John Courtney Murray and the Problem of Human Rights


April 1, 1984

If the political forum is not the locus of the proper object of the theological activity, and terra aliena to many theologians, theology still ought to direct some of its attention to the human person as citizen, and to the whole of the civic order. John Courtney Murray, in his writings on religious liberty and political society, showed a rare aptitude for politically informed theological reflection.

During the time of Vatican II, which he served as a peritus [expert], Murray worked diligently to persuade the Council Fathers to issue a conciliar declaration on the right of the person to religious liberty. With Pietro Pavan he was responsible for the main line of argument given final form in the Declaration on Religious Liberty (Dignitatis Humanae). Many writers — secular and religious, Protestant and Catholic — hailed the Declaration as the Church’s admission of the validity of the human right to religious liberty and, more broadly, of the independence of the political order from the ecclesiastical and spiritual.

However, Murray’s work on behalf of an official Church statement on religious freedom as an inalienable human right ignored the degree to which such a statement might wed the Church to a particular, and by no means Christian, political and philosophical formulation of the meaning of religious freedom. In non-theological writings before Vatican II, Murray himself outlined the problematic character of human rights as these are understood in the modern natural rights tradition.

In his essay “Are There Two or One? The Question of the Future of Freedom” (from his collection We Hold These Truths), Murray examined how the ancient principle of the freedom of the Church had been sublated in modern political theory and transformed into the rights of the individual. Murray’s thesis was

That the political experiment of modernity has essentially consisted in an effort to find and install in the world a secular substitute for all that the Christian tradition has meant by the pregnant phrase, the “freedom of the Church.

Murray found a two-fold meaning in the principle of the freedom of the Church. As spiritual authority, first, the Church is free to teach, to rule and to sanctify those within it; this freedom requires an immunity from external, political interference in the Church’s life. Secondly, as the Christian people, the Church has a freedom of access to the teaching, laws, and sacraments administered by the hierarchical institution. (Post-Vatican II theology would more intimately relate these activities of the hierarchical and non – hierarchical Church in terms of the shared priestly, prophetic and kingly ministry.) The means to supernatural life give special dignity to the faithful and secures for them, according to Pius XI, “the right to live in civil society according to the precepts of reason and conscience.” Murray added, “this comprehensive right, asserted within the political community, requires as its complement that all the intrapolitical sacrednesses (res sacra in temporalibus) be assured of their proper immunity from politicization.” It is not the faithful alone, then, who enjoy a divinely decreed freedom from political intrusion. This higher freedom is shared by all humans, regardless of their religious belief, because of the breadth of the res sacra in temporalibus, which

embraces all those things which are part of the temporal life of man, at the same time that, by reason of their Christian mode of existence, or by reason of their finality, they transcend the limited purposes of the political order and are thus invested with a certain sacredness.

According to Murray the things thus invested are: marital and familial relationships; social relationships which “involve a moral element and require regulation in the interests of the personal dignity of man,” such as the employer/employee and specifically political relationships; and “the heritage of basic truths about the nature of man.” Classical political philosophy would have accepted at least some of these elements as sacred or “divine,” and so endeavored to find ways of protecting the highest human activities from political encroachment. For Murray, mutatis mutandis,

The question has always been that of identifying the limiting norm that will check the encroachments of secular power and preserve these sacred immunities. Western civilization first found this norm in the pregnant principle, the freedom of the Church.

As applied in the centuries of Christendom, the freedom of the Church performed the negative function of providing a limit to the power of government, and the positive function of standing, with the studium, the university, “between the body politic and the public power, . . . mobilizing the moral consensus of the people and bringing it to bear upon the power.” With the advent of political and religious division in Europe, however, the opportunity for invoking the principle of the freedom of the Church diminished.

Eventually the “newness” brought into history by the Church’s defense of the res sacra in temporalibus was itself supplanted by a different newness: secular institutions would limit the power of government and direct it to proper ends. At the center of this modern project — the project of constructing democratic political institutions in a secularized society — is the individual. In Murray’s opinion,

A great act of trust was made. The trust was that the free individual conscience would effectively mediate the moral imperatives of the transcendental order of justice . . . to the public power as binding norms upon its action. . . . The freedom of the individual conscience, constitutionally guaranteed, would supply the armature of immunity to the sacred order, which now became, by modern definition, precisely the order of the private conscience. And through free political institutions . . . the moral consensus of the community would be mobilized in favor of justice and freedom in the secular order.

Murray remarked, with considerable propriety, “This, I take it, has been in essence the political experiment of modernity.”

Murray found there to be no inconsistency in attempting to make the individual and his freely entered associations the means to harmonizing the exigencies of the -temporal and spiritual orders. After all, a proper understanding of the doctrines of creation and redemption shows these two orders to be relatively autonomous. The individual human subject in principle ought to acknowledge the authority of state and Church within their respective orders. Historically, however, the modern individual has been oblivious of the scenario for ordering social life politically and morally. Murray observed that

the self-conscious free individual, armed with his subjective rights, . . . has been taught by modernity to stand against any external and corporate authority, except it be mediated to him by democratic processes; to stand against any law in whose making he had no voice; to stand finally against any society which asserts itself to be an in-dependent community of thought . . . empowered to pass judgment, in the name of higher criteria, on [the common mind of secular democratic society] and on the majority views it assembles.

The modern self-conscious free individual has not rejected the inheritance left to him — the individual and social values implied in the revelation of man as image of God — but is dubious about the supernatural institution which, according to Murray, is the legator. These values, Murray argued,

were adopted as the very basis for the modern political experiment. Modernity, however, has maintained that these values are now known to be simply immanent in man; that man has become conscious of them in the course of their emergence in historical experience . . . Now that I have arrived, said modernity, Christianity may disappear. Whatever aesthetic appeal it may still retain as a myth, it is not needed as a dynamic of freedom and justice in this world. Res sacra homo is now under a new patronage — singly his own.

Murray’s sense of foreboding in the face of the modern political project was indicated in his ominous remark that “It was Nietzsche, I think, who said that the non-Christian man of modern times had not yet fully realized what it means to be non-Christian.”

John Courtney Murray has not been the only Christian theorist to express misgivings about the danger inherent in the concept of individual human rights. E. A. Goerner, writing shortly before Vatican II promulgated the declaration “that the human person has a right to religious freedom,” cautioned against an uncritical use of the language of human rights. Goerner held that the modern natural rights tradition is antithetical to the Church’s task, which involves both the prophetic critiquing of society and the reconciling of Christ and culture. The Church’s teaching is meant to inform, not dictate, the institutional life of society, so that society may better perceive its own political-moral purposes. Goerner judged that the language of individual rights impedes this ecclesial leavening of secular institutions: “The language of absolutized individual rights has no room for public and institutional manifestations of a spiritual unity inasmuch as that language was structured out of a denial of the possibility of such unity, beginning with Hobbes and Locke.”

Goerner does not regard the destruction of public unity on political, religious and moral meaning to have been the goal of Hobbes and others. Rather, these modern theorists thought that the objects upon which public unity formerly was established could no longer withstand examination by modern philosophy.

The whole structure of the modern view of knowing and the knowable has excluded the possibility of science centered on a contemplative activity, since it has excluded the knowability of a contemplative object. This has been commonly accepted since Kant. It was already seen by Hobbes, Locke, and Rousseau. All of them understood that the scientific destruction of the religious and metaphysical traditions of antiquity and the Middle Ages carried with it a profound threat to public order. In different ways, all of them sought to reestablish public order on a basis of generally valid, inalienable, individual rights.

Since appearances, and the forms behind them, could not support public order and unity, modern philosophy discovered human rights to be an apt means to securing consent within political society, the members of which could be expected to appreciate the honoring of their lives and property, if not their religious and philosophical opinions.

Stanley Hauerwas has recently pointed out one of the most important practical consequences to have followed upon the success of modern human rights theorists:

The very means used to insure that the democratic state be a limited state — namely, the rights of the individual — turn out to be no less destructive for intermediate institutions than the monistic state of Marxism. For it is the strategy of liberalism to insure the existence of the “autonomy of cultural and economic life” by insuring the freedom of the individual. Ironically, that strategy results in the undermining of intermediate associations because they are now understood only as those arbitrary institutions sustained by the private desires of individuals.

Hauerwas inveighs against “the very language of `intermediate association’” which “already betrays liberal presuppositions which distort the moral reality of such institutions as the family. Whatever else the family is, it is not but another voluntary association.” It is telling that sociology — the science of differentiated liberal society — obtusely overlooks the naturalness of institutions like the family in attempting to be objective about association-forming free individuals.

James V. Schall, S.J. finds the modern conception of individual rights to endanger not only the vitality of “intermediate associations” like the Church and family, but even the political life these rights were meant to buttress.

Human rights, if not carefully distinguished, are not only of some peril to religion with its belief that ultimate happiness is a gift, not to be achieved in this world — the orthodox Christian view — but also to the possibility of politics in the world itself. . . . Religion … is more tempted today precisely by rationalism, by the modern understanding of human rights as these were understood in the Enlightenment tradition in which man is proposed a revolutionary humanist end which undermines all efforts to serve real and limited ends for the men actually in the world.

Plans like the “unconditional war on poverty” in LBJ’s “Great Society” indicate that liberalism, in promoting human rights, can adopt ends almost as unlimited as those of Marxists, and can similarly view humans as subject to being molded into “new men.”

The criticism of modern individual rights made by Murray and others may, in part, be guilty of what Walter Nicgorski called “a kind of genetic fallacy regarding modern views” which determines “their significance by the quality of the teachings that initially inspired their nascence or renaissance.” Nicgorski cites the sanguine counsel of John XXIII in Pacem in Terris, no. 159:

It must be borne in mind, furthermore, that neither can false philosophical teachings regarding the nature, origin and destiny of the universe and of man be identified with historical movements that have economic, social, cultural or political ends, not even when these movements have originated from those teachings and have drawn and still draw inspiration therefrom.

This is so because the teachings, once they are drawn up and defined, remain always the same, while the movements, working in constantly evolving historical situations, cannot but be influenced by these latter and cannot avoid, therefore, being subject to changes, even of a profound nature. Besides, who can deny that those movements, insofar as they conform to the dictates of right reason and are interpreters of the lawful aspirations of the human person, contain elements that are positive and deserving of approval.

John XXIII saw that prudential questioning was needed to judge the movements of which he spoke. It must be seen whether various economic, social, cultural and political movements have maintained throughout their histories the substance of the objectionable theoretical teachings which might have spawned them. It is necessary to judge case by case whether particular movements are in fact in conformity with “the dictates of right reason and are interpreters of the lawful aspirations of the human person.” In the case of human rights it must be determined whether the language of individual rights is necessarily productive of radical atomistic individualism irreconcilable with any order of social unity, political or ecclesial, because “that language was structured out of a denial of the possibility of such unity” (Goerner).

John Courtney Murray appears to have been ambivalent upon the issue of human rights. In a popular political essay from the 1950s he perceptively traced the transformation of the principle of the freedom of the Church into the assertion of the individual’s absolute freedom. A few years later Murray’s more technical theological writings for the participants and remote observers of Vatican II drew little attention to the potential for abuse which lies in the teaching about the rights of the individual. Yet, Murray seems more to have been involved in two distinct enterprises than to have suffered an abrupt change of mind. In practical political writings like We Hold These Truths, Murray attempted to teach his fellow citizens about an order in part naturally knowable but recently eclipsed because of the predominance of a doctrine about man’s freedom from nature and other sources of authoritative knowledge. During the Council Murray attempted to instruct the Church about the requirements — and inherent goodness — of a political order founded upon a perception of the dignity of the free human person. To the extent that Murray had greater success in the latter endeavor, a different task is left to those who have learned from him: to remind both members of the Church and of American political society that the deepest source of human liberation is not the rights of man, but One Whom to serve is to rule.


  • John R. Traffas

    John R. Traffas has an M.A. from the University of Dallas, and has taught Theology at Newman University in Wichita, Kansas

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