideal situation. But it also knows that matters have for some time now developed in a different direction, i.e., to a diversity of religious creeds and outlooks on life within the political community, with Catholics representing a larger or smaller minority. It may be instructive for the historian, even surprising, to find in the United States of America one example among others of the manner in which the church manages to develop under the most unequal circumstances. Pius XII in Utz/Groner 1961, 3519-3520; see Pius XII 1955

The church’s abandonment of its position of granting in principle the error of faith no rights in the state, but at best to tolerate an exception that serves the common good (“right of truth”), and its decision to promote from now on the free choice of faith as the right of every person as rooted in the dignity of the human being, was therefore a fundamental reorientation in its selfperception and its state doctrine regarding its relationship to a coercive enforcement of its claims to truth. After the gradual connection of church and empire as a result of the so-called Constantinian shift, the church was able to develop political power in different constellations and different intensities, and to establish its claim to truth politically. The reformist popes from the 11th to the 13th century, with Gregory VII and Innocent III at the head, strove for a hierocratic system, legitimized the use of coercion to enforce their religious and political claim to sovereignty, and laid the foundations for an independent, centralistic, and legally formalized organization of the church. For centuries, the church used every organizational means at its disposal to build and maintain its monopoly on faith and truth.

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The Catholic Church responded to its de facto demonopolization as a result of the Reformation by strengthening its claim to monopoly and truth within the Catholic reform of the 16th and 17th century. The baroque “denominational states” as heirs to the denominational wars then provided the framework for the use of coercion to enforce its own claims to truth. The St Bartholomew’s Day massacre of 1572 went down as a historical beacon in the memory of violence not only in France. It marks the transition from an offensive monopolization to a defensive vindication of the church’s claims to monopoly. The bourgeois (and socialist) revolutions of the late 18th and 19th (and 20th) century destroyed the traditional power bases of the Catholic monopoly, and deprived the Catholic Church of the means to enforce its claim to truth by coercion. In the 19th century, with its peak at the First Vatican Council (186970), the Catholic Church responded to the new situation by strengthening its claim to truth (dogma of infallibility) and further centralizing its organization (primacy of jurisdiction). At the same time, it worked hard to use religious and spiritual means to bind the Catholic population to itself, and to distinguish itself from (bourgeois-liberal) society through the drawing of sharp ideological boundaries. The liberal anti-Catholicism feeding the Kulturkämpfe of the 19th century complemented to a certain extent the aspirations of Catholic demarcation and Catholic antimodernism. It was during this period of the de facto erosion of the connection between the Catholic Church and politics that the popes of the 19th century, and above all in the pontificates of Pius IX and Gregory XVI, voiced their determined opposition to democracy and to (most) liberal human rights, especially religious freedom. Although Leo XIII did come near in his state and social doctrine to a serious discussion of liberal political philosophy, he ultimately maintained the course of rejecting religious freedom. In countries with a traditional Catholic monopoly (in France and southern Europe, but also in parts of Latin America), the Enlightenment and the bourgeois (and socialist) revolutions took a sharply anticlerical and antireligious path. Faced with an antirevolutionary, authoritarian regime (Spain, Portugal, Austria, Vichy France, etc.), the Catholic Church sought (sometimes successfully) to win back its traditional position of power. Besides a systematic clarification of the doctrine of tolerance, a further distinctive feature of the Catholic Church’s social and state doctrine in this historical context is the idea of state corporatism or corporatist order, as put forward in Quadragesimo Anno anno (1931). With the end of National Socialism and the Second World War, a democratic reconstruction began in several European countries, without the church or the Pope distancing themselves from the ideas of corporatist order and the doctrine of tolerance, and without their supporting the idea of a liberal and

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democratic constitutional state. On the contrary, as we have already pointed out several times in this volume, the church continued its doctrine of tolerance. The end of National Socialism also saw changes to the geopolitical and economic context. With its Universal Declaration of Human Rights, the United Nations provided a document that attracted great interest and that represents in principle a confirmation of liberal human rights and democratic rights of participation, including of course religious freedom in Article 18. There was also considerable improvement in the standard of living for many people as a result of economic development. Both – approval of liberal human rights, and the economic system – also served to separate “West” from “East”, however. The East-West confrontation intensified, which presented the church with a choice. On the one hand, there was the socialist idea of the state with its clear and open hostility to the church, and a centrally planned economy. And, on the other, there was the liberal and democratic idea of the state, which provided religious communities with a lot of freedom and room to develop, and a market economy (and, in some cases, where the influence of the church’s social doctrine on the social and economic order were even to varying degrees tangible). The principles of Catholic social doctrine, and also ultimately those of its state doctrine, and not least the self-interest of the church as a religious community, tended towards the “Western model”. This became increasingly the case because this model was ultimately the only relevant counter model to socialism. In the US, the Enlightenment and the liberal political idea assumed a less anti-clerical and anti-religious orientation. Unlike the old continent, torn apart by the religious wars and shaped by religious claims to power, the separation of religion and politics could take place without the anti-religious and secularistic tendency typical, for example, of the French Revolution. The abstinence of religious traditions from political coercion was therefore not accompanied in the same way as in Europe by a restriction on the freedom of religious communities. Although there was religious discrimination against Catholics (and other religious people) in the US, the American model of separating religion from politics showed that liberalism does not have to be anti-religious; rather, except for the renunciation of a political claim to power, it can provide relatively favourable conditions for religious life and for the participation of religious people and groups in the processes of civil society. This experience was brought to the Council by the US bishops. That does not mean that the recognition of religious freedom is due solely to the influence of the US Council Fathers or even to the intervention of Murray. Rather, this intervention only worked under the prevailing conditions described, which suited the intervention perfectly: the US was the decisive power in crushing National Socialism,

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had considerable influence on the development of the United Nations and the Universal Declaration of Human Rights, represented the liberal West and the market economy with its emphasis on private property, and assumed leadership against the Warsaw Pact led by the Soviet Union. At the Second Vatican Council, the US bishops could therefore represent the church’s periphery on behalf of religious freedom against the forces of the Roman centre, which wanted to continue the old doctrine of tolerance. The vehemence and perseverance with which they did so, and with which they, together with figures such as Cardinal Spellman, Bishop De Smedt and Cardinal Bea, forced the church to recognize religious freedom, was probably the reason that the issue of religious freedom remained on the Council agenda, and was not “postponed” to some indefinite date, and that the Council finally decided in favour of the recognition of religious freedom. The reasoning used by the relevant actors to argue in favour of recognizing religious freedom was in essence not theological, but political and philosophical. This becomes clear in the text of the declaration, but even more so in its genesis. The decisive line of argumentation used by the US Fathers does not represent a shift from an argument based on natural law to one that is theological or theologically ethical. Rather, it takes the traditional argument of natural law and extends it to an argument based on modern natural law or rational law; that is, it absorbs the motifs of modern liberal political philosophy. This step means continuity and renewal at the same time: on the one hand, the inherited tradition of the church’s state doctrine is continued; and, on the other, it is extended and reworded. To pick up the popular formulation, we can say that this step completes the turn from the right of truth (as is typical of natural law, especially in the Stoic, and certainly in the Catholic neo-scholastic, tradition) to the right of the person (as is typical of modern rational law). The theological line of argumentation then embeds the step taken politically and philosophically within the religious tradition, but barely generated any motifs for the process of recognizing religious freedom – certainly to the disappointment of some Council Fathers, who considered such a theological argument necessary, as shown above with the example of Yves Congar. The path to recognizing human rights and religious freedom therefore led from Thomas through Locke to an amalgam of pre-modern and modern natural law in the line of argumentation used by John C Murray. For many Council Fathers, it may well not least have been this connection to the scholastic tradition that facilitated their approval. At the theoretical level, though, this line of argumentation also represents a correction to the neo-scholastic interpretation of natural law. If we view scholasticism as a whole, then we can conclude that it was more the neo-scholastic

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natural law, together with the harsh condemnations of liberal ideas by Pius IX and Gregory XVI, that appears to break with tradition (scholasticism) than the reorientation at the Second Vatican Council. This is an important issue for addressing the question of whether the recognition of religious freedom and the reasoning underlying it represents a break with tradition. This question is usually discussed by comparing the doctrine of the Council with the church’s doctrine before the Council, which pushes into the background the question of how far the doctrine of the popes of neo-scholasticism continued the Christian and church tradition. A glance at the pluralism internal to Catholicism has shown, though, that the centralist escalation of theology and church in the 19th century, which radiated until well into the second half of the 20th century, and which certainly continues to have an effect in a slightly different form today, tended to establish a mainstream in theology and church politics, a mainstream that promoted the systematic marginalization of positions that were not in accordance with it. This applies not least to the neo-scholastic doctrine of natural law. The example of Murray makes clear that a view deliberately marginalized in the period before the Council could penetrate from the church’s periphery to the centre at the Council. In doing so, though, it could not dismiss the tradition, but instead was able to link more precisely with the tradition than neo-scholasticism was able to do, since neo-scholasticism tied itself down to one, very unique, interpretation of the (scholastic) tradition. A glance at the reality of church clubs and associations shows a similar picture. Despite the anti-liberal and anti-democratic attitude of the church and its popes, many clubs and associations, as well as parts of political Catholicism, participated in democratic processes in the emerging secular states – for example, in Germany in the Weimar Republic. Despite all centralism, Catholic clubs and associations also meant a step into relatively autonomous selforganization. Catholics began to organize themselves and to gain experience of democratic political participation. The absence of a democratic and liberal realignment of the church’s state doctrine after the Second World War did not stop many organizations and clubs, as well as political Catholicism, from being intensively involved in the process of democratic reconstruction in several countries, and from sometimes making significant contributions to shaping the political landscape. In this respect, too, there was a certain gap between magisterial Catholicism on the one hand, and civil and political Catholicism on the other, which resulted in a curious asynchrony in the period of the Council: while Council Fathers were fighting over whether to recognize religious freedom, some sections of Catholicism had long come to terms with the liberal democracies and were playing active and important, and often stabilizing, roles in them.

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The prevailing conditions and the corresponding developments within Catholicism impacted in two ways on the decision of the Council to recognize religious freedom as a human right. First, the church was able to develop within the context of a liberalism that was not anti-religious, so that, when it came to their religious orientation and practice, religious people had positive experiences in the liberal and secular state. In this situation, where religious orientations and practices were not under pressure, religious people and religious groups developed a positive attitude to the political community that granted them this freedom, and an affirmative relationship to this variant of liberalism. Second, this affirmation by Catholicism of the modern liberal state, and the gaining of approval for the idea of human rights, created a pressure for change on those forces of the traditional mainstream of the church who wanted to adhere to neo-scholastic anti-modernism. The anti-liberal course may have been plausible within the context of the Kulturkampf, or when faced with other anti-Catholic or anti-religious tendencies of modern secularism. But, in relation to a liberalism that gave Catholicism and other religious communities great freedom and leeway, it appeared wholly inappropriate. The political renunciation of coercion – perhaps the Catholic Church’s decisive (normative) push of modernization – is therefore a two-stage learning process. First grew the consent in Catholicism and in its local churches to the liberal constitutional state in those contexts that guaranteed and realized religious freedom for the organization and for the faithful. Then, this positive experience was fed into the process of the Council, with religious freedom being legitimized according to the political and philosophical line of argumentation mentioned. In the very ambivalent dynamics of the Council, in tough negotiations and despite bitter setbacks, the majority of the Council Fathers could finally be persuaded. When it comes to the recognition of religious freedom, Pope John XXIII’s encyclical Pacem in terris should be seen as part of these Council dynamics. That after the majority agreement of the Council Fathers, there was on 7 December 1965 the promulgation of the document by Pope Paul VI can therefore be seen as the result of a network of conditions, a matrix of interconnected and mutually influential factors, and also at the end as being due to the ability to reason, to the commitment and the strategic wisdom, of individual actors.

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Acknowledgements This book is based on research that we carried out in the Cluster of Excellence “Religion and Politics in Pre-Modern and Modern Cultures” at the Westfälische WilhelmsUniversität Münster. We thank the Cluster of Excellence and its board for the generous financial support that it gave this work. We appreciate very much the English translation of the book by Dr. David West, whose expertise made completion of the book possible. We also thank José Casanova for his willingness to write a foreword for the book. Finally, we are also grateful for the assistance of Marie-Luise Kumbartzky (Verlag Ferdinand Schöningh), Ida Forbriger (Universität Münster) and Silvia Rockenschaub (Catholic University of Linz/Austria).